The law handbook : your practical guide to the law in New South Wales. [14th edition.] 9780455238180, 0455238189

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The Law Handbook YOUR PRACTICAL GUIDE TO THE LAW IN NEW SOUTH WALES

The Law Handbook

YOUR PRACTICAL GUIDE TO THE LAW IN NEW SOUTH WALES

14th EDITION

REDFERN LEGAL CENTRE PUBLISHING

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont NSW 2009 First edition published by Redfern Legal Centre as The Legal Resources Book (NSW) in 1978. First published as The Law Handbook in 1983 Second edition 1986 Third edition 1988 Fourth edition 1991 Fifth edition 1995 Sixth edition 1997 Seventh edition 1999 Eighth edition 2002 Ninth edition 2004 Tenth edition 2007 Eleventh edition 2009 Twelfth edition 2012 Thirteenth edition 2014 Fourteenth edition 2016 Note to readers: While every effort has been made to ensure the information in this book is as up to date and as accurate as possible, the law is complex and constantly changing and readers are advised to seek expert advice when faced with specific problems. The Law Handbook is intended as a guide to the law and should not be used as a substitute for legal advice. National Library of Australia Cataloguing-in-Publication entry The Law Handbook : Your practical guide to the law in NSW / Redfern Legal Centre. 14th edition. Includes index ISBN: 9780455238180 Law – New South Wales – Handbooks, manuals, etc Legislation – New South Wales Jurisprudence – New South Wales – Handbooks, manuals, etc Civil rights – New South Wales – Handbooks, manuals, etc © 2017 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. This edition is up to date as of 1 October 2016. The Law Handbook is part of a family of legal resource books published in other states: Vic: The Law Handbook by Fitzroy Legal Service, ph: (03) 9419 3744 SA: The Law Handbook by the Legal Services Commission of SA, ph: (08) 8111 5555 Qld: The Law Handbook by Caxton Legal Centre, ph: (07) 3214 6333 Tas: The Tasmanian Law Handbook by Hobart Community Legal Service, ph: (03) 6223 2500 NT: The Law Handbook by Northern Territory Legal Aid Commission and Darwin Community Legal Services, ph: (08) 8982 1111 Editor: Ben Brocherie Product Developer: Karen Knowles Publisher: Robert Wilson Indexed by: Puddingburn Publishing Services Printed by: Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests.

FOREWORD Nearly forty years after Redfern Legal Centre first published The Legal Resources Book, the forerunner of The Law Handbook, we are drowning in digital information from all corners of the globe. But we can still welcome this hefty new edition of The Law Handbook and we know it will be used and trusted by all kinds of people in NSW, as the previous editions have been. The content of The Law Handbook is about law in the lives of the woman and man on the street …. and at work, at home, in the classroom, in the hospital, in the studio, in the shop, in the Centrelink office and in the many virtual spaces we now visit. While there have been many changes to The Law Handbook over the years, the foundation remains a commitment to community legal education and informed and active citizens. Everyone will need legal information at some time and we think this edition of The Law Handbook is still the “go to” guide in NSW for clear, practical, and accurate legal information for lawyers and non-lawyers alike. The authors have extensive practical experience in dealing with common, and not so common, legal problems. The comprehensive index reveals the many topics covered, and the useful detail and depth in each chapter. This new edition of The Law Handbook covers significant changes to NSW law, including workers compensation and bail. There is a new section on tenancies in residential (land lease) communities, extra material in the copyright chapter about online copyright issues, an expanded section on consumer protection, a new section on the mandatory interlock program for traffic offenders and an updated refugee chapter. The Editorial Board ensures that there is an ongoing connection between The Law Handbook and community legal centres and other legal assistance organisations now that Redfern Legal Centre Publishing is an imprint of Thomson Reuters. We thank all the authors for contributing their time and expertise, and thank Karen Knowles and Ben Brocherie from Thomson Reuters for their skill, persistence and tact in compiling the new edition. Anna Cody Natalie Ross Sue Walden Sydney November 2016

PUBLISHER’S NOTE Thomson Reuters has the privilege of being the publisher of the 14th edition of The Law Handbook. As the list of past contributors attests, The Law Handbook has benefited from the work of many contributors over the years. The 14th edition again builds upon the work of previous editions, and the current authors are deeply indebted to those who have worked on the book in the past. While updating the law is a time-consuming and painstaking exercise, it has been made very much easier by the fact that we have firm foundations to build upon. We acknowledge the continuing contribution of previous authors and thank our current authors for their involvement. We would also like to acknowledge the assistance we have been given in sourcing new authors and the useful suggestions we have received from The Law Handbook’s Editorial Board - Anna Cody, Director of Kingsford Legal Centre, Associate Professor Faculty of Law UNSW, Natalie Ross, Solicitor/Clinical Supervisor at Kingsford Legal Centre and Sue Walden, Law Librarian and Consultant. We are also indebted to the Community Legal Centres of NSW for their ongoing support. Your feedback is also important to us and we encourage you to send your suggestions to [email protected]. Thomson Reuters Sydney November 2016

CONTENTS ABOUT THE LAW HANDBOOK XIII REDFERN LEGAL CENTRE PUBLISHING XV CONTRIBUTORS TO PAST EDITIONS XVII 1

ABOUT THE LEGAL SYSTEM 1 Catherine Bryant Legal Information Access Centre, State Library of New South Wales Andrew Haesler Judge, District Court NSW Georgia Millar Office of the Legal Services Commissioner Lynda Muston Assistant Commissioner (Legal), Office of the Legal Services Commissioner Simon Rice ANU College of Law, Australian National University, Canberra

2

ABORIGINAL PEOPLE AND THE LAW 43 Robyn Ayres Arts Law Centre of Australia Patricia Lane Barrister, University of Sydney Susan Burton Phillips Barrister Shannon Williams Women’s Legal Services NSW

3

ACCIDENTS AND COMPENSATION Kasarne Burgan Solicitor Jnana Gumbert Barrister Ramon Loyola Solicitor

4

ASSISTANCE WITH LEGAL PROBLEMS 135 Sally McAtee Senior Solicitor, Legal Policy Branch, Legal Aid NSW Georgia Millar Office of the Legal Services Commissioner Lynda Muston Assistant Commissioner (Legal), Office of the Legal Services Commissioner Ludmilla Robinson Barrister and Lecturer in Law, University of Western Sydney

5

BANKING 157 Michael Blyth Australian Securities and Investments Commission

6

BANKRUPTCY 165 Andrew O’Brien Barrister

7

CHILDREN AND YOUNG PEOPLE 183 Julieanne Mahony Department of Family and Community Services Jane Sanders The Shopfront Youth Legal Centre

8

COMMUNITY ORGANISATIONS Graham Wheeler Solicitor

9

COMPLAINTS 291 Scott Calnan Senior Lawyer Elisa Harris Commonwealth Ombudsman Madeleine Hunt Office of the NSW Ombudsman Georgia Millar Office of the Legal Services Commissioner Lynda Muston Assistant Commissioner (Legal), Office of the Legal Services Commissioner

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CONSUMERS 333 Rory Campbell Energy and Water Ombudsman NSW Michelle Ericoli Western Sydney Community Legal Centre - Home Building Advocacy Service Philippa Lumley Legal Aid NSW Hiranya Perera Western Sydney Community Legal Centre - Home Building Advocacy Service Holly Raiche University of New South Wales, Sydney

11

CONTRACTS 397 Michael Quilter Faculty of Business and Economics, Macquarie University

12

COPYRIGHT 411 Julie Robb Solicitor

13

CREDIT 427 Dana Beiglari Solicitor, Legal Aid NSW Rebekah Doran Solicitor, Legal Aid NSW Jemima McCaughan Solicitor, Legal Aid NSW Stephanie Otorepec Adviser, Office of the Australian Information Commissioner

14

CRIMINAL LAW 467 Penny Crofts Associate Professor, Faculty of Law, University of Technology Sydney Andrew Haesler Judge, District Court NSW

15

DEBT 527 Matthew Hazard Legal Aid NSW Kai Wu Legal Aid NSW

16

DISABILITY LAW 553 Tim Chate Intellectual Disability Rights Service Kenn Clift Intellectual Disability Rights Service Janene Cootes Intellectual Disability Rights Service Margot Morris Intellectual Disability Rights Service Jennifer Smythe Intellectual Disability Rights Service Geoffrey Tremelling Legal Aid NSW Jackie Finlay Legal Aid NSW

17

DISCRIMINATION 629 Bronwyn Byrnes Australian Human Rights Commission

18

DISPUTE RESOLUTION Natascha Rohr

19

DOMESTIC VIOLENCE 657 Janet Loughman Women’s Legal Services NSW Kellie McDonald Women’s Legal Services NSW

20

DRIVING AND TRAFFIC LAW Nic Angelov Barrister

645

683

xi

21

DRUG OFFENCES Steve Bolt Solicitor

713

22

EMPLOYMENT 733 Bridget Akers Solicitor, Legal Aid NSW Larissa Andelman Barrister Hana Marjanac Solicitor, Legal Aid NSW Margaret McCabe Solicitor, Legal Aid NSW Brianna Terry Solicitor, Legal Aid NSW

23

ENVIRONMENT AND PLANNING 765 Ian Ratcliff Graeme Wiffen Formerly of the School of Law, Macquarie University

24

FAMILY LAW 815 Sally Cole Legal Aid NSW Child Support Service Carolyn Jones Women’s Legal Services NSW Mari Vagg Women’s Legal Services NSW

25

FREEDOM OF INFORMATION Joanna Davidson Barrister

26

HEALTH LAW 885 Suzanne Castellas HIV/AIDS Legal Centre Alexandra Stratigos HIV/AIDS Legal Centre Robert Wheeler Mental Health Advocacy Service, Legal Aid NSW Melissa Woodroffe HIV/AIDS Legal Centre

27

HOUSING 925 Grant Arbuthnot Tenants’ Union of NSW Alex Irving Solicitor Julie Lee Tenants’ Union of NSW Chris Martin City Futures Research Centre, University of NSW Robert Mowbray Tenants’ Union of NSW Paul Smyth Tenants’ Union of NSW Rita Wilkinson Southern Sydney Tenants Advice and Advocacy Service

28

IMMIGRATION AND REFUGEE LAW 995 Kerry Murphy Solicitor and Registered Migration Agent, Accredited Specialist in Immigration Law

29

INSURANCE 1031 Marion Haas University of Technology Sydney Richard De Abreu Lourenco University of Technology Sydney Dan Richmond Solicitor Rosalie Viney University of Technology Sydney

30

INTERNET LAW 1055 Niloufer Selvadurai Associate Professor, Macquarie Law School

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MEDIA LAW 1071 Roy Baker Macquarie Law School, Macquarie University

32

NEIGHBOURS 1095 Nicholas Comino Solicitor, Western Sydney Community Legal Centre

33

PRISONERS 1113 Will Hutchins Prisoners Legal Service, Legal Aid NSW

34

SAME-SEX COUPLES AND THEIR FAMILIES Ghassan Kassisieh Solicitor

35

SEXUAL OFFENCES 1175 Alicia Jillard Women’s Legal Services NSW Janet Loughman Women’s Legal Services NSW

36

SOCIAL SECURITY ENTITLEMENTS 1199 Sharissa Thirukumar Solicitor, Welfare Rights Centre NSW

37

SUPERANNUATION John Berrill Solicitor

38

TAXATION 1253 Anna Ziaras Legal Writer

39

VICTIMS SUPPORT 1279 Alex Tilley Senior Assessor Client Claims Denise Fallon Senior Manager Client & Legal Services Mahashini Krishna Commissioner of Victims Rights

40

WILLS, ESTATES AND FUNERALS 1299 Trudy Coffey Director of Social Work, South Western Sydney Local Health District Rosemary Long Solicitor

GLOSSARY 1329 TABLE OF CASES 1337 TABLE OF STATUTES 1345 INDEX 1373

1135

1221

ABOUT THE LAW HANDBOOK 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 has been built upon and updated for 30 years by over 300 contributors. In its 14th edition in 2016, The Law Handbook contains the most current information possible about the law in New South Wales.

Using the book First, a word of warning. You won’t find the solution to every problem or the answer to every question in this book. In many cases, you will still have to consult a lawyer or other source of help. The Law Handbook aims to be as accurate and up to date as possible, but if you have a legal problem, you should always get legal advice. The Law Handbook can, however, be used as a first stop for information to help you understand your position and to know when and where to get more assistance.

Authors Over eighty lawyers and legal experts have generously given their time and expertise to contribute to this 14th edition of The Law Handbook. Some of these contributors have been writing for The Law Handbook since its first edition in 1978. All are motivated by a commitment to making the law accessible to all.

Legislation and cases Legislation and cases are referred to throughout the book, for those who need to investigate further. The section on Doing Legal Research in Chapter 1 explains how and where to find them. For the first time, this edition also includes a Table of Cases and Statutes.

Detailed chapter contents The first page of each chapter contains a detailed list of the contents of that chapter for easy navigation.

Contact points The Contact points sections at the end of each chapter suggest organisations and agencies where you can get further information and advice. Websites and phone numbers are provided.

Glossary Technical legal terms are listed alphabetically in the Glossary at the end of the book.

REDFERN LEGAL CENTRE PUBLISHING Redfern Legal Centre Publishing (RLCP) was created as a not-for-profit, community-based publisher of plain English legal books. Our purpose is to explain the law and legal system clearly and precisely, and help people understand their legal rights and obligations. RLCP started in 1981 as part of Redfern Legal Centre, one of the first community legal centres in Australia, when civic-minded lawyers recognised the great need for plain language legal information in the community and produced the first NSW Handbook. Over the years, RLCP has published books on a wide range of legal and social issues, helping people deal with all sorts of matters from defending themselves in court to dealing with bankruptcy, neighbourhood disputes, and environmental issues. The Law Handbook has developed and grown, and is now widely recognised as the best plain language guide to the law available in NSW. In 2009 the RLCP imprint became part of Thomson Reuters (Professional) Australia Ltd. With the support of the many people involved in The Law Handbook, Thomson Reuters, under the imprint of RLCP, will continue to publish this important resource – aiming always to provide the information that people need in order to find their way through the maze of our legal system and to meet the demands of a changing society. Our philosophy is best described by the former Governor of NSW, Marie Bashir, who says “in the quest for a more equitable and just society, a knowledge of the laws that govern us is vital. The Law Handbook is an essential link in the chain that binds law and justice.”

CONTRIBUTORS TO PAST EDITIONS Michael Alexander Paul Alice Bruce Alston Diane Anagnos Jill Anderson Kevin Anderson John Andrews Peter Armitage Susan Armstrong James Arnott Mark Aronson Audrey Balla Glenn Bartley John Basten Phil Bates Paul Batley Libby Baulch Elizabeth Beal Jason Behrendt Narelle Bell Virginia Bell Peter Berry Georgia Blain John Bochat Louise Boon-Kuo Steve Bottomley John Bowers Michael Bozic Iain Brady Patricia Bray Campbell Bridge Susan Bridge Phillipa Broad Brian Brooks Jim Brooks Marion Browne Roger Brown Bob Browne John Brownie Leisha Bubniuk David Buchanan Margaret Buchanan Philip Burgess Jennifer Burn Jude Butler Louise Byrne Lynette Byrnes Kathryn Byron John Cahill

William Cannon Catherine Carney Christian Carney Peter Cashman David Catt Steven Cavanagh Aimee Chan Jon Charles Ruth Charlton Indraveer Chatterjee Myra Cheng Richard Chisholm Esther Cho Roger Cichero Robyn Claremont Simon Cleary Ian Clyde Anna Cody Tony Coles Chris Connelly Georgina Connelly John Connor Janene Cootes Peter Cornelius Annie Cossins Sarah Costanzo Gerard Craddock Alexandra Craig Sue Creek Robert Cruickshanks Vera Culkoff Timothy Cumberland Chris Cuneen Helen Dakin Sherene Daniel Jenny D’Arcy Louise Davies Deborah deFina Linda De Silva Liz Devine Micheline Dewdney Bill Dickens Lurline Dillon-Smith Julian Disney David Dobell Rachael Dobson Peter Dodd Karen Don Guy Donnellan

Jonathan Duignan Isis Dunderdale Jeff Dunn Graeme Durie Kate Eastman Nick Eastman Patricia Egan Elfet Eid Julie Eisenberg James Evans John Evans Alex Faraguna David Farrier Don Ferguson Sean Ferns Lauren Finestone Rodney Fisher Wendy Fisher Brent Fisse James Fitzsimmons Erin Flaherty Jo Flanagan Helen Fleming Ben Fogarty Linda Forbes Michael Fraser Eric Franklin Ian Freckelton Gail Fulton Michael Funston Gail Furness Paul Garde Steve Garrett John Gaudin Mary Gaudron Frances Gibson Dominic Gibson Phillip Gibson Jennifer Giles Jock Given Dick Godfrey Smith Philip Gorrell Libby Goss Tim Gough Jim Gracie Chris Grant Conrad Gray Pat Griffin Alex Grosart

Daryl Gunther Alexis Hailstones Cecilie Hall Julia Hall Lee Hansen Sarah Harmelink Linda Haupt Health Care Complaints Commission Scott Hearnden Ruth Heazlewood Damien Hennessy Donna Henson John Hill Katie Ho Phil Houlton Simon Howard Tracey Howe Julie Huber Anthony Hudson Sam Hudson Sarah Hullah Lisa Hunt Jill Hunter Duncan Inverarity Jane Irwin Therese Iverach Greg James Kaye James Terri Janke Owen Jessep Beth Jewell Anina Johnson James Johnson Angela Jones Chris Jordan Michael Joseph Hayley Katzen Marlene Keese Andrew Kelly Arun Kendall Kate Kerley Kylie Kilgour Theo Kindynis David Kirby Greg Kirk John Kirkwood Emma Koorey Grea Korting

xviii

CONTRIBUTORS TO PAST EDITIONS

Katherine Kouvaras Mahashini Krishna Stephen Kuhn Emily Lancsar Robyn Landsdowne Lillian Leigh Marg Le Seur Tim Leach Sian Leathem Jane Leung Anthony Levin Judith Levitan David Lewis Pape Mary Lovelock Anthea Lowe James Loxton Robert Ludbrook Mark Ludbrooke Julie Lulham John Mackenzie Allan MacMurran David Main Cathy Malcolm Andrea Malone Margot Maneschi Steve Mark Frank Marks Felicity Martin Chris Martin Pip Martin George Masri John McAteer Tony McAvoy Margaret McCue Sandra McCullough Ian McDonald Eve McGregor Donna McKenna John McKenzie David McMillan Andrew McSpedden Karen Mifsud Christian Mikula Andrew Miles Jenni Millbank Leonie Miller Stephen Miller Helen Mills Michael Mobbs

Joanne Moffitt Jill Moir Phil Molan Gillian Moon Michael Moore John Moratelli Shaugn Morgan Nick Moustakos Doreen Muirhead Jennifer Mullaly Trish Mundy Terry Murphy Angela Nanson Penelope Nelson Natalie Neumann Monica Neville Mandy Newman Philippa Martin Chris Norton Kevin O’Connor Philippa O’Dowd Phillipa O’Keefe Terry O’Mara Des O’Neill Nick O’Neill Clare O’Reilly Catherine O’Riordan Pat O’Shane Teresa O’Sullivan Lisa Ogle Rodney Parsons Arthi Patel Tony Payne Linda Pearson Carolyn Penfold Clare Petre Edson Pike Ruth Pilkinton Polly Porteous Grant Poulton Katherine Pranic Kathy Prokhovnik Robert Pullen David Puls Penny Quarry Jill Quin Lalitha Raman Anne Reich Shane Rendalls

Gordon Renouf Steven Reynolds Susan Roberts Steve Robertson David Robinson Linda Rogers Nanette Rogers David Rolph John Rome Chris Ronalds Natalie Ross Chris Rossiter Gerald Rowe Patricia Ryan Reesa Ryan Michael Saadat Craig Sahlin Matthew Sammels Marissa Sandler Kathy Sant Gregory Sarginson Rosalie Schaffer John Schwartzkoff Graham Scott Linnell Secomb Nicholas Seddon Polly Seidler Michael Sexton Danny Shaw Maureen Shelley Bernard Silva Theresa Simon Carolyn Simpson Jim Simpson Loane Skene Claudia Sloan Roslyn Smidt Derek Smith Phillipa Smith Andrew Solomon Judit Solyom Tim Somerville Lynne Spender Meena Sripathy John Stannard Peter Starr Michael Steinfield Nina Stevenson Miranda Stewart

Jeremy Stoljar Elizabeth Stone Ben Strong Julian Svehla David Swain Stella Sykiotis Mei Tan John Taylor Bill Tearle Anastasia Toliopoulos Athena Touriki Nicole Tschaut Linda Tucker Sharon Tuffin Alan Tyree Pia van de Zandt Hugh van Dugteren John Vidas Gina Vizza Harvey Volke Lil Vrklevski Nerida Walker Julie Walsh Merilyn Walton Jane Wangman Peter Waters Robert Watt Rod Weaver Ron Webb Karen Wells Katherine Wells Roger West Robert B Wilson Jennifer Whelan Kevin White Margaret White John Whitehouse Harry Whitmore Helen Whitty Pam Wilde Derek Wilding Veronica Wise Jessica Wood Simon Wynn Narelle Yeo Chris Yuen Nina Yiannopoulos George Zdenkowski Deborah Ziegler

1 About the Legal System Catherine Bryant

Legal Information Access Centre, State Library of New South Wales Andrew Haesler Judge, District Court NSW Georgia Millar Office of the Legal Services Commissioner Lynda Muston Assistant Commissioner (Legal), Office of the Legal Services Commissioner Simon Rice ANU College of Law, Australian National University, Canberra

Contents [1.20]

Fundamental concepts

[1.430]

Legal documents

[1.30]

Common law and statute law

[1.440]

Agreements and deeds

[1.70]

Criminal law and civil law

[1.460]

[1.90]

State and territory law and federal law

Birth, death and marriage certificates

[1.490]

Changing a name

[1.110]

Courts

[1.560]

Statutory declarations

[1.120]

State courts

[1.620]

Affidavits

[1.160]

Federal courts

[1.670]

Notices to attend court

[1.210]

Juries

[1.700]

Passports

[1.240]

Tribunals and commissions

[1.280]

Time limits

[1.790] [1.880]

Power of attorney Doing legal research

[1.310]

Appeals

[1.890]

Finding the law

[1.350]

Enforcing the law

[1.910]

Material about the law

[1.380]

Representing yourself in court

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[1.10]

Australia inherited its legal system from England at the time of colonisation. Since then laws have been interpreted, applied and developed by Australian judges, and new laws have been made by Australian parliaments. This chapter explains the basics of how our legal system works, including: • how laws are made • how courts and tribunals operate • how laws are enforced.

It goes on to look at some of the documents used in the day-to-day operation of the law, including: • deeds and agreements • birth, death and marriage certificates • documents issued by courts • statements made under oath • passports • powers of attorney.

Fundamental concepts [1.20]

Every law in Australia is: • either common law or statute law, and • either criminal law or civil law, and • either federal law or state/territory law. Every law also has a particular jurisdiction. The jurisdiction of a law includes:

• the geographical area it covers (for example, NSW or the whole of Australia) • its subject matter (for example, family law).

Common law and statute law [1.30]

Australian law comes from either:

• the common law (judge-made law or case law), or • an Act of parliament (statute law). Aboriginal and Torres Strait Islander customary law also has some limited application (see Aboriginal and Torres Strait Islander law at [1.60]).

[1.40] Common law The centuries-old tradition of English law is that judges decide each dispute (a “case”) as it comes to court, and give reasons for their decision. These reasons, or judgments, are published in books called law reports (and now also on the internet). The accumulation of judges’ decisions over many years is what is called the common law – law made by judges in deciding common disputes. NSW inherited the English common law, and from early in the 19th century judges in NSW have been developing the common law in Australia.

The doctrine of precedent Judges are bound by a strong tradition to decide cases consistently with earlier decisions based on similar facts. This approach to decision-making is called the doctrine of precedent, and the principles and rules generated by the earlier decisions form, collectively, the principles and rules of the common law. If the facts of a case are completely new, without precedent, a judge will develop a new principle as consistently as possible with similar cases. In this way, judges develop common law rules in areas not covered by legislation.

Interpreting the law Judges also have an important role in interpreting legislation (see How statute and common law affect each other at [1.60]). The decisions they make in interpreting Acts of parliament are precedents that courts can later use.

1 About the Legal System

The doctrine of precedent in Australia Some of the rules that make up the doctrine of precedent in Australia are: • in the hierarchy of the court system, a decision of a higher court is binding on lower courts • most courts are not bound to follow their own previous decisions, although they are expected to do so • the highest court in Australia, the High Court, is not bound to follow its own decisions • the decisions of courts outside Australia are not binding on Australian courts. However, Australian courts can refer to them, often from the United Kingdom, for guidance or comparison if, for example, a case is unusual or difficult • when a court makes a decision, it gives reasons for its decision. Another case with similar but not identical facts can be decided differently (ie, it can be distinguished). It is often said that “each case will be decided on its own facts”.

[1.50] Statute law Acts of parliament There was no parliament in NSW until 1823. Before then the NSW Governor had very wide powers to run the colony. English Acts of parliament applied in NSW from 1828, and thereafter the British government gradually increased the role of the NSW parliament while reducing the power of the Governor. In 1855 the British government gave NSW clear powers to make its own laws, and Australia’s parliament-made laws (statutes or Acts) date from that time. Each Australian state has power to make its own laws. Since 1901 the federal government has had power to make laws for the whole of Australia within its powers under the Constitution (see What state, territory and federal laws cover at [1.100]). Bills While a state or federal parliament is considering whether or not to pass an Act, the draft Act is called a Bill. A Bill must be agreed to by (“passed by”) parliament and receive royal assent (approval by the Governor-general or the relevant State Governor) before it becomes an Act.

3

When does an Act come into effect? After a Bill becomes an Act, it does not necessarily become operational or “commence” immediately. It may commence on a date specified in the Act itself, or by proclamation (publication in the Government Gazette). Different parts of an Act may commence at different times. If no time is specified, an Act commences 28 days after receiving the royal assent. In practice, some Acts or parts of an Act never actually come into operation because, for a range of practical or political reasons, they are never proclaimed to commence. Once an Act, or part of it, commences, it becomes law. Names of Acts An Act is identified by name, date, and jurisdiction; for example, the Fair Work Act 2009 (Cth), or the Bail Act 2013 (NSW). The name usually indicates its content, the date is the year it passed through parliament (which is not necessarily the date it commenced), and the jurisdiction is the parliament that passed it. Definition of the terms used in an Act Most Acts have a “definitions” section at the beginning (around section 4), or a Schedule at the end called the Dictionary, to explain what is meant by words and phrases used in the Act. These definitions are crucial to understanding the Act. Repeals and amendments From time to time, a parliament repeals (cancels) or amends (changes) an Act, usually by passing an Act with a similar name indicating the nature of the amendment. For example, the Real Property Act 1900 (NSW) was amended by the Real Property Amendment (Electronic Conveyancing) Act 2015 (NSW). It is important always to check the currency of an Act you are reading to make sure that it has not been amended.

Delegated legislation There are also laws associated with Acts that go into more detail than the more general terms of an Act. These are often called

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Regulations, but can have other names, including rules, ordinances and by-laws. They are collectively known as delegated legislation, and they always relate to the Act under which they are made. Delegated legislation such as Regulations needs to be considered, along with the Act, when researching the law. How is delegated legislation made? An Act often empowers some authority (a local council, parliamentary minister, public authority or public servant) to make delegated legislation from time to time, although it must be submitted to parliament before it becomes law. In NSW, the minister with the relevant responsibility usually has to give public notice of proposed delegated legislation and call for comments. Most delegated legislation automatically expires five years after it is made. Publication of Acts and Regulations The most up-to-date versions of Acts and Regulations are most easily available on the internet: see Doing legal research at [1.880]. As well, they are printed in statute books for each year, available in the State Library of New South Wales.

[1.60] How statute and

common law affect each other Interpretation of Acts Acts are sometimes drafted in very broad terms. Courts must often decide their meaning, and the court’s interpretation becomes part of the common law in that area. For example, the law on families is found not only in the Commonwealth Family Law Act, but also in the decisions courts have made on matters controlled by the Act. Interpretation Acts An Act is interpreted according to rules and definitions set out in an “interpretation” statute in each jurisdiction, such as the Acts Interpretation Act 1901 (Cth) and the Interpretation Act 1987 (NSW).

The purpose rule of interpretation A very important rule made to assist in the interpretation of Acts is the “purpose” rule of interpretation, which says that Acts are to be interpreted in a way that promotes the underlying purpose or object of the Act.

Can a judge overrule an Act? An Act is binding on all courts and judges. Judges can overrule or challenge the validity of an Act only in rare circumstances (see Unconstitutional Acts below).

Which takes priority? If an Act and a common law rule apply to the same subject matter, and they are inconsistent, the Act overrides the common law to the extent of the inconsistency. If, for example, the courts create a new common law principle, parliament can overrule it or vary it with an Act. The common law principle of native title which was recognised by the High Court in the Mabo case was varied by the subsequent Native Title Act 1993 (Cth).

Where the law is unclear Occasionally, the courts are uncertain about the meaning of an Act, or make unclear or unhelpful decisions about it. Only a later court decision, or an Act of parliament, can authoritatively clarify the uncertainty. It is particularly important to seek advice from a lawyer when the law is unclear.

Unconstitutional Acts The High Court of Australia or a state Supreme Court can declare an Act invalid and of no effect if (and only if) the Act is found to be unconstitutional (ie, the parliament did not actually have the power to make it – see [1.90]). The ACT and NT Supreme Courts can do the same under the federal self-government laws. Under human rights legislation in Victoria and the ACT, but nowhere else in Australia, a state or territory Supreme Court can declare that an Act is in breach of human rights, but that declaration does not invalidate the Act.

1 About the Legal System

5

For information on how to find statute and common law using a range of legal tools and resources, see Doing legal research at [1.880].

Aboriginal and Torres Strait Islander law The customary laws of Aboriginal and Torres Strait Islander peoples were given little recognition by the legal system until recently. When the English colonised Australia, they ignored Indigenous ownership of land. This continued until quite recently, assisted by the legal fiction that Australia was terra nullius (land belonging to no-one) at the time of colonisation. The legal argument, now discredited, was that Australia was “settled” (because it was, effectively, vacant) rather than conquered.

As a result of the High Court decision in Mabo in 1992 there is now limited recognition of Aboriginal ownership and use of land (native title). As well, there is now limited recognition of indigenous customary law, which has some influence in the sentencing of Aboriginal offenders and in areas such as family relationships and the protection of sacred sites. The law as it particularly concerns Aboriginal people is discussed in detail in Chapter 2, Aboriginal People and the Law.

Criminal law and civil law [1.70] Criminal law A crime, or offence, is conduct that is contrary to the criminal laws that reflect society’s expectations of personal conduct, such as stealing, assault, fraud, failing to lodge tax returns, and polluting. The government has the role of prosecuting or enforcing the criminal law against a person or company, usually through the police, the Director of Public Prosecutions or some other government body, such as WorkCover NSW. A person who is being prosecuted in criminal law is called the defendant or the accused.

The burden of proof In criminal law, the burden (or onus) of proof is on the prosecution. The accused is presumed to be innocent until and unless the prosecution can prove them guilty.

The standard of proof In criminal law, the standard to which a prosecutor must prove an alleged offence is “beyond reasonable doubt”.

Penalties A penalty, such as a fine, a bond or imprisonment, can be imposed on a person or company found to have committed a criminal offence. It is possible to be found guilty but to have no conviction recorded or penalty imposed. Criminal law is discussed in detail in Chapter 14, Criminal Law.

[1.80] Civil law Broadly speaking, civil law is all law that is not criminal law. Examples of matters that come under the heading “civil law” are the law of negligence, family law, employment, debt, discrimination and contract law. (The term “civil law” also refers to the type of legal system that is found in many European, Asian, African and South American countries, in contrast with the “common law” system of England, the United States and the British Commonwealth.)

6

The Law Handbook

Civil law cases usually involve individuals, companies or government bodies taking legal action against other individuals, companies or government bodies, often for doing something that is alleged to be unfair, harmful, or contrary to an agreement. A person bringing a civil case is called a plaintiff or, sometimes, an applicant or complainant. A person against whom a civil action is taken is called a defendant or respondent.

Administrative law Administrative law is a form of civil law that usually involves legal action between a person or company and a government agency, something that has become much more common in the last 40 years. Some administrative law actions seek review of a

government decision, and others try to compel or prevent action by the government.

The standard of proof In civil law, the standard to which a person must prove their allegation is “on the balance of probabilities”, meaning it must be proved that something is more likely than not to have happened.

Court orders In a civil case the plaintiff or applicant can seek an order for compensation (damages) from the defendant, and/or an order that some conduct of the defendant be required or stopped (for example, an injunction). In administrative law, the court can order that a government decision under review is affirmed, varied or set aside, or that a government agency must act or cease from acting in a certain way.

State and territory law and federal law [1.90] State and federal

constitutions Australia and its states all have constitutions. These are the source of the various parliaments’ power to make legislation. If an Act goes beyond the power given in the constitution, then the Act, or part of it, can be declared by the relevant Supreme Court to be invalid. The Australian Capital Territory and the Northern Territory are in a different position. They are created by the Commonwealth government and, although they make their own laws under self-governing powers, those powers are given and can be limited by Commonwealth legislation.

[1.100] What state, territory

and federal laws cover The laws of the federal parliament apply to all Australians, while NSW law applies to people and things in NSW or having a

connection with NSW. Generally, federal and state legislation deal with different matters.

Federal legislation The federal parliament can only make laws about matters listed in s 51 of the Australian Constitution. If a matter is not listed, the power to make laws about it lies with the states. Matters about which the federal parliament can legislate include: • defence • taxation • customs • migration • social security • marriage. These powers reflect the world as the drafters of the Constitution saw it in the 1890s. For example, the “marriage” power does not cover the families of de facto couples, which means it is a state concern. But under s 51 the states can agree to hand over powers to the federal parliament, and they have done so for de facto couples to avoid confusion and duplication.

1 About the Legal System

The external affairs power Section 51 of the Constitution also gives the federal parliament the power to make laws in relation to “external affairs”. It is this power that enables federal parliament to make laws giving effect to international treaties signed by the federal government. For example, the Racial Discrimination Act 1975 (Cth) gives effect to Australia’s obligations under the United Nations’ Convention for the Elimination of all Forms of Racial Discrimination.

State and territory legislation Under their own constitutions, state parliaments have the general power to make a law on any matter as long as it is for “the peace, welfare and good government” of the state – a very wide power. This means that states can make a law on any matter, including matters listed in s 51 of the Constitution, as long as the law is not inconsistent with a Commonwealth law.

7

Matters dealt with by the states commonly include: • health • education • roads and traffic • building • local government • the environment. The Australian Capital Territory and the Northern Territory make laws on similar matters under their self-governing powers.

Inconsistent legislation A state Act and a Commonwealth Act can cover the same matter as long as they are not inconsistent (for example, as well as the Commonwealth Racial Discrimination Act, all states have laws prohibiting racial discrimination). If the laws are inconsistent, the federal law prevails to the extent of the inconsistency (Australian Constitution, s 109). The same is true of territory legislation, not because of s 109 but because of the terms of self-governing powers given to the territories.

Inequities in the law The law works differently for different people. Some groups are consistently disadvantaged in our system; for example: • the legal system operates in English, which is not the first language of many Australians • most judges are not familiar with the day-to-day circumstances of, for example, people with disabilities and indigenous peoples, and they may use processes and make decisions that are insensitive to those people • legal advice and resources are not readily available

to people who do not have the means to pay for them. To a large extent these inequities have occurred because people from these groups are not usually included among the law-makers. Measures to improve access to the legal system include law reform, the ongoing education of judges, the availability of interpreters, the work of community legal centres, plain language publications, promoting pro bono work among lawyers, and providing legal aid.

Courts [1.110]

Many courts – state and federal – operate in NSW. A court’s decision is binding on the people involved in to a case (known as the “parties” to a case), and must be complied

with. Further court proceedings can be taken to force compliance. Court process is considered in detail in Chapter 14, Criminal Law.

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Summary offences, indictable offences and committal hearings Summary offences are common offences such as stealing, assault and possession of drugs, and are dealt with in the Local Court.

if they were summary offences (ie, in the Local Court) unless the prosecution (or in some cases the accused) objects. Doing this reduces the length and expense of the hearing and limits the jail term that can be imposed if there is a conviction.

Indictable offences

Committal hearings

Summary offences

Indictable offences are more serious offences, such as assault occasioning actual bodily harm, and drug dealing, and are dealt with in the District or Supreme Courts after a committal hearing in a Local Court (see below). Indictable offences dealt with summarily

Indictable offences that are not dealt with summarily are dealt with in the District Court or Supreme Court, after a committal (preliminary) hearing in the Local Court. At a committal hearing the magistrate decides whether there is enough evidence to send the accused for a trial.

Some specified indictable offences can be dealt with as

The law relating to committal for trial and the classification of crimes as summary and indictable are in the Criminal Procedure Act 1986 (NSW).

State courts [1.120]

The three main courts in NSW

are: • the Local Court (which used to be called the Court of Petty Sessions, and is called a Magistrates Court in some other states) • the District Court (which is called a County Court in some other states) • the Supreme Court.

[1.130] The Local Court The Local Court has jurisdiction to deal with: • small civil claims where the amount claimed is up to $10,000 • civil claims where the amount claimed for personal injury or death is up to $60,000 • all other civil claims such as contracts or motor vehicle damage where the amount claimed is up to $100,000 or, if the parties agree, up to $120,000 • bail applications • summary offences • some indictable offences • committal hearings for other indictable offences.

All cases in the Local Court are decided by a magistrate (not a judge), without a jury. The maximum jail sentence a magistrate can impose is usually two years – less for some offences. Other courts at the Local Court level Other NSW courts at the same level of the hierarchy as the Local Court include the Coroner's Court, the Children's Court and the Chief Industrial Magistrate's Court.

[1.140] The District Court The District Court has jurisdiction to deal with: • most indictable criminal cases (see The Supreme Court at [1.150]) • appeals from decisions of magistrates in most criminal matters • motor accident personal injury claims for any amount • civil cases where the amount claimed is up to $750,000, or more if the parties agree.

1 About the Legal System

9

Civil matters

Civil matters

Civil cases in the District Court are decided by a judge alone except in defamation trials and special circumstances (see Juries at [1.210]).

In civil law, the Supreme Court hears civil claims over $750,000, commercial disputes, and matters relating to probate, judicial review of administrative decisions, and admiralty. Civil cases in the Supreme Court are decided by a judge alone except in defamation trials and special circumstances (see Juries at [1.210]).

Criminal matters Criminal cases in the District Court are usually heard by a judge and jury, with the judge deciding the law and the jury deciding questions of fact. In some circumstances a case can be heard by a judge alone, without a jury, but only if the accused requests it after getting legal advice, and the prosecution agrees. The maximum jail sentence a judge can impose is usually more than the maximum that can be imposed by a magistrate.

Appeals A single judge of the District Court decides appeals from the Local Court and both criminal and care matters in the Children’s Court.

[1.150] The Supreme Court The Supreme Court decides civil and criminal matters under state laws that are outside the jurisdiction of the Local and District Courts or specialist tribunals (see [1.240]). The Land and Environment Court is a specialist court with the same status as the Supreme Court.

Criminal matters The Supreme Court hears bail applications, and some serious indictable offences such as murder and manslaughter, complex drug cases, and serious breaches of the Corporations Law. Criminal cases in the Supreme Court are decided by a judge and a jury (unless it is a non-jury trial, in the same way as for District Court criminal matters – see [1.140]).

Appeals A single judge of the Supreme Court decides appeals from the District Court and some tribunals. Sitting as the Court of Appeal (with a panel of three judges), the Supreme Court decides appeals from single judge decisions in the Supreme Court. Sitting as the Court of Criminal Appeal (with a panel of three or five judges), the Supreme Court decides criminal appeals from single judge decisions in the Supreme Court and from decisions in the District Court.

Federal courts [1.160]

Federal courts in NSW deal with federal laws when the circumstances arise in NSW or involve NSW people or companies. Areas of federal law include: • family law • discrimination • bankruptcy • consumer protection • privacy • actions under the federal Competition and Consumer Act 2010 • taxation

• review of decisions made by federal government officers. The main federal courts are: • the Federal Circuit Court (formerly the Federal Magistrates Court) • the Federal Court of Australia • the Family Court of Australia • the High Court of Australia.

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[1.170] The Federal Circuit

Court The Federal Circuit Court was established (initially as the Federal Magistrates Court) to offer a lower level, simpler federal court and ease the workload of the Federal Court and the Family Court. It shares the jurisdiction of both those courts, but is independent of them. It deals with a wide range of matters, including: • family law (a large part of its work – but see The Family Court of Australia at [1.190]) • consumer protection • discrimination • bankruptcy • copyright • migration • privacy.

[1.180] The Federal Court of

Australia The Federal Court’s business includes: • actions under the Australian Consumer Law • bankruptcy • taxation • judicial review of government decisions • appeals from federal tribunals and the Federal Circuit Court.

An appeal from a single judge of the Federal Court is decided by a “full bench” of the Federal Court, which comprises three judges.

[1.190] The Family Court of

Australia The Family Court is like a specialist arm of the Federal Court. It deals with: • cases concerning property and children of a marriage (see Chapter 24, Family Law) • cases concerning property and children of opposite-sex and same-sex de facto couples. An appeal from a single judge of the Family Court is decided by a “full bench” of the Family Court, which comprises three judges.

[1.200] The High Court of

Australia The High Court sits permanently in Canberra but from time to time in other capital cities. It was established by the Constitution as the highest court in Australia. Some matters (for example, constitutional matters) start in the High Court. The High Court also hears appeals from: • state Supreme Courts • the federal courts. The High Court is the final court of appeal for Australia, and its decisions are binding on all courts and tribunals. It is possible to appeal to the High Court only if the High Court gives permission (“special leave”).

Juries [1.210]

Juries are most commonly used in indictable criminal matters. Occasionally they are used in civil matters, usually defamation. It is considered that the jury system enables the democratic participation of the community in the administration of justice, that jurors, as randomly selected members of the public, can bring the conscience of the community to bear on issues in a trial in a way that a judge cannot do, and that jury

service promotes an understanding of the system and confidence in it.

[1.220] What the jury does The jury listens to and looks at the evidence, and decides the facts of a case. The judge decides legal issues that arise in the case and gives the jury guidance and directions. The procedures for a jury are described in the Jury Act 1977 (NSW).

1 About the Legal System

Criminal juries In indictable cases, tried in the District or Supreme Courts, a jury consisting of 12 people decides whether criminal guilt has been proved beyond reasonable doubt. If an accused is found to be guilty, the sentence is decided by the judge, not the jury. If a juror is unable to continue, then the number can be reduced to 10, or even eight if the trial has been going for more than two months or both the prosecution and defence agree. The jury’s decision, called a verdict, must be unanimous. If, after trying to reach a verdict for at least eight hours, the jury cannot reach a unanimous verdict, then the court can allow a majority verdict of 11 out of 12, or 10 out of 11. A jury of fewer than 11 must always be unanimous. Non-jury trials It used to be mandatory to have juries in serious criminal cases. However, it is now possible to have a District or Supreme Court trial with a judge sitting alone (without a jury) when the accused requests it after getting legal advice and the Director of Public Prosecutions agrees.

Civil cases Juries are never used in the Local Court. They are used in civil cases in the District and Supreme Courts very rarely. They are used in defamation cases if a party requests it and the court agrees. They can be used in other cases when a party requests it, the judge thinks it is necessary “in the interests of justice”, and the party pays the cost of it. A civil jury usually consists of four people, but can be 12 in the Supreme Court.

Coroner's cases A jury can be used at a coroner’s inquest into the cause of a death in certain circumstances, but only if the State Coroner considers that there are sufficient reasons to justify it (Coroners Act 2009 (NSW), s 48). A coroner’s jury consists of six people.

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[1.230] The jury roll Jury rolls are generated randomly by computer from the electoral rolls, so everyone enrolled as a voter in NSW is available for jury service. Anyone on the jury roll may be summonsed to court for jury duty. The NSW Sheriff’s Office is responsible for arrangements relating to juries. People on the jury roll are advised by post. The notice advises the period of inclusion on the jury roll (generally 12 months).

Who is not eligible? The categories of people disqualified or ineligible for jury service under the Jury Act (in Schedules 1 and 2) are listed on the Sheriff’s notice. They include, among others: • parliamentarians • lawyers • police officers • people unable to read or understand English.

Who is exempt? The Jury Act (in Schedule 3) exempts people in some categories from jury service. These include: • pregnant women • people aged 70 and over • practising doctors, dentists and pharmacists. If summonsed to jury duty, a person can complete the appropriate section of the summons and return it with proof of their claim to be exempt.

Who can be excused? A person who is not in an exempt category can ask to be excused from serving on a jury by completing a form on the back of the summons and returning it to the NSW Sheriff’s Office. If the application is rejected, the person must attend for jury service as required, although they can then apply to the judge or coroner to be excused.

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Only very good reasons, such as a medical condition or a threat to the viability of a business, are likely to be accepted. The Sheriff’s Office and judges are reluctant to excuse people from carrying out their civic duty of jury service.

Further information on jury service is available from the NSW Sheriff's Office.

Tribunals and commissions [1.240]

Many state and federal tribunals and commissions operate alongside the court system. Whether they are called tribunals or commissions, they are specialist bodies created by Acts of parliament to deal with particular issues. Tribunals and commissions are usually intended to be easier to use, cheaper and faster than courts. For example, unlike courts, they are usually not bound by the rules of evidence (see Chapter 14, Criminal Law). To understand the powers and procedures of a specific tribunal, it is necessary to look at the Act that created it, regulations and rules, and practice notes issued by the tribunal.

[1.250] How tribunals operate Tribunals usually hold hearings to decide cases, where people are obliged to attend to give evidence. NSW tribunals Tribunals and commissions established by a NSW law deal with NSW law. Most previously existing NSW tribunals have been consolidated into a single “super” tribunal, the NSW Civil and Administrative Tribunal (NCAT). Federal tribunals located in NSW deal with federal law. Some previously existing federal tribunals (eg, the Migration Review Tribunal, the Refugee Review Tribunal, and the Social Security Appeals Tribunal) have been merged with the Administrative Appeals Tribunal (AAT).

least one of whom has legal training. The other members have relevant expertise. In many tribunals, such as the AAT, it is usual for just one member to conduct the hearing.

Formal and informal hearings The style of hearing varies between tribunals, but in most tribunals, particularly the large ones such as NCAT and the AAT, hearings resemble those of courts – lawyers represent the parties, witnesses are crossexamined and so on. Differently from courts, tribunals often allow non-lawyers to assist people in hearings.

Appeal from tribunal decisions In most cases there is a right, set out in the relevant Act, to appeal to a court from a tribunal decision. Usually appeals are restricted to legal questions – it is very rare that the court can come to new conclusions about the facts that have already been decided. Even if there is no right of appeal in the Act, a person may be able to go to court to seek judicial review of a tribunal decision. This is possible if the tribunal has acted outside its jurisdiction, or has not complied with the formal requirements of procedural fairness (see Chapter 9, Complaints).

[1.260] Commissions of

inquiry Who conducts tribunal cases? In some tribunals cases are conducted (heard) by two or three tribunal members, at

Occasionally, commissions of inquiry are set up by governments for a limited period to investigate particular issues or areas of

1 About the Legal System

concern. They gather information in various ways, including by holding hearings and calling witnesses. They differ from courts and tribunals in that they do not make legally binding decisions, but instead produce reports on their findings with recommendations for future action. Recent commissions of inquiry in NSW include a Special Commission of Inquiry Concerning the Investigation of Certain Child Sexual Abuse Allegations in the Hunter Region (2014) and a Special Commission of Inquiry into the Greyhound Racing Industry in New South Wales (2014). Law reform commissions There is a law reform commission at both state and federal level. They usually investigate questions referred to them by the relevant Attorney-General. In NSW, individuals and groups can approach the Law Reform Commission and suggest areas where reform is needed. With the Attorney-General's approval, the commission can then investigate these areas and make recommendations. Members of the public can also contribute to the process by making submissions on matters being investigated. The evidence of community groups with direct experience of people's problems with the law is particularly valuable. Once a commission has investigated a matter, it makes recommendations for reform. It is then up to the government to decide whether to turn those recommendations into law.

Each tribunal and commission operates differently. For information about a particular tribunal contact it directly.

[1.270] Royal commissions Royal commissions are commissions of inquiry that have particularly strong powers to investigate matters and to call and question witnesses. Although people often call for a royal commission to inquire into an issue, royal commissions are not commonly held. Recent topics for royal commissions include, at the Commonwealth level, the Royal Commission into the Home Insulation Program (2013), the Royal Commission into Trade Union Gover-

13

nance and Corruption (2014), and the Royal Commission into Institutional Responses to Child Sexual Abuse. In NSW royal commissions have been held into, for example, corruption in the NSW Police Service (1997) and into deep sleep therapy (the Chelmsford Inquiry) in 1990.

Terms of reference The state or federal government sets a royal commission’s agenda (its terms of reference).

Royal commission staff The government appoints a commissioner (or more than one) – usually a senior barrister or judge. The commissioner’s staff includes lawyers, investigators and administrative personnel.

Powers of royal commissions The state and federal Royal Commission Acts confer wide-ranging powers on royal commissions, including the power to summon a person to give evidence and produce documents. It is an offence to fail to comply, and a warrant can be issued for the person’s arrest. It is also an offence not to answer questions or to knowingly give false or misleading evidence.

Who can appear It is up to the commissioner to decide whether to allow a person to appear or be represented before a commission. This will be authorised if: • the person is “substantially and directly” interested in the subject of the inquiry, or • their conduct has been challenged to their detriment (NSW Royal Commissions Act 1923, s 7). Legal assistance Both state and federal governments may provide funding for legal assistance and representation for some people appearing at royal commissions, or as witnesses. This funding is at the discretion of the government and is not part of the legal aid budget. Royal commission reports At the end of an inquiry, the royal commission produces a report containing conclusions and recommendations; for example:

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• suggesting reform to laws or practices • recommending that criminal or other proceedings be taken against individuals. A royal commission can also refer evidence to law enforcement agencies. The ICAC and the PIC The NSW Independent Commission Against Corruption (ICAC) and the Police Integrity Commission (PIC) have powers of investigation very like those of a royal

commission, but they are permanent bodies. In some respects they are like ongoing royal commissions, investigating one matter after another, but setting their own agenda under the general heading of “corruption”.

The ICAC and the PIC are discussed in Chapter 9, Complaints.

Time limits [1.280]

Usually there are time limits for making a claim in a court or tribunal. For many court actions, these are set out in the Limitation Act 1969 (NSW); some are set out in the relevant legislation, such as the Anti-Discrimination Act 1977 (NSW). It is very important to get legal advice about time limits as soon as something happens that could lead to a claim. The discussion below indicates only the types of limits that may apply and should not be relied on.

[1.290] Criminal cases Police must commence a prosecution within six months for summary offences, but there is no time limit for indictable offences.

[1.300] Civil actions Under the Limitation Act, a civil claim must usually be commenced within six years after the date on which it could first have been made; that is, after the date the incident happened or the damage became apparent. There are exceptions to this. For example, claims based on a deed (see Deeds at [1.450]), or to recover money or other property under a court judgment, have a 12-year limit.

For personal injury the limit is usually three years, although it can be longer, or can be extended in certain circumstances, and does not apply to a minor until they turn 18.

Time limits in other Acts There are also limits set out in other Acts. For example, compensation claims under the Motor Accidents Act 1988 (NSW) have to be made within six months of the accident unless the person can give a full and satisfactory explanation for the delay, and claims under the NSW Anti-Discrimination Act must be made with 12 months. Always check the relevant Act for any time limits.

Extensions of time Sometimes – not always – the law allows a time limit to be extended if special conditions are satisfied (for example, Limitation Act, ss 52–56). However, it is not safe to rely on getting an extension. It is important to find out what the relevant time limit is and to take steps to resolve a legal problem without delay. Time limits for various matters are discussed throughout the book.

1 About the Legal System

15

Appeals [1.310]

A person who is dissatisfied with the decision of a court or tribunal can sometimes appeal to a higher court for a review, although there are restrictions on the right of appeal. The decision of the highest court that makes a decision is final.

[1.320] Appeals in civil

matters Appeals in civil matters must be lodged within a short period, usually 21 or 28 days. Appeals are usually limited to a review of errors of law; a higher court will very rarely reconsider findings of fact that have been made. The higher court can either affirm or overrule the lower court’s decision (“uphold” or “dismiss” an appeal), or send the case back to the lower court (“remit” it) to be decided again.

[1.330] What courts hear

appeals? Appeals from NSW courts and tribunals • Appeals from the Local Court, the District Court and most tribunals are heard by the Supreme Court. • An appeal against a decision of a single Supreme Court judge may be made to the Court of Appeal, consisting of three members of the Supreme Court. • In criminal cases, appeals from the Supreme and District Courts go to the NSW Court of Criminal Appeal.

Enforcing the law [1.350] Criminal law The police and the Director of Public Prosecutions (DPP) prosecute criminal charges on behalf of the state.

• Appeals from the NSW Court of Appeal and the NSW Court of Criminal Appeal can, in special circumstances, go to the High Court of Australia.

Appeals from federal courts and tribunals • Appeals from a judge of the Family Court go first to a full bench of the Family Court (three judges), then, in special circumstances, to the High Court. • Appeals from federal tribunals go to the Administrative Appeals Tribunal and then to the Federal Court. • Appeals from the Federal Circuit Court go to a single judge or a full bench of the Federal Court or Family Court. • Appeals from the Federal Court, where normally one judge decides a case, can be taken first to a full bench of the full Federal Court (three judges), then, in special circumstances, to the High Court.

Appeals to the High Court Appeals to the High Court are possible only if the High Court gives permission. This is called special leave, and is given after a preliminary hearing when two or three judges of the High Court consider whether the issues are sufficiently important in the development of the common law in Australia to justify the appeal.

[1.340] Appeals in criminal

cases See Chapter 14, Criminal Law, for information on appeals in criminal cases.

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Prosecutions by individuals Private individuals may prosecute criminal offences. However, this is rare; crimes must be proved beyond reasonable doubt – very difficult without the resources and powers of law enforcement agencies – and there is the risk of having to pay the legal costs of an unsuccessful prosecution. A person should get legal advice before beginning private criminal proceedings.

Government regulatory bodies A number of bodies created by parliament enforce the legislation they administer; for example: • SafeWork NSW is responsible for work health and safety laws • the Australian Competition and Consumer Commission enforces the federal Australian Consumer Law. How government bodies enforce laws Regulatory bodies use a range of strategies to enforce the law, including: • pointing out to someone that they are in breach of the law and requiring something to be done • issuing an infringement notice • requiring someone to answer questions and produce documents for examination • prosecuting the person in court. Some regulatory bodies do their own prosecutions, while others ask the Director of Public Prosecutions to carry them out. Infringement notices Infringement notices are on-the-spot fines. They give the person the option of paying the fine or defending the matter in court. Examples of matters for which an infringement notice might be issued are parking and driving offences, littering, and failing to file a company's annual return. The notice usually sets a time limit, for example of 28 days, to pay a fine or to choose to defend the matter in court. Anyone who receives such a notice and is not sure what to do should seek legal advice.

[1.360] Civil law Civil law is enforced by people and companies who claim they have been harmed, misled, or treated unfairly. If one person’s negligence injures another person, for example, it is up to the injured person to sue to obtain compensation. Generally, only the wronged or injured person (“plaintiff” or “applicant”) is allowed to enforce the law against the other side (“defendant” or “respondent”). If a person is unable to participate in a case because, for example, they are under 18 or lacking the intellectual ability to handle their own affairs, the court can agree to someone else acting on their behalf.

How civil cases are commenced Civil cases are commenced in a number of different ways, depending on the type of case and the particular court or tribunal that will deal with it. Each has its own forms, rules and procedures. The usual procedure is for a plaintiff to fill out an application or a “statement of claim” and to deliver it to (“serve”) the defendant. The two sides – plaintiff and defendant (or applicant and respondent) – are called the “parties”. Court and tribunal staff can usually provide information about what a person needs to do.

Paying the other party's costs A common rule in enforcing a civil claim is that the losing party pays the winning party’s legal costs. This is intended to discourage people making claims that lack merit. The rule usually applies only to legal costs and witnesses’ expenses, not to compensating the person for their own time and effort. The rule is usually enforced in courts, but often does not apply in tribunals.

Administrative law Administrative law governs the processes, powers and decisions of government bodies. Whether and how government obligations under an Act can be enforced is generally discussed in that Act. If review of government decisions is available, it is usually

1 About the Legal System

through an administrative tribunal, such as the NSW Civil and Administrative Tribunal (NCAT) for NSW law and the Administrative Appeals Tribunal (AAT) for federal law. Usually a person who is adversely affected by a government decision can take action to have that decision reviewed. There are rules about standing that say who can enforce the law by taking government authorities to court; these are discussed in Chapter 9, Complaints.

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[1.370] Legal assistance Anyone who has to defend themselves in criminal proceedings, or make or defend a civil claim, or apply for administrative review, should get advice from a qualified lawyer in legal practice. Legal aid may be available. For information about people and services who can give legal advice and assistance, see Chapter 4, Assistance with Legal Problems.

Finding out about the law There are many resources for finding out the law, and getting explanations of the law (see Doing legal research at [1.880]). These may provide all the information required and are likely to be easier to read than statutes and law reports. You will find many of them in your local public library. The Legal Tool Kit All central public libraries in NSW have a collection of plain language law books called The Legal Tool Kit. The kit is kept up-to-date by the State Library in Sydney since the defunding in 2014, after 26 years, of the Legal

Information Access Centre (LIAC). There are usually about 20 books in the kit, covering subjects such as family law, tenancy, buying a house, and defending yourself in court. It always includes the latest edition of The Law Handbook. Other resources Useful internet sites are listed in Contact points at [1.960] and the Contact points for Chapter 4, Assistance with Legal Problems. See also Doing legal research at [1.880], for how to locate statutes, case law and other legal materials and use them effectively.

For more information, visit the NSW State Library's legal information site at www.legalanswers.sl.nsw.gov.au and the NSW Government's free service at www.lawaccess. nsw.gov.au.

Representing yourself in court [1.380]

You do not always need a lawyer when you have a legal problem. Most legal problems do not end up in court, and often people can sort issues out for themselves.

However, keep in mind that the law on any particular issue can be complex, and you should always get advice from a lawyer about the action you propose to take.

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Where to go for advice Free advice is available from the Legal Aid Commission, community legal centres, chamber registrars at Local Courts and the LawAccess phone line (see Contact points for Chapter 4, Assistance with Legal Problems, for a comprehensive list). A lawyer at a community legal centre or Legal Aid Commission office can give you advice on what action is needed and may be able to help negotiate with the other side, draft letters and fill in forms. They can advise you in person or by phone.

[1.390] Do you need a

solicitor? If your matter goes to court, you must decide whether you need to be represented by a lawyer.

Matters to consider In making a decision, you should consider the questions discussed below. How much time do you have? Court proceedings often involve a good deal of preparation and hours of waiting around in courts for a case to be heard. What are the consequences of losing? If they could be serious – for instance you could go to jail, be evicted from your house or have to pay large sums of money – you should definitely use an experienced lawyer. If you can’t afford one, find out whether legal aid is available (see Chapter 4, Assistance with Legal Problems). If you are not eligible for legal aid, see a lawyer at a community legal centre who may be able to represent you or help you find a lawyer willing to take the case pro bono (ie, for free or for a reduced fee). How confident will you be speaking in court? If you do not speak English well or are nervous about speaking in public, you should probably get a lawyer to represent you. Will the other side in the case have a lawyer? It can put you at a disadvantage if you represent yourself and the other side has a lawyer.

Where will your case be heard? It is much more difficult to represent yourself in higher courts such as the District or Supreme Courts where procedures are very formal and matters are more serious. Self-representation is more common in the Local Court and various tribunals, where the proceedings are usually less formal. Going ahead Having considered all these points, you may decide that you can represent yourself. Every day in NSW, people successfully represent themselves in Local Courts and tribunals. If you are properly advised and well prepared, you may do just as well as if you had a lawyer acting for you, or better.

[1.400] Preparing for court There are some basic preparations you should make if you have a case coming up in court. These are discussed below.

Find out when your case will be heard There is often a first date in court for the magistrate or judge to decide whether a case is ready to go to a hearing. If you are notified that your case is on in court on a particular day, check with the court that it will actually go to a hearing on that day. If the case is not listed for a hearing, ask the court office what the initial appearance will involve so you have any necessary information ready. If the case is listed for a hearing, you will need to be prepared to present your evidence and call any witnesses.

Do you need more time? If you have received a notice saying you have to go to court and have not been given enough time to prepare for the hearing, seek an adjournment – that is, ask the court to set another date for the hearing so you have more time. Ask a community legal centre or Local Court duty solicitor for advice about this before the date.

1 About the Legal System

Prepare your case Work out exactly what you want the court to know about your case. It is a good idea to write this down so that you don’t forget anything. Check your information with a lawyer at a community legal centre or Legal Aid office before your case is on.

Prepare your witnesses Once you have a confirmed date for the hearing, make sure that all your witnesses can come to court on that day and bring any relevant documents with them. If a witness important to your case does not want to come you may be able to get a subpoena – that is, a court order requiring witnesses to appear in court or produce documents. Ask at the court office for advice about this as soon as possible, as a subpoena needs to be issued a certain time before a hearing.

Get information about the law Find out as much as you can about the law and your legal position. One way to get this information is from a lawyer at one of the free legal services described in Chapter 4, Assistance with Legal Problems. You can also find information in libraries, in particular the Legal Information Access Centre in the State Library of NSW, which was set up specifically to provide access to plain language legal information for nonlawyers. Local public libraries can also help with this information. Many government departments have pamphlets and booklets on various regulations and legal requirements. The Legal Information Access Centre has a list of these on their website. Just remember that the law can be complex, and it is always a good idea to check your opinion of what the law is with a lawyer.

Prepare details of your income and expenses If your case is about a debt matter or the magistrate is considering giving you a fine in a criminal matter, the court will find it

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very useful to have full details of your income and any debts. Prepare a list showing how much money you get every week, what you pay out, for example on rent, electricity, travel, food and so on, and how much you have available to pay a debt or fine. You should also consider how long it would take you to pay back any fine or debt – the court will generally give you time to pay. You could pay a set amount every fortnight, for instance.

Arranging for an interpreter If you are not confident about speaking English, you should think carefully before deciding to represent yourself. If you decide to go ahead, you can arrange an interpreter through the court. For criminal cases, this should be free. For a civil case you may have to pay, although sometimes assistance is given on the grounds of hardship. Ask the court staff for details. (See also the section on interpreters in Chapter 4, Assistance with legal problems.)

Consider possible costs If you are representing yourself you will not have to pay a lawyer, but often in civil cases if you lose you have to pay the other side’s costs. If the other side is represented by a lawyer, the costs may be very high. In some cases you may also have to pay court costs – for example, part of the court’s costs associated with conducting a hearing. Check with the court to see if this applies in your case. You may also have to pay your witnesses to come to court – for example, if you are using expert witnesses to give an opinion on something.

[1.410] The hearing The following points might help you present your case on the day of the hearing: • pay careful attention to what is being said by everyone in court so that you can respond accurately • take notes during the hearing to help you remember not only what was said, but when

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• be polite and courteous, especially if you are under stress. If you get angry or are rude to the magistrate or other people, this may affect your case badly • only one person can speak at a time. If you are not sure whether it is your turn to speak, simply ask “May I say something please?” This will ensure that you have your say at the appropriate time • address people as “madam” or “sir” if you do not know how else to refer to them. Generally magistrates and judges should be addressed as “your honour” • it may not seem important, but you will make a better impression on the court if you wear clean, neat clothes on the day of the hearing.

[1.420] Pleading guilty on a

criminal charge Before deciding to plead guilty to a criminal charge, you should get advice from a lawyer on whether you are in fact guilty according to law, and what the penalty is likely to be. If the matter is serious, you should get a lawyer to represent you. If you decide to represent yourself on a guilty plea, take the following steps: • ask the police to show you their statement of facts or brief, so that you can check that you agree with the facts as the police have described them. If you do not agree, tell the magistrate which matters are not correct • check the police details of your criminal record, if you have one. Again, tell the magistrate if the details are incorrect

• be prepared to give the magistrate full details of: – your age, financial circumstances and occupation – how you came to commit the offence and any explanations you have – medical information relevant to your circumstances (supported by a letter from your doctor) – why you need your driver’s licence, if you are in danger of losing it. • have character references ready. Character references If you are charged with a criminal offence and you are pleading guilty, your references will give the magistrate some knowledge of your character. (You also need references if you are pleading not guilty – the magistrate will take these into account before deciding on a sentence if you are found guilty.) Get references from people the magistrate will regard as “respectable” members of the community, such as teachers, ministers of religion, sports coaches and community workers. References should be addressed to the court. What the reference should say In the reference, the referee should say: • how long they have known you • how they know you (for example, as a family friend or teacher) • that they know you have been charged with the offence • their opinion of your character • what the court should take into account when considering your penalty. Get references especially for the case – don't use references you have been given for other purposes such as job applications.

Legal documents [1.430]

This section explains some commonly used legal documents. There are many others not covered here. Some are

discussed in more detail elsewhere in the book; for example, Chapter 40, Wills, Estates and Funerals.

1 About the Legal System

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Agreements and deeds [1.440] Oral and written

agreements Legal agreements such as contracts (see Chapter 11, Contracts) may be oral or in writing.

Agreements that must be in writing Some agreements, such as agreements for sale of land and leases for a fixed period of more than three years, must be in writing (Conveyancing Act 1919, s 23C).

[1.450] Deeds A deed, also called an agreement under seal, is a document that has been witnessed and signed, sealed and delivered, which means that the parties have: • signed the document (executed it), and • written the words “signed, sealed and delivered” on it (s 38). Deeds can be enforced by the courts.

Execution by a company A company executes a deed by affixing the company seal on the document in the presence of both a permanent officer of the company and a member of the governing body (for example, a director), who then sign the deed as witnesses (s 51A). The Australian Securities and Investments Commission (ASIC) requires company seals to display the company’s Australian company number.

Stamp duty When stamp duty must be paid Stamp duty must be paid on: • deeds executed before 1 July 1998, which are not valid and cannot be enforced in a court unless they have been stamped, and • deeds that convey or transfer property, regardless of when they were executed (see also Chapter 27, Housing). The Office of State Revenue can advise whether duty is payable on a document.

Why a written agreement is better If there is a dispute, an oral agreement has to be proved in court by evidence from the parties about what they recall and understood was said. A written agreement is itself evidence of what the parties intended to happen.

What deeds are used for Deeds are used to make something legally binding; for example, to transfer property from one person to another, or to set up a trust. Unlike a contract, a deed is legally binding even though there is no consideration (this is explained in Chapter 11, Contracts) between the parties.

Executing a deed A deed must be signed or marked in the presence of a witness who must then also sign it. Deeds for some purposes (for example, for certain powers of attorney – see Power of attorney at [1.790]) have additional witnessing requirements.

How is stamp duty assessed? The duty on a deed that conveys or transfers any property of value is assessed according to the value of the transaction. When must a deed be stamped? A deed must be stamped within two months of the date of execution. If a person does not pay stamp duty within two months, they may face a fine (up to 100% of the stamp duty) as well as a criminal charge. How to get a deed stamped A deed may be stamped by lodging it at the Office of State Revenue.

Title deeds The term deed is often used to describe documents relating to ownership of land, houses and units. This is because deeds are used for transactions involving the sale of land.

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The formal names of these documents are: • certificate of title (for Torrens title land) • abstract and chain of title (for old system land) (see Chapter 27, Housing). Who holds title deeds? The original title deeds are usually held by the property owner. However, if there is a loan with the property as security (such as a

mortgage), the deed is held by the lender (the mortgagee) and the mortgagee is named on the deed. When the loan is repaid, the mortgagee’s name is removed from the deed and the deed returned to the owner. A copy of the title deed is always held by Land and Property Information NSW (formerly the Land Titles Office).

Birth, death and marriage certificates [1.460] Registration

[1.470] Obtaining copies of

All births, deaths and marriages in NSW must be registered by the NSW Registrar of Births, Deaths and Marriages. A birth, death or marriage certificate is completed from information supplied to the registrar, or to another authorised person such as a marriage celebrant. It is an offence to supply false or misleading information to the registrar.

certificates Certified copies of a birth, death or marriage certificate can be obtained from the registrar by: • lodging an application, and • paying a fee, and • proving your identity. Either an extract or a full copy of the certificate can be obtained. If an application does not ask specifically for an extract of the certificate, a full copy will be provided.

What identification is accepted? A person can prove their identity for the purpose of obtaining a birth, marriage or death certificate by producing three forms of identification: • one document from each of category 1, 2 and 3 below, or • if no document from category 1 or 2 is available, two documents from category 3 and one document from category 4. Category 1 • Australian birth certificate • Australian citizenship certificate • New Zealand birth certificate • New Zealand citizenship certificate together with passport

Category 2 • an Australian driver's licence • an Australian passport • a firearms licence • a foreign passport • proof of age card Category 3 • a Medicare card • a credit or debit card • a Centrelink or Department of Veterans' Affairs card • a security guard/crowd control licence • a tertiary education institution ID card Category 4 • a recent utility account (such as gas or electricity) with current residential address

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Children born outside NSW In some circumstances, the birth of children outside NSW may be registered in NSW; this may be appropriate, for example, if the birth is not registered elsewhere and the parents usually live in NSW.

Lodging the application Applications can be made by lodging a standard application form (available from the registry and all Local Courts, NSW Government Service Centres and the registry’s internet site), or applications can be lodged at the Registry of Births, Deaths and Marriages, any NSW country Local Court, Service NSW centres or online.

Proof of identity A person must provide proof of their identity (see What identification is accepted? above) when applying for a copy of: • their own or their child’s birth certificate • their own marriage certificate • the death certificate of a next of kin. A person applying for a copy of a certificate other than those listed above must also provide identification and authorisation relating to the person whose certificate they are seeking or, in the case of a death certificate, their next of kin. Anyone who cannot produce the required documents should contact the registry for advice. Photocopies of suitable documents may be delivered, posted or faxed with the application.

Fees Current fees (August 2016) are: • $53 for a standard certificate • $78 for an urgent certificate.

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[1.480] Changing birth

certificate details Change of name The registrar may change the name recorded on a birth certificate when: • a person registered at birth in NSW lawfully changes their given name or surname (except where the change is the result of marriage) • parents change the given name or surname of a child whose birth is registered in NSW. How to apply A person can apply by registering an application for change of name (available from the registry) and paying the required fee (currently $179, which includes the issue of a new certificate). A person under 18 should have the consent of both parents. If both parents cannot make a joint application, you can contact the registry to discuss your circumstances. Effect of the change on the certificate Once the change is recorded, the new name is the only name to appear on an extract of the birth certificate. A copy of the full certificate shows the history of name changes and previous names.

Change of sex A person born in NSW may have the record of their sex altered if the person: • is over 18, and • has undergone a sex affirmation procedure, and • is not married. The current fee (August 2016) is $122. Effect of the change on the certificate The new certificate will not show that the person has changed their sex.

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Changing a name [1.490] By usage A person may change their name simply by use, without taking any formal steps. Except for the purpose of opening and operating bank accounts, a person may use any name they wish, provided the name is not used to deceive or defraud.

What is an “account for cash purposes”? An “account for cash purposes” is very broadly defined in the legislation, ranging from bank and building society accounts to accounts with bookmakers.

If, as well as changing their name by usage, a person wants to formally record the change, a document showing the change of name can be registered at the Registry of Births, Deaths and Marriages. This may be necessary when proof of the change of name is required (for example, to obtain a passport).

The effect of the Act is to restrict the previous law whereby a person could operate a bank account in any name if there was no fraudulent intention. If a person changes their name, presumably the banks with which they deal would need to be satisfied that the change was for all purposes, not just banking purposes, and that the person is commonly known by the new name. Banks have introduced their own procedures for determining identity when accounts are opened.

Procedure

[1.520] Changing a child's

[1.500] By registration

A statutory declaration called an application for change of name must be completed. The name is changed as soon as the document is registered.

Fee The fee for registering a change of name is $179. The applicant is issued with a birth certificate (if they were born in NSW) or a change of name certificate. Extra certificates cost $53 each.

Children Children over 12 must give their consent to any registered changes of their name.

[1.510] Bank and other

accounts Under the Cash Transaction Reports Act 1988 (Cth) it is an offence, punishable by a fine and/or imprisonment, for someone to open or operate “an account for cash purposes” in a name other than that by which they are commonly known.

name A child under 18 cannot change their name without consent.

Who must consent? If the names of both parents are recorded on the birth certificate, both parents must consent to a change in the child’s surname. If the father’s details are not shown on the birth certificate, only the mother’s consent is required. If a child uses the mother’s surname, the mother can easily change the child’s surname. However, where the child uses the father’s surname, the mother needs the father’s consent to change the name. Similar considerations in relation to the mother’s consent apply if it is the father who wishes to change the name.

If consent cannot be obtained If consent cannot be obtained, the mother, father or child can apply for a court order.

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What the court takes into account The court regards the child’s welfare as the paramount consideration when deciding by what name they should be known. Factors the court will consider are: • the need to retain a connection with the parent the child does not live with • the likelihood of the child experiencing confusion of identity • any embarrassment to the child caused by having a different surname from the parent they live with.

When a child's father dies When a father dies, a child who used the father’s surname may retain it, adopt whatever surname is used by the mother, or use any other name.

[1.530] Change of name on

marriage There is no law requiring a woman to change her surname on marriage. If a woman does adopt her husband’s name all that is required is that she should inform certain institutions of the change (see Bodies to notify at [1.550]). In some situations, such as applying for a passport, the marriage certificate must be presented to allow use of the different name.

Using more than one name A woman may use her previous family name for some purposes (for example, professional or financial) and her husband’s name for others, as long as there is no intention to deceive. After a divorce, a woman may use her former husband’s name, her original name or a different name. If she remarries, she may use her new husband’s surname, her first husband’s surname, her original name or any other name, as long as there is no intention to deceive.

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[1.540] Change of name on a

driver's licence To change the name on a driver’s licence it is necessary to take the old licence and some documentary evidence of the change of name to a motor registry. A licence will then be issued in the new name.

[1.550] Bodies to notify A change of name becomes effective through use. Certain agencies (such as banks, credit card providers, medical funds and employers) should be notified immediately of a name change. Other agencies can be notified of the change when the occasion arises (for example, when an election is imminent, or a tax return is due).

Property owners Property owners do not need to do anything until their land is dealt with in some way (such as through a sale or mortgage). Old system title If the property is held under old system title, the new name is used but the old name is referred to on the relevant documents. Torrens title If the property is held under Torrens title (see Chapter 27, Housing), the documents are signed in the new name, and evidence of the change (such as the registered name change or a statutory declaration) must be provided. With Torrens title land, the change of name may be noted on the certificate of title, though this is not essential. For information about changing a birth certificate, see Changing birth certificate details at [1.480].

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Statutory declarations [1.560]

A statutory declaration is a written statement of fact declared by a person (the declarant) to be true, in the presence of a person authorised to be a witness (see Who can be a witness? at [1.600]). Usually an affidavit, not a statutory declaration, is used in court (see Affidavits at [1.620]). When an affidavit is not required, a statutory declaration may give a statement weight; for example, in support of a plea in mitigation. False statements A person who knowingly makes a false statement in a statutory declaration can be fined, imprisoned, or both.

[1.570] Legislation The relevant laws are: • the Oaths Act 1900 (NSW) • the Statutory Declarations Act 1959 (Cth). An Act may require a statutory declaration for certain procedures, such as some applications under the Migration Act 1958 (Cth). In some cases statements are considered true simply because they are in the form of a statutory declaration; for example, under the Oaths Act, s 22 and the Conveyancing Act 1919, s 53(2).

[1.580] What should be in the

declaration Statements of fact The declaration should contain only statements of fact. This can include the fact of holding a belief; for example: “To the best of my knowledge and belief the will was made in 1958”. Each fact should be stated in a separate numbered paragraph, and it is advisable to list them in chronological order.

Statements of opinion Statements of opinion such as: “I think the will may have been made in 1958” should not be used.

The jurat The place (that is, the name of the town, suburb or locality) and date of the declaration, and the name of the witness before whom it is made, must be stated at the end of the statutory declaration. This is called a jurat.

[1.590] Is a form necessary? Printed statutory declaration forms are available for around a dollar from law stationers and newsagents, but there is no legal requirement to use them as long as the correct form of words is used (see Standard form of a statutory declaration at [1.610]). The declaration need not be typed, as long as the writing is legible.

Form of words Under the Oaths Act Statutory declarations under the Oaths Act may be in the form of either Sch 8 or Sch 9 to the Act. This is set out in Standard form of a statutory declaration at [1.610]. Under the Statutory Declarations Act A statutory declaration made under the Statutory Declarations Act should be in accordance with the form set out in the Schedule to the Statutory Declarations Regulations 1993 (Cth). This is set out in Standard form of a statutory declaration at [1.610].

[1.600] Who can be a

witness? A statutory declaration must be declared before a person referred to as the witness.

Under the Oaths Act Statutory declarations made under the Oaths Act can be declared before:

1 About the Legal System

• a justice of the peace • a solicitor or barrister admitted to practice in NSW • a notary public • a commissioner for affidavits • the Registrar-General or a deputy registrar-general • the Principal Registrar or a deputy principal registrar of Births, Deaths and Marriages • anyone else authorised by law to administer an oath.

Under the Statutory Declarations Act A statutory declaration under the federal Statutory Declarations Act may be made before: • a clerk of court • a person before whom a declaration may be made under the law of the state in which it is made • an Australian consular officer or diplomatic officer (defined by s 2 of the Consular Fees Act 1955 (Cth)). • any judicial officer • a member of the professions. Finding a witness A justice of the peace is usually available at a Local Court or a bank, among many other places. Lawyers are available at legal aid offices, private firms and community legal centres. The NSW Attorney General's Department has an online list of justices of the peace.

[1.610] The role of the

witness The witness must be satisfied, through questioning or observation: • that the declaration is in the form prescribed by the Act under which it is made, and • of the identity of the person making the statutory declaration and certifies that fact, and • that the declaration is signed and witnessed properly, and • that the signature is that of the declarant. Under changes to the NSW legislation in 2012, witnesses to a statutory declaration

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under the Oaths Act are required, under s 34 of that Act, to have seen the face of the declarant (unless there is a special justification, eg a medical reason), and either have known the declarant for at least 12 months, or confirmed their identity based on an identification document (such as a drivers licence or passport). The authorised witness must then certify on the statutory declaration that the requirements of the Oaths Act have been complied with. See the standard form of a statutory declaration below for an example of this. The witness should not read the declaration (unless the person making the declaration cannot read it – see below).

Signing The witness should say to the declarant words such as: “Is this your name and signature, and do you declare the contents of this declaration to be true and correct to the best of your knowledge and belief?” The declarant should then say “yes”, and sign the declaration in the presence of the witness. If there is more than one page If there is more than one page, both declarant and witness sign at the bottom of each page. Alterations The witness must initial any alterations in the margin. The declarant need not do this. People who cannot read the declaration If the declarant is blind or illiterate, the person taking the declaration should: • read the document to them or have someone else read it aloud in their presence, and • be satisfied that the declarant fully understands and agrees with the contents. The following statement, signed by the witness, should be included in the jurat (see The jurat at [1.580]): It appearing to me that the declarant is blind [or illiterate], I certify that this declaration was read to her/him in my presence and that s/he seemed to understand it.

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If the declarant cannot sign their name If the declarant cannot sign their name, the witness should write it next to the jurat, and ask the declarant to make a cross or mark like this: X His mark Arthur Brown

Children Children between six and ten are not considered competent to swear in court that what they say is true. They are, however, considered old enough to make a statutory declaration, as long as the witness is satisfied that the child understands: • what they are saying • that they should tell the truth, and • what the truth of the situation is. A statement to this effect should be added to the jurat (see The jurat at [1.580] for what this is). Interpreters If the declarant is hearing or speech impaired, does not know English or has difficulty understanding English, the decla-

ration must be translated by an interpreter. The witness administers an oath as follows: You shall truly and faithfully interpret the contents of the statutory declaration and all other matters and things relating to the declaration, and render the English language into the [other] language, and the [other] language into the English language, according to the best of your skill and ability.

Annexures Any annexures (attachments to the declaration) must each be certified by the witness as follows: I hereby certify that this [and the following [number] page[s]] is/are the annexure marked (A), referred to in the statutory declaration of [name] declared before me at [place] on [date].

If the annexure has more than one page If the annexure is more than one page, that fact should be referred to in the text of the declaration (but not necessarily in the witness’s certification). The witness may sign each additional page. The declarant need not sign annexures.

Standard form of a statutory declaration

before me ......................... [signature of witness]

I [insert name of authorised witness], a [insert qualification to be authorised witness], certify the following matters concerning the making of this *statutory declaration/affidavit by the person who made it: 1 *I saw the face of the person or *I did not see the face of the person because the person was wearing a face covering, but I am satisfied that the person had a special justification for not removing the covering. 2 *I have known the person for at least 12 months or *I have confirmed the person's identity using an identification document and the document I relied on was [describe identification document relied on]. [insert signature of authorised witness] Date: Under the Statutory Declarations Act I, [full name] of [address], [occupation], do solemnly and sincerely declare: [set out the statements in point form, ie 1..................................................................................................

.................................................. [title of witness]

2 ......................................................................................... etc.]

Standard form of certification of Identity

And I make this solemn declaration by virtue of the Statutory Declarations Act, and subject to the penalties provided by that Act for the making of false statements in Statutory Declarations, conscientiously believing the

Under the Oaths Act I, [full name] of [address], [occupation], do solemnly and sincerely declare: [set out the statements in point form, i.e. 1.................................................................................................. 2 ......................................................................................... etc.] and I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act. OR and I make this solemn declaration, as to the matter aforesaid, according to the law in this behalf made, and subject to the punishment by law provided for any wilfully false statement in any such declaration. ......................................................... [signature of declarant] Declared at [place] this [day] of [month], [year]

Certificate under section 34(1)(c) of Oaths Act *Please cross out any text that does not apply

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statements contained in this declaration to be true in every particular. .................................................. [signature of declarant]

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before me ......................... [signature of witness] .................................................. [title of witness]

Declared at [place] this [day] of [month], [year]

Affidavits [1.620]

Affidavits are written statements of fact sworn or affirmed by a person (the deponent) to be true, in the presence of a person authorised to be a witness. Affidavits are used in court proceedings in place of spoken evidence. A statutory declaration is usually enough in other situations. An affidavit used in court proceedings must be served on all other parties involved in the proceedings. The person who made the affidavit may still be required to attend court to be questioned on its contents.

[1.630] Who can make an

affidavit? Like a statutory declaration, an affidavit may only be made by someone who understands: • what they are doing, and • the nature of the oath or affirmation.

Children A child aged between six and ten cannot legally swear an oath, and therefore cannot make an affidavit. If necessary, a child’s statement may (usually) be put in a statutory declaration.

[1.640] What should be in the

affidavit Affidavits are used like spoken evidence, and the rules of evidence apply: • the text of the affidavit should be divided into numbered paragraphs. Each paragraph should relate to a distinct matter • the facts in the affidavit should be relevant • the affidavit should be in the first person

(for example, “I met the defendant .......... ”) • conversations must be reported in direct speech (for example, “I said ‘ .......... ’, then she said ‘ .......... ’?”) • the text should contain only facts of which the deponent has first-hand knowledge (that is, not known only by hearsay) • statements of opinion, unless it is expert opinion, should be avoided.

Annexures Documents referred to in the affidavit, or copies of them, should be attached and marked as “Annexure A”, “Annexure B” and so on.

[1.650] Who can be a

witness? Affidavits may be sworn in the presence of: • a commissioner for affidavits • a justice of the peace • a solicitor or barrister. Standard form of an affidavit The usual form of an affidavit is: On [date], I, [full name] of [address], [occupation] affirm/say on oath that: [set out the statements in point form, i.e. 1.................................................................................................. 2 ......................................................................................... etc.] SWORN at [place] Before me ......................... [signature of witness] Justice of the Peace/Solicitor .................................................. [signature of deponent] I [insert name of authorised witness], a [insert qualification to be authorised witness], certify the following matters concerning the person who made this affidavit:

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1 *I saw the face of the person or *I did not see the face of the person because the person was wearing a face covering, but I am satisfied that the person had a special justification for not removing the covering. 2 *I have known the person for at least 12 months or *I have confirmed the person's identity using an identification document and the document I relied on was [describe identification document relied on]. [insert signature of authorised witness]

[1.660] The role of the

witness The witness should make sure that the affidavit is legible and certify the identity of the deponent (see [1.610] Standard form of certification of identity).

Administering the oath The witness administers the oath or affirmation by asking the deponent to swear or affirm that the contents of the affidavit are true. The deponent must either: • swear that the facts are true by taking an oath, or • make a statement affirming that the facts are true. The witness should not allow an affidavit to be sworn if the person does not understand either its contents or the nature of the oath or affirmation.

Signing The witness should see the deponent signing: • the end of the document, in the jurat (see The jurat at [1.580]), and • the bottom of each page. The witness then also signs the jurat, adding their title, and signs the bottom of each page. As with statutory declarations under NSW legislation, witnesses to an affidavit in NSW are required to certify on the affidavit that the requirements of the Oaths Act have been complied with. See the standard form of an affidavit above. People who cannot read the declaration If the deponent is blind or illiterate, the witness should add, and sign, the following statement:

It appearing to me that the deponent is blind [or illiterate], I certify that this affidavit was read to him/her in my presence and that he/she seemed to understand it.

Interpreters If the deponent is hearing and/or speech impaired or does not know English, the affidavit must first be interpreted (see Interpreters at [1.610]). Alterations Alterations must be initialled by the witness. In some jurisdictions the deponent must also do this.

Annexures Any annexures (attachments to the affidavit) must each be certified by the witness as follows: This [and the following [number] page[s]] is the Annexure marked (A) referred to in the Affidavit of ......................... [name] sworn on .......... [date] Before me ......................... [signature of witness] Justice of the Peace/Solicitor.

Use a lawyer Affidavits are best prepared with the help of a lawyer. The rules about their form and content vary between courts (for example, the District and Family Courts), and an affidavit must be in a form acceptable to the court concerned. If it does not comply with the relevant rules, it may be struck out by the judge or magistrate.

Justices of the peace A justice of the peace traditionally had both judicial and ministerial (administrative) functions in the legal system. The judicial function (that is, to decide on guilt or liability) exists to various extents in the federal jurisdictions. In NSW A justice of the peace in NSW can act judicially only if formally called on to do so by the government in a time of real need. In practice, justices of the peace perform only administrative functions. In NSW, the functions and duties of the office are set out in the Justices of the Peace Act 2002. They have duties under the Oaths Act to administer oaths and witness documents such as statutory declarations and affidavits.

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Justices of the peace are nominated by a member of the NSW parliament and appointed by the Attorney General for five years. They may be re-appointed.

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The Attorney General's Department maintains a list of all NSW justices of the peace and their contact details.

Notices to attend court [1.670] Court attendance

notices A court attendance notice is a document that tells a person to attend court to answer a charge or in response to: • a claim against them, or • an application for an order against them. Some court attendance notices used to be called summonses.

What is in the notice? Both court attendance notices: • state the charges or claims made against the person (the defendant) • state what court to go to, and when • advise the person to seek legal advice (which should be done as soon as possible). Getting legal advice Anyone unable to afford a private solicitor should contact: • Legal Aid NSW (through LawAccess) • a community legal centre, or • the LawAccess website.

If the person does not attend court If a person does not attend court after receiving a court attendance notice the matter may proceed without them, and the other side may obtain the orders they seek in the defendant’s absence (this is called an ex parte order).

If the notice was not received A person who receives notice of an ex parte order against them who can prove that they did not at any stage receive a court attendance notice can apply to have the order set aside and the matter heard again. It is usually up to the plaintiff or applicant (the person who started the proceedings) to prove that the notice was served. The defendant may also produce evidence that they were, for example, overseas or interstate at the time and could not have received the notice.

[1.680] Statements of claim

The document should not be ignored. If anything in it is unclear, legal advice should be sought.

Civil cases are commenced by the issue of a statement of claim. These documents do not have a date to attend court. A person wishing to dispute or defend a civil claim must lodge a defence with the court within 28 days of receiving the statement of claim. Legal advice should be obtained as soon as possible.

Is there time to respond?

[1.690] Subpoenas

The notice must allow enough time for the defendant to prepare and file a response. If enough notice is not given, the defendant or their lawyer can (and should) attend the court on the day named and ask for the hearing to be postponed to another date.

A subpoena is a document from a court that tells someone that they must attend at a particular time and date to be a witness in a hearing and give evidence. It might also tell the person to produce documents to be used in the case.

See Contact points in Chapter 4, Assistance with Legal Problems for contact details.

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The Law Handbook

Get legal advice! Anyone receiving a subpoena should seek legal advice immediately. It is an offence to ignore a subpoena, and failure to attend court can result in arrest. It is also possible to be charged with contempt of court for ignoring a subpoena.

If there is not enough time to get legal advice, it is possible to ask the court if the matter can be delayed for a short while so that advice can be sought.

Passports [1.700]

Australian passports are issued to Australian citizens by the Minister for Foreign Affairs under the Australian Passports Act 2005 (Cth).

Documents required

Since 1986, people under 18 have received their own passport.

The application must be accompanied by: • evidence of citizenship; for example: – an Australian passport issued after 1 July 1983 – an original or certified full copy of a birth certificate – for people born overseas, a citizenship certificate • two passport-sized colour photographs • evidence of identity, for example: – a driver’s licence – a credit card – a rates notice – an academic record • evidence of a change of name, if applicable, for example: – a marriage certificate – a statutory declaration – a registered name change or deed poll • evidence of sexual and gender diverse identity, if applicable, being a letter from a medical practitioner certifying: – appropriate clinical treatment for change of sex and gender identity, or – intersex identity • consent documents, for applicants who are under 18 and unmarried. A full list of the type and number of documents required for identification is on the application form and on the Australian Passport Office website.

Permanent residents

Timeframe

[1.710] Eligibility The minister must issue a passport to an Australian citizen (s 7) unless: • the person is an unmarried minor (that is, a person under 18) who does not have their guardian’s consent, a court order or other special circumstances (s 11) • there are reasons for not issuing a passport relating to: – Australian law enforcement matters (s 12) – international law enforcement cooperation (s 13) – potential for harmful conduct (s 14) • there have been two or more passports issued to the person in the past five years (s 15) • money is owed to the Commonwealth (s 16) • the person already holds a valid Australian passport (s 17).

Children

Permanent residents are not entitled to an Australian passport.

Passports are usually issued within ten working days.

[1.720] Applications

Urgent applications

An application for a passport can be made at either a passport office or a post office.

If the application is urgent, the person must explain the circumstances to the passport

1 About the Legal System

officer at a post office, showing documents indicating the cause of the urgency, and their airline tickets.

Cost The current cost of a standard passport (32 pages) is $254 for an adult and $127 for a child under 16. Larger passports (64 pages) are available for frequent travellers at a cost of $382.

[1.730] Appeals In accordance with the Australian Passports Act 2005, certain decisions of the Department of Foreign Affairs about issuing a passport may be reviewed. A written request should be sent to the legal adviser at the department within 28 days.

[1.740] Renewals Passports issued to adults are valid for ten years, while passports issued to people under 16 are valid for five years. When a person’s passport expires, they must apply for a new one.

Expiry overseas If a passport is due to expire while the holder is overseas, it is possible to apply for a new one before leaving Australia and have the current one cancelled. Otherwise, the passport will have to be renewed at an Australian consulate overseas.

Passports issued after 1 July 1983 If the expired passport was issued after 1 July 1983, presentation of that passport and the required photographs and fee will be sufficient for an adult to obtain a new passport. A person under 18 must apply as though for the first time.

[1.750] Lost and stolen

33

The passport will be cancelled, and a new passport issued. In a foreign country, a new passport is likely to be restricted and valid only for the remainder of the trip. It can be extended on return to Australia. It is an offence not to report a lost or stolen passport.

[1.760] Cancellation Passports may be cancelled in certain circumstances (s 22).

[1.770] Surrendering a

passport Anyone holding a cancelled passport, or one suspected of being wrongfully obtained, can be asked to hand it over. Failure to surrender a passport on demand is an offence.

Court orders A court may order a person to surrender their passport. The Family Court may do this if there is concern that a person may remove a child from the country. Criminal courts may do it in relation to a person who is granted bail.

Entering or leaving Australia When a person enters or leaves Australia, they must show their passport to the relevant official. Usually the passport is inspected and returned, but the official can retain the passport if they have reasonable grounds for suspicion. Dual nationality A citizen of another country may lose that citizenship when they take up Australian citizenship, along with their right to a passport from that country. Inquiries should be made at the consulate of the other country to see if there is an agreement with the Australian government about dual nationality.

passports A lost or stolen passport must, as soon as possible, be reported: • in Australia, to the police • in a foreign country, to the Australian consular representative.

[1.780] Offences Offences under the Australian Passports Act include: • making, giving or producing false or

34

• • • •

The Law Handbook

misleading statements: – in an application for a passport – in support of someone else’s application making alterations or additions to a passport (only an authorised passport officer may make alterations or additions) intentionally damaging or destroying a passport using someone else’s passport possessing a false passport

• using a cancelled, forged or altered passport • failing to report a lost or stolen passport as soon as possible • selling a passport • dishonestly obtaining a passport • bringing or taking a false passport across international borders. A passport is, and remains, the property of the federal government and thus cannot be given away or sold.

Power of attorney [1.790]

A power of attorney is a document that appoints a person, the attorney, to act on behalf of the person or company who gives the power, the donor or principal. The power can be: • to act generally on the principal’s behalf • to act in a manner specified in the power of attorney (ie, in a particular area, for a particular time or for specific purposes). A power of attorney is proof of the attorney’s authority to act on behalf of someone else.

[1.800] When to use a power

Bank authorities A person can also sign a bank authority giving a trusted person permission to operate their account. A bank authority can be revoked at any time by the person giving it.

[1.810] Who can give a power

of attorney? Individuals Anyone who is capable of understanding its nature and effect, even a child, may give a power of attorney.

of attorney

Companies

A power of attorney is advisable when, for example, someone is planning a long overseas trip and needs a trusted person to run their affairs at home. A power of attorney might also be appropriate for someone who is bedridden or physically incapacitated.

A company can also give a power of attorney, unless it is restricted by its memorandum and articles of association, rules or constitution.

When a power of attorney is not necessary Pensions It is not necessary to make a power of attorney to deal with a social security pension. A person may apply to Centrelink to become a warrantee for a person’s pension, setting out the reasons (usually supported by a medical certificate, stating, for example, that the pensioner cannot sign documents because of an injury to their hand).

[1.820] Who can act as an

attorney? A person, or a company, capable of making a power of attorney can also act as an attorney.

[1.830] Formal requirements A power of attorney is generally in the form of a deed that must be signed before a witness, and end with the words “signed, sealed and delivered”. The document is deemed to have been sealed and delivered when it is signed.

1 About the Legal System

If the principal is expected to lose mental capacity For a power of attorney to be effective after the principal loses mental capacity (an enduring power of attorney), the witness to the principal’s signature must be: • a barrister • a registrar of a Local Court • a solicitor who is not, and does not work with, the attorney being appointed, or a licensed conveyancer.

Standard forms The standard forms for a general and for an enduring power of attorney can be accessed on the LPI website. Drafting a specific power of attorney Care should be taken when a power of attorney is to be limited to specific powers. The wording should be broad enough to allow the intention of the principal to take effect, but not so broad as to give the attorney more power than the principal intended.

Using a solicitor Most solicitors have standard documents for giving a power of attorney that they can adapt for use in most circumstances.

Costs A solicitor’s fee for preparing a power of attorney is generally between $150 and $250, and the money is well spent if the document has been properly prepared. Lawyers can also advise on the interpretation of powers. The only other cost associated with a power of attorney in NSW is, where applicable, the registration fee.

[1.840] Registering a power of

attorney If a power of attorney is to be used for any dealing in land (including sales and leases of more than three years), it must generally be registered with the Registrar-General (Powers of Attorney Act 2003, s 52). (This may not be necessary if the attorney is acting for the buyer – see below.)

35

Acting for a person selling land If a person selling land appoints an attorney to act for them, the sale will not be valid unless the power of attorney has been registered.

Acting for a person buying land Where the attorney is acting on behalf of a buyer, it is not necessary to have the power of attorney registered if a solicitor acts for the attorney and signs the transfer. If the attorney intends signing the transfer, the power of attorney must be registered.

How to register a power of attorney The original stamped power of attorney must be lodged with Land and Property Information NSW. There is a fee of $136.30. Duties of an attorney An attorney must: • act in good faith • tell the principal about any conflict of interest. Delegation of a power of attorney An attorney may not delegate their powers and duties to another person unless the power of attorney authorises them to do so. If there is doubt, a solicitor should be consulted. If the power is delegated, the new attorney has the same duties. Exceeding a power of attorney An attorney who exceeds the authority granted in the power of attorney may be liable for any damage suffered by the principal or others and will, in any event, be guilty of an offence (s 49).

[1.850] Signing documents A document that is to be executed by the attorney on behalf of the principal should be prepared in the usual way without any reference to the attorney. However, when the document is signed, the attorney should sign on behalf of the principal and the following words should be inserted: I, [the principal’s name], by his/her attorney [the attorney’s name] pursuant to power of attorney (Registered Book … No …) and I declare that I have no notice of revocation or suspension of the said power of attorney.

36

The Law Handbook

[1.860] Dealing with an

attorney People dealing with an attorney can rely on the power of attorney as binding on the principal if: • the power is expressed to be irrevocable, or • they have no notice of its termination (s 48). The power of attorney should be read carefully to ensure that it is current and relevant to the dealing. If there is any doubt about its effect, a solicitor should be consulted.

[1.870] Ending a power of

attorney A power of attorney can be ended by either the principal or the attorney. Anything done by the attorney on behalf of the principal before they receive notice of the revocation will be valid.

Unregistered power of attorney No specific form of words is needed to end an unregistered power of attorney, as long as the intention is made clear to the other party.

Registered power of attorney If the power of attorney has been registered, a written revocation of that power should also be registered. This must also be done if the power of attorney requires it. Registration fees must be paid to register a revocation.

Where the power cannot be ended Certain grants of a power of attorney cannot be revoked or ended (for example, where the power is given in the form of a deed and is expressed to be irrevocable). However, the Supreme Court may end the power if the purpose for which it was given is achieved or becomes incapable of achievement.

Doing legal research [1.880]

You will need to prepare before any court appearance whether you have a lawyer representing you or not. Preparation involves finding the law that applies to your circumstances, as well as any other materials that may help explain the law. Any legal right or obligation can be found in either legislation or the common law: • Legislation. Acts of parliament (also called statutes) and any regulations, rules, bylaws or environmental planning instruments (EPIs) made under the authority of an Act are all forms of legislation. • Common law. If no legislation on a particular legal issue exists, the courts can make decisions. These decisions become law. If any conflict exists between the two types of law, legislation prevails over common law. All legislation and many court judgments are now freely available on the internet.

Your local library can provide material such as plain language resources, books on legal topics and internet access. Look for the Find Legal Answers Tool Kit, available in all public libraries. This contains plain language, upto-date books on specific legal subjects. For more in-depth research such as legal commentaries, searching for court judgments and information on court processes and procedures, visit the State Library of New South Wales, to access law resources in the library’s large law collection. Use the Researching the Law research guide at guides. sl.nsw.gov.au/research_law for a useful introduction to the Australian legal system, help doing legal research, and finding cases, legislation and commentary about the law on a subject or topic.

1 About the Legal System

37

Finding the law [1.890] Legislation You first need to find out what legislation is applicable to your situation, and if it is a NSW or a Commonwealth law. The Australian Constitution gives power to our parliaments to make laws. Section 51 of the Constitution sets out what the Commonwealth parliament can make laws about. These areas include defence, external affairs, trade, social security, family law, taxation, immigration, corporations and bankruptcy. State law covers any matters that are not mentioned in s 51 of the Constitution. Most criminal law is state law, unless it deals with something covered by Commonwealth law such as tax fraud. Many crimes are covered by the NSW Crimes Act 1900. (This Act has been amended many times since 1900 but it still keeps its original name and year.) Other matters covered by state laws include tenancy, driving offences, neighbourhood problems, strata living, environmental and planning issues, and local government. If you don’t know whether your legal matter is covered by Commonwealth or state law, check the relevant chapter in this book or other books on the law. Law books are available in the State Library of New South Wales.

Current NSW law To find the most up-to-date law, use the official NSW Legislation website at www. legislation.nsw.gov.au: 1. Select the Browse tab. 2. Under Browse in Force choose the first letter of the Act (or regulation or EPI). In Force means that the Act or regulation is current and includes all amendments. Repealed legislation is no longer in force, so it does not apply as law. For a printed historical version of an Act, contact the State Library of NSW. Regulations, rules and by-laws While Acts are the principal legislation, a lot of detail such as procedures, forms and specific applications are contained in regula-

tions or rules, ordinances and by-laws. These are made by government departments under authority stated in the Act and are called subordinate or delegated legislation. If you cannot find what you are looking for in an Act it may be in the delegated legislation. On the NSW legislation website there is a link from the principal Act to all regulations made under it. Alternatively, if you know the name of the specific regulation you can find it under Browse in Force – Regulations. Environmental Planning Instruments (EPIs) These are a form of delegated legislation, similar to regulations and are made under the Environmental Planning and Assessment Act 1979 (NSW). They are found on the NSW legislation website under the heading Browse in Force – EPIs. EPIs include State Environmental Planning Policies (SEPPs) which are planning instruments dealing with NSW policies for issues such as development standards, aged and disabled persons’ housing and coastal development, and Local Environmental Plans (LEPs) which regulate planning and development in each local government area.

Current Commonwealth legislation Use the AustLII website www.austlii.edu.au: 1. Select Commonwealth from the left hand menu under the heading “Cases & Legislation”. 2. Scroll down to the heading Cth Legislation. 3. Click on Commonwealth Consolidated Acts (or Regulations). A consolidated version means that all amendments or changes to an Act (or Regulation) have been added, making it the current version of the law. The Federal Register of Legislation www. legislation.gov.au is the authorised website for Commonwealth legislation. To find current legislation, click on Acts in Force, and use the alphabet to locate the Act.

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The Law Handbook

Other states' legislation To access legislation for other states use the State Library of New South Wales law research guides at guides.sl.nsw.gov.au. For printed historical versions of Australian states’ and territories’ legislation, contact the State Library of New South Wales.

[1.900] Case law You may want to find cases dealing with a particular point of law to see how the courts have dealt with it. Cases, also called law reports, judgments, decisions or determinations are important sources of legal information because they contain judges’ reasons for making a particular decision in a case. Textbooks, legal reference books and looseleaf services are a good place to start as they identify the most significant cases in a legal area. Subscription-based electronic citators, for example, Westlaw AU’s FirstPoint identify cases by legal issue or legislation. FirstPoint is available for use in the State Library of NSW. This resource will give you a citation for each relevant case which you will need in order to find the full text of the case. Once you have the name of a case, or the case citation, you can search for it in the following places: • the AustLII website at www.austlii.edu.au using the homepage search box. AustLII is freely available and provides full text of an extensive collection of cases, including High Court cases from 1903 • the NSW Caselaw website at www. caselaw.nsw.gov.au. NSW Caselaw is freely available and provides cases from NSW courts and tribunals, including NSW Supreme Court cases from 1999 • printed law reports available at the State Library of NSW • online subscription databases such as Westlaw AU, LexisNexis AU and CCH contain published law reports and unreported judgments. The State Library of

NSW provides access to the full text of some cases on selected databases.

How to read a citation A citation is the standard way to refer to published court decisions. For example: Waters v Public Transport Corporation (1992) 173 CLR 349: • Waters and Public Transport Corporation are the names of the parties in the case • v stands for versus, meaning “against” • 1992 is the year of the decision • 173 is the volume in the report series • CLR is the abbreviated name of the report series, Commonwealth Law Reports • 349 is the page where the decision starts in volume 173. Most cases are now cited with the medium neutral citation, and often only with that citation. For example, Liu v The Age Company Ltd [2012] NSWSC 12: • 2012 is the year of the decision • NSWSC is the abbreviation for NSW Supreme Court • 12 is the chronological number of the case decided in that year. Criminal cases will always include the Crown as one of the parties. For example, in the case R v Smith, R or Regina (Latin for “Queen”) refers to the Crown. This means the state is prosecuting a case against Smith. To identify the full name of a law report series you can use: • a printed legal citation guide • the online guide to legal abbreviations on the Monash University Library website at guides.lib.monash.edu/legalabbreviations, or • the State Library of NSW Researching the law? research guide at guides.sl.nsw.gov.au/research_law? Not all cases are available. Courts select and provide decisions for publication, usually on the grounds of legal significance. Just because a case is well known does not mean that it has been published in print or on the internet, although increasing numbers of cases are being made available online.

1 About the Legal System

39

Material about the law [1.910]

You can find plain language legal information on the Find Legal Answers website at www.legalanswers.sl.nsw.gov.au. The Find Legal Answers Tool Kit is available in NSW public libraries. The Tool Kit is a collection of plain language books about the law, covering a variety of topics including renting, family law, fines, wills and estates, going to court, and The Law Handbook. Most of the Tool Kit books are also available online. The Law Handbook and the other Tool Kit books provide overviews of many legal topics, but you may need more detailed information if you are going to court. Textbooks, practice books, legal encyclopaedias and legal commentaries all help explain the law and give examples of significant cases. To access these resources you can use the extensive law collections at the State Library of NSW, as they are not freely available on the internet. Specific titles to start your research with are: Anderson, Tim (2014) Defend Yourself: Facing a Charge in Court, 3rd ed, The Federation Press, Sydney. This is an excellent guide to the whole process of appearing in court, from arrest right through to sentencing and appealing. Available in all public libraries in NSW and online at www.legalanswers.sl. nsw.gov.au. Behan, Nadine (2009) How to Run Your Own Court Case, Redfern Legal Centre Publishing, Sydney. This book deals with civil (non-criminal) cases in a court and tribunal, and is available in all public libraries in NSW and online at www. legalanswers.sl.nsw.gov.au College of Law Practice Papers (LexisNexis). These are written for lawyers and contain practical information. They are available at the State Library of NSW.

The online guides Representing Yourself – LawAssist, published by LawAccess and available at www.lawaccess.nsw.gov.au/ Pages/representing/Representing-yourself. aspx, provide procedural information, sample letters, flow charts and FAQs. The guides cover a wide range of legal topics including debt, AVOs, fences, fines, employment rights, driving offences, after someone dies, and legal skills.

[1.920] Legal texts These give an overview of the subject, provide commentary on the law and often discuss key cases and refer to relevant legislation. If you are using textbooks, check the date of publication as the law can change from year to year. The State Library of NSW has a comprehensive collection. Also check with your public library as it may have some legal texts.

[1.930] Dictionaries and legal

encyclopaedias • LexisNexis Concise Australian Legal Dictionary (5th ed, 2014) (LexisNexis) • Encyclopaedic Australian Legal Dictionary (LexisNexis) • Laws of Australia (Thomson Reuters) • Halsbury’s Laws of Australia (LexisNexis) These explain the law and are a good starting point if you do not know much about the topic. They are divided into broad subject areas arranged alphabetically, and give a comprehensive overview of the subject, including relevant legislation and cases.

[1.940] Legal commentaries These are produced by legal publishers such as Thomson Reuters, CCH and LexisNexis and are available electronically and in print. The printed versions, also known as looseleaf services, are regularly updated. They

40

The Law Handbook

cover most legal subjects such as employment, contracts, torts, family law, intellectual property, social security and civil liability, to name just a few. These are the tools that lawyers use as they provide commentary, practical information, key cases and interpretation of the law. The State Library of NSW has an extensive collection of loose-leaf services.

[1.950] Court procedure The easiest way to find out about court procedure is to go to the individual court website. Each court has court forms, fees and information about procedure. The Justice website is an online government portal for all law and justice agencies and services in New South Wales: • go to www.justice.nsw.gov.au. • then go to the Courts and Tribunals pages and select the relevant court. For more detail on court procedure you can use court practice books. Each court has a practice book providing legislation governing the court, court procedures and fees, and practice notes. They are available at the State Library of NSW. Some examples of these are given here.

High Court, Federal Court, Federal Circuit Court, Family Court • High Court Practice (Thomson Reuters) • Practice and Procedure: High Court and Federal Court of Australia (LexisNexis) • Australian High Court & Federal Court Practice (CCH) • Australian Family Law (LexisNexis).

Supreme, District and Local Courts • NSW Civil Practice and Procedure: Local Court Practice (Thomson Reuters) • Ritchie’s Uniform Civil Procedure NSW (LexisNexis) For criminal matters: • Criminal Law NSW (Thomson Reuters) • Local Court Criminal Practice NSW (LexisNexis) • Criminal Practice and Procedure NSW (LexisNexis) • Federal Criminal Law (LexisNexis).

1 About the Legal System

41

Contact points [1.960]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au. Attorney-General’s Department (Cth) www.ag.gov.au Australasian Legal Information Institute (AustLII) – Commonwealth and state legislation and case law, subject databases and links to government departments and agencies – www. austlii.edu.au. Australian government www.australia.gov.au

Find Legal Answers, Legal Information Access Centre, State Library, NSW A free legal information service for the community of NSW. The service is available online and in public libraries across NSW. www.legalanswers.sl.nsw.gov.au Jury duty www.courts.justice.nsw.gov.au/ cats/jury_service.aspx.

Passport Information Service www.passports.gov.au ph: 131 232 Redfern Legal Centre www.rlc.org.au/publications/factsheets Registry of Births, Deaths and Marriages www.bdm.nsw.gov.au

Lands & Property Information

ph: 1300 655 236 Sheriff of NSW, Office of www.courts.justice.nsw.gov.au/ cats/catscorporate_officeofsheriff. html

Community Justice Centres NSW www.cjc.justice.nsw.gov.au

www.lpi.nsw.gov.au

ph: 9287 7300

ph: 1300 052 637 or 9228 6666

Taxes & duties

Community Justice Centres help people resolve disputes quickly and for free using mediation.

LawAccess NSW

Office of State Revenue

www.lawaccess.nsw.gov.au

www.osr.nsw.gov.au

ph: 1300 888 529

ph: 1300 139 814

Australian Law Reform Commission www.alrc.gov.au

Community Legal Centres NSW www.clcnsw.org.au Community Legal Centres provide free legal information and advice. Department of Justice The online gateway to law and justice information in NSW.

Justices of the Peace www.jp.nsw.gov.au

Law Society of NSW Find a lawyer and legal information www.lawsociety.com.au NSW Law Reform Commission www.lawreform.justice.nsw.gov.au

www.justice.nsw.gov.au

NSW government

Federal Register of Legislation

www.nsw.gov.au

www.legislation.gov.au

NSW legislation

The authorised website for Commonwealth legislation.

www.legislation.nsw.gov.au

Dispute resolution A list of contacts for dispute resolution, including community justice centres, is in the Contact points for Chapter 18, Dispute Resolution.

Courts and tribunals A complete list of courts is in the Contact points for Chapter 14, Criminal Law.

2 Aboriginal People and the Law Robyn Ayres Arts Law Centre of Australia Patricia Lane Barrister, University of Sydney Susan Burton Phillips Barrister Shannon Williams Women’s Legal Services NSW

Contents [2.10]

Historical legacy

[2.240]

[2.30]

The application of British and Australian law

[2.280]

[2.70]

Some current points of conflict

[2.290]

Aboriginal land ownership in NSW

[2.140]

Aboriginal people and criminal law

[2.310]

The Aboriginal Land Rights Act

[2.140]

Dealing with the police

[2.350]

Native title

[2.180]

Legal assistance

[2.200]

Trial and sentencing

[2.390] [2.440]

Resource law Heritage and cultural protection

[2.230]

Children, women and family law

[2.440]

Protection of heritage

[2.230]

Protecting Indigenous children

[2.480]

Copyright and other protections

Indigenous women and the law Land law

44

The Law Handbook

Historical legacy [2.10]

To understand the relationship between Indigenous people and the Australian legal system, it is essential to appreciate something of the history of that relationship. Which law? There are two legal systems for many Aboriginal and Torres Strait Islander people. The most obvious is the Australian legal system to which all Australians are subject (with some differences between states and territories). The other body of law that applies to Aboriginal and Torres Strait Islander people is their own systems of customary law, beyond the laws enacted by parliament or developed by the courts. The High Court has only since the Mabo decision in 1992 (Mabo v Queensland (No 2) (1992) 175 CLR 1) recognised that Indigenous laws survived invasion by the British and continue to the present time. So far this recognition has only been applied to the ownership and use of land and waters, but it could conceivably extend to other areas.

[2.20] The issue of

sovereignty Indigenous people in Australia never ceded sovereignty of the lands comprising the Australian continent to the British Crown – ie, not one of the 600 or more clan groups (defined by dialect) ever gave up sovereignty over their traditional lands. Indigenous people argue that the Crown’s claim to sovereignty is not sustainable under international law. However, in Coe v Commonwealth (1979) 53 ALJR 403 the High Court said that Australian courts were not

capable of deciding the issue of sovereignty, which meant that Indigenous Australians would have to seek a ruling in international law on the legality of the way in which the British government gained sovereignty over Australia. The international courts are not, however, designed for what amounts to secessionist action by Indigenous peoples or others seeking to roll back colonialism. They may only hear matters between “nation states”, and no Aboriginal and Torres Strait Islander group in Australia has that status. Indigenous people are left to seek remedies for their dispossession under the domestic laws of Australia and through political actions. Recourse to the United Nations Where there has been a breach of an international treaty or convention, Indigenous people may be able to bring an individual or group application before the United Nations Human Rights Committee; for example in 2007 in an application brought to the Committee in relation to the Commonwealth Government's Emergency Intervention in the Northern Territory and earlier in 1998, regarding the effect of the amendment to the Native Title Act 1993 (Cth) (The Ten Point Plan). Under the International Covenant on Civil and Political Rights, which Australia has signed, the Committee can hear complaints from Australian citizens where the: • violation occurred on or after 25 December 1991, and • complainant has exhausted all available domestic remedies.

2 Aboriginal People and the Law

45

The application of British and Australian law [2.30]

Since colonisation, the laws of England have been considered to apply fully to Indigenous Australians. In theory, this meant that Aboriginal and Torres Strait Islander people were entitled to the same protection under the coloniser’s legal system as any British subject, and Governor Phillip’s letters patent (official instructions) told him to “conciliate the affections of the natives and to live with them in amity and kindness”. In practice, there was state-sanctioned physical and cultural violence. The history of NSW is full of examples of this, from massacres that went unpunished to the more subtle acts of state seizure of items of Aboriginal cultural heritage.

[2.40] “Terra nullius” and

Aboriginal dispossession Colonial law was used to sanction the removal of Aboriginal people from their lands. This was reinforced by the application of the doctrine of terra nullius, which allowed the colonial administration and successive Australian governments to maintain the fiction that Aboriginal people did not have any rights to land that were recognisable under the common law. The basis for asserting Australia was terra nullius was that Aboriginal people were said to have no legal system that could support the ownership and transmission of rights to land. In fact there were systems of Aboriginal law which conferred rights and responsibilities to country, but the legal fictions that the continent was practically unoccupied, and that sovereignty conferred complete ownership of all the land and waters on the Crown, were too strong to be displaced. For over 200 years the law did not recognise Aboriginal connection with the land as a form of property.

In 1992, the High Court of Australia recognised that the application of the doctrine of terra nullius in Australia was based on the error of early colonial perceptions of Aboriginal people. In Mabo v Queensland (No 2) (1992) 175 CLR 1 at p 109, Justices Deane and Gaudron observed that: The acts and events by which that dispossession in legal theory was carried into practical effect constitute the darkest aspect of the history of this nation. The nation as a whole must remain diminished unless and until there is an acknowledgment and retreat from those past injustices. In the circumstances, the Court is under a clear duty to re-examine the two propositions. For the reasons which we have explained, that re-examination compels their rejection. The lands of this continent were not terra nullius or “practically unoccupied” in 1788.

[2.50] The Aborigines

Protection Board By the early 1880s, most Aboriginal people in NSW had been forced to move from their traditional lands to camps on missions or reserves. People were rounded up like cattle and marched to the camps, or were forced to go to them for survival rations as their traditional food sources were lost.

Regulation of Aboriginal life In 1909, the NSW government enacted the Aborigines Protection Act, which provided for a Chief Protector of Aborigines and an Aborigines Protection Board. Between the powers given to the protector and those given to the Board, every element of Aboriginal people’s lives was regulated. From that time until well into the 20th century, Aboriginal people encountered constant restriction and humiliation.

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Permission requirements Aboriginal people on NSW reserves could not marry, work or even leave the reserve without the permission of the Board or its delegate. Punishment for traditional practices There was frequent punishment for practising traditional ceremonies or speaking in “lingo” or tribal language. Requirement for corroboration of evidence In NSW, when an Aboriginal person gave evidence in court, the facts had to be corroborated by the independent evidence of a white person. When a white person was charged with a crime against an Aboriginal person, this corroboration was rarely forthcoming. Aboriginal people could not make an affirmation in accordance with their own belief system until the Evidence Further Amendment Act 1876 (NSW).

The dog licence An Aboriginal person seeking to escape control by the Aborigines Protection Board, (and from 1940, the Aborigines Welfare Board) had to have an exemption certificate. Aboriginal people still call these certificates “dog licences”. A person seeking exemption had to demonstrate to the Board an ability to assimilate and manage their own affairs. In effect, Aboriginal people had to prove that they could act like whites.

Removal of Aboriginal children The Board could remove Aboriginal children from their communities if they were deemed to be “neglected” or “in moral danger”. Bringing Them Home Many thousands of Aboriginal children were taken from their parents during the operation of the Aborigines Protection Board and the Aborigines Welfare Board. They were the subject of the Human Rights and Equal Opportunity Commission Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, and its 1997 report Bringing Them Home.

[2.60] Indigenous people and

the Australian Constitution Discrimination against Indigenous people also existed at the federal level. Section 25 of the Constitution contemplates electoral disqualification based on race. Until a referendum in 1967, s 51(xxvi) of the Constitution provided that the Commonwealth could make laws for “the people of any race except the Aboriginal race” (effectively leaving them in the hands of the States), and they were not counted in the census (s 127). The 1967 referendum recognised that the interests and welfare of Australia’s Indigenous people were a national responsibility. Section 51(xxvi) of the Constitution now provides that the Commonwealth may make laws for “people of any race”. At first, the Commonwealth government enacted only a handful of laws under this provision, but in more recent years legislation has been enacted, some of it controversial, to attempt to improve social and economic conditions for Aboriginal people, and to move towards recognising their place in the Australian polity. Some of the important federal laws which rely on the “race” power are the: • Aboriginal Land Rights (Northern Territory) Act 1976 • Aboriginal and Torres Strait Islander Heritage Protection Act 1984 • Aboriginal and Torres Strait Islander Commission Act 1989 • Native Title Act 1993 • Aboriginal and Torres Strait Islander Act 2005 • Corporations (Aboriginal and Torres Strait Islander) Act 2006 • Northern Territory National Emergency Response Act 2007 • Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 was enacted when the federal government found it was unable to deliver on its promise of national land rights legislation.

2 Aboriginal People and the Law

Since 1996, there have been attempts to substantially weaken the first four of these Acts. Notably, the federal government abolished the Aboriginal and Torres Strait Islander Commission in 2005 and repealed the Aboriginal and Torres Strait Islander Commission Act 1989. The amendments to the Native Title Act have drawn criticism both in Australia and internationally, as has the Northern Territory National Emergency Response Act 2007, under which the Commonwealth compulsorily acquired leases of Aboriginal land in the Northern Territory to support tough regulation of Aboriginal communities, including alcohol bans and welfare spending restrictions. The Hindmarsh Bridge case In the Hindmarsh Bridge case (Kartinyeri v Commonwealth (1998) 72 ALJR 722), the High Court considered whether s 51(xxvi) of the Constitution could be used to the detriment of Aboriginal people. The court was divided on the question, but the majority held that the Hindmarsh Island Bridge Act 1997 (Cth), which placed itself outside the provisions of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), was valid on the general principle that the power to make an Act must include the power to repeal or amend it. Justice Kirby argued that a greater principle should apply, and Justice Gaudron noted that “it is difficult to conceive of a present circumstance pertaining to Aboriginal Australians which could support a law operating to their disadvantage”. Nevertheless, the constitutionality of the 1997 Act was upheld without recourse to interpretation of s 51(xxvi).

Wurridjal v The Commonwealth [2009] HCA 2; (2009) 237 CLR 309 On 25 October 2007, Mr Wurridjal commenced High Court action alleging that the Northern Territory National Emergency Response Act 2007 and other Acts that supported it were invalid because they amounted to an acquisition of property without just terms compensation, contrary to s 51(xxxi) of the Constitution. He claimed that although the Commonwealth had given compensation for the acquisition of leases over Aboriginal land, the traditional owners had also been deprived of their rights to access their traditional country because the leases gave the Commonwealth power to deny permission to enter the affected communities. The Commonwealth argued that the claim could not succeed, and should be dismissed without a trial.

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The majority found that the legislation had either provided just terms, or did not affect the rights of traditional owners under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) to visit communities and care for sites, and that the claim should be dismissed. The majority did, however overrule a 1969 case, Teori Tau v The Commonwealth [1969] 119 CLR 564, and decided that Commonwealth laws passed in relation to the Territories (under s 122 of the Constitution) were invalid if they did not provide just terms compensation for acquisition of property. Justice Kirby dissented on the basis that the interference with the lives of the Aboriginal people in the affected communities was so great that the issues should go to a trial.

In 2011, an expert panel was appointed to lead a national public consultation and engagement program to build consensus on the recognition of Indigenous Australians in the Constitution. In 2012, the panel presented a unanimous report recommending changes to the Constitution which recognise the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples; remove racist elements; and prohibit discrimination on the grounds of race, colour or ethnic or national origin. On the basis of that report, the Commonwealth enacted the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth). The Preamble states that “The Parliament is committed to placing before the Australian people at a referendum a proposal for constitutional recognition of Aboriginal and Torres Strait Islander peoples.” In s 3 the Act provides, that the Parliament, on behalf of the people of Australia, recognises the Aboriginal and Torres Strait Islander peoples’ first occupation of “the continent and islands now known as Australia”; acknowledges the relationship of those peoples with their traditional lands and waters, and their continuing culture, language and heritage. The Act required a review of the readiness of the Australian people to give formal recognition in the Constitution to Aboriginal and Torres Strait Islander people, the means by which that recognition may be achieved, and the level of support for formal recognition, and required a report to the Minister at least six months before 27 March 2015, when the Act was scheduled to cease

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to have effect. In March 2015, the Act was extended until 2018. The Joint Select Committee on Aboriginal and Torres Strait Islander Recognition produced an interim report (July 2014) which concluded that to be successful at a referendum, any proposal must recognise Aboriginal and Torres Strait islander people; preserve the ability of the

Commonwealth to make laws about Aboriginal and Torres Strait Islander people; but prevent the Commonwealth, in making any such laws, from discriminating against Aboriginal or Torres Strait Islander people. The final report is now due in September 2017.

Some current points of conflict [2.70] Pastoralism, mining,

[2.80] Traditional marriage

conservation

In 2003, charges were brought against a 50-year-old Northern Territory man for having unlawful sexual relations with a girl under 16 (Criminal Code (NT), s 331A). The accused, a traditional Aboriginal man, claimed that he and the girl were married according to traditional law – a defence that was provided for in the Criminal Code. He was convicted, and although the crime carries a maximum penalty of seven years’ imprisonment, was sentenced to one day in jail. Following this case the Northern Territory government amended the Criminal Code to remove the traditional law defence, arguing that it had a responsibility to protect young women from sexual exploitation. The repeal of the traditional marriage defence means that Aboriginal men living according to Aboriginal law and custom may be liable to prosecution. This must be weighed against the protection now afforded young women who may otherwise be subject to sexual exploitation.

Aboriginal law and custom concerning the interaction between people and land, and communal and individual responsibilities towards the care and nurture of land, are at odds with the European Australian practices of pastoralism and mining and the concept of land as a resource to be exploited. Aboriginal principles of caring for country are not necessarily consistent with conservation laws. Often conservation principles are based on the idea that an ecosystem ought to be preserved, untouched by human intervention, but Aboriginal people have engaged in land management for millennia. Aboriginal people have their own aspirations for development, to improve their economic circumstances while seeking to protect their special relationship with the land. The debate in Queensland and at a national level between Aboriginal people, government and conservationists about the Wild Rivers legislation (since repealed) is an example of this.

The “Child Bride” case In 2005, another Aboriginal man was convicted of having had sexual intercourse with a girl under 16. Although the man could not raise the fact that the girl was “promised” to him under Aboriginal law as a defence, he was able to raise the matter before the judge in consideration of the appropriate sentence. The judge, taking the customary law issues into account, sentenced the man to a total of 24 months' imprisonment with 23 months suspended. The Northern Territory

Director of Public Prosecutions appealed the sentence, and the Full Bench of the Northern Territory Court of Criminal Appeal found that it was manifestly inadequate. The court increased the sentence to a total of 3 years 11 months with an 18 month non-parole period (R v GJ [2005] NTCCA 20). Subsequently, the federal government passed a law amending the Crimes Act 1914 (Cth) to remove the capacity of judges dealing with Commonwealth crimes under that legislation to take into account customary law matters when determining sentence.

2 Aboriginal People and the Law

[2.90] Customary law and

criminal law In Walker v New South Wales (1994) 182 CLR 45, the High Court considered whether customary law has application in criminal law where there is no legislative basis. Chief Justice Mason concluded that the criminal law was intended to apply to the whole community and therefore any customary law dealing with criminal matters would necessarily be inconsistent with the common law, and consequently extinguished.

Defending traditional fishing rights Ben Ali Nona, a traditional owner of the land and waters of and around Murray Island in the Torres Straits, was acquitted in the Queensland District Court of a charge of armed robbery after he took the catch from a commercial fishing boat while armed. Nona successfully argued that he had an honest claim of right – ie, he had an honestly held belief as to his or his people’s legal entitlement to the fish (see also R v Fuge [2001] NSWCCA 208). In Yanner v Eaton (1999) 201 CLR 351, traditional law was a defence to the State’s prosecution of Murrandoo Yanner for hunting juvenile crocodiles. Two recent High Court cases on traditional fishing rights, Akiba v Commonwealth [2013] HCA 33, (2013) 250 CLR 209 and Karpany v Dietman [2013] HCA 47 confirm that Aboriginal and Torres Strait Islander traditional fishing rights are recognised and protected by the Native Title Act, and although State and Commonwealth fishing laws might regulate those rights, s 211 of the Native Title Act protects their exercise. The decisions also establish that a right to take marine resources under traditional law is not necessarily limited to taking for a particular purpose, such as domestic use, and that where traditional law supports fishing for non-domestic purposes, traditional owners

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may exercise rights for commercial and domestic purposes.

[2.100] Finding a way of

reconciliation Such issues are difficult. In the past, where conflict arose between Aboriginal law and custom and Australian law, Australian law prevailed. This is still the case, but when such issues are raised in the press or the courts, there is now a sense that many Australians have an understanding that there must be a place for Aboriginal law and custom within the Australian legal system. The Australian Law Reform Commission’s 1986 Report into the Recognition of Aboriginal Customary Laws is still the most accessed of the ALRC’s reports. In NSW, even with a developing awareness, Aboriginal law and custom remains at the fringe.

[2.110] The Northern Territory

Intervention On 15 June 2007, a report entitled Little Children are Sacred was released by the Northern Territory government. It identified the extent of child sexual abuse claims in Northern Territory Aboriginal communities and made 101 recommendations to the Northern Territory government regarding the needs of those communities. In response to the report, the federal government passed the Northern Territory National Emergency Response Act 2007 (Cth) (NTER). In order to pass the legislation it was necessary to suspend the operation of the Racial Discrimination Act 1975 (Cth) as the legislation was clearly discriminatory. The NTER provided for the acquisition of Aboriginal land by compulsory lease, income quarantining (issuing food vouchers rather than welfare payments, removing access to welfare payments) and various other measures. A review of the legislation was undertaken by a task force appointed by the federal government, following which the Rudd government determined to continue with the emergency measures.

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In his February 2010 report “Observations on the Northern Territory Emergency Response in Australia”, United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous people, James Anaya found that, “as currently configured and carried out, provisions of the NTER are incompatible with Australia’s human rights obligations”. In 2012, the Bill to extend the NTER to operate for a further 10 years, called the “Stronger Futures” legislation, was passed in the House of Representatives. Its approval, with a few changes, was recommended to the Senate by the Senate Community Affairs Legislation Committee. The terms of the extension of the NTER drew further criticism from many quarters including the Australian Human Rights Commission and a Report from Jumbunna House of Learning at the University of Technology Sydney, particularly in relation to arrangements imposing compulsory income management and punishments for alcohol consumption. The decision in Wurridjal, (see Indigenous people and the Australian Constitution at [2.60]) while holding that the legislation was valid, did highlight concern (expressed by Kirby J in dissent) about the very intrusive and non-consultative interference with the lives of Aboriginal people living in the affected Northern Territory communities.

[2.120] Australia apologises On 13 February 2008, the Prime Minister, the

Honourable Kevin Rudd MHR, commenced the first sitting day of the new parliament by making an apology to the Indigenous people of Australia who were removed from their families as children, and to their families, on behalf of the Australian government. The “Apology” is seen as a watershed moment in Australian history. The recognition by the Australian government of the fundamental error and inhumanity in forcibly removing children from their families deeply moved many Indigenous and nonIndigenous Australians. In NSW on 18 June 1997, the then Premier Bob Carr made an official apology in the NSW Parliament to the members of the Stolen Generations in response to the Bringing Them Home Report by the Human Rights Commission.

[2.130] UN Declaration on the

Rights of Indigenous Peoples On 3 April 2009, Australia changed its position and endorsed the United Nations Declaration on the Rights of Indigenous Peoples. The Howard government had previously rejected the declaration adopted by the United Nations General Assembly in September 2007, along with Canada, New Zealand and the United States. The Indigenous Affairs Minister, Ms Jenny Macklin, said the government’s change of heart was “in the spirit of rethinking the relationship between Indigenous and non-Indigenous Australians and building trust”.

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Aboriginal people and criminal law Dealing with the police [2.140]

NSW police powers to arrest, detain, search and issue directions are generally the same for Indigenous people as they are for non-Indigenous people (Crimes Act 1900 (NSW), Pts 10, 10A and 10B). For an explanation of the law in this area, and many of the terms and procedures referred to in this section, see Chapter 14, Criminal Law. Rates of arrest and imprisonment Although the Royal Commission into Aboriginal Deaths in Custody recommended that police seek to avoid arresting Indigenous people wherever possible (Recommendation 87), the arrest rate for Indigenous people remains disproportionately high. Similarly, the rate of imprisonment remains disproportionately high, even though the key recommendations of the royal commission were directed at reducing the over-representation of Indigenous people in jails, and certain safeguards have been put in place for Indigenous people (see Circle sentencing at [2.220]).

[2.150] Limitations on police

powers There are specific limitations on police powers to arrest, detain, search or issue directions in relation to both Indigenous and non-Indigenous people: • an Aboriginal person who has been arrested can be detained for questioning for up to two hours. This may be extended to eight hours, with a magistrate’s approval, if the offence being investigated is punishable by imprisonment for more than 12 months

• the investigating police must notify an Aboriginal legal aid organisation when an Aboriginal person is arrested. The person is entitled to have a legal practitioner present to give advice during questioning • if the person is arrested more than once in 48 hours, the investigation period for each arrest is reduced by the period of the previous investigations • at the end of the investigation period the person under arrest must be released, either unconditionally or on bail, or brought before a magistrate as soon as practicable • a person who has not been arrested may not be detained against their will • the person being investigated must be cautioned, in a language in which they can communicate with “reasonable fluency”, that they do not have to say anything during questioning. In some circumstances an interpreter is needed. The person must be told of their right to communicate with a friend, relative or lawyer, and be allowed to do so. If practicable, the caution should be recorded • an Aboriginal person under arrest is entitled to have a friend or support person present during questioning. Investigating police do not have to notify an Aboriginal legal aid organisation or permit a friend to be present if the detainee’s education and understanding means they are not at a disadvantage.

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Police questioning before arrest Prior to arrest, police officers have the power to demand the name and address of any person: • in relation to certain motor traffic and drug offences • where the police hold a reasonable suspicion that the person: – was a witness to a crime – has stolen goods in their car – has a dangerous implement, or – possesses or is consuming alcohol in a public place. There are no special provisions in the NSW Crimes Act 1914 or Evidence Act 1995 requiring Aboriginal people under arrest to be treated any differently when being interrogated by police.

[2.160] Forensic procedures Following the introduction of the Crimes (Forensic Procedures) Act 2000 (NSW), there are clear rules as to how police may obtain bodily samples for forensic purposes. A distinction is made between intimate and non-intimate procedures.

Non-intimate procedures A non-intimate sample might consist of: • fingerprints • hair • nail scrapings • body moulds • photographs (s 3(1)). A non-intimate procedure can be carried out under an order from a senior police officer (Crimes (Forensic Procedures) Act 2000, s 17).

Intimate procedures An “intimate forensic procedure” includes: • examination of the genitals • taking a sample of blood, saliva or pubic hair • taking dental impressions (s 3(1)). To carry out such procedures the police officer must have either:

• the consent of the person from whom they wish to obtain the sample, or • a court order (ss 7, 22). Admissibility A sample that has not been obtained in accordance with the Act is not admissible as evidence in court (s 82).

Intimate procedures and Aboriginal people If the police wish to carry out an intimate procedure on an Aboriginal person, an interview friend (a support person chosen by the person) must be present when the person is asked for their consent, unless they have expressly and voluntarily waived their right to have an interview friend present. The police must also inform the person that the relevant Aboriginal legal service will be notified of the proposal to ask for consent (s 10). An interview friend or legal representative must be present when the procedure is being carried out on an Aboriginal person (s 55). Reasons for the provisions The special provisions in relation to Aboriginal people arise in part from an inquiry by the NSW Legislative Council Standing Committee on Law and Justice into the Crimes (Forensic Procedures) Act 2000. The Aboriginal and Torres Strait Islander Commission and the NSW Aboriginal Land Council made submissions to this inquiry, pointing out that bodily samples are used by Aboriginal people for spiritual purposes and as a result Aboriginal people may be particularly reluctant to give such samples.

[2.170] Bail Section 32(1)(a)(ia) of the Bail Act 1978 (NSW) requires the police custody manager and the court to take into account an Aboriginal person’s extended family and kinship and other traditional ties to place when considering bail.

What Indigenous people should know about the criminal law There are no criminal offences that apply specifically to Indigenous people. Some laws that relate to criminal

procedure – in particular, sentencing procedure – do have special requirements for Indigenous people.

2 Aboriginal People and the Law

In general terms, Indigenous people or their legal representatives should be aware of a number of aspects of the criminal justice system: • all people have a right to silence. No-one has to tell police or other authorities their name and address except under specific circumstances, including where the police believe on reasonable grounds that the person has committed or witnessed a crime (see Police questioning before arrest at [2.150]) • all people have the right to deny police entry to their house unless: – the police have a warrant, or – the police tell the occupant that they wish to enter the house because they suspect a crime is being committed inside the premises, or a person who has committed a crime is inside the premises. • all people have the right to have a legal representative present at any interview, whether they have been arrested or not • Aboriginal people are entitled to have their Aboriginality taken into account by the police custody manager when considering whether police bail should be granted or not • Aboriginal people are entitled to have their Aboriginality taken into account by the court when considering bail • Aboriginal people must have an interview friend (a support person chosen by the person) present:

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– before they can be asked to consent to a forensic procedure (that is, the taking of body samples like hair, saliva or blood), and – during the carrying out of a forensic procedure (see Forensic procedures at [2.160]). • in court, Indigenous people are tried in the same fashion as anyone else. Indigenous people are not entitled to be tried by an Indigenous judge or jury • in certain areas of NSW, an Aboriginal person who has entered a plea of guilty is entitled to request that they be sentenced by the magistrate in consultation with the Aboriginal elders of the area (see Circle sentencing at [2.220]) • when sentencing an Aboriginal person, the court can take into account the hardship and disadvantage caused by their background • in prison, Aboriginal people are not entitled to be treated differently from the other inmates in respect of classification, segregation, leave of absence or parole. There is usually at least one Aboriginal person on the Parole Board, although there is no specific requirement for this. Women, children and young people There are no provisions of the criminal law that relate specifically to Aboriginal women or to people under the age of 18. For information regarding children and the criminal law see Chapter 7, Children and Young People.

Legal assistance [2.180] Aboriginal legal

services Aboriginal legal services were established in the 1970s largely in response to the overrepresentation of Aboriginal men in the criminal justice system, in particular due to misuse of the Summary Offences Act 1988 (NSW) (which covers such things as vagrancy and swearing in a public place). In 2006, the six Aboriginal legal services in NSW and ACT were amalgamated to form a single service, called the Aboriginal Legal Service (NSW/ACT) Limited (ALS (NSW/ ACT)), which continues to be an Aboriginal community controlled organisation. There are 23 offices in NSW and ACT in metropolitan and regional areas. ALS (NSW/ACT) provides legal advice and court representation for Aboriginal and

Torres Strait Islander men, women and children in criminal law and children’s care and protection matters.

Women's legal services An Aboriginal women’s legal service, Wirringa Baiya, was established in 1996 in recognition of women’s special legal needs, particularly in relation to domestic violence, sexual assault, care and protection, and custody matters. The Indigenous Women’s Legal Program at Women’s Legal Services NSW was established in 1996 to respond to Aboriginal women’s civil legal needs across NSW (see Indigenous women and the law at [2.240]). See Contact points at [2.580] for a full list of Aboriginal Legal Services in NSW.

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[2.190] Office of the

Ombudsman The NSW Ombudsman has a designated Aboriginal liaison officer to deal with complaints from Aboriginal people.

Trial and sentencing [2.200]

All persons are entitled to be tried in indictable criminal matters by a jury of their peers (Criminal Procedure Act 1986 (NSW), s 131). The reference to “peers” does not, however, entitle a person to be tried only by people of their own race or religion. The jury rolls are established by the selection of names at random from the electoral rolls (Jury Act 1977 (NSW), s 12). Aboriginal people are not entitled to trial by an Aboriginal judge or magistrate.

For details about trial procedure, see Chapter 14, Criminal Law.

[2.210] Effect of customary

law Indigenous people cannot plead that they acted in accordance with customary law as a defence to any criminal charge. Although the Australian Law Reform Commission’s 1986 report Recognition of Aboriginal Customary Law recommended that a partial customary law defence be created, this has not occurred in any Australian state or territory. In 2000, a NSW Law Reform Committee, on which Justice Michael Adams sat as chairperson and Judge Bob Bellear sat as a committee member, produced a report (Report 96 (2000) Sentencing: Aboriginal Offenders) which recommended that the Crimes (Sentencing Procedure) Act 1999 (NSW) be amended to provide for customary law matters to be taken into account in the sentencing of Aboriginal offenders. Those recommendations have not been implemented. In December 2006, the federal

government passed amendments to the Commonwealth Crimes Act 1914 forbidding judges dealing with matters under that Act from taking into account customary law and cultural practices when considering bail or sentencing of an offender. The NT National Emergency Response Act 2007 (Cth) (NTER) also included measures preventing courts from taking customary law into account in bail or sentencing decisions. The Northern Territory Chief Justice, Trevor Riley, expressed concern over s 91 of the NTER, saying it meant Aboriginal people were not given the same rights as other members of society.

[2.220] Sentencing The Crimes (Sentencing Procedure) Act 2000 sets out the matters to be taken into account by the court in determining the appropriate sentence in respect of a given offence. A person’s Aboriginality is neither an aggravating nor a mitigating factor. The court is, however, required to have regard to “any other objective or subjective factor that affects the relative seriousness of the offence” (s 21A). Among these subjective factors are the specific and unique historical and cultural issues that affect Aboriginal people’s position in Australian society (see R v Simpson, Supreme Court of NSW, unreported, 15 December 1981; R v Gordon, Supreme Court of NSW, unreported, 5 August 1983; R v Fernando (1992) 55 ALB 19; R v Jackie (1992) 63 ALB 19). Such factors have been held to be of less or no relevance in the case of Aboriginal people who have only experienced urban life.

2 Aboriginal People and the Law

Circle sentencing The NSW Law Reform Commission’s Report 96 (2000) Sentencing: Aboriginal Offenders recommended that pilot schemes for circle sentencing and adult conferencing should be instituted in consultation and collaboration with Aboriginal communities. Following this, the Aboriginal Justice Advisory Committee, in collaboration with the Aboriginal community in Nowra, commenced a pilot circle sentencing scheme. Currently the program operates at local courts in Nowra, Dubbo, Walgett, Brewarrina, Bourke, Lismore, Armidale and Kempsey, Nambucca, and Mount Druitt. The scheme currently only applies to adults. How circle sentencing works The scheme allows a magistrate to sit with the Aboriginal elders of the area and discuss sentencing options in relation to Aboriginal

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offenders. Sentences are passed under the scheme only when the offender requests to be so sentenced. The benefits of the scheme include: • greater understanding and participation in the administration of justice by the Aboriginal community • a clearer recognition by the offender that criminal offending is unacceptable to the whole community, and • a clearer understanding by the offender of the effect of crime on victims (especially when the victim attends). Circle sentencing is not of itself the application of customary law, but provides an avenue for issues of customary law to be taken into account when determining sentence. For further information see Circle Sentencing in NSW: A Review and Evaluation, 2003, NSW Aboriginal Justice Advisory Council.

Children, women and family law Protecting Indigenous children [2.230]

In 1997, the Australian Human Rights Commission reported on the Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families. The report, Bringing Them Home, proposed a framework of national standards to guide governments and other agencies in the protection of Indigenous children. Major standards for the care and protection of Aboriginal children in NSW, and their relationship to the standards proposed in the report, are as follows: • there is an initial presumption that it is in

the child’s best interest to remain within the family, community and culture. In deciding whether it is in the child’s best interests to be taken into care and protection the court must consider: – the views of the child and the family – the need to maintain contact with communities and cultural heritage – the advice of accredited Aboriginal organisations (standard 1) (see Children and Young Persons (Care and Protection) Act 1998 (NSW)). • in judicial or administrative decisions

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•

•

•

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relating to care and protection the child’s best interests should remain paramount (standard 2) detention of an Indigenous child is a last resort. When deciding whether the danger to the community as a whole outweighs the desirability of keeping a child with family or community, the court must consider imprisonment as a last resort (Children (Criminal Proceedings) Act 1987 (NSW), s 33(2)) (standard 3) when an Indigenous child or young person is involved in care and protection matters, an Aboriginal organisation should be consulted and involved in every stage of the process (See Children and Young Persons (Care and Protection) Act 1998) (standard 4) indigenous children should have representation of their choice (or, where a child cannot make a choice, representation by an Aboriginal organisation) (standard 5) when a child or young person is to be removed from their family the following options should be considered, in this order (standard 6): – placement with a member of the family or kinship group, as recognised by the community to which the child belongs

– placement with a member of the Aboriginal community to which the child belongs – placement with another Aboriginal family near the child’s usual home – placement by Family and Community Services, after consultation with the child’s extended family and appropriate Aboriginal welfare organisations. • adoption is a last resort (standard 7). In NSW, families where at least one partner is Aboriginal are preferred where an Aboriginal child is to be adopted. A report by the NSW Law Reform Commission on adoption legislation recognises that adoption is at variance with Aboriginal customary law and that Aboriginal children should not be adopted unless there is clearly no other choice • certain rules should apply when Aboriginal children come into contact with the juvenile justice system (standard 8). For details of the recommended rules, see Bringing Them Home, available from the Australian Human Rights Commission.

Indigenous women and the law [2.240]

It is often assumed that Indigenous women’s legal issues are the same as those of Indigenous men. This is not the case, particularly in the areas of domestic violence and family law. Previous Indigenous service providers have resourced the perpetrator, leaving the victim without adequate representation and support. Major Indigenous service providers such as Aboriginal Legal Services are now addressing policies and practices which had failed to take account of Indigenous women’s legal needs. Governments and funders, too, are just beginning to recognise the need for gender specific services for Indigenous women. However, in light of the current government funding cuts to such services

therefore reducing specialist services, it is essential there is adequate, ongoing and sustainable funding for culturally safe services. Indigenous women are often the backbone of their families and communities, and they may experience extreme levels of violence. Their legal needs are different in many respects.

[2.250] Indigenous women

and violence Until recently, domestic violence was a subject on which Indigenous women were effectively silenced, both in their own community and outside it. Domestic violence is rarely reported in Indigenous communities,

2 Aboriginal People and the Law

although the reporting rate is increasing. Indigenous women may often bear the heavy responsibility of protecting their partners or family members from police and legal structures, that may have historically operated unresponsively, inaccessibly and prejudicially within their communities.

Barriers faced by Indigenous women While Indigenous women in violent relationships share some of the needs of other women in this situation (whether they live in urban, rural or isolated areas), they face additional barriers in the form of culturally inappropriate services and limited resources and funding dedicated to their problems. While access to information and services is vital, most services available to victims of domestic violence are non-Indigenous services. This creates physical, cultural and, in some cases, language barriers for Indigenous women.

Why violence is not reported Indigenous women may be reluctant to go to police or court services because of previous unsympathetic or destructive experiences with these institutions. There is an additional fear, as the report of the Royal Commission into Aboriginal Deaths in Custody points out, to the effect that “if your man flogs you and you call the police and they take him away, he might die in jail or the police might kill him. Do you want that on your conscience?” This fear is a major contributing factor in not reporting domestic violence. It continues to place the responsibility for the violence on women. Communicating with police The lack of female Aboriginal Community Liaison Officers in key NSW police stations has been consistently identified by Indigenous women as a factor in the underreporting of domestic violence and sexual assault. This is strictly “women’s business”, and for Indigenous women to talk to men about such intimate and traumatic issues is both embarrassing and shameful. Whilst there are some (mostly non-Indigenous)

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female Domestic Violence liaison officers and police officers, the cultural barrier may still remain.

[2.260] Accessing the family

law system The experience of the legal system for many Indigenous women has been a negative, confusing and disempowering one. Many women choose not to engage with the family law system as they are concerned that the Department of Family and Community Services will become involved and take their children away. However, using the family law system, including family dispute resolution and the courts, can be a useful way to take positive steps to make safe arrangements for children without Family and Community Services involvement. Culturally appropriate services are crucial to enable this. The ability of Indigenous women to access the legal system without professional and ongoing holistic support is limited. Some Indigenous women have had violence inflicted on them by more than one perpetrator, as children and adults. These women are particularly vulnerable and many have moderate to severe posttraumatic stress and associated psychological conditions of varying degrees (eg depression, severe anxiety, personality disorders). Indigenous women may also be disadvantaged by generally having low literacy levels and having significant social, economic, geographic and cultural disadvantage. Many women have other family members experiencing similar disadvantage, as well as also being victims of sexual assault and/or family violence. Family dispute resolution (FDR) services are located in large regional centres, however they are not in most small towns nor anywhere close to many Aboriginal communities. The lack of private and public transport and costs of travel and accommodation mean attending these services is difficult. FDR services are very much mainstream services which are focused on the nuclear family model and non-Indigenous family raising practices.

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The family law courts have developed a Reconciliation Action Plan as part of a strategy to make the courts more accessible.

Access to information Given the levels of domestic violence and sexual assault Indigenous women experience, information about the Victims Support Scheme is also essential. Relatively few Indigenous women are aware of this scheme and their right to apply for counselling and financial assistance as victims of violent crime. Victims Services has an Aboriginal Contact Line 1800 019 123. See also Chapter 39, Victims Support and Chapter 19, Domestic Violence.

[2.270] Legal services for

Indigenous women Wirringa Baiya Aboriginal Women’s Legal Centre was established in 1996 and is in Marrickville in Sydney. Wirringa Baiya means black women speak. It provides telephone advice about domestic violence, sexual assault, care and protection and

custody matters. It can provide legal representation or refer women to other representation. Women’s Legal Service NSW, a mainstream service provider, established an Indigenous Women’s Legal Program in 1997. It provides a state-wide service including a “1800” advice line for family and civil matters, community legal education and training, and contributes to law reform projects. Family Violence Prevention Legal Services have been established in rural and remote NSW. Other Indigenous women’s programs have been established in women’s legal services across Australia, which are funded by the Commonwealth government, to increase access by Indigenous women (see also Contact points at [2.580]).

Other Programs Across Western Sydney Staff of the Indigenous Women’s Legal Programs also travel through regional NSW and attend regular outreach advice clinics in greater Western Sydney.

Land law [2.280]

Sovereignty over the land and waters of Australia was acquired by the British on invasion in 1788. That was interpreted legally to mean that the Crown assumed ownership of them. Apart from those lands or waters that have been acquired by the Commonwealth, the States still hold ultimate title to the lands and waters, but since the Mabo decision, the legal position in relation to the land occupied on

colonisation is that the State holds “radical” title – that is, the right to control the use and disposition of land, but not necessarily absolute ownership of it. Crown lands in NSW are lands that the Crown has not dealt with, or have come back to the Crown after a grant, for example if lands are resumed. Crown land can only be dealt with in accordance with legislation, principally the Crown Lands Act 1989 (NSW).

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Aboriginal land ownership in NSW [2.290] About Aboriginal land

ownership In general terms, Aboriginal people and their legal representatives should be aware of the following matters in relation to Aboriginal ownership of land: • Indigenous people who are private land holders do not have any special form of land holding • Indigenous people may have rights or interests in their traditional lands through membership of a nation or clan, to be exercised as determined by traditional law and custom, and the right under the National Parks and Wildlife Act 1974 (NSW) to put their views about activities that might affect sites or land which is of special significance • Aboriginal people may have a right to have a say about the lands owned by a Local Aboriginal Land Council through membership of the Local Aboriginal Land Council either as a resident of that land council area, or as a person with a sufficient association with that area, or as a recognised Aboriginal owner of land within the land council’s boundaries • land claims under the Native Title Act 1993 and the Aboriginal Land Rights Act 1983 (NSW) are two separate and distinct procedures concerning different kinds of rights • native title rights and interests held by traditional owners are inalienable. However, lands granted to local Aboriginal land councils are granted as freehold and can only be dealt with subject to specific statutory conditions under the Aboriginal Land Rights Act • native title may be claimed by individuals in their own right, or on behalf of a traditional community or group. A claim under the Aboriginal Land Rights Act may only be made by an Aboriginal Land Council • where native title exists, Indigenous people can exercise traditional rights to hunt, gather, and fish, or carry out ceremonial activity, without a determination by the Federal Court. Some native title rights and interests such as the right to have compensation for extinguishment after 1975, require a determination under the Native Title Act 1993 • Aboriginal people can request the Minister for the Environment to place any national park in NSW on the schedule of national parks to be handed back to the Aboriginal owners • when any national park is handed back, the National Parks and Wildlife Service must pay rent to the Aboriginal owners.

[2.300] Aboriginal land rights

and Mabo Land can be dealt with or affected in a number of ways, but the most common way of acquiring private rights to land is through the Torrens title system, the most important feature of which is the concept of indefeasible title confirmed by entry on the Register of Titles. Within this system of title, before the Mabo decision, the NSW government made provision for Aboriginal people to make land claims over vacant crown land by enacting the Aboriginal Land Rights Act.

In 1994, following the Mabo decision in 1992, the State government legislated to allow for native title to be recognised in NSW consistently with the provisions of the Native Title Act. National parks In 1996 the NSW government amended the National Parks and Wildlife Act 1974 to make provision for national parks to be transferred to the “Aboriginal owners” and leased back to the government as national parks.

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The Aboriginal Land Rights Act [2.310]

The Aboriginal Land Rights Act provides for: • a land claim mechanism • a land council structure, and • an income stream.

[2.320] Claims under the Act The land claim mechanism does not, strictly speaking, grant “land rights”, but provides a means by which Land Councils apply to the government for a transfer of vacant crown lands which are not lawfully used or occupied, or are not needed, or likely to be needed, for residential purposes, or for an essential public purpose. In substance, the title is transferred as of right, as a form of compensation for dispossession, as the minister has no discretion to refuse to transfer the land if it falls within the definition of “claimable Crown land” in the Act (see Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285). Applications to the minister to grant land must be made by either the NSW Aboriginal Land Council (NSWALC) or a Local Aboriginal Land Council for the area where the land is claimed. Land councils are constituted according to the Act and proclaimed by the governor. Local Aboriginal Land Council membership can be based on three criteria: on the fact that the Aboriginal person lives within the geographical boundaries of the land council area, has a “sufficient” association (which need not be traditional in character) which is accepted by other members of the land council or the person is an Aboriginal Owner in relation to land within the area of the Local Aboriginal Land Council meaning their name is entered on the Register of Aboriginal Owners because of the person’s cultural association with particular land.

What the Act recognises There have been significant developments in the law since this Act was passed, but in 1983 it was considered ground-breaking legislation. Many features of the Act have stood the test of time. For instance, the preamble recognises that: • land was traditionally owned and occupied by Aboriginal people • land is of spiritual, social, cultural and economic significance to them • it is fitting to acknowledge this importance • as a result of past government decisions, Aboriginal land has been progressively reduced without compensation.

[2.330] Aboriginal land

councils The Aboriginal Land Rights Act originally created a three-tiered system of land councils: • the NSW Aboriginal Land Council (covering the state) • 13 regional land councils • 120 local Aboriginal land councils. However, amendments to the Act, passed on 4 December 2006, abolished regional land councils.

[2.340] Obtaining land under

the Act Aboriginal people can obtain land or associated rights under the Act through: • land claims (s 36) • purchase of lands (ss 12(b), 23(c), 38) • acquisition of the land by the Minister for Aboriginal Affairs (s 39) • access to land for hunting and fishing (ss 47, 48) • rights to minerals (s 45) and royalties (s 46) • community benefits schemes and social housing schemes provided by local Aboriginal land councils (ss 52A and 52B).

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Land claims Land claims under the Act can be made only by local land councils, or by the NSW Aboriginal Land Council on behalf of one or more local land councils. The claims are limited to vacant crown land not lawfully used or occupied, or required or likely to be required for an essential public purpose or for residential purposes. Procedure Claims are normally prepared by the local land council, often with legal advice from solicitors or the NSW Aboriginal Land Council. They are lodged with the registrar appointed under the Act, who certifies that the land claimed is within the boundary of the local land council and then sends the claim to the Minister for Crown Lands (the Minister for Lands) for determination. The minister's responsibility The minister gives notice of the claim to relevant government agencies, including local government. These agencies may object, but only on the ground that the land is required or likely to be required for an essential public purpose or for residential purposes. If the minister is satisfied that the land is vacant crown land and not required for an essential public purpose or residential purposes, the claim must be granted. Appeal against refusal If the minister refuses the claim, the local Aboriginal land council may take the matter on appeal to the Land and Environment Court. The claim is then heard from the beginning by a justice of the Land and Environment Court, usually sitting with a commissioner who is Aboriginal. Either party may appeal from the decision to the NSW Court of Appeal (Land and Environment Court Act 1979 (NSW), s 57). When a claim is granted Once a claim is granted the land is transferred as freehold to the claimant Aboriginal land council.

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Leaseback as national park Section 36A of the Aboriginal Land Rights Act allows land to be leased back to the National Parks and Wildlife Service as a national park. This is a useful option where the lands are recognised by the local land council as requiring protection for natural or cultural heritage values. Under s 71AE of the National Parks and Wildlife Act 1974 (NSW) the Minister pays rent for the land to the Local Aboriginal Land Council that owns the land. The leased land is managed by a board of management under s 71AN of the Act, under which a majority of the board must be Aboriginal people. The board must also prepare plans of management for the lands under its control. Boards of management have access to funds to perform their functions through s 71AQ of the National Parks and Wildlife Act.

Purchase of lands The Aboriginal Land Rights Act provided for the NSW Aboriginal Land Council to be paid 7.5% of the land tax collected each year from 1983, when the Act was proclaimed, until 1998. Half the money had to be allocated to an investment fund, and half to administration and land acquisition. The investment fund now contains approximately $500,000,000. The interest is made available to local Aboriginal land councils for administration and, potentially, land acquisition.

Acquisition by the Minister If the Minister for Aboriginal Affairs believes there are exceptional circumstances justifying the acquisition of land to satisfy the objectives of the Act (s 39), the minister may acquire it. The power has been exercised only once, when Wellington Common was acquired and then transferred to the traditional owners in 2001 through an Indigenous agreement reached to resolve a native title claim to the Common.

Access for hunting, fishing and gathering Under s 47 of the Act, local Aboriginal land councils may enter into agreements with

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landholders to obtain access onto or across lands for hunting, fishing or gathering of traditional foods. Under s 48, a local land council that has been unable to negotiate an agreement may apply to the registrar, appointed under the Act, who must refer the matter to the Land and Environment Court. The court may then issue a permit. It is an offence to refuse access after a permit has been issued.

Rights to minerals and royalties Under the Act, ownership of all minerals except gold, silver, coal and petroleum is transferred from the Crown when land is acquired by a local Aboriginal land council. The land council can then veto mining (except for the reserved minerals), or consent to mining and receive royalties.

Rights to deal with the land A land council may only deal with the land under detailed provisions of the Act. “Deal-

ing with” land is very widely defined and includes not just selling or mortgaging it but also making an application to a consent authority to undertake development on the land, such as subdividing or constructing buildings. The NSW Aboriginal Land Council must be satisfied that all the procedural requirements imposed by the Act have been complied with, and that the cultural value of the land has been taken into account when the Local Land Council resolves to deal with the land. In particular, land which is transferred under the Act and which may be subject to native title must be cleared of native title by a determination that native title does not exist. A dealing done by a land council in breach of these provisions is void (s 42C).

Native title [2.350] Under common law In Mabo v Queensland (No 2), the High Court held that the common law of Australia recognises Aboriginal and Torres Strait Islander title to land held by them in accordance with traditional laws acknowledged and traditional customs observed by them.

The common law definition Native title is recognised by the common law as a bundle of rights over land based on the traditional laws and customs of Indigenous people until: • it is extinguished by an act of the Crown, or • the people lose their traditional connection with their land. Many aspects of the common law relating to native title remain unclear. These include the effect on native title of specific Crown grants and other dealings (see Wik and other cases at [2.360]).

Extinguishment Native title is extinguished by legislation passed by the States where there is a clear legislative intention to that effect. This intention must be found by looking at the words of the relevant statute, and its purpose and context, to see whether the rights that the statute vested in the Crown or authorised the Crown to grant to others were inconsistent with all native title rights that might subsist in the land. Where the Crown does grant or vest such an interest in land, native title is extinguished to the extent of the inconsistency (see Extinguishment of native title at [2.360]). The decision of the High Court in Western Australia v Brown (2014) 253 CLR 507 shows that the interest granted must be clearly inconsistent with any exercise of native title rights to result in extinguishment. In that case, a mining company was granted rights to mine under the Mount Goldsworthy mining lease and, under the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA), to construct a township to house mine

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workers. Even though the land was intensively developed to create the township, there was held to be no inconsistency with all native title rights so as to bring about total extinguishment. This conclusion was supported by the requirement that the mining company had to permit the State and any other person to have access to the area leased except where that access would unduly interfere with the mining operations. That requirement pointed to an intention to recognise rights in third parties to have access to the area of the lease. The fact that some areas might be so developed as to prevent access (by building houses and township facilities) did not mean that the lease as a whole had the effect of extinguishing rights, as it was the nature of the rights granted (and not the way in which they might be exercised) which had to be considered. Karpany v Dietman [2013] HCA 47 confirms that legislation to regulate a right is unlikely to result in extinguishment because the regulation of a right assumes that the right continues to exist. What kind of rights? In 2002, the High Court handed down its decision in Western Australia v Ward (2002) 213 CLR 1, settling the argument as to whether native title rights were sui generis rights and interests (ie, different from other kinds), or merely a bundle of rights recognisable at common law. It found that native title was properly recognised as a bundle of rights and interests. The effect of this decision is debatable: at the very least the finding allows the court to determine native title rights and interests as individual strands rather than as an indivisible whole. The decision in Akiba v Commonwealth (2013) 250 CLR 209 suggests, however, that a broadly stated right (for example, to fish) cannot be diminished by separating out the purposes for which the right might be exercised and finding partial extinguishment of the right by legislation which impacts on the

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exercise of that right. In that case a native title right to fish included a right to fish for non-domestic or commercial purposes, as State and Commonwealth laws prohibiting commercial fishing without a permit regulated only one aspect of the exercise of the native title right.

[2.360] Under the Native Title

Act The legislative definition Native title is defined in s 223 of the Native Title Act 1993 (Cth) as the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land and waters, where: • the rights and interests are possessed under traditional laws acknowledged, and traditional customs observed, by the people concerned • the people have a connection with the land or waters by those laws and customs, and • the rights and interests are recognised by the common law of Australia. The original Native Title Act also contained a section that provided that the common law in respect of native title (as developed in the Mabo decision) had the force of a law of the Commonwealth, ie an act passed by Parliament, but that section was found to be unconstitutional in 1995 in the Native Title Act case (WA v Commonwealth (1995) 183 CLR 373) which held that the decision in Mabo which held that the common law could not validly have the same effect as legislation passed by Parliament. In 2002, the Yorta Yorta case held that the statute stood alone and had to be interpreted in its own terms.

The Yorta Yorta case In the 2002 Yorta Yorta case (Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422), the High Court held that the test to be applied to determine whether native title existed and could be recognised was to be found in the Native Title Act (s 223).

The court also held that the test required applicants to demonstrate that: • a set of laws and customs in relation to the ownership of the lands and waters in question existed at the time of annexation by the British, and

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• the descendants of those people continue to observe laws and customs derived from those original laws and customs. The effect of the decision is to make proof of native title

very difficult for those Aboriginal people from the southern parts of Australia, where the effects of invasion have been felt longest.

Rights and interests recognised in a native title determination might include hunting and fishing rights (s 223(2)). Native title can exist in the seas and seabed in offshore

areas, and can include the right to fish and to protect sites of cultural significance (Yarmirr v Northern Territory; Commonwealth v Yarmirr (2001) 208 CLR 1).

Wik and other cases The High Court has made observations on the principles to be applied in determining the effect of pastoral leases on native title rights. Wik In Wik Peoples v Queensland (1996) 187 CLR 1, the High Court held by a majority of four to three that because the pastoral leases in question were not true leases as understood by the common law, and did not confer a right to exclusive possession, they did not necessarily extinguish native title. The court also ruled that where the rights of pastoralists and those of native title holders were in conflict, the rights of pastoralists would prevail.

“property”. A similar conclusion was reached in Karpany v Dietman in relation to laws regulating the right to fish, where prohibition on the right to take shellfish without a permit did not extinguish the traditional right to take them. Risk

This is of particular importance for Aboriginal people from NSW, who have been removed from their traditional lands in the past. It is still necessary, though, that applicants for native title have maintained traditional law and custom in respect of the country they claim (De Rose v South Australia (No 2) (2005) 145 FCR 290). Native title can still be recognised even if the grantee of a pastoral or mining lease has the right to undertake extensive development on the area claimed, provided that the rights under the lease are not totally inconsistent with all native title rights: Western Australia v Brown (2014) 253 CLR 507.

Risk v Northern Territory (2007) 240 ALR 75 concerned native title determination applications made on behalf of three groups of the Larrakia peoples in relation to land and waters in and around Darwin in the Northern Territory. The claim area comprises many sections of land and waters within an overall area of about 30 square kilometres. The primary judge (Risk v Northern Territory [2006] FCA 404) dismissed the applications because he found the present society of the Larrakia peoples did not now possess the rights and interests possessed at the time of sovereignty, because their current laws and customs were not “traditional” in the sense required by s 223(1) of the Native Title Act as explained in Yorta Yorta. The judge found that there was no contemporary evidence to suggest that all, or most, of the cultural practices of the Larrakia people which were observed during the latter part of the nineteenth century continued to be practised. During the period from WWII to 1970 the Larrakia people were removed from the claim area, Darwin, to Berrimah and required to hold a permit to enter their traditional lands. The Full Court dismissed the appeal, holding that the applicant group had failed to show continuity in observance of traditional law, and that the laws and customs had been transmitted in a traditional way. Although Yorta Yorta accepts that law and custom may adapt to the pressures of colonisation and yet still be traditional, the claim group must demonstrate that observance of law and custom continues and is acknowledged in ways that remain true to the pre-contact normative system of law.

Right to hunt and fish In Yanner v Eaton (1999) 201 CLR 351, the High Court confirmed that a native title right to hunt, given force in the Native Title Act, would not be extinguished by legislation seeking to assert ownership of wildlife as

Compulsory acquisition of Native Title In Griffiths v Minister for Lands, Planning and Environment (2008) 235 CLR 232, the High Court held that the Northern Territory government's compulsory acquisition (extinguishment under s 24MD(2) of the Native Title Act

Freehold and native title In Fejo v Northern Territory (1998) 195 CLR 96, the High Court made clear that a freehold interest extinguishes native title, and that once extinguished native title cannot revive. Must Aboriginal people live on their land? In Yarmirr, the majority of the High Court found that Aboriginal people did not necessarily need to live on or travel to their lands to maintain the necessary connection with country for native title to be recognised.

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of native title land and rights “for any purpose whatsoever” was a valid exercise of executive power for the purpose of leasing and disposing of that interest into private hands under s 43 of the Crown Lands Act 1992 (NT). Kirby J (in dissent) refused to take “a purely literal approach” to compulsory acquisition “for any purpose whatsoever” and recounted previous High Court decisions recognising the “spiritual, cultural and social connection” inherent in native title. His Honour said that the decision in Ward did not cast doubt on that principle or its significance as a distinguishing feature of native title and also that the acquisition was required to be on just terms. Formerly, the Territory could only compulsorily acquire land for public purposes; however, the term “public” had been removed. Kiefel J, who also disagreed with the majority, was unable to dismiss the relevance of other public purpose cases without express words in the statute confirming the abrogation of the previous law. On this point Kirby J said “legislation depriving individuals of established legal rights must be clear and unambiguous”. The majority, however, had found that the provision was not ambiguous. The later case of

Wurridjal v Commonwealth of Australia (2009) 237 CLR 309 did confirm that Territory laws for the acquisition of property were required to make provision for just terms compensation.

Purpose of the legislation

Acts that do not extinguish native title Interests granted or created for the benefit of Aboriginal people, and those involving the creation of national parks or involving a Crown-to-Crown grant, are not previous exclusive possession acts.

The purpose of the Native Title Act 1993, which was extensively amended in 1998, is to: • validate acts that were invalidated by the decision in Mabo (No 2) • establish a process to determine the nature and extent of native title • regulate how native title can be dealt with in the future • recognise and protect native title.

Extinguishment of native title The Act confirms that previous exclusive possession acts extinguish native title, and previous non-exclusive possession acts extinguish native title to the extent of any inconsistency. Previous exclusive possession acts include certain interests created before 23 December 1996 (the date of the Wik decision), such as: • freehold estates • commercial leases • exclusive agricultural or pastoral leases • residential leases • community purpose leases • interests appearing in Sch 1 of the Act • any lease conferring a right of exclusive possession.

Bodney v Bennell In Bodney v Bennell (2008) 167 FCR 84, the Full Court held that the judge at first instance had applied the wrong test in determining whether the claimants had continued to acknowledge and observe traditional laws and customs from sovereignty to the present and also that continuity of connection to country could be established by evidence of continuity of a society. The trial judge had failed to consider whether the claimants could establish continuing connection to the area under claim. It was not enough for the trial judge to rely on the claimants' established connection with the area subject to the single Noongar claim as a whole (which was much larger than the claim in respect of Perth) to establish that a connection with the Perth area, observed by their ancestors at the time of sovereignty, had continued substantially uninterrupted since sovereignty.

Disregarding extinguishment Where members of a claimant group occupy land over which a claim is made, and the land has been granted under legislation for the benefit of Aboriginal and Torres Strait Islander people, the extinguishing effect of past grants must be disregarded under s 47 (pastoral leases held by applicants), s 47A (reserve trusts, freehold land granted for the benefit of Aboriginal people or Torres Strait Islanders), or s 47B (vacant crown land).

Validation of past acts The Native Title Act 1993 validates all past Commonwealth acts (s 14), and permits the states to validate their past acts without the threat of invalidity because of inconsistency with the Racial Discrimination Act 1975 (Cth) (s 19). Validation by the states must conform with the principles in the Native Title Act. A past act is a grant of an interest before 1 January 1994, or a legislative Act done before 1 July 1993 that would have been

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invalid with respect to native title due to inconsistency with the Racial Discrimination Act 1975 (Cth). Interests created by past acts The interests created by past acts have been categorised into four groups: • A – freehold, public works, and commercial, agricultural or pastoral leases • B – other leases, except mining leases • C – mining leases • D – all others, including Crown reservations and grants of Aboriginal land. Validation of interests The validation of each group of interests has a different effect on native title (ss 15, 229–232). • The validation of a category A interest extinguishes native title. • The validation of a category B interest extinguishes native title to the extent of any inconsistency. • The validation of a category C or D interest puts native title on hold – native title revives when the category C or D past act expires. “Intermediate period acts” The Native Title Act also provides for validation of “intermediate period acts” – acts between 1 January 1994 and 23 December 1996 that would have been valid but for the existence of native title (Div 2A). Compensation Native title holders are entitled to compensation for any extinguishment and impairment of native title arising from validation (ss 17, 20, 22D, 22G). The compensation must be on “just terms” under ss 51 and 53 of the Native Title Act and must not exceed the amount that would be payable if the land were freehold, unless the compensation claimants request compensation through the transfer of property or the provision of goods and services or some combination of money and other interests, s 51(6). It is a difficult question whether the “just terms” compensation could exceed the market value of the freehold, because while s 51A provides that the freehold value is a limit on the amount of compensation awarded, it is the

Constitution that provides that the compensation must be on just terms. Just terms requires the compensation for compulsory acquisition to be “fair and just” (Commonwealth v Tasmania – Tasmanian Dam Case (1983) 158 CLR 1). Before a determination of compensation is made, the court must make a determination that native title had once existed in the area for which compensation is claimed, and has been extinguished in a manner that gave rise to a right to compensation – ie, if the grant was validated by the Native Title Act, or was done by the Commonwealth, state or a territory and engaged the requirement to give “just terms” compensation. Right to compensation? In the first successful contested determination of a compensation application, Griffiths v Northern Territory (No 3) [2016] FCA 900 (24 August 2016) Mansfield J determined the amounts payable by the Northern Territory Government in compensation to the Ngaliwurru and Nungali Peoples for the impact on their native title of acts attributable to the Northern Territory government which occurred after the commencement of the Racial Discrimination Act 1975 (Cth) on 31 October 1975. The acts for which compensation were claimed were those which extinguished native title in whole or in part, or impaired or suspended native title where it still exists. In 2007, the native title rights and interests of Ngaliwurru and Nungali Peoples were determined to exist in areas where they had not been extinguished over the town of Timber Creek, Griffiths v Northern Territory [2006] FCAFC 178. The compensation application was filed in 2011 in relation to the effect on the Applicant’s native title rights and interests of approximately 60 land grants and public works done by the Northern Territory. The question of the Northern Territory Government's liability for compensation was determined in 2014 in Griffiths v Northern Territory (No 2) [2014] FCA 256, leaving the assessment of compensation to be determined. His Honour held that the total compensation comprised three elements: 1. a sum for economic loss (calculated by reference to the freehold value of the land) 2. another amount for non-economic loss (caused by a loss of traditional attachment to the land), and 3. a third amount for interest on the economic loss component of the compensation. The Commonwealth, State and Territory governments are largely liable for native title compensation, but there may be circumstances either legislative or contractual

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where the government has “passed on” liability for compensation to third parties for example in the conditions under which mining or petroleum tenements are granted or in conditions attached to long term leases. Councils, statutory bodies and government owned corporations who compulsorily acquire native title are also liable for native title compensation payable in connection with that acquisition. This aspect is usually settled by the parties prior to the acquisition in the terms of an Indigenous Land Use Agreement. In the earlier decision of Jango v Northern Territory [2006] FCA 318 (31 March 2006), Justice Sackville held that the traditional owners of the lands around Uluru (Ayers Rock) had failed to prove they were the owners of native title rights that had been extinguished or affected. On appeal, the Full Court of the Federal Court noted the necessity to prove continuity of the society and its traditional laws and customs which had not been established by the evidence presented during the hearing. This was the first time a compensation application under the Native Title Act had proceeded to hearing by the Federal Court. In De Rose v South Australia [2013] FCA 988 Mansfield J made a consent determination in relation to compensation for the extinguishment of the native title rights of the De Rose Hill native title holders (as determined by the Full Court in De Rose v South Australia (No 2) (2005) 145 FCR 290). Due to resolution of the compensation application by consent between the native title holders and the State the terms of the agreement remain confidential.

[2.370] Lodging a claim The Native Title Act sets out the process by which native title rights and interests can be determined. Since the amendments made in 1998, claims are filed with the Federal Court, which has exclusive jurisdiction to hear and determine native title applications. This does not mean that other courts cannot deal with native title issues in particular circumstances (see Wilson v Anderson [1999] NSWSC 8, 20 January 1999). Aboriginal people can file applications to: • determine that native title exists • revoke or vary a determination of native title • determine compensation for extinguishment (s 13).

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Claims must be lodged in a prescribed manner and comply with Federal Court rules. In NSW, NTSCORP is funded by the Commonwealth government to provide native title services to traditional owners who claim native title rights and interests in NSW.

What the application must contain Applications must contain: • a clear definition of the people claiming the native title rights • information on the extent and nature of the rights and interests claimed • information allowing boundaries to be easily identified • a description of the facts that are the basis of the claim • details of the current activities of the claimant group on the land, and • the basis upon which the applicants are authorised to make the claim and deal with matters arising in the course of the claim (s 62(2)).

What cannot be claimed A claim may not cover an area where native title has already been determined or that was the subject of a previous exclusive possession act (see Extinguishment of native title at [2.360]), nor can it be for exclusive possession, occupation and use if the area is the subject of a previous non-exclusive possession act (s 61A). Where previous extinguishment may be ignored The previous extinguishment of native title must be disregarded where native title claims are filed over: • certain freehold interests or pastoral leases held by or for the benefit of Aboriginal people (ss 47, 47A), or • vacant crown land occupied by Aboriginal people at the time the application is lodged (s 47B).

Registration of native title claims Some procedural rights conferred by the Native Title Act, including the right to negotiate, are available only to native title claimants whose claims are registered. When an application is filed in the Federal Court

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the court must provide a copy to the National Native Title Tribunal. The registrar of the tribunal (the Native Title Registrar) then assesses the application against the threshold test provided in the Native Title Act. In short, the registrar must be satisfied that: • the claim has been properly authorised by the claim group • the area claimed and the people making the claim are adequately described • the rights and interests claimed are set out • there is some evidence which, on its face, would demonstrate that native title rights and interests may exist. If the claim has not been properly authorised, it may be struck out, but the Federal Court has a discretion to permit the claim to progress even if the authorisation requirement is not met (s 84D).

Notification requirements Whether or not the claim is registered, the registrar must give notice of any application referred by the Federal Court to persons or bodies that may include: • other native title claimants or bodies • other bodies representing Indigenous people whose interests may be affected • relevant Commonwealth or state ministers • anyone who has a proprietary or other interest in the area affected • anyone who may have an interest in the proceedings (s 66(3)). A person is entitled to become a party to a native title claim if their interests may be affected by a determination in the proceedings (s 84).

[2.380] Future acts affecting

native title The Native Title Act regulates the way in which native title is to be affected by future acts. A future act is: • the making, amendment or repeal of legislation after 1 July 1993, or • any other act after 1 January 1994, which affects native title. To affect native title, an

act must be wholly or partly inconsistent with the continued existence, enjoyment or exercise of native title rights (s 227). A future act is invalid if it does not comply with the Act (s 24OA). If a future act is invalid, it has no effect on native title rights and interests. The Native Title Act (s 7) expressly provides that the Racial Discrimination Act 1975 applies to the performance of functions and the exercise of powers conferred or authorised by it. Native title holders and registered native title claimants have different procedural rights, depending on the nature of the future act.

What acts are included? Some common types of future act that may affect native title rights and interests and the procedural rights expressly provided by the Native Title Act are described below. If the future act is not specifically dealt with in a particular section, it is subject to the general requirement of non-discrimination, and native title holders have the same procedural rights as non-native title holders: • agreements with native title claimants in the form of Indigenous Land Use Agreements (ILUAs), which may relate to activities in particular regions or procedures to apply in a particular region, can override the procedures of the Act. The Act prescribes how ILUAs may be reached and registered (ss 24BA–24FE) • if native title is found not to exist, or an application is made by a non-native title party, and after three months there is no registered native title claimant, any future act occurring in the area is valid. If native title is later found to exist, the act remains valid (s 24FA) but compensation may be payable for the effect of the act on native title • most future acts relating to primary production activity are valid. These include cultivating land, keeping, breeding or agisting animals, catching fish, and horticultural and aquacultural activities. Such acts do not extinguish native title rights, and native title holders are entitled to compensation • legislation dealing with the regulation or

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•

•

•

•

•

•

•

management of water, living aquatic resources and airspace is valid. Aboriginal people must be notified beforehand, and may comment. Native title rights are not extinguished, and native title holders are entitled to compensation (s 24HA) the exercise of a legally enforceable right created before 23 December 1996, and the renewal, re-grant or extension of certain licences, leases and permits, are valid (s 24IC). The renewal, re-grant or extension must not create a right of exclusive possession over any of the area covered by the lease, or create a new proprietary interest. Native title holders are entitled to compensation acts done by the government in relation to a dedication, reservation, condition, permission, authority or lease of land are valid (s 24JB). Native title is extinguished only if the act comprises a public work. Native title holders are entitled to compensation the construction, use, maintenance or repair of facilities for services to the public which do not prevent Aboriginal people having reasonable access to their land are valid. Native title is not extinguished by the act, and compensation is payable. Native title holders have the same procedural rights as other title holders in relation to such acts (s 24KA) certain “low impact” future acts are valid if they occur before a determination that native title exists. Native title is not extinguished by those acts (s 24LA) other categories of future acts must comply with the “freehold title test” (s 24MA), which generally means that an act is valid if it could be done if the native title holders held freehold title. It does not apply to offshore areas. Native title holders have additional procedural rights in certain compulsory acquisition matters (s 24MD(6B)) acts in offshore places are valid. Except in the case of compulsory acquisitions, native title is not extinguished. Native title holders have the same procedural rights as other title holders (s 24NA) a special right to negotiate applies to future acts involving the grant of certain

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mining interests and compulsory acquisitions (ss 25–44). Native title can be validly extinguished under the future act regime, for example where native title rights and interests are subject to compulsory acquisition, but generally the non-extinguishment principle applies, and the native title holders are entitled to compensation for the impairment of native title. In some cases, the future act will be valid notwithstanding that the procedural requirements might not be observed (for example, under s 24KA – Lardil Peoples v Queensland (2001) 108 FCR 453).

Hunting, gathering and fishing The Act provides for the preservation of hunting, gathering and fishing rights, and cultural activities as long as they are noncommercial and amount to the exercise of native title interests. These activities may occur even if a licence is required for such activities by non-native title holders (s 211 and Yanner v Eaton (1999) 201 CLR 351). The High Court has confirmed that a coastal grant of Aboriginal land in the Northern Territory stretches to the low water mark and includes the intertidal zone. Significantly, coastal native title holders in the Northern Territory have a right to exclude others from an Aboriginal intertidal zone. Recognition of this right greatly enhances the negotiating power of native title holders regarding public access to the intertidal zone and commercial interests in those natural resources (Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 248 ALR 195 (Blue Mud Bay case)). The case did not consider the status of grants under other land rights legislation. In NSW, grants made under the Aboriginal Land Rights Act will only extend to the limits of the land claimed, which is usually defined by the deposited plan, but may extend to the mean high water mark. Where native title is recognised in coastal waters, the right will be subject to the general public right to fish and of safe navigation, and native title will not be exclusive: Commonwealth v Yarmirr [2001] HCA 56; (2001) 208 CLR 1.

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Resource law [2.390]

[2.420] Land clearing

[2.400] Fishing

The Native Vegetation Act 2003 (NSW) effectively governs land clearing and repeals the Native Vegetation Conservation Act 1997 (NSW). The Act provides for the certification of property vegetation plans, which must be consistent with the catchment management plan for the particular catchment. Unlike the previous legislation, the Native Vegetation Act 2003 contains no requirement for consultation with Aboriginal people or organisations.

A number of laws regulate the protection, use, exploitation and management of natural resources in NSW. Many of them make special provision for the involvement of Aboriginal people.

The Fisheries Management Act 1994 (NSW) states that it is not intended to affect native title rights (s 287). An amendment in 2000 to introduce a general salt water recreational fishing licence allows exemptions from fee payment for Aboriginal people who are part of the native title claimant group for an area in which there is a registered native title claim. Exemptions can also be granted to Aboriginal people to fish for cultural purposes under s 37 of the Fisheries Management Act 1994. In practice, the exemptions are granted by NSW Fisheries on production of a letter from the relevant local Aboriginal land council. In 2009, the Fisheries Management Act 1994 was amended to introduce a right to fish for the purpose of Aboriginal cultural fishing (fishing for the purpose of satisfying personal, domestic or communal needs, or for educational, ceremonial or other traditional purposes, and which do not have a commercial purpose) but that amendment has not yet been proclaimed to commence (as at 1 October 2014).

Forests and Crown lands The Forestry and National Park Estate Act 1998 (NSW) transfers certain former state forests and Crown lands to local Aboriginal land council ownership.

[2.410] Marine parks The Marine Parks Act 1997 (NSW) states that it is not intended to affect native title rights, and provides for Aboriginal representation on the Marine Parks Advisory Council.

[2.430] Catchment

management The Catchment Management Authorities Act 2003 (NSW) set up 13 catchment management authorities covering the whole of NSW. The authorities had boards of five to seven people, and developed draft catchment management plans for consideration by the Natural Resources Commission. The authorities replaced most of the existing natural resource advisory councils and committees. This legislation was replaced in 2013 by the Local Land Services Act 2013 (NSW) which revised the boundaries and abolished the catchment management authorities in favour of a statutory authority, the Local Land Service, and local land boards. The Local Land Services Act 2013 does not make provision for Aboriginal membership of the authority, or on local land boards, but the authority and the local boards are required to develop a strategy for engaging with the Aboriginal community in the region in relation to local land services. These services are broadly defined to include biosecurity, chemical management, stock movements, agricultural planning and natural resource management. The regulations provide that one of the skills which is relevant for membership of a local land board is the ability to work with Aboriginal

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groups and communities, but it is not a mandatory requirement. The Natural Resources Commission The Natural Resources Commission, under the Natural Resources Commission Act 2003 (NSW), replaces a

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number of committees that had Aboriginal representation. There is no guaranteed representation for Aboriginal people on the commission, but it does have guiding principles that it must adhere to in making its decisions, which include the “Indigenous knowledge of natural resource management” (s 14(e)).

Heritage and cultural protection Protection of heritage [2.440]

The three main NSW laws that address aspects of Indigenous cultural heritage are the: • National Parks and Wildlife Act 1974 (NSW) (NPW Act) • Heritage Act 1977 (NSW) • Environmental Planning and Assessment Act 1979 (NSW). At the national level, the main laws that address aspects of Indigenous cultural heritage are the: • Environment Protection and Biodiversity Conservation Act 1999 (Cth) • Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) • Protection of Movable Cultural Heritage Act 1986 (Cth).

[2.450] The National Parks and

Wildlife Act Cultural sites and objects Sites of cultural significance to Aboriginal people can be protected under the National Parks and Wildlife Act 1974. These may include: • sacred sites • burial places • rock art • artefacts or relics • occupation sites, including axe-grinding grooves.

Aboriginal areas Under s 30K of the Act, land can be reserved as an Aboriginal area. The purpose of the section is: to identify, protect and conserve areas associated with a person, event or historical theme, or containing a building, place, object, feature or landscape: (a) of natural or cultural significance to Aboriginal people, or (b) of importance in improving public understanding of Aboriginal culture.

Aboriginal objects and places An Aboriginal object is defined as “any deposit, object or material evidence” relating to Aboriginal habitation, including Aboriginal remains (s 5). An Aboriginal place is a place that has been declared by the government to be of special significance to Aboriginal culture (s 84). Role of the Office of Environment and Heritage The Director-General of the Office of Environment and Heritage has care and control of Aboriginal heritage items and places. The Director-General can issue permits under s 90 of the Act that allow someone to excavate, destroy or otherwise disturb a site, or place, or object. Under s 86, it is an offence to harm or desecrate an Aboriginal object or place, unless the Director-General has issued a permit under s 90, or the

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impact is a low-impact activity prescribed by regulation, or the defendant has exercised reasonable due diligence to determine that no Aboriginal object or place would be harmed by the activity. A register of Aboriginal objects, places and sites is kept by the Office of Environment and Heritage and is called the Aboriginal Heritage Information Management System. The register can be searched to see if anything is listed on your land. Applicants for permits to destroy Aboriginal cultural heritage must consult with the Aboriginal community about the cultural significance of the sites, objects or places. The views of the Aboriginal community may be taken into account by the Director-General when deciding to grant or refuse the permit. A Due Diligence Code of Practice for the Protection of Aboriginal Objects in NSW has been published to guide interest holders in how to deal with Aboriginal cultural heritage issues. Compliance with the guide enables those seeking permits for activities that may affect Aboriginal places and objects, to demonstrate that due diligence has been shown which would be a defence to a prosecution for harm to an object or place. Where an action is likely to significantly affect an Aboriginal object or place, the DirectorGeneral: • may make stop work orders • must consult with the person proposing the detrimental action about modifying it. The Director-General also has the power to make interim protection orders over land. Destruction of Aboriginal sites It is an offence to destroy, deface or damage an Aboriginal object or place, ss 86(2), (4), (5) and (8) NPW Act. Amendments in 2010 to the NPW Act removed the requirement that such harm was caused “knowingly”. In Histollo Pty Ltd v Director-General National Parks and Wildlife Service (1998) 45 NSWLR 661, the defendant was able to argue that he did not know he had destroyed a particular site even though it was a registered site and he had been told that there were sites on the property. Ownership of Aboriginal objects Certain Aboriginal objects are declared to be owned by the NSW government, unless they were privately owned before 1969 or returned to the Aboriginal owner.

Agreements with private landowners The government can also enter into agreements with landowners to ensure the protection of Aboriginal objects or places of significance on private land. Sites vested in Aboriginal land councils Ownership of land can be vested on behalf of the Aboriginal owners in an Aboriginal land council on the basis that it is leased back to the National Parks and Wildlife Service. The Act contains a list of such vested lands.

Lease back of Aboriginal sites The following lands are vested in a local Aboriginal land council or the NSW Aboriginal Land Council on behalf of the traditional owners, and leased to the Minister for the Environment: • Biamanga National Park • Coturandee Nature Reserve • Gulaga National Park • Jervis Bay National Park • Mootwingee Historic Site • Mootwingee National Park • Mount Grenfell Historic Site • Mount Yarrowyck Nature Reserve. • Mungo National Park.

Hunting and gathering flora and fauna Aboriginal people are exempt from the provisions of the National Parks and Wildlife Act 1974 that prohibit a person from hunting fauna or picking or gathering flora in a wildlife district, wildlife refuge, wildlife management area, conservation area, wilderness area or area subject to a wilderness protection agreement. The exemptions only apply where Aboriginal people are hunting or gathering for domestic ceremonial or cultural purposes and do not apply to threatened species or populations or threatened ecological communities within the meaning of the Threatened Species Conservation Act 1995 (NSW).

[2.460] Other NSW legislation The Heritage Act Aboriginal objects and places may also be protected under the Heritage Act 1977 (NSW). Items that can be listed on the State Heritage Register include places, buildings, work, relics (although relics that relate to the

2 Aboriginal People and the Law

Aboriginal settlement of an area are excluded from this category), moveable objects or precincts significant to the state. The minister can also authorise a local council to make interim heritage orders in relation to items of local heritage significance (s 25). Once an item is listed on the State Heritage Register, or there is an interim heritage order in relation to it, approval is required for demolition, destruction, excavation or alteration that may affect the item (s 57). The Heritage Council of NSW maintains the State Heritage Register (s 31) and can endorse a conservation management plan for the management of the State Heritage Register (s 38A).

The Environmental Planning and Assessment Act Aboriginal heritage and sites can sometimes be protected by ensuring that appropriate guidelines are included in the local environment plans that local councils must develop under the Environmental Planning and Assessment Act 1979 (NSW). An order forcing a particular council or shire to adhere to its local environment plan may then be obtained, if necessary, from the Land and Environment Court.

[2.470] Commonwealth

legislation The Environment Protection and Biodiversity Conservation Act The Environment Protection and Biodiversity Conservation Act 1999 (Cth) protects sites

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listed on the World, Commonwealth and National Heritage Lists. The National Heritage List includes some Indigenous cultural areas. A site can appear on both the state and the national heritage list.

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 Under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) the federal Minister for Indigenous Affairs can make orders protecting Aboriginal objects and sites from desecration or destruction, provided that state-based laws do not adequately protect the object or area. The minister may also make emergency orders where an area or object is facing a serious or immediate threat.

The Protection of Movable Cultural Heritage Act The Protection of Movable Cultural Heritage Act 1986 (Cth) attempts to regulate the export of particular objects of significant cultural heritage, including some Aboriginal objects. EDO NSW is a community legal centre specialising in public interest environmental law. It has publications with further information on heritage and cultural protection, see: • EDO NSW Fact Sheets on Protecting Heritage: www.edonsw.org.au/legal_help • EDO NSW Free publication, Caring for Country (phone (02) 9262 6989 to order a free copy).

Copyright and other protections [2.480] Copyright The Copyright Act 1968 (Cth) protects the work of Aboriginal and Torres Strait Islander artists and creators in the same way as it does that of other Australians (see Chapter 12, Copyright). However, it has limitations in protecting and recognising Indigenous cultural and intellectual property (ICIP), especially in relation to Aborigi-

nal concepts of custodianship and communal ownership. This has been a feature of a number of court cases (see Recognising communal rights at [2.510]).

[2.490] Moral rights The Copyright Act also protects moral rights. These are personal, non-economic rights, which cannot be assigned (transferred), and which give the author (the creator) the right:

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• to be identified as the author of a work (the right of attribution of authorship) • not to have authorship of a work falsely attributed (for example, to another author) • not to have their work subjected to derogatory treatment that prejudicially affects their honour or reputation (the right of integrity of authorship of a work). Moral rights apply to the authors of literary, dramatic, musical and artistic works, and of films, but do not apply to sound recordings. The government introduced moral rights for performers in 2007. These rights apply to live performances or sound recordings of live performances. Moral rights belong to each person who contributed to the sounds of the performance, including the conductor of a musical work. There are still no moral rights for performers of audiovisual performances eg actors and dancers. In 2012, the Beijing Treaty on Audiovisual Performances was adopted which will provide performers with greater intellectual property rights but it is not yet in force internationally and has not been signed or ratified by Australia. A moral rights case involving musicians In Perez v Fernandez [2012] FMCA 2, the court found that the change made by DJ Suave (aka Jamie Fernandez) to Pitbull Perez' Bon Bon song was a material “distortion” or “alteration” (if not a “mutilation”) of the song and that the Mixed Bon Bon Version was prejudicial to Perez's honour and reputation. Perez was awarded $10,000 damages for the infringement.

Recourse for Indigenous artists Moral rights provide individual Indigenous authors, creators and performers with remedies for infringement where the requirements of the Act are met. These include situations where: • the author has not consented to the infringement • the infringing act occurred after the commencement of the legislation and • there is no statutory defence to the infringement available.

A moral rights case involving the wrong attribution of a visual artist There has been only one moral rights case in Australia involving attribution. In September 2006, in Meskenas v ACP Publishing [2006] FMCA 1136 (14 August 2006), the court found that the moral right of attribution had been infringed. The court found the infringement analogous to copyright infringement in terms of the compensation that should be given, and awarded damages of $9100.

Rights of communal owners Section 190 of the Copyright Act states that only individuals have moral rights. This does not adequately recognise communal ownership of Indigenous cultural heritage, and the rights of custodians, according to traditional practices, to maintain integrity and require attribution. Communal ownership of pre-existing designs is not recognised.

[2.500] Breach of confidence When copyright law is inadequate for protecting secret-sacred knowledge or cultural knowledge, or a contract has not been entered into, the law of confidential information may provide some protection. A breach of confidence case In Foster v Mountford (1976) 14 ALR 71, members of the Pitjantjatjara Council took action under breach of confidence laws to stop the publication of a book entitled Nomads of the Australian Desert. Mountford, an anthropologist, made a trip in 1940 into remote areas of the Northern Territory, where Pitjantjatjara male elders revealed, in confidence, tribal sites and items of deep cultural and religious significance. Mountford later sought to publish the information, with photographs, drawings and descriptions of people, places and ceremonies of the Pitjantjatjara people. It was argued that the dissemination of this information could cause serious disruption to Pitjantjatjara culture and society if it was revealed to women, children and uninitiated men. The court granted an injunction in favour of the Pitjantjatjara Council. Copyright law could not have been used by the members of the Pitjantjatjara Council to protect their secretsacred knowledge, as they had not recorded the information in writing or some other material form, and were

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thus not the copyright owners according to the Copyright Act.

[2.510] Copyright law and

Indigenous cultural and intellectual property Recognising communal rights Yumbulul v Reserve Bank of Australia (1991) 21 IPR 481 concerned a morning star pole, a funerary object created by Mr Yumbulul under the authority given to him as a member of the Galpu clan group. The pole was sold to the Australian Museum for public display, a permissible use to educate the wider community about Aboriginal culture. However, Mr Yumbulul licensed reproduction rights to the Aboriginal Artists Agency, which subsequently approved the Reserve Bank reproducing the pole on the bicentennial $10 note. Mr Yumbulul was criticised by his community for exceeding his authority under customary laws. According to the traditional custodians, it was not culturally appropriate for such a sacred item to be reproduced on money. Mr Yumbulul initiated action in the Federal Court, alleging that he would not have authorised the licence to the Aboriginal Artists Agency and the Reserve Bank had he fully understood it. While finding that Mr Yumbulul mistakenly believed the licence would impose limitations on the use of the pole similar to those in Aboriginal customary law, the court considered that “Australia’s copyright law does not provide adequate recognition of Aboriginal community claims to regulate the reproduction and use of works which are essentially communal in origin”. Unauthorised reproduction of artworks In Milpurrurru v Indofurn Pty Ltd (1993) 130 ALR 659, the court discussed copyright infringement of Indigenous artworks of cultural significance to the artist applicants and the cultural groups to which they belonged.

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The case involved the unauthorised reproduction of Indigenous artworks on carpets made in Vietnam and imported into Australia. Significant aspects of the case included the following: • a work may be original if there is sufficient detail and complexity reflecting skill and originality, even if it is based on traditional designs • though not identical to the original artworks, the carpets reproduced centrally important parts. For example, the part taken from Tim Payunka Tjapangati’s painting Kangaroo and Shield People Dreaming depicted a sacred men’s story – one factor that led the court to conclude copyright had been infringed • part of the $188,000 awarded in damages was given in consideration of the personal hurt and cultural harm done to the artists. The court noted that their standing in the community could be affected because of the culturally offensive misuse of the works, regardless of whether they had authorised it. The court made a collective award to the artists rather than individual awards so that they could distribute it according to their cultural practices. Collective ownership of artworks In Bulun Bulun v R & T Textiles Pty Ltd (1998) 157 ALR 193, the Federal Court discussed issues of collective ownership and communal copyright. John Bulun Bulun’s work Magpie Geese and Water Lilies at the Waterhole had been reproduced on fabric imported into Australia by R & T Textiles. The respondents conceded that Mr Bulun Bulun was the copyright owner and reached a settlement with him, leaving the court to consider only the claims the second applicant George M (since deceased) brought as the representative of the Ganalbingu people. Those claims asserted that the Indigenous owners of Ganalbingu country were the equitable owners of Mr Bulun Bulun’s copyright in the work, which embodied imagery sacred and important to the Ganalbingu people’s cultural heritage. The Federal Court dismissed Mr M’s claims. However, it offered some interesting

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comments on the nature of Indigenous cultural heritage, including that: • the operation of any pre-existing system of Indigenous collective ownership in artistic works had been extinguished with the enactment of the Copyright Act • the provisions of the Copyright Act effectively preclude any notion of group ownership in an artistic work, except where the work is one of “joint authorship” within the meaning of s 10(1) of the Act • the grant of permission by the Ganalbingu people to Mr Bulun Bulun to use their ritual knowledge in his artwork was not enough to create any form of contractual agreement vesting an equitable interest in copyright ownership in Mr M or the Ganalbingu people nor was it sufficient to create a trust obliging him to hold the artwork and copyright on trust for the Ganalbingu people • however, as a result of the unique relationship between Mr Bulun Bulun and the Ganalbingu people, equity imposed a fiduciary obligation on Mr Bulun Bulun not to exploit the artistic work in a way contrary to the law and custom of the Ganalbingu people and, in the event of infringement by a third party, to take reasonable and appropriate action to remedy the infringement. The court considered that Mr Bulun Bulun had done this by taking action against R & T Textiles. Intellectual property rights and land rights It was also argued by the second applicant in the Bulun Bulun case that intellectual property rights are an incident of native title, and may constitute an interest in land. The court did not have jurisdiction to address this question, as all applications for a determination of native title must comply with the Native Title Act. Subsequent recognition under that Act of a form of intellectual property rights in relation to land has, however, been limited. Applicants for native title have sought to include the protection of cultural rights to property as part of the bundle of rights that makes up a determination of native title under the Act. In Ward v Western Australia

(1998) 159 ALR 483, the trial judge concluded that the claimants had a right to maintain, protect and prevent the misuse of their cultural knowledge of the claim area. Such protection had been sought to protect any inappropriate viewing, hearing or reproduction of secret ceremonies, artworks, song cycles and sacred narratives of the claimants. The High Court subsequently overturned the trial judge’s finding (see Western Australia v Ward (2002) 213 CLR 1), on the basis that such a right was not necessarily an interest in land capable of recognition under s 223(1)(c) of the Native Title Act. At [59] the court explained: To some degree, for example respecting access to sites where artworks on rock are located, or ceremonies are performed, the traditional laws and customs which are manifested at these sites answer the requirement of connection with the land found in par (b) of the definition in s 223(1) of the Native Title Act. However, it is apparent that what is asserted goes beyond that to something approaching an incorporeal right akin to a new species of intellectual property to be recognised by the common law under par (c) of s 223(1). The “recognition” of this right would extend beyond denial or control of access to land held under native title.

In a series of subsequent cases, claimants have failed to establish any form of a native title right that would entail the restraint of visual or auditory reproductions of what was found in the claim area (see, for example, Northern Territory v Alyawarr (2005) 145 FCR 442). Instead the Federal Court has only been prepared to recognise more limited rights to maintain and protect significant cultural sites, or to use land for the purpose of teaching and passing on traditional cultural knowledge. Under the Native Title Act, s 82(2) and the Federal Court Rules (Cth), rr 34.121–126 the court may take account of the cultural and customary concerns of Indigenous people when giving their evidence but not so as to prejudice unduly and other party, Sampi v State of Western Australia (No 2) [2001] FCA 620.

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Taking action as a clan The court also found in the Bulun Bulun case that if an artistic work embodying an Aboriginal clan’s ritual knowledge was used inappropriately, and the copyright owner failed or refused to take action to enforce the copyright, the clan could take action through the courts.

[2.520] Contracts

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was created with the consent of the custodians of the community. Dealing with any part of the images for any purpose that has not been authorised by the custodians is a serious breach of the customary laws of [NAME] community, and may also breach the Copyright Act (Cth). For enquiries regarding permitted reproduction of these images please contact [NAME OF ORGANISATION/ARTIST]

A contract is an exchange of promises, sometimes also referred to as an agreement or a deed. Contracts can be in writing or oral, or partly in writing and partly oral. It is always preferable, however, for contracts to be in writing. Contracts can be used to protect and retain intellectual property rights, and are an important tool for Indigenous creators who are licensing and marketing their arts and cultural goods and services.

The use of protocols Protocols, which are not legally binding, can be inserted into a contract, thereby making the parties to the contract bound by them as terms of the contract. For example, a documentary filmmaker entering a community can agree, in a contract with the community, to remove any footage of Indigenous community members who pass away after the footage is taken, and before the film is shown in public.

Using contracts to protect Indigenous cultural and intellectual property

Protection of intangible cultural material Contracts can also be used to protect intangible cultural material, such as language, which may not be otherwise protected by intellectual property law in Australia. For example, the Arts Law Centre of Australia has developed model agreements and protocols with the Federation of Aboriginal and Torres Strait Islander Languages Corporation for consultants (for example linguists, anthropologists, information and communication technology specialists and consultants in schools) when developing language materials with Indigenous communities.

Contracts can be drafted to protect some forms of Indigenous cultural and intellectual property that may not be protected by current intellectual property laws in Australia. For example, the Arts Law Centre of Australia includes this clause in a contract template for licensing Indigenous artwork: the parties recognise and agree to respect all ICIP in relation to any Design or Product, and to comply with any restrictions on using and dealing with ICIP the parties agree to use all reasonable endeavours to adhere to protocols for producing Indigenous Australian visual arts issued by the Australia Council from time to time. Notice of custodial interest It is possible to include a clause in the contract that a notice of a custodial interest must be included in the documents provided to the purchaser of any artwork or product created by the Indigenous artist which states: The images in this [INSERT ARTWORK OR PRODUCT] embody the traditional ritual knowledge of [NAME] community. It

[2.530] Misleading or

deceptive conduct The Competition and Consumer Act 2010 (Cth) (CCA) prohibits corporations from engaging in conduct that is “misleading or deceptive or which is likely to mislead or deceive” (ss 18–19) or making false or misleading representations (ss 29–39; 151–160). This legislation (and its predecessor the Trade Practices Act 1974 (Cth)) have been used successfully to deal with cases of misleading and deceptive conduct in the Indigenous art market.

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The “Aboriginal” art Aboriginal people didn't make In August 2008, the Australian Competition and Consumer Commission (the ACCC) found that a Queensland art dealer was in breach of s 52 for misleading and deceptive conduct. The art dealer sold art and artefacts made by non-Aboriginal artists and represented them as being made by Aboriginal artists. The Federal Court granted injunctions by consent restraining the art dealers, for a period of five years, from engaging in similar conduct and ordered them to pay the ACCC's costs. The art dealers were further ordered to write to certain purchasers of artworks produced by any of the three non-Aboriginal artists, advising them of the court proceedings. The art dealers also have offered the ACCC a court-enforceable undertaking that they will implement a trade practices law compliance program (ACCC v Nooravi [2008] FCA 2021). In December 2009, in ACCC v Australian Dreamtime Creations Pty Ltd 263 ALR 487, Justice Mansfield in the Federal Court found that Australian Dreamtime Creations Pty Ltd (Dreamtime Creations) misled consumers by making misleading representations about artworks using Indigenous art styles. The Court held that Dreamtime Creations breached s 52 of the Trade Practices Act which prohibited corporations from engaging in misleading or deceptive conduct. The Court found that the company's sole director, Tony Antoniou, was knowingly concerned in the conduct, and made orders designed to prevent both Dreamtime Creations and Mr. Antoniou from engaging in similar conduct in the future. In the Dreamtime Creations case, the company promoted and sold a large quantity of artworks that were represented to be Aboriginal art painted by an artist called “Ubanoo Brown”. In reality the artworks were not painted by Ubanoo Brown but rather a person of non-Aboriginal descent engaged by Mr Antoniou. Art galleries were supplied with “Certificates of Authenticity” that used terms such as “Authentic Aboriginal Painting”, “Aboriginal Fine Art Canvas” and “Artist: Ubanoo Brown”. Some artworks also had stamps affixed to them that said either “Traditional Hand Painted Aboriginal Art Australia” or “Authentic Australian Aboriginal Art”.

Whilst the CCA will provide assistance in cases where the manufacturer or retailer is making clear assertions that work which was made by non-Aboriginal artists is “Aboriginal” or “authentic Aboriginal art” it will not assist when the circumstances are not so clear-cut. In the Australian Dreamtime Creations case a wooden bird that was carved overseas, imported into Australia with the

artwork added here could still be sold as “made in Australia” if the work was sufficiently transformed through the application of painted decoration. Rather than assisting Indigenous crafts persons, some provisions of the CCA make the situation even murkier.

[2.540] Better protection of

Indigenous cultural and intellectual property (ICIP) is still needed In 1997, the Aboriginal and Torres Strait Islander Commission and the Australian Institute for Aboriginal and Torres Strait Islander Studies commissioned a seminal report on Indigenous cultural and intellectual property rights. The independent report by Terri Janke was released in 1999 as Our Culture: Our Future – Report on Australian Indigenous Cultural and Intellectual Property Rights. It found that existing cultural heritage and intellectual property laws do not adequately protect Indigenous interests, and argued that: • Indigenous Australians have a comprehensive view of cultural and intellectual property as including: – literary, performing and artistic works – scientific, agricultural and technical knowledge – language – human remains – documentation of Indigenous people’s heritage in archives, films, photographs and new media • the principles underlying ownership and control of cultural and intellectual property relating to communal ownership, cultural integrity and consent procedures are consistent across Indigenous groups • Indigenous Australians are concerned about increasing demands for Indigenous cultural and intellectual property, and that due to these demands and to new technology, their cultures are being exploited beyond their control • current intellectual property law is inadequate in protecting Indigenous cultural and intellectual property

2 Aboriginal People and the Law

• a comprehensive and coordinated approach to protection is needed, to be developed in full consultation with, and administered under the control of, Indigenous people. Our Culture: Our Future lists a range of proposals for recognising Indigenous cultural and intellectual property rights, including: • developing new and amended legislation • adapting administrative systems to include monitoring and collection systems • developing cultural infrastructure, protocols and codes of ethics. It is available at www.austlii.edu.au/au/ journals/AILR/1999/51.html.

Labelling authentic products In 1999, the then National Indigenous Arts Advocacy Association launched a national certification project. Two trademarks called the label of authenticity and the collaboration mark were registered under the Trade Marks Act 1995 (Cth). In 2002, the National Indigenous Arts Advocacy Association’s office closed and, in 2008, the trade mark registrations expired. The label of authenticity and the collaboration mark ceased to be regulated by any Indigenous or government bodies. The labels had limited success, possibly because the system involved costs to the Aboriginal artists and required Aboriginal people to prove their work was authentic. A more recent approach to providing protection to both Indigenous artists and consumers of Indigenous art is the Indigenous Art Code. The development of the Indigenous Art Code was recommended by the Senate Committee which inquired into irregularities and exploitation in the Indigenous art market and reported in 2007 Indigenous Art – Securing the Future at www. aph.gov.au/binaries/senate/committee/ ecita_ctte/completed_inquiries/2004-07/ indigenous_arts/report/report.pdf.

Indigenous Art Code The Indigenous Art Code was launched in November 2010 after extensive development and consultation to encourage fair trade with Indigenous artists. Dealers, artists and

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supporters can join to show their commitment to fair and transparent business dealings. Purchasers who deal with members of the Indigenous Art Code can proceed with greater certainty knowing that the artworks they buy come through ethical processes. A list of dealer members is available at www.Indigenousartcode.org/ index.php/registered-members. The Indigenous Art Code requires dealer members to act honestly when dealing with Indigenous artists, and prohibits them from making false or misleading representations when dealing with a person in connection with an artwork. The Indigenous Art Code company can also be contacted if you have a complaint about a dealer who is not a member of the Code and they will notify the Australian Competition and Consumer Commission if it is apparent any laws have been broken. The company can be contacted by telephone on 0438637862, or through the website www.Indigenousartcode.org/index. php/contact. The Code has had limited success because it is still a voluntary system encouraging rather than mandating fair trade in the Indigenous art market. The Code is currently overhauling its membership requirements to raise the benchmark required of art dealers signing up to the Code.

Artworks that use flora and fauna Some of the legislation discussed in the Heritage and Cultural Protection section (see Heritage and cultural protection [2.440]) such as the Environment Protection and Biodiversity Conservation Act 1999 (Cth) [EPBCA] may impede the ability of Aboriginal artists to create and sell their artworks. In 2013, artists from Elcho Island in the Northern Territory were refused an export permit for an exhibition of artworks using the plant pandanus because it was listed as a threatened species under the EPBCA. A special exemption had to be obtained from the minister so that the exhibition could proceed. Subsequently, panadanus was removed from the EPBCA threatened species list. There are many other art and cultural works where both creation and sale are limited by conservation and heritage laws.

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Cultural protocols Cultural protocols provide another means of promoting appropriate dealings with Indigenous intellectual and cultural property. Cultural organisations and government bodies have developed a number of protocols. Australia Council protocol guides The Aboriginal and Torres Strait Islander Arts Board of the Australia Council for the Arts has produced a series of five protocol guides on Indigenous cultural and intellectual property rights, dealing with literature, music, new media, performing arts, and visual arts and craft. The booklets outline cultural protocols to protect Indigenous artistic and cultural intellectual property. They are available at www.australiacouncil.gov. au/aboriginal-and-torres-strait-islander-arts. Film-making protocols Screen Australia has developed a cultural protocol for both non-Indigenous and Indigenous people working in Indigenous filmmaking. The protocol provides a framework to assist and encourage recognition and respect for the images, knowledge and stories of Indigenous people. See www. screenaustralia.gov.au/about-us/doingbusiness-with-us/indigenous-content/ indigenous-protocols. Local government protocols The council of the City of Melbourne has developed an Indigenous art code of practice for galleries and retailers of Indigenous art. This may provide a template for other city councils around Australia. The Code is available at www.melbourne.vic.gov.au/ arts-and-culture/aboriginal-torres-straitislander-arts/Pages/aboriginal-torres-straitislander-arts.aspx. Other policies and protocols Artists in the Black, the Indigenous service of the Arts Law Centre of Australia (Arts Law) has developed an intellectual property toolkit primarily for Indigenous art centres which contains the following best practice policies: photography and filming, festivals and performances, academic research, and recording stories.

A more complete list of protocols and policies is available on the Artists in the Black website at www.aitb.com.au/workingethically/protocols.

[2.550] Other developments Resale royalty rights A resale royalty is a payment which is made to an artist when his or her artwork is resold by the owner. The resale royalty right refers to money paid to the artist following a transfer of ownership in the physical artwork. Resale rights are based around the idea that artists should receive a direct benefit as their work increases in popularity and market value. While popular musicians and writers benefit from royalty income when more copies of their CDs and books are produced and sold, creators of artworks, which cannot be reproduced, do not benefit in this same way. Therefore, resale royalty payments enable visual artists (including painters, sculptors, printmakers, craft workers, installation and media artists, and photographers who produce limited edition prints) to continue to receive income from the resale of their artworks. On 9 June 2010, an Australian resale royalty scheme for visual artists commenced. The Australian visual artists’ resale royalty scheme entitles visual artists to receive payment of a 5% royalty on certain resales of their works. To participate in the scheme, artists need to register. Artists can register online at www.resaleroyalty.org.au. The Australian Government appointed Copyright Agency Ltd to manage the scheme. Information is available on the Copyright Agency’s website www. resaleroyalty.org.au.

Dream Shield “Dream Shield” is an initiative of IP Australia to inform Aboriginal and Torres Strait Islanders on how to protect their intellectual property. IP Australia is the Australian Government agency that administers intellectual property rights and legislation relating to patents, trade marks, designs and plant breeder’s rights.

2 Aboriginal People and the Law

There is a guide for Aboriginal and Torres Strait Islanders to protecting designs, brands and inventions available at www.ipaustralia. gov.au/sites/g/files/net856/f/reports_ publications/dream_shield.pdf and a website that includes many examples of success stories and tips for Aboriginal inventors, designers and business owners, in videos and transcripts at ww.ipaustralia.gov.au/ tools-resources/publications-reports/ dream-shield.

[2.560] International

developments The World Intellectual Property Organization In 2000, the World Intellectual Property Organization (WIPO) established an InterGovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC). In 2009, the member states decided the IGC should undertake text-based negotiations regarding effective protection of genetic resources, traditional knowledge and traditional cultural expressions. The IGC now has until September 2017 to reach agreement on an international legal instrument. See www. wipo.int/export/sites/www/tk/en/igc/ pdf/igc_mandate_1617.pdf. At this stage there is still a lot of disagreement amongst the member states about the nature and content of the instrument/s. For further information about WIPO’s work in this area see www.wipo.int/tk/en/igc.

UNESCO UNESCO has developed the Convention on the Protection and Promotion of the Diversity of Cultural Expressions. The Convention includes principles and articles which deal with promoting and protecting Indigenous cultural expressions. For further information about UNESCO’s work on the Convention and cultural diversity go to its website at www.unesco.org/new/en/ unesco/themes/2005-convention.

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Pacific Islands Forum The Pacific Islands Forum is a political grouping of 16 independent and selfgoverning states. In 2002, the Pacific Islands Forum adopted a Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture which contained a Model Law for the Protection of Traditional Knowledge and Expressions of Culture (Pacific Model Law). The Pacific Model Law is a draft document establishing a new range of statutory rights for traditional owners of traditional knowledge and expressions of culture and provides a basis for Pacific Island countries wishing to enact such legislation. In 2009, in order to further the protection of traditional knowledge, the Pacific Islands Forum launched the Traditional Knowledge Action Plan. This has entered Phase 2 with the Cook Islands being the only country to implement traditional knowledge legislation to date although several countries have draft bills – see www.wipo.int/edocs/mdocs/tk/ en/wipo_iptk_apa_15/wipo_iptk_apa_15_ presentation_qalo.pdf.

[2.570] Further assistance The Arts Law Centre of Australia The Arts Law Centre of Australia provides free legal services to artists and arts organisations across Australia as the national community legal centre for the arts. Artists in the Black (AITB) is a legal service for Indigenous artists, communities and arts organisations established by Arts Law. The AITB services include: • free telephone legal advice • document reviews • workshops/seminars, and • free information packs. Website: www.aitb.com.au. This website contains information on working ethically including collaborative projects, negotiation, protocols, income and pricing and enforcement issues www.aitb.com.au/workingethically. Other services More extensive services, such as a contract review service, are available to Arts Law

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Centre members. The annual membership fee for an individual is $160; however, this fee is currently waived for Indigenous artists. Further information and resources, including Indigenous comics, information sheets and sample agreements, are available online at www.artslaw.com.au or by calling 1800 221 457.

The Australian Copyright Council The Australian Copyright Council provides information, advice and training about copyright in Australia to artists, arts organisations and people working in educational institutions, libraries, and government departments or agencies. It has a free legal advice service for copyright matters.

The Australian Copyright Council has a free information sheet titled Indigenous Artists, and has published two books on legal issues relevant to Indigenous culture and intellectual property. They are: • Indigenous Arts and Copyright, which includes general information on copyright and issues specific to Indigenous people • Protecting Indigenous Intellectual Property, which includes information on important common law developments and international research and organisations. Further information on these and other publications can be found at www. copyright.org.au.

2 Aboriginal People and the Law

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Contact points [2.580]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au. Aboriginal and Torres Strait Islander Social Justice

Family Violence Prevention Legal Services

National Association for the Visual Arts

www.humanrights.gov.au/ aboriginal-and-torres-straitislander-social-justice

Bourke/Brewarrina ph: 6872 2440

Aboriginal Housing Company

Forbes: ph: 6850 1234 or 1800 700 218

www.visualarts.net.au/ advicecentre/ servicesindigenousartists National Native Title Tribunal www.nntt.gov.au

www.ahc.org.au ph: 9318 0177 Aboriginal Land Council, NSW www.alc.org.au ph: 9689 4444 Aboriginal Medical Service

Broken Hill ph: (08) 8087 6766 or 1800 812 800

Kempsey: ph: 6562 5856 Moree ph: 6751 1400 Walgett ph: 6828 3143 Indigenous Cultural and Intellectual Property Rights

ph: 9319 5823

www.austlii.edu.au/au/journals/ AILR/1999/51.html

Artists in the Black

Indigenous Land Corporation

www.aitb.com.au

www.ilc.gov.au

Arts Law Centre of Australia www.artslaw.com.au ph: 1800 221 457 or 9356 2566 Australasian Legal Information Institute (AustLII) (for full text of Wik and Mabo decisions) www.austlii.edu.au Australian Copyright Council www.copyright.org.au

ph: 1800 818 490 Indigenous Law Bulletin www.austlii.edu.au/au/journals/ ILB Indigenous Women’s Legal Program Women’s Legal Services NSW www.womenslegalnsw.asn.au

ph: 8815 9777

Indigenous Women’s Legal Contact Line

Australian Institute of Aboriginal and Torres Strait Islander Studies

ph: 1800 639 784 or 8745 6977

www.aiatsis.gov.au ph: 6246 1111 Australians for Native Title and Reconciliation www.antar.org.au Council for Aboriginal Reconciliation www.austlii.edu.au/car

LawAccess NSW www.lawaccess.nsw.gov.au Law and Justice Foundation of NSW www.lawfoundation.net.au Link-Up Aboriginal Corporation www.linkupnsw.org.au ph: 1800 624 332 or 4759 1911

ph: 1800 640 501 Ombudsman, NSW Aboriginal and Torres Strait Islanders Liaison Officer www.ombo.nsw.gov.au/atsi.html ph: 1800 451 524 or 9286 1000 Reconciliation Australia www.reconciliation.org.au ph: 6273 9200 Solid Arts: respecting and protecting Indigenous intellectual property www.solidarts.com.au “Stolen Children” homepage www.hreoc.gov.au/social_justice/ bth_report/index.html Wirringa Baiya Aboriginal Women’s Legal Centre ph: 1800 686 587 or 9569 3847

Aboriginal legal services Aboriginal Legal Service (NSW/ACT) Ltd www.alsnswact.org.au Head Office ph: 8303 6699 Care Unit ph: 1800 733 233 Criminal Unit ph: 1800 765 767

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Central South Eastern Zone Canberra ph: 6249 8488 Moruya ph: 4474 2400 Nowra ph: 4422 3255 Redfern ph: 8303 6600 Wollongong ph: 4225 7977 Northern Zone Armidale ph: 6772 5770 Coffs Harbour

ph: 6640 1400 Grafton ph: 6640 1400 Kempsey ph: 6562 5990 Lismore ph: 6622 7088 Moree ph: 6752 5700 Newcastle ph: 4926 1571 Tamworth ph: 6761 3766 Taree ph: 6551 3928

Western Zone Bathurst ph: 6331 1255 Bourke ph: 6872 2200 Broken Hill ph: (08) 8087 3233 Dubbo ph: 6882 6966 Griffith ph: 6962 7675 Wagga Wagga ph: 6921 9230 Walgett ph: 6828 2039

3 Accidents and Compensation Kasarne Burgan Solicitor Jnana Gumbert Barrister Ramon Loyola Solicitor

Contents [3.10]

Liability for injury or damage

[3.20]

Liability for injury to people

[3.220] [3.290] [3.340]

Personal injury Sample letters Workers’ compensation

[3.40]

Injury or damage caused by animals

[3.370]

Worker

[3.60]

Injuries to animals

[3.420]

Injury

[3.90] [3.100] [3.110] [3.140]

Motor vehicle accidents What to do after an accident Motor vehicle insurance Property damage

[3.510]

Compensation

[3.580]

Making a claim for compensation

[3.630]

Dispute resolution

[3.660]

Common law damages

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Liability for injury or damage [3.10]

This section deals with the legal responsibilities of various people for injury or damage caused by accidents on private and public property, including owners and

occupiers of land, other people who control buildings and land, and people who keep animals (owners and others).

Liability for injury to people [3.20] On private property The law of negligence provides that each person owes each other person a duty of care. In Donoghue v Stevenson [1932] AC 562 Lord Atkin described the duty in the following terms: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. (at 580)

In the legal context, “your neighbour” is broader than the usual context of a person who lives near another. Lord Atkin said “neighbours” in law are “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” (at 580) The general duty of care under the law of negligence (laid down in the case of Donoghue v Stevenson) applies to occupier’s liability. This means that an occupier of private property has a duty to take reasonable care to prevent foreseeable risks of injury to those who may come onto the land or premises. Who is the occupier? The occupier is the person who has possession of the land, building or premises: that is, the person who has the right to decide who to admit and who to exclude. This is not necessarily the owner. An occupier can be a

tenant, for example, or an independent contractor who has control of a building site.

How is the occupier's liability determined? The liability of the occupier for injury on private property is determined by considering whether the risk of injury is real and what a reasonable owner or occupier would have done in the circumstances to prevent injury.

What if the injured person is trespassing? The way in which the person came onto the land does not determine whether there is a duty of care (see Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 and Australian Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479); for example, someone injured while trespassing may be able to claim. However, the circumstances under which a person came onto land may still be relevant. For example, it would be negligent for a shopping centre not to have a path properly illuminated for late-night shoppers, but it may not be negligent to have the same path in darkness when the shopping centre was closed and a trespasser using the path as a short cut was injured in those circumstances.

Responsibility of tenants A tenant may be responsible for injuries caused by defects in their rented premises

3 Accidents and Compensation

even if the owner is responsible for maintenance. All tenants should therefore take out appropriate insurance (see Chapter 29, Insurance) and ensure that the policy provides cover for liability for dangerous premises. Most property insurance and business insurance packages include insurance cover

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against liability to third parties for personal injury or property damage caused by an insured’s negligence. You should carefully check whether any current insurance policy includes this cover. If it does not, this insurance is not expensive, and can be taken separately from home and contents insurance or other relevant insurance if required.

The Civil Liability Act The Civil Liability Act 2002 (NSW) has modified the way in which liability for negligence is determined in many cases. The Act is complex. Briefly, some of the main changes are: • the Act contains statements of general principle on matters that the court has to take into account and that may excuse someone who might otherwise have been liable • there may be no liability where: – the risk of injury was obvious – an injury occurred as a result of “the materialisa-

tion of an inherent risk of injury” (that is, something happened that could not be avoided by the exercise of reasonable care and skill) • there may be no liability where the person was involved in a recreational activity and: – the risk of injury in the activity was obvious, or – a warning of the risk was given. There are a number of other provisions in the Act that may be relevant in deciding whether someone can be sued for negligence in a particular personal injury case.

[3.30] On public property

occupier’s liability determined? at [3.20]). The owner of the centre would normally be liable for a hazard in a common area, although a company managing the centre may also be liable.

The principles of general negligence also apply to accidents in public places. For example: • a local council may be liable for a dangerous structure in a park or for failing to have warning signs at a council swimming pool • Sydney Water may be liable for a health hazard posed by the condition of drains that it controls • State Rail may be liable for an injury caused by the condition of a railway station that was not properly maintained. Shopping centres are covered by the law dealing with occupiers (see How is the

Liability of public authorities The Civil Liability Act has provisions about the liability of public authorities, including road authorities that protect them from liability in some circumstances. While it is sometimes possible to sue these authorities, legal advice is required to determine if a case can be brought.

Injury or damage caused by animals [3.40] Obtaining

compensation A person may be able to obtain compensation if they are injured or their property is damaged, by an animal owned or controlled by someone else. Civil proceedings can be brought against

the owner or person keeping the animal if that person has been negligent. The Companion Animals Act 1998 (NSW) provides that owners and people who keep companion animals may be liable in certain circumstances even if they were not negligent. All dogs are treated as companion animals, including working dogs on rural

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properties, guard dogs, police dogs and corrective services dogs.

More than one person can be the owner of a dog under one or more of the definitions.

Proving negligence It can be hard to prove negligence. The best evidence may be the animal’s previous behaviour. For example, if a dog causes an accident by chasing a car it will be useful if neighbours can give evidence that the dog had often chased cars. The court looks at the circumstances of each case. For example, fences and gates that are adequate on a farm may not be enough in the city. Where the owner was liable In one case, a dog ran from the owner's yard through a partly open gate and chased a motorcycle, causing a collision. The owner knew his dog sometimes tried to get out, and was found negligent because he did not make sure the gate stayed closed. The motorcyclist was awarded a large sum for the serious personal injuries he suffered (Eadie v Groombridge (1993) 16 MVR 263).

Insurance Owners and other people who keep animals should be insured against claims for injury and damage caused by their animals if there is any real chance of this happening. Household insurance policies often provide public liability cover for domestic animals. The written terms of any policy should be checked.

[3.50] Dogs A person who has been injured or has suffered damage caused by a dog may be able to obtain compensation either: • in the course of any criminal proceedings against the dog’s owner or keeper, or • by taking civil action against the owner or keeper. Who is a dog owner? “Owner” is defined in the Companion Animals Act to mean not only the registered owner but also: • the person by whom the dog is ordinarily kept, and • the owner of the dog in the sense of being the owner of the animal as personal property.

Civil proceedings A dog owner can be held liable for the dog’s actions even if the owner was not negligent. Under s 25 of the Companion Animals Act, the owner is generally liable if a dog attack causes: • bodily injury to a person; or • damage to a person’s clothing. However, it is necessary to prove that the dog was attacking or causing an element of aggression against the injured person. Section 25 does not apply if the attack occurred: • on property or in a vehicle occupied by the owner or where the dog is ordinarily kept, and: – the injured person was not lawfully there, and the dog is not a dangerous or restricted dog (see below); • in response to intentional provocation of the dog by someone other than the owner or a person authorised by the owner; or • in connection with a police dog or a corrective services dog. Dangerous and restricted dogs Dangerous dogs A dog may be declared dangerous by the local council or the court under the Companion Animals Act. Owners of dangerous dogs must meet special requirements relating to the control of their dogs. Failure to do so constitutes an offence and may result in the dog being seized. Restricted dogs Certain breeds of dog, including pit bull terriers, Japanese tosas, and Argentinian and Brazilian fighting dogs are restricted dogs with stringent control requirements (ss 55–56). Failure to meet such requirements constitutes an offence, and may result in the dog being seized.

Criminal proceedings The owner of a dog that rushes at, attacks, bites, harasses or chases any person or animal, whether or not injury is caused, can generally be prosecuted for an offence under s 16 of the Companion Animals Act.

3 Accidents and Compensation

Exceptions It is not an offence if the incident occurred: • because the dog was being teased, mistreated, attacked or otherwise provoked • because the person or animal was trespassing on the property where the dog was kept • as a result of the dog acting in reasonable defence of a person or property • in the course of lawful hunting • in the course of the dog working stock or training to work stock, or • in connection with a police dog or a corrective services dog. Compensation A person who suffers injury or loss through a dog attack may make a claim for compensation (damages) from the owner. Damages

89

are assessed under the Civil Liability Act and can include compensation for pain and suffering, wage loss, expenses and domestic assistance. Penalties for dog attacks There are substantial penalties under the Companion Animals Act 1998 for owners guilty of offences in which their dog attacks someone or causes property damage. Injury to animals The Companion Animals Act also applies in limited circumstances if another animal is injured as a result of a dog attacking or chasing it (s 27). Other laws relating to injuries to animals are discussed in the next section.

Injuries to animals [3.60] Claims for

compensation There are a number of ways in which the owner of an injured animal can claim compensation. It may also be possible to bring a criminal prosecution against the person responsible.

Intentional injury An action for trespass can be brought if the injury was both wrongful and intentional. The kind of action depends on the circumstances: • trespass to property applies where the injury is caused directly as a result of someone’s conduct (for example, shooting the dog) • an action on the case (a very old common law action) applies where the damage occurs indirectly (for example, through someone leaving a poison bait). Either way, the owner should get legal advice.

Unintentional injury If an animal is injured unintentionally the owner may be able to claim negligence,

although this can be difficult to prove, especially if the animal was hit while on a road. However, each case depends on its circumstances. For example, if the driver of a car was travelling at high speed and ignored “stock crossing” signs and injured cattle, the owner of the cattle may claim damages for the injuries.

[3.70] Seizing or destroying a

dog Preventing damage to property Anyone may lawfully seize a dog if the action is “reasonable and necessary” to prevent damage to property (Companion Animals Act, s 22(1)), unless the dog is engaged in stock work.

Preventing injury or death Anyone may lawfully seize, injure or destroy a dog if the action is “reasonable and necessary” to protect a person or animal (other than vermin) from injury or death (s 22(2)), unless the dog is engaged in stock work.

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If the dog is engaged in stock work, the action is only lawful if it is necessary to protect a person, not an animal.

Preventing injury to farm animals If a dog approaches a farm animal on enclosed land, the occupier or a person authorised by the occupier can lawfully injure or destroy the dog, if they reasonably believe that the dog will molest, attack or cause injury to the farm animal (s 22(5)).

[3.80] Criminal liability Stealing an animal A person who steals a dog or other animal may be guilty of an offence under the Crimes Act 1900 (NSW), ss 126, 132, 503, 505.

Destroying or injuring an animal It is a serious offence to intentionally or recklessly destroy or damage domestic animals or wild creatures that have been tamed or are ordinarily kept in captivity (ss 194, 195).

Cruelty to animals The Prevention of Cruelty to Animals Act 1979 (NSW) contains many provisions relating to ill-treatment of animals. A person who mistreats an animal may face criminal penalties and may have to pay compensation to the animal’s owner. Even where there is a power to seize, injure or destroy a dog under the Companion Animals Act 1998 (see Seizing or destroying a dog, [3.70]), ill-treatment or cruelty is not permitted. Reporting incidents of cruelty Incidents of cruelty can be reported to the police, who will take action under the Prevention of Cruelty to Animals Act if a complaint is made. Otherwise you can contact the Royal Society for the Prevention of Cruelty to Animals, New South Wales (RSPCA) or the Animal Welfare League (NSW), who can send an inspector to investigate the complaint and will, in many cases, take the appropriate criminal proceedings. The Animal Welfare Unit of the NSW Department of Primary Industries may also be contacted in some cases.

Motor vehicle accidents [3.90]

This section discusses the legal obligations of a driver involved in a road accident, as well as how to make an insurance claim and how to claim compensation

for personal injury and property damage. The section includes a number of sample letters to assist in pursuing such claims.

What to do after an accident [3.100] Legal obligations The legal obligations of a driver involved in a crash in NSW are covered by r 287 of the Road Rules 2014 (NSW).

Exchanging information Under r 287, the driver of a vehicle involved in a crash must give certain particulars to: • other drivers involved in the crash or representatives of such drivers

• anyone injured in the crash • the owner of property (including any vehicle) damaged in the crash (or the owner’s representative). There is an exception, in that it is not necessary to give the particulars to the owner of another vehicle or the owner’s representative if the particulars have been given to the driver or the driver’s representative.

3 Accidents and Compensation

The required particulars The information that must be given (the required particulars) is as follows: • the driver’s name and address • the name and address of the vehicle’s owner • the vehicle registration number • other details needed to identify the vehicle.

Reporting to the police Under r 287, the required particulars must be given to a police officer if: • anyone is killed or injured, or • the particulars are not given to drivers, injured persons and owners and/or representatives of drivers and owners as set out above, or • a vehicle is towed or carried away, or

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• a police officer asks for any required particulars. Where particulars are required to be given to a police officer, in addition to the required particulars, an explanation of the circumstances of the crash must be given. Where these details are required to be given to the police, this must be done as soon as possible after the crash but, except in exceptional circumstances, within 24 hours.

Requirement to stop and give assistance Under s 146 of the Road Transport Act 2013 (NSW), the driver of a vehicle involved in an accident that causes death or injury must stop and give all possible assistance.

Practical steps A driver involved in an accident should first meet the legal requirements described above; ie: • exchange the required particulars with other drivers • report the accident to police if necessary • assist accident victims if necessary. The driver should also, if possible: • take the names and addresses of witnesses • make notes of any conversation with other people involved in the accident • make a sketch plan of the scene, including distances,

width of street, lane markings and other relevant details • take photographs of the scene • find out whether the other vehicle is insured, and if so with which company • make no admissions about liability for the accident. This may invalidate insurance claims • remove debris from the road. If an injured driver cannot do this, the person who removes the vehicle should clear the road. Drivers should take all precautions necessary to prevent any other motorists colliding with the crashed vehicles.

Motor vehicle insurance [3.110] Types of damage

[3.120] Types of insurance

A motor vehicle accident may cause: • personal injury (such as cuts, bruises and broken bones) • property damage (such as damage to cars, clothing or luggage). Property damage and personal injury are usually covered by different insurance policies, and a separate claim should be made for each. It is possible to sue first for property damage only, and later for personal injury (or vice versa).

The most common types of motor vehicle insurance are: • compulsory third party (CTP) • comprehensive, and • third party property.

Compulsory third party insurance Compulsory third party (CTP) insurance covers claims against the owner of a vehicle for compensation for personal injury. The premium is paid to a licensed insurer when the vehicle’s registration is renewed. The

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certificate of insurance – a green slip – must accompany the registration payment. There are a number of licensed insurers, including most well-known insurance companies. For a list of licensed insurers, contact the State Insurance Regulatory Authority (SIRA).

Comprehensive insurance Comprehensive insurance generally only covers claims for property damage. It covers: • claims made by other people for damage to their property, and • damage to the policy holder’s own property. Additional cover Some comprehensive policies also cover hospital and medical expenses, and some give a benefit if the policy holder is killed or injured in the insured vehicle.

Third party property insurance Third party property insurance covers damage to someone else’s property. It is usually taken out by people who consider their vehicles are not valuable enough to warrant comprehensive insurance, or simply do not wish to pay for comprehensive insurance. Every motor vehicle owner should have at least this type of insurance. Proving negligence To succeed in an insurance claim it is necessary to prove that the other person was negligent – that is, that the damage was caused wholly or in part by the other person's lack of reasonable care in the driving, control or maintenance of their vehicle. The fact that the other driver has been found guilty of a criminal offence (such as negligent driving) arising from the accident does not mean that the court will come to the same conclusion in a civil case. Having said that, the standard of proof for criminal proceedings is higher than for civil proceedings, so if the driver of the other vehicle has been convicted of an offence in relation to the

accident, there is a very good chance that the insurer will admit liability for your claim and/or a court will find in your favour.

Suing for damages Because a third party property policy only provides cover for damage to the other party’s property, there is nothing to stop the policy holder from suing the other party for damage to their own property. If the other party counterclaims; the counterclaim can be defended by the insurance company. Notifying the insurer of claims Policy holders must, of course, notify their insurance company of any accidents and resulting claims made against them.

[3.130] Losing insurance

cover Insurance policies should be read carefully – most comprehensive and third party property policies have conditions that must be met before the insurer will accept a claim. Some of these are described below.

Reporting an accident Most policies require the insured person to report any accident or damage as soon as possible. Even a person who does not intend to claim on their policy should notify the insurer (indicating that the notice is not a claim).

Ensuring that the driver has a licence Under most policies, the insurer can refuse to cover a claim if the vehicle was being driven by an unlicensed driver, including a person to whom the owner has lent their car. Owners who wish to lend their car should always check that the other driver has a valid licence. This protects the owner, the driver and anyone suffering damage in an accident.

Giving the insurer accurate information The application for insurance (the proposal) normally includes questions about the

3 Accidents and Compensation

owner’s driving record. These (and all other questions in the proposal) must be answered fully and honestly. Otherwise the company may refuse to honour a subsequent claim.

Ensuring that the driver is not intoxicated Under most policies, there is no cover if the driver was under the influence of alcohol or a drug. Note that under cl 34 of Sch 3 of the Road Transport Act 2013 (NSW), a conviction for

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alcohol-related driving offences, and the tests related to them, are not admissible as evidence of: • intoxication while driving, or • being incapable of driving or exercising effective control over a vehicle. Alcohol related driving offences are discussed in more detail in Chapter 20, Driving and Traffic Law.

Property damage [3.140] Uninsured vehicle

[3.160] Claiming on insurance

owners

If an owner has comprehensive insurance, it is generally best to let the insurance company handle an accident claim, although owners sometimes decide to handle their own claim rather than claim on their insurance. Either way, the issues discussed below should be considered.

When property is damaged in a motor vehicle accident, an owner who is not insured can either: • claim payment from the other party and sue if necessary (see Suing for damages at [3.170]), or • pay for their own repairs.

[3.150] Insured vehicle

owners If the damaged vehicle is insured, the owner can: • make a claim on their insurance policy (see Claiming on insurance at [3.160]) • pay the cost of repair themselves • demand payment from the other party and sue them if necessary (see Suing for damages at [3.170]).

Making a decision In deciding what to do, insured owners should consider a number of issues, including: • the type of policy • the excess payable • the effect of the claim on their no-claim bonus • whether the other person is insured • how the amount of damages they may receive will compare with legal costs.

Matters to consider The excess The excess is the amount stated in the insurance policy to be payable by the insured person when a claim is made. The amount depends on: • the insurance company • the driver’s age – all insurance companies insist on an age excess for drivers under 25 • driving history – if the driver has had a previous claim, the excess may be increased. The standard excess for all drivers is around $350; for drivers under 25, it may be as much as $1,000. A person should find out what the excess is before making a claim. It is possible to pay an increased premium to remove all or part of the excess. Effect on the no-claim bonus Insurance companies have adopted a principle of rewarding owners who have not made claims during a particular year by offering a lower premium for the following

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year. Someone who has made a claim must usually pay a higher premium the following year. No-fault claims Some insurers allow a person who has made a claim to keep their no-claim bonus if: • the accident was not their fault, and • after processing the claim, the insurer was able to recover damages from the other driver. The company will normally also try to recover the excess from the other driver in these circumstances. This is only possible, of course, if the other driver was identified.

Is the other party insured? Going to court is expensive. Before suing someone for damages it is important to check: • whether the other party is insured, and • if the other party is not insured, whether they can afford to pay damages. There is no point in paying legal costs then finding that the other person simply cannot pay any damages ordered by the court. If this seems likely, the best course, for an insured person, is to claim on their own insurance.

Advantages of claiming Immediate repair A major benefit of immediately making a claim on an insurance policy is that the vehicle will, usually, be repaired with a minimum of delay. Legal action by the insurer Another advantage is that if a person makes a claim, the insurance company can commence an action against the other driver in their name. This is called subrogation. In this case, the company will pay all the costs of the action. Actions by subrogation are common, and many drivers find themselves suing another driver in this way. If the company recovers more in damages than it paid, it will generally give the balance to the insured person after deducting its legal costs.

[3.170] Suing for damages Legal costs Taking a case to court can be expensive, so the likely legal costs should be considered carefully. Should a solicitor be used? It is possible to minimise costs by handling all or part of a damages claim personally (see Handling a claim yourself at [3.190]). However, this is often not advisable, especially if the claim is defended. It is worthwhile to at least discuss the matter with a solicitor before going to court. See Chapter 4, Assistance with Legal Problems, for information about getting an estimate of charges from a solicitor and for other possible sources of advice.

Recovering costs If a lawyer handles a claim, legal costs for the work done in pursuing the claim may be recovered from the defendant if it is successful. However, this may depend on the amount of the claim. The solicitor’s charges may also exceed the amount awarded. Arbitration If the matter is in the Local Court, either party can request the court to refer defended motor vehicle property damage claims to an arbitrator.

Repair costs If the repair cost is small (say, under $250), it may not be worth claiming on insurance or using a solicitor. However, it may be worth handling the claim personally to try to recover some of the cost (see Handling a claim yourself at [3.190]). Working out the cost Barbara sues Alan for damage to her car. The court decides in Barbara's favour and orders Alan to pay $3,000 for repairs to Barbara's car and $1,000 in costs. Barbara's solicitor charges $1,600, which Barbara has to pay whether or not Alan actually pays the court order for the total amount of $4,000. Of course, if Alan does pay the full amount, Barbara retains $2,400 after paying her legal fees – which is $600 less than the cost of repairs to the car.

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If Barbara had lost the case, she would have had to pay not only for her repairs and legal costs, but also Alan's legal costs, and probably the cost of his repairs.

Apportioning damages Deciding whether or not a driver was at fault can be quite difficult. Clearly, a driver who has a collision while drunk is driving negligently. Driving over the speed limit is probably also negligent, as is failing to stop at a red light. But many situations are not so clear. If the court cannot say that one driver was entirely at fault, it can apportion (share) damages between each driver according to

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each driver’s degree of responsibility (see Effect of contributory negligence below). Contributory negligence A driver who shares responsibility for an accident is guilty of contributory negligence. For example, in an accident at an intersection the driver with right of way may be held 25% responsible because every driver should drive safely in all circumstances. Likewise, a driver who did not take reasonable steps to avoid an accident may be held partly responsible for it. An award of 100% of damages is possible (for example, if a legally parked car was hit by another car), but the possibility of apportionment must be considered.

Effect of contributory negligence Example 1 Alan's car and Barbara's car collide at an intersection. Each suffers damage worth $5,000. Alan sues Barbara for $5,000 and Barbara counterclaims (sues Alan) for the same amount. The court finds Alan 20% responsible and Barbara 80% responsible. Alan gets 80% of $5,000, or $4,000. Barbara gets 20% of $5,000, or $1,000. The net result, before considering costs, is that Barbara has to pay $3,000 to Alan for repairs. Alan also gets $1,500 that the court has ordered Barbara to pay Alan for his legal costs. However, this does not pay all Alan's legal costs, which have run to $2,500. Once he has paid the balance, Alan is left with $2,000 to cover the damage to his car. Barbara is already down $4,500 (the $3,000 she has paid to Alan for repairs plus his legal costs of $1,500), and

has to pay her own legal costs of $1,500. She is out of pocket by $6,000 and still has a $5,000 repair bill.

[3.180] Which court?

Legal costs in the District Court are higher than costs in the Local Court.

The first step before deciding whether or not to personally handle a property damage claim is to establish which court will hear the claim.

Claims over $100,000 If damages are more than $100,000, legal action must be commenced in the District Court. In this case, it is usually best to claim on an insurance policy and leave it to the insurer to handle the matter; or, if for some reason a person decides not to do this, to instruct a solicitor.

Example 2 Alan's car and Barbara's car collide at an intersection. They claim and counterclaim. Alan's repairs cost $2,000, Barbara's cost $8,000. The court finds Alan 20% responsible and Barbara 80% responsible. Alan gets 80% of $2,000, or $1,600. Barbara gets 20% of $8,000, or $1,600. Alan's damages and Barbara's damages cancel each other out. Alan has to pay solicitor's costs and $2,000 for repairs. Barbara also has to pay solicitor's costs of $2,000 as well as $8,000 for repairs, so she is no better off than if she had settled out of court and paid for Alan's repairs in the first place.

Claims under $100,000 For claims under $100,000, legal action is commenced in a Local Court. Claims under $10,000 Small Claims Divisions have been introduced into some Local Courts for claims involving less than $10,000. Proceedings are informal, and conciliation is encouraged, where appropriate. Legal representation is allowed, but there are limits on the costs that can be recovered by either party. If the damages are substan-

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tial (say, over $1000) and court proceedings are involved, it is wise to seek legal advice.

Using a solicitor Court proceedings are often complicated and stressful. Anyone needing to go to court should carefully consider whether to instruct a solicitor, particularly if the other party has one.

[3.190] Handling a claim

yourself If the repair bill is around $500, there is nothing to prevent a person handling all or part of the claim personally without involving a lawyer. The procedure is as follows.

Get details of the other party Find out who to sue and whether they are insured. If the other party’s name and address were not noted at the scene of the accident but the registration number is known, the owner may be traced through the Roads and Maritime Services (RMS). There is a free registration check that can be done on the RMS website, otherwise for more comprehensive information, a Vehicle History Report is $21. It will be about a month before the registry advises the result.

• does not reply, or • refuses to accept liability (because, for example, the other driver was drunk or unlicensed when the accident occurred) another letter of demand must be sent to the other party as if they were uninsured (see sample (3) Letter of demand – other party uninsured at [3.310]).

If the other party is not insured If the other party is not insured, the person should send them: • a letter of demand (see sample (3) Letter of demand – other party uninsured at [3.310]), and • the quote for repairs. If the other party accepts liability If the other party accepts responsibility for the damage bill, payment details can be finalised. If the other party disputes the quote, another should be supplied. If the other party denies liability If the other party denies liability, a statement of claim should be issued against them (see below). Claiming the insurance excess

If the other party is insured

A person who has to pay an insurance excess (see The excess at [3.160]) may be able to recover it from the other party. A letter of demand should be sent to the other party (see sample (5) Letter of demand – insurance excess at [3.330]). Or the insurance company may do it – check with them first. If there is no reply, it is necessary to decide whether to commence proceedings in court, bearing in mind the costs involved. If the insurance excess is small, it might be better to let the matter lapse and go no further. If it is substantial, court proceedings should be commenced.

If the other party is insured the person should: • send them a letter of demand (see sample (1) Letter of demand – other party insured at [3.290] for what this should contain), and • send their insurance company: – a copy of the letter of demand, and – the repair quote, and – a letter like sample (2) Letter to insurance company at [3.300]. If the insurance company:

If the other party does not reply If the other party does not respond to the letter of demand, a second letter of demand should be sent in the terms of sample (4) Second letter of demand – other party uninsured at [3.320]. If the second letter of demand produces no result, proceedings may be commenced in a court (see If the other party does not respond below).

Obtain quotes Get a written quote for the cost of repairing the vehicle from a reputable repairer. It is advisable, but not essential, to get two quotes. If two quotes are obtained, the claim should be based on the lower quote.

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Taking action in court Is it worth it? First, the question of whether the claim is worth taking to court should be seriously considered. Remember that a statement of claim against the other party may provoke a counterclaim, and everyone may lose (see Effect of contributory negligence at [3.170]). How to proceed If a decision is made to go to court, the first step is to go to the Civil Claims section of the nearest Local Court (see Chapter 14, Criminal Law, Contact points for a list of these) and request a statement of claim. If necessary, the clerk will help fill out the claim and can arrange for it to be served on the other party. Fees For claims up to $10,000, the fees are: • $93 for lodging the statement of claim, plus • $39 for a service fee If the claim is for more than $10,000 the fees will be higher, and legal assistance is strongly recommended. Action in the Small Claims Division Consideration should be given to starting the case in the Small Claims Division, if possible, especially if a solicitor is not being used. (For more on the Small Claims Division, see Claims under $10,000 at [3.180].)

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Action by the court After the defence has been filed, the magistrate either: • lists the matter for mention in court, in which case a notice of the mention date and a copy of the defence are sent to the person claiming (the plaintiff), or • refers the matter to arbitration. If the other party does not respond If the defendant does not file a defence within 28 days of the statement of claim being served, it is necessary to go to the court again and apply for a default judgment from the court office. This is a judgment made by the court in the absence of any defence or explanation from the other party. To obtain a default judgment, it is necessary to have the affidavit of service back from the bailiff (see Chapter 15, Debt, for what this is) and to complete a form called a statement and affidavit for default judgment at the court. Enforcing the judgment After the court gives its judgment ordering a person to pay, that person must do so. If they do not, the chamber magistrate at the Local Court should be approached for advice on how to enforce the judgment. See Chapter 15, Debt, for more about enforcing a judgment against a debtor.

[3.200] Defending a claim The other party's response Once the statement of claim is served, the other party (the defendant) has 28 days to file a defence.

A person against whom a claim is made (the defendant) will receive a letter of demand. This letter should not be ignored.

Moving the claim to another court

An insured vehicle owner who receives a letter of demand should notify their insurance company as soon as possible, giving full details of the accident, if this has not already been done.

The defendant can apply to have the claim transferred to: • another Local Court in the area where the defendant lives or works, or • the District Court (by making an application in the District Court). When a case is transferred to the District Court, legal advice should be obtained.

Owners who are insured

Owners who are not insured If the defendant disputes the claim An uninsured person who receives a letter of demand may want to dispute the claim.

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In this case, they should write to the other party (the plaintiff) denying liability. If the defendant’s vehicle has been damaged, the letter should state that if legal action is started, a counterclaim for repairs to their vehicle will be made. The amount of damages claimed by the other party can also be disputed. The defendant is entitled to request copies of repair quotations and invoices and receipts for the damages claimed by the other driver.

Obtaining a release When a claim is settled and payment is made, the defendant or their insurer must obtain a signed release from the party who made the claim. This document releases the defendant from further responsibility. A defendant should not pay any money without getting the signed release. The release should be in terms such as the following:

If the defendant accepts liability If there is no dispute about responsibility for the accident and the defendant is uninsured or does not wish to claim on their insurance policy, and the amount claimed is reasonable, the defendant should pay as soon as possible. This will avoid further expense, such as court costs, solicitor’s fees and so on. If responsibility for damages is not clear, seek legal advice (see Chapter 4, Assistance with Legal Problems). The defendant may offer to pay by instalments. If the other party does not accept this, the defendant should seek advice from a chamber magistrate at the Local Court or from a solicitor, or apply to the court for a decision on what is a reasonable amount to pay.

The plaintiff hereby agrees to and accepts the amount of $ ......................... paid by the defendant in full and final settlement of all claims for property damage arising out of the accident on the .......... day of [month] [year] at [place]

Action by the insurer After an insurance company has paid out a claim, it is entitled to take legal action in the name of the person insured to recover the amount from the other party. This is called the right of subrogation (see Advantages of claiming at [3.160]). Drivers of uninsured vehicles often face such claims, and they may seek to pay the repair costs by instalments if they can’t afford a lump sum.

Settlement of the claim The party seeking compensation (an insurance company or private individual) will often accept a lump sum payment for an amount less than the total amount of the repair costs in preference to instalments. This is called settlement of the claim.

Between [name of plaintiff] and [name of defendant]

Signed ......................... ......................... [Defendant]

[Plaintiff]

Dated ..................................................

Signing a release People who are asked to sign a release by the other party should ensure that it does not prevent them from taking action for physical injury. If in doubt, they should approach a solicitor or a chamber magistrate for advice. Other expenses that can be claimed Hiring a vehicle Generally, the owner of the vehicle damaged in an accident can claim the cost of hiring another vehicle only if the damaged vehicle was essential for earning income. It is up to the person making the claim to show that the hiring charges were reasonable and was for a vehicle comparable to the one damaged. Lost wages or profits In some cases, lost wages or profits may also be claimed (for example, a taxi driver's net income during the period the taxi was being repaired if no replacement vehicle could be obtained). Anyone wishing to take action for this type of loss (called a demurrage claim) should seek legal advice.

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[3.210] Claims contested in

court Witnesses In any court action for damages that arises from a motor vehicle collision, evidence is given orally by people who: • were directly involved, or • witnessed the accident. The drivers and their passengers The driver of each vehicle and their passengers can give evidence of what they saw and heard. Independent witnesses Courts tend to give more weight to the evidence of independent witnesses such as drivers of other vehicles or pedestrians who saw the accident. Police witnesses The police officer who attended the accident is often a very useful witness. To obtain their name and contact details, and a statement as to who the police believe was most responsible, a police accident report should be applied for. Applications are made to the Accident Information Unit at the Police Centre, Parramatta. This will cost about $75.

What must be proved in court? Proving negligence Responsibility for proving that the other party was negligent rests on the person making the claim.

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Proving that the accident caused the damage and that the claim is reasonable If someone wants to claim damages following an accident, they must prove that the damage was caused by the collision. It is necessary, therefore, to obtain a detailed quotation for repairs to the vehicle, and it is advisable to obtain at least two quotations as evidence of the reasonableness of the claim. Sometimes, of course, the vehicle will be so badly damaged that the repair costs will exceed the market value of the vehicle and repair will be uneconomical. Police prosecution Sometimes a police prosecution is commenced against one of the drivers concerned. Police proceedings (that is, criminal proceedings) are quite separate from civil proceedings for damages. Regardless of the outcome of any criminal case, in a civil case the court looks at all the circumstances of the accident before deciding which party or parties are at fault and, as indicated earlier, can decide that both parties are at fault in varying degrees.

How much can be claimed? Claims cannot exceed the value of a vehicle at the time of the accident. This value can be established by getting a certificate of valuation from a vehicle repairer or some other qualified person.

The duty to mitigate damages It is a general rule of law that anyone who has suffered damage must try to minimise that loss. This is called the duty to mitigate damages.

Check the repair work After repairs have been carried out, the owner should take the vehicle to the NRMA for an inspection and test if possible. If this is not possible, they should check the vehicle carefully, especially the paintwork and chassis alignment. If the work is not up to standard, the repairer

should be asked to fix it. If they refuse, a complaint can be made to the Department of Fair Trading or the Motor Vehicle Repair Industry Council (see also Chapter 10, Consumers).

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Personal injury [3.220] Legislation This section deals with claims for personal injury and death arising out of motor accidents that occurred on or after 5 October 1999. These claims are dealt with under the provisions of the Motor Accidents Compensation Act 1999 (NSW). The Act applies whether the accident occurred on a public road or on private property. The Act can also apply to some accidents occurring at work.

2.

Time limits There are strict time limits for giving notice, doing certain other things and bringing an action. It is sometimes possible to get an extension, but delay should be avoided, and legal advice should be sought as soon as possible.

[3.230] Who can claim for

3. 4.

personal injury? Simply being injured in an accident does not give a person a right to compensation. Someone claiming damages for injuries or death caused by a motor vehicle accident must prove that the accident was due to the fault of the owner or the driver of a vehicle involved in the accident, subject to five main exceptions. Fault means negligence or some other tort (wrongful act). The vast majority of claims for injury and death are based on negligence. The five main exceptions where compensation can be recovered by a person injured in a motor accident who cannot prove anyone else (such as another driver) was at fault are: 1. All people who are injured as a result of a motor vehicle accident are entitled to claim up to $5,000 for treatment and loss of income, regardless of whether they were responsible for the accident or not. In order to access this compensation an Accident Notification Form must be lodged within 28 days of the date of the

5.

accident (see Claiming compensation at [3.240]). A person who is “seriously injured” in a motor accident may be entitled to have treatment and care provided to them under the Lifetime Care and Support Scheme. For example, even a person who is injured when he or she simply drives into a tree may be provided with treatment and care if they are “seriously injured”. “Seriously injured” covers a specific range of injury-related major disabilities and in the scheme there are procedures to determine if a person is eligible to participate. A person injured on certain work-related journeys is eligible to claim workers’ compensation. If a person is injured in a motor vehicle accident that is not caused by the fault of anyone (ie, a “blameless accident”) then it is deemed that the driver/s of the motor vehicles involved in the accident were at fault, and a claim can be made in the usual way. Children who were aged under 16 at the time of the accident are entitled to nofault compensation for their treatment and care expenses. These claims must be made against the CTP insurer of one of the vehicles involved in the accident, and are made in the usual way (ie, following the procedures outlined at Claiming compensation at [3.240]).

Proving negligence Proving negligence involves proving that: • the defendant owed the injured person a duty of care, and • the defendant breached that duty, and • the person suffered loss or damage as a result. Whether or not the defendant has been negligent depends on all the circumstances of the accident.

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A driver's duty of care Drivers owe a duty of care to all road users, including their passengers and pedestrians. Some common breaches of the duty to take care are: • driving too fast in the circumstances • failing to keep a proper lookout for other traffic and road users • entering an intersection without regard for other traffic that may also be using it • driving with insufficient control – for example, because the driver is under the influence of alcohol or drugs. What is a motor vehicle? A motor vehicle is defined in the Motor Accidents Compensation Act as a motor car, motorcycle, bus, truck or any other vehicle powered by any means other than human or animal power. An accident caused through the fault of a bicyclist, for example, is not covered by the Act. “Vehicles” such as forklifts and other motorised vehicles on a work site can also be motor vehicles for the purpose of the Act.

Is breaking traffic regulations negligent? The fact that a driver has committed a breach of the traffic regulations does not necessarily mean that they have been negligent. It is only one of the factors which must be considered.

[3.240] Claiming

compensation Three ways of dealing with the claim Depending on the nature of the claim and the seriousness of the injuries, the claim can be: • settled with the third party insurer of the party alleged to be at fault, or • decided by an Assessor at the Claims Assessment and Resolution Service (CARS), or • the subject of a common law action for damages against the party alleged to be at fault (through their insurer). In this case, the claim can be either: – settled during the proceedings, or – decided by a judge.

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Get legal advice A person claiming compensation for personal injuries arising out of an accident should seek legal advice as soon as possible.

Procedure If the registration number of the vehicle at fault is known, the Motor Accidents Compensation Act requires a person wishing to make a claim for compensation for personal injuries to take certain steps. If the registration number is not known If the registration number of the vehicle at fault is not known, such as in a hit-and-run accident, legal advice should be sought immediately. A claim can still be made against what is known as the nominal defendant.

At the scene of the accident For what should be done at the scene of the accident, see What to do after an accident at [3.100]. Reporting the accident The accident must be reported to the police within 28 days. Failure to report the accident to the police within this timeframe can result in the claim being rejected. If this happens, the injured person will have to provide a full and satisfactory explanation for the delay in reporting the accident. The claim will only be allowed if the application is accepted by the insurer or by an Assessor/ Judge. Accident Notification Forms (ANFs) All people who are injured as a result of a motor vehicle accident are entitled to nofault benefits of up to $5,000. These benefits cover medical and treatment expenses, and loss of income. In order to access these no-fault benefits, the injured person must lodge an Accident Notification Form with the CTP insurer of one of the vehicles involved in the accident, within 28 days of the date of the accident. The Accident Notification Form must be accompanied by the prescribed Medical Certificate, which must be completed by the injured person’s treating doctor.

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If the injured person’s losses exceed $5, 000, or if the injured person is seeking compensation for losses other than medical expenses and loss of income, then a full personal injury claim must be made. Time limits A personal injuries claim must be made within six months of the accident, using the prescribed form. A claim in relation to a person’s death must be made within six months of the date of death, also using the prescribed form. If a claim is made after the six-month period, the insurer can reject it. If this occurs, the injured person must provide a full and satisfactory explanation for the delay in lodging the claim. Delivering the claim The Personal Injury Claim Form (which can be obtained from the third party insurer of the party at fault or the Motor Accidents Authority) must be completed in full and served on the driver of the vehicle and their third party insurer within six months of the accident. It is recommended that the claim form be completed with the help of a lawyer. Finding the other party's insurer The Roads and Maritime Services (RMS) will release the name of the third party insurer if they are given the

registration number of the vehicle and the date of the accident.

Assessing the claim Third party insurers have a statutory duty to try to resolve claims as quickly as possible. To help the insurer assess the claim, the person making the claim may be required to: • provide information such as: – details of loss of earnings, and – details of medical and hospital expenses • produce documents, including medical reports from hospitals and doctors • provide a photograph or other evidence of their identity • undergo a medical examination, vocational assessment or rehabilitation assessment. It usually takes an insurer six months to assess a claim after the form has been received. Settling the claim After the claim has been lodged with the third party insurer, it may be possible to negotiate a settlement without going to court.

Settling out of court If injuries are minor and there is no continuing disability, it is usually advisable to try to settle without going to court. This is likely to be much quicker. Sometimes this can be done by negotiating directly with the third party insurer. However, it is advisable to seek legal advice before settling a claim. Most motor accident claims can be dealt with by referral to the Claims Assessment and Resolution Service (CARS), which is part of the State Insurance Regulatory Authority. Often claimants accept awards by CARS assessors and decide not to go to court. It is very important to remember that once a claim is settled it is finished forever. It is not possible to claim further compensation at a later date if your injuries deteriorate of if you have an unexpected problem.

Therefore, before a claim is settled you should: 1. Wait for your injuries to stabilise. 2. Get a medical opinion about your prognosis, your future treatment and care needs, and whether you will have any loss of earning capacity in the future. 3. Be assessed to determine whether you are eligible for compensation for non-economic loss (see What can be claimed at [3.260]). Again, it is advisable to seek legal advice before settling a claim and terminating your rights. If a claim is made in court, there will be some time before it is heard and decided. (However, see Where court proceedings should be commenced below).

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[3.250] Taking the case to the

Claims Assessment and Resolution Service or court Most motor accident cases do not go to court. Instead, they are assessed by the Claims Assessment and Resolution Service (CARS). CARS is administered by the State Insurance Regulatory Authority, who appoints a panel of assessors (experienced solicitors and barristers) to assess motor accident claims. The CARS process is relatively informal and is much quicker and cheaper than going to court. All claims that are not settled will be assessed by CARS unless they are entitled to be exempted from the CARS process. There are only limited cases that can be exempted from CARS, notably claims where the insurer has denied liability, claims involving children or people who lack legal capacity and claims where the insurer has alleged a significant amount of contributory negligence. The decision of the CARS assessor is binding on the insurer (unless there has been an allegation of contributory negligence) but is not binding on the injured person. The injured person is entitled to have their case reheard in court if they are unhappy with the decision of the CARS assessor. However, costs penalties can apply, and legal advice should be sought. There are complicated procedures that must be carried out before a claim can be referred to CARS. It is advisable to seek legal advice if it has been more than two years since the accident and your claim has not yet been settled.

Going to court Court proceedings can only be commenced in relation to a CTP claim if: 1. The claim has been assessed by the Claims Assessment and Resolution Service and the claimant is unhappy with the assessment and applying for a judge to hear their case. 2. In a case where contributory negligence

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has been alleged, the claim has been assessed by the Claims Assessment and Resolution Service and the insurer refuses to pay the amount assessed by an assessor of the Claims Assessment and Resolution Service. 3. The case has been exempted from the Claims Assessment and Resolution Service. Before bringing a court case, it is necessary to consider: • whether negligence or some other tort can be proved, and • the amount of damages likely to be awarded, which has been substantially decreased by the Motor Accidents Compensation Act (see Is it worth going to court? below).

Use a lawyer Anyone intending to claim for personal injury in court should instruct a solicitor.

Which court? The District Court can hear claims for personal injuries under the provisions of the Motor Accidents Compensation Act regardless of the amount claimed. However, if the claim is clearly in excess of $1,000,000, there may be advantages in bringing the claim in the Supreme Court (although restrictions apply to bringing motor accident cases in the Supreme Court). Non-jury hearings All actions for personal injury or death arising from motor vehicle accidents, are now heard by a judge without a jury.

Time limits Proceedings cannot be commenced more than three years after the accident (or date of death) except with the leave of the court. If a claim is referred to CARS prior to the three years following the accident then time stops for the purpose of the three year time limit to issue court proceedings until two months after a claims assessor from CARS has issued a certificate as to the assessment or exemption.

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Is it worth going to court? The damages that can be awarded under legislation have been modified from the position at common law, and the full measure previously recoverable can no longer be claimed. Often, however, the final amount will not be very much less. It is in the case of less serious injuries that difficulties are encountered. Where going to court may not be worthwhile In the past, a person injured through a driver's negligence was likely to recover an amount that made court action worthwhile. For accidents on or after 5 October 1999, however, it is often not possible to establish the necessary degree of impairment to claim for noneconomic loss (see Damages for non-economic loss, [3.260]). In cases where the injured person is not entitled to compensation for non-economic loss, consideration should be given to what entitlements they have to claim for other heads of damage (such as loss of income, treatment expenses and care) before deciding whether to commence court proceedings. This is particularly important in cases where liability is denied and the

injured person runs the risk of losing their case.

[3.260] What can be claimed?

Other amounts that can be claimed

Damages for non-economic loss For accidents occurring on or after 5 October 1999, general damages for non-economic loss (ie, pain and suffering) are restricted to a maximum of $511,000 (as at 1 October 2015 – the amount is adjusted on 1 October every year). Damages are not awarded on a scale, and if the court decides to make an award it may fix any amount it considers fair and proper compensation provided it does not exceed the maximum. The 10% threshold Before damages for non-economic loss may be awarded the claimant must establish that they have suffered more than 10% permanent whole person impairment in accordance with certain guidelines. Whether this test can be passed is generally determined by a medical assessor, appointed by the State Insurance Regulatory Authority. What is non-economic loss? Non-economic loss includes: • pain and suffering • loss of amenities of life • loss of expectation of life • disfigurement.

Where court proceedings should be commenced An injured person should get legal advice before settling a claim, especially if he or she has some continuing disabilities from the motor accident. Often injuries take some time to settle down and the final disabilities may not be immediately apparent. Once a claim has been settled, the injured person cannot claim any further amounts or take any further action. The person making the claim should be guided by medical and legal advice before settling a claim or signing a release that will prevent future action. The advice will help the injured person to make the best decision about starting court proceedings or accepting a settlement or the amount awarded by a CARS assessor. Get legal advice Anyone in doubt as to whether or not to make a claim should seek legal advice without delay.

Damages under a number of other categories can be recovered in motor accident claims. Hospital and medical costs The injured person can recover all hospital, medical, ambulance and similar expenses resulting from the accident. It is advisable for the person to keep a record of all such expenses, and to keep receipts. Unpaid accounts should be kept to either give to the insurance company or produce in court as proof of the amounts claimed. An amount can also be claimed for future treatment. Nursing and domestic care If nursing or domestic care has been provided, the cost can be claimed, even if the services were provided by members of the injured person’s family or a friend without payment. There are, however, restrictions on the circumstances in which such a claim can be made, and how much can be claimed. In order to claim past domestic assistance provided gratuitously by a family or friend without payment the care must have been

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provided for more than six months following the accident and for more than six hours per week. Economic loss Loss of wages up to the date of hearing can be claimed as past economic loss. However, there is a maximum amount per week that may be claimed. The amount is indexed annually. As at 1 October 2015, the maximum amount of economic loss that may be claimed is $4,688 net per week. The injured person can also claim a lump sum amount for future loss of earnings, or for a general reduction in earning capacity. It is necessary to adduce evidence as to the injured person’s likely future circumstances but for the accident. Other claims Other types of claims can also be made, including the cost of fund management, particularly when the injuries suffered are very serious. Advice should be sought from the solicitor acting for the injured person as to additional claims that can be made in particular circumstances.

[3.270] Amount of the

settlement The solicitor handling a settlement can advise how much an injured person should receive.

Deductions Sums that may have to be deducted from the settlement amount include: • the solicitor’s costs and disbursements, above the regulated costs payable by the insurer • repayments for medical or hospital expenses • repayments of workers’ compensation or sickness benefits paid to the injured person while they were unable to work • repayments to the Health Insurance Commission for treatment expenses paid by Medicare or for nursing home care • repayments to Centrelink. These factors must be investigated and considered before a claim is settled.

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Compensation to relatives Under the Compensation to Relatives Act 1897 (NSW), relatives of a person who has died as a result of injuries received in a motor vehicle accident may be entitled to recover damages against the person responsible. Relatives covered are spouse or de facto partner (including same-sex partner), brother, sister, half-brother, halfsister, parent and child. Any sum awarded will be for the benefit of all the deceased's dependants and will be apportioned as the court directs. The same procedural requirements and time limits apply as for making a claim for personal injuries arising from a motor vehicle accident. A claim can only be made in cases where the wrongful act, neglect or default which caused the death would, if death had not occurred, have entitled the deceased to sue for damages for negligence.

[3.280] Defences Denial of liability The insurer may defend a claim by denying that their insured driver was negligent. In these circumstances, the onus rests on the injured person to prove that the driver was responsible for the accident.

Contributory negligence An injured person succeeds in their action by proving that the defendant was negligent. Sometimes, however, it is alleged that part of the reason that the person was injured was because of their own lack of care. The most common allegations of contributory negligence in motor accident cases are: • the injured person was not wearing a seatbelt • the injured person was a passenger in a car where the driver was affected by alcohol or other drugs • the injured person was a pedestrian and failed to take care for their own safety when crossing the road. If the court decides that the injured person has contributed to the accident, it will apportion the liability by reducing the injured person’s award of damages by the percentage amount of the contributory negligence (see Apportioning damages at [3. 170]), and the damages the person would

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otherwise recover will be reduced by the same percentage that the injured person is found to have contributed to the accident. The onus of proving contributory negligence rests on the insurer. Voluntary assumption of risk The defence of voluntary assumption of risk (for example, knowingly getting into a car with a driver who is grossly affected by

alcohol) is no longer available, but the facts that would give rise to such a defence are treated as matters relating to contributory negligence. Fraudulent or false claims Provisions have been introduced to help third party insurers to identify fraudulent or false claims, and offences have been created for people who knowingly make a false or misleading statement for a claim.

Sample letters [3.290] (1) Letter of demand –

......................... [date]

other party insured

.................................................. [name of insurance co]

.................................................. [claimant's name] .................................................. [claimant's address] ......................... [date] Dear .................................................. [name of respondent] I am writing about the accident on .......... [date] at ......................... [place of accident].

.................................................. [address of insurance co] Dear sir/madam Accident on ......................... [date] at ......................... [place of accident] I am the owner of motor vehicle number .......... [registration number] which was involved in an accident with motor vehicle number .......... [registration number] owned by your insured Ms/Mr ......................... [name of insured].

I am the owner of motor vehicle number .......... [registration number] which was damaged as a result of a collision with a vehicle owned by you [and driven by ......................... if the owner was not the driver] on the above date.

I enclose a copy of a letter of demand sent to [her or him] together with a quotation for the damage. I will be happy to arrange for a second quotation if required. I look forward to hearing from you shortly.

I am holding you responsible for the damage to my vehicle. The damage has been assessed at $ .......... A copy of the quotation is enclosed. I believe that your vehicle is insured with [name of insurance company].

.................................................. [signature]

Please forward this letter to your insurers as soon as possible. I look forward to hearing from you shortly. Yours faithfully, .................................................. [signature]

[3.310] (3) Letter of demand –

Yours faithfully,

other party uninsured .................................................. [claimant's name]

[3.300] (2) Letter to insurance

company .................................................. [claimant's name] .................................................. [claimant's address]

.................................................. [claimant's address] ......................... [date] Dear .................................................. [name of respondent] I am writing about the accident on ......................... [date] at ......................... [place of accident].

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I am the owner of vehicle number .......... [registration number] driven by me on the above date. I am holding you responsible for the damage to my vehicle, which has been assessed at $ .......... A copy of the repair quotation is enclosed.

Yours faithfully, .................................................. [signature]

Please inform me within 10 days of today's date whether you admit liability for the accident and whether you will pay, and in any case whether you regard the assessment as reasonable.

[3.330] (5) Letter of demand –

Yours faithfully, .................................................. [signature]

insurance excess ......................... [claimant's name] ......................... [claimant's address] ......................... [date]

[3.320] (4) Second letter of

demand – other party uninsured .................................................. [claimant's name] .................................................. [claimant's address] ......................... [date] Dear .................................................. [name of respondent] I am writing about the accident on ......................... [date] at ......................... [place of accident]. I refer to my letter to you dated ......................... wherein I gave you until ......................... [10 days after the first letter] to contact me regarding compensation for my losses suffered as a result of the accident. As I have received no offer or money in satisfaction of my claim, I now inform you that unless I receive payment of my damages of $ .......... within seven days of today's date, I will commence court proceedings without further notice.

Dear ......................... [name of respondent] I am writing about the accident on .......... [date] at .......... [place of accident]. I am the owner of motor vehicle number .......... [registration number] which was damaged as a result of a collision with a vehicle owned by you [and driven by .......... if the owner was not the driver] on the above date. I am holding you liable to compensate me for the damage to my vehicle. Under my comprehensive insurance policy, I am required to pay the first $ .......... [amount of excess] of my claim for the cost of repairs to my vehicle. I hereby claim payment of the sum of $ .......... [amount of excess] of my claim for the cost of repairs to my vehicle. I expect payment within ten days of today's date. If I do not hear from you within this time, I will commence court proceedings without further notice. Yours faithfully, ......................... [signature]

Workers' compensation New South Wales scheme [3.340]

In New South Wales, a worker who suffers an injury that results in incapacity for work, the need for medical treatment and/or permanent impairment of a limb may be entitled to workers’ compensation benefits.

If a worker dies as a result of a work injury, any persons dependent for support upon the worker at the time of his or her death may be entitled to workers’ compensation benefits.

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[3.350] Legislation The workers’ compensation scheme in New South Wales is established by legislation. There are two important New South Wales Acts: Workers Compensation Act 1987 (NSW) (1987 Act) and Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act). The 1987 Act sets out the benefits payable to workers and their dependants in the event of a work-related injury and compulsory insurance requirements for employers. The 1998 Act sets out broader scheme administration, injury management and dispute resolution procedures. Both Acts are supported by regulations and guidelines. The primary regulation supporting the workers’ compensation legislation is the Workers Compensation Regulation 2016 (NSW) (2016 Regulation). There are various guidelines and practice directions, which are issued by the Workers Compensation Commission (WCC) and the State Insurance Regulatory Authority (SIRA) (formerly WorkCover NSW) and are available on WorkCover’s old website (www.workcover. nsw.gov.au) and the WCC’s website (www. wcc.nsw.gov.au).

[3.360] Entitlement to

workers' compensation benefits The entitlement to workers’ compensation benefits is set out in s 9 of the 1987 Act. Section 9 provides that a worker who has received an injury (and in the case of the death of a worker, his or her dependants) shall receive compensation from the worker’s employer. While statutory workers’ compensation schemes have existed in Australia since the turn of the 20th century, the simple concepts of “worker”, “injury” and “compensation” have resulted in extensive legislative amendments and judicial determinations. The amendments to the workers’ compensation scheme in 2012 produced some profound changes to the way workers may assert their right to entitlements under the legislation. The Workers Compensation Legisla-

tion Amendment Act 2012 (NSW) (the 2012 amending Act) introduced fundamental changes to the 1987 Act and the 1998 Act, applying certain limitations and new processes to the way workers’ compensation entitlements are determined and provided in some areas. The amendments had the underlying aim of reducing a $4.1 billion deficit in the workers’ compensation scheme. Changes to specific benefits, including for permanent impairment and pain and suffering compensation, weekly payments compensation, and medical treatment expenses, impact on both new and existing claims, except where particular groups of workers are excluded, such as the police service, paramedics, firefighters, coalminers, emergency service volunteers and workers falling under the Workers Compensation (Dust Diseases) Act 1942 (NSW). The specific amendments to the entitlements are detailed throughout this chapter, where relevant. Another impact of the 2012 amendments on the scheme is the abolition of the power of the Workers Compensation Commission to make an order for costs and the curtailment of its jurisdiction in certain circumstances in relation to weekly payments. In 2015, further amendments were introduced to the scheme, leading to major structural changes, and which allowed workers to continue to make a claim for certain entitlements, despite the limitations that came into effect in 2012. The major structural change occurred with the abolition of the WorkCover Authority as a single, merged entity and its breaking down into three separate entities with specific functions within the scheme. The State Insurance and Governance Act 2015 (NSW) created these separate agencies with the view to replacing the functions of the WorkCover Authority and to distinctly separate its insurance and regulatory functions. The three new agencies that are in operation as at 1 September 2015 are: • The State Insurance Regulatory Authority (SIRA), an independent agency that regulates the functions of the WorkCover Authority in relation to workers compensation insurance and the Motor Accidents Authority in relation to Compulsory Third

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Party (CTP) insurance, and that regulates the functions in relation to Home Building Compensation • Insurance & Care (NSW) (iCare), an insurance and care service provider, the Workers Compensation Nominal Insurer, and service provider for claimants under the Lifetime Care and Support Authority, the Dust Diseases Authority, SICorp and the Sporting Injuries Compensation Authority • Safework NSW, an independent workplace health and safety regulator. In conjunction with these changes, certain court and tribunal decisions in 2015 also impacted on an injured worker’s entitlements to workers compensation benefits. In a decision made on 27 August 2015 in Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250, the NSW Court of Appeal confirmed the provision first introduced by the 2012 amending Act that an injured worker is limited to only one claim for permanent impairment lump sum compensation (s 66(1A) of the 1987 Act) and that a worker who had made a claim for permanent impairment prior to 19 June 2012 (the operational date of the 2012 amending Act) could not make a claim for further or additional permanent impairment lump sum compensation. The impact of the court’s decision simply means that an injured worker, at any stage of a claim and regardless of the date of injury, will only be entitled to one claim for permanent impairment lump sum compensation under s 66 of the 1987 Act.

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The court judgment’s impact appears to be slightly diluted by the introduction of changes to the Workers Compensation Regulation 2010 (NSW) where, through the Workers Compensation Amendment (Lump Sum Compensation Claims) Regulation 2015 (NSW) (the 2015 amending Regulation), a provision now operates that allows workers to make a further permanent impairment lump sum compensation claim, despite Cram Fluid v Green and the 2012 amending Act. The 2015 amending Regulation allowed a worker who has made a claim for permanent impairment lump sum compensation before 19 June 2012 to make one (and only one) further claim for the same entitlement after 19 June 2012. For the purpose of the further claim, the worker does not need to have at least 11% whole person impairment (WPI), despite the 2012 amending Act’s requirement under s 66(1) of the 1987 Act of a degree of permanent impairment of greater than 10% WPI. This means, the worker only needs to prove that there is at least 1% WPI deterioration since the previous percentage or degree of permanent impairment received before 19 June 2012 in order to pursue the further permanent impairment lump sum compensation claim. Both the 2015 amending Regulation and the Workers Compensation Amendment Act 2015 (NSW) (the 2015 amending Act) have also introduced minor changes to certain entitlements, and these will be set out in the following discussion, where relevant.

Worker [3.370] Who is a worker? To be entitled to workers’ compensation benefits you must be a worker (or, in the case of death of a worker, a dependant of a worker), as defined by the workers’ compensation legislation. “Worker” is defined in s 4 of the 1998 Act. Section 4 states that a worker is a person who has entered into or who works under a contract of service or a

training contract with an employer. The type of work undertaken is not restricted. The important aspect is the existence of a contract that can be categorised as a contract of service. A contract of service involves a relationship between an employer and a worker where, in return for the payment of wages or equivalent, a worker performs duties as directed by the employer.

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A contract of service is distinct from a contract for services. A contract for services typically involves an independent contractor, often a tradesperson, who is contracted to perform a specific task. A person working under a contract for services would not be a worker for the purposes of the workers’ compensation legislation and therefore could not claim workers’ compensation benefits. Independent contractors usually take out personal injury insurance to cover them in the event that they have an accident while working. The onus is on a claimant to establish the existence of a contract of service and therefore that they are a worker for the purposes of entitlement to workers’ compensation benefits. The contract does not need to be in writing, however, oral contracts often give rise to disputes regarding precise terms and the nature of the relationship. Whether in writing or orally, a claimant must establish the essential features of a contract: an offer of employment, acceptance of that offer, consideration (being the value of the contract), and an intention to create legal relations. In most cases, consideration will be in the form of money paid (wages) in exchange for a person’s labour, although consideration can include anything with a value, such as the provision of food and accommodation in exchange for a person’s labour. In most cases an employment relationship will be obvious. If, however, it is unclear whether the relationship is a contract of service, it is necessary to look at all the features of the relationship. Indicia that weigh in favour of or against a contract of service include: Control Clearly the most important feature of an employment relationship is the right of direction and control by an employer over an employee. Control includes the right to direct what work is to be performed and how it is to be performed, the right to approve or not to approve whether a person may take leave and the right of dismissal of the person.

Hours of work and method of payment The right to determine a person’s hours of work and days of attendance is a classic feature of an employment relationship (for example, requiring a person to commence work at 9.00am, take a lunch break between 1.00pm and 2.00pm, and finish work at 5.00pm, from Monday to Friday). The method of payment is also a feature. Workers will usually be paid an hourly rate and have tax deducted from the payment whereas an independent contractor will usually perform a specific job for a fixed fee and will usually include GST in addition to the fee. Provision of tools, material and plant It is usual in an employment relationship that the employer provides and maintains all tools, equipment and premises that are necessary to perform the work. By contrast, independent contractors usually supply and maintain their own tools and equipment. Entitlements other than remuneration Another feature of an employment relationship is the accrual of holiday leave, sick leave and extended leave entitlements. Right to exclusive use of services of the person engaged A requirement of an employment relationship is that the person engaged cannot work for other employers, at least not without the consent of the employer. No right to employ other workers or to delegate the work A feature of an employment relationship is that a worker cannot employ other persons to do the work or sub-contract the work. The above examples are not exhaustive and each indicium will not usually of itself establish whether a contract of service exists or not. It is a question of balancing the indicia to determine whether an employment relationship exists.

[3.380] Volunteers A volunteer who is injured at work premises is not entitled to claim workers’ compensation benefits. Volunteers are unable to establish the essential elements of a contract,

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particularly the absence of consideration (value for labour) and the absence of an intention on the part of the parties to enter into a legal relationship. There is, however, specialist legislation (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW)), which provides that volunteer bushfire fighters, volunteer surf lifesavers and SES volunteers are entitled to workers’ compensation benefits if those persons are injured in the course of volunteer activities.

[3.390] Deemed workers The 1998 Act deems certain persons to be workers for the purposes of entitlement to workers’ compensation benefits, even though those persons do not meet the definition of “worker” under the workers’ compensation legislation. Categories of deemed workers are many and varied and are set out in Schedule 1. They include taxi drivers, jockeys and harness drivers, ministers of religion, entertainers and performers such as professional boxers, wrestlers and referees.

[3.400] Excluded workers A number of categories of workers are specifically excluded from entitlement to claim workers’ compensation benefits under the New South Wales workers’ compensation scheme. The following persons are excluded from cover under the New South Wales workers’ compensation scheme: • New South Wales police officers employed before 1 April 1988 – those officers are covered under a separate compensation scheme • miners who suffer a dust disease – miners who suffer dust diseases are covered for workers’ compensation by the Workers’ Compensation (Dust Diseases) Act 1942 (NSW) • registered participants of sporting organi-

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sations who receive remuneration for participating in authorised activities and training • casual workers, defined as persons performing work for one period only of not more than five working days and the work performed is not related to the employer’s trade or business (for example, a babysitter) • a person who is employed by the Commonwealth or by a Commonwealth authority or licensed corporation – Commonwealth employees must claim under the Commonwealth workers’ compensation scheme (Comcare). The workers listed above, in addition to emergency service volunteers, are also excluded by the amendments to the legislation in 2012 and 2015.

[3.410] Illegal employment If the contract of service or training contract under which an injured worker was engaged at the time the injury happened was illegal, the workers’ compensation legislation provides that the matter may be dealt with as if the injured worker had at the time been a worker under a valid contract (s 24 of the 1987 Act). It arises from time to time that an injured person does not have a valid work visa and is therefore prohibited from working in Australia. Despite the illegality of their employment, the courts have consistently held that those workers are still entitled to workers’ compensation benefits if they suffer an injury arising out of or in the course of that employment (see for example Nonferral (NSW) Pty Ltd v Taufia (1998) 43 NSWLR 312 and Singh v TAJ (Sydney) Pty Ltd [2006] NSWCA 330). In these cases regard is given to the nature and circumstances of the illegality to determine whether the person should still be entitled to workers’ compensation benefits.

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Injury [3.420] What is an injury? Once it is established that the person claiming workers compensation is a worker, it is necessary to establish that the person suffered an injury as defined by the workers’ compensation legislation. “Injury” is defined in both s 4 of the 1987 Act and s 4 of the 1998 Act. Despite the two definitions, they are in similar terms and nothing turns on whether reference is to the definition in the 1987 Act or the 1998 Act. Essentially, there are three categories of injury which entitles a worker to workers’ compensation benefits. The three categories are: • a personal injury arising out of or in the course of employment • a disease which is contracted by a worker in the course of employment and to which employment was a contributing factor, and • the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration. Establishing that a worker has suffered a work injury is a simple task when there is an identifiable incident or traumatic event, such as a fall at work resulting in a broken arm. An injury may cause either internal damage to the body (such as a hernia or disc lesion) or external damage to the body (such as cuts or abrasions). The task of establishing that a worker has suffered a work injury becomes more difficult when there is no identifiable event or when a worker suffers from a disease or condition that could equally be attributed to non-work factors. It is not uncommon in workers’ compensation claims for an injury to arise as a result of repeated and often unnoticed trauma which has the cumulative effect of producing a pathological change. The mechanism of injury in these cases is the nature and conditions of the worker’s

employment over a period of time, rather than any single incident. What is required for the purposes of entitlement to workers compensation is a sudden, identifiable pathological change (Castro v State Transit Authority (NSW) [2002] NSWCC 12; (2002) 19 NSWCCR 496). In 2012, the changes to the legislation further defined a “disease injury” in s 4 of the 1987 Act to mean: • a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and • the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. The effect of this is that a worker now faces a higher test of proving that the employment, among other relevant factors, was the main cause of the disease.

[3.430] Work relationship of

personal injuries Once it is established that a worker has suffered a personal injury, it is also necessary to establish that the personal injury arose out of or in the course of employment. “Arising out of employment” suggests a causal connection between the worker’s employment and the injury, while “in the course of employment” suggests a temporal connection between the injury and employment. “Arising out of employment” has a fairly wide import and can establish an injury even though a worker was not doing his job at the time of the injury. For example, a personal injury to a worker that arose out of a verbal exchange between a worker and his

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supervisor about the work to be performed may be said to arise out of employment. In general, all injuries that occur during work hours will be found to arise in the course of employment. Personal injuries will be held to be in the course of employment even though they occur during meal breaks and other authorised breaks. Personal injuries occurring outside the normal period of work may in certain circumstances be considered to arise out of or in the course of employment. This may occur where an employer induces or encourages an activity outside of work, such as attending a work function. However, mere authorisation by an employer to engage in an activity outside of work will not usually be enough; inducement or encouragement by the employer needs to be established.

[3.440] Features of disease

injuries A disease injury has broad implications and encompasses any form of illness, including mental illness (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626). In the legal sense, an injury might be described as a disease even though it might not be considered a disease by medical practitioners. A disease injury at law has been described as “the failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence” (Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; (1998) 16 NSWCCR 253). The wide interpretation of what constitutes a disease at law can be applied to many injuries that may result from the nature and conditions of employment. Certain types of occupations increase the risk of contracting certain diseases. The 2016 Regulation contains a Schedule which lists the kinds of employment for which certain diseases are taken to have been contracted in the course of that employment (refer to cl 4 and Sch 1 of the 2016 Regulation). For example, brucellosis, leptospirosis and Q

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fever are taken to be work-related, if the worker was employed in activities in an abattoir. While not prescribed in Sch 1 of the 2016 Regulation, it is common for shearers to contract Q fever and it is unlikely that an employer or insurer would question the work relationship. Where the injury is the “aggravation, acceleration, exacerbation or deterioration of a disease”, the original disease need not have been contracted in the course of the employment; it is enough that the aggravation, acceleration, exacerbation or deterioration of the disease happened in the employment. So, if a worker has a preexisting disease, which is made worse by the employment, the worker would be entitled to claim workers’ compensation benefits. Following the 2012 amending Act, new claims for disease injuries must be supported with sufficient evidence to show that the employment was the main cause of, or contributing factor to, contracting the disease injuries.

[3.450] Employment as a

substantial contributing factor It is not enough that the injury arose out of or in the course of employment. Before workers’ compensation is payable, it must also be established that the worker’s employment was a substantial contributing factor to the injury (s 9A of the 1987 Act). Disputes often arise as to whether employment was a substantial contributing factor to an injury, for example, whether employment was a substantial contributing factor when a worker suffers a heart attack at work or when a worker is injured when not actually undertaking work duties at the time of the injury. Section 9A provides six examples of matters to be taken into account in determining whether employment was a substantial contributing factor: 1. the time and place of the injury 2. the nature of the work performed and the particular tasks of that work

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3. the duration of the employment 4. the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment 5. the worker’s state of health before the injury and the existence of any hereditary risks, and 6. the worker’s lifestyle and his or her activities outside the workplace. Employment is not required to be a substantial contributing factor for injuries suffered while a worker is on a journey to or from work, while on a recess break or while carrying out trade union duties. It would otherwise make it impossible for a worker, so injured, to be entitled to workers’ compensation benefits. Whether employment is a substantial contributing factor to an injury is a question of fact and is a matter of impression and degree that requires analysis of the causal factors which resulted in the injury and an evaluation of the importance of the employment factors.

[3.460] Psychological and

psychiatric injuries Stressful and traumatic events at work may cause a range of emotional and psychological reactions. If those reactions result in a physiological effect, rather than a mere emotional impulse, a worker will be entitled to claim workers’ compensation benefits. Mere emotional impulses are strong feelings, however, they do not cause a person to become dysfunctional (Yates v South Kirkby Collieries Limited [1910] 2 KB 538). What is required is a recognisable condition, not merely an emotional impulse; for example, a medical diagnosis of post-traumatic stress disorder. The worker’s condition must also arise out of real events and not merely the worker’s perception of events (Townsend v Commissioner of Police (1992) 25 NSWCCR 9 and Yeo v Western Sydney Area Health Service (1999) 17 NSWCCR 573).

A defence to a claim for psychological or psychiatric injury is that the injury was wholly or predominantly caused by the reasonable action taken or proposed to be taken by or on behalf of the employer (s 11A of the 1987 Act). The action by an employer can relate to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal. Whether the injury is caused by the action taken or proposed to be taken and whether the employer’s actions are reasonable or not are questions of fact and degree, which involve consideration of all the factors that produced the worker’s psychological or psychiatric condition (Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465; (1999) 19 NSWCCR 181). An employer bears the onus of proving that their actions or proposed actions were reasonable.

[3.470] Hearing loss Hearing loss may arise out of a traumatic event at work, such as a loud explosion, or by gradual onset caused by the general noise in a workplace over a period of time. In the latter case, where hearing loss is caused by repeated and multiple micro traumata over a period of time, the workers’ compensation legislation deems the date of injury to be the date of the claim or, if the worker is no longer in noisy employment, the date the worker last worked in noisy employment. In effect, the last noisy employer is deemed to be liable for the hearing loss, even though there may have been significant periods of noisy employment before the worker worked for the last noisy employer.

[3.480] Journey claims In New South Wales, a worker who suffers a personal injury while on a daily or other periodic journey between the worker’s home and work is entitled to workers’ compensation benefits (s 10 of the 1987 Act). Section 10 uses the expression “personal injury” and therefore the disease aspects of injury are excluded from cover if received while on a journey. By operation of s 10, an injury

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received on a daily periodic journey is deemed to arise out of or in the course of employment. The journeys to which s 10 apply also include journeys to educational institutions which the worker is required or expected by the employer to attend and journeys to attend a doctor for the purposes of obtaining a medical certificate or treatment in relation to a work-related injury. It is important to note that a journey commences from, and ends at, the boundary of a worker’s home, that is, at the front gate not the front door. If a worker suffers a personal injury during an interruption or deviation from a journey, the worker will still be entitled to claim workers’ compensation benefits unless the deviation or interruption materially increased the risk of injury (s 10(2) of the 1987 Act). Each case depends on its own set of facts. For example, sometimes the arrival of darkness following an interruption to a journey home from work has been held to materially increase the risk of injury whereas in other cases the later journey time has been held not to. The journey provisions do not apply if the personal injury was caused by the worker’s serious and wilful misconduct. In the case of a worker being under the influence of alcohol or some other drug, a personal injury will be taken to be attributable to the serious and wilful misconduct of the worker unless the worker can demonstrate that the alcohol or other drug did not contribute in any way to the injury or that it was not consumed or taken voluntarily. For journey claims made on or after 19 June 2012, the amending Act imposed a limitation by adding a new requirement that a “journey” as defined in s 10(3) will apply only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose (s 10(3A)). This new provision now requires more particularised evidence in order for a worker to prove a more substantial connection of the journey with the employment, rather than a mere estimation or anticipation that a journey was or will be involved in the course of that worker’s employment. The term “substan-

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tial” must carry the meaning, “real and of substance” (Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Ltd [2009] NSWCA 324), but “real” should mean “actual” and “connection” should take the meaning of “association” or “relationship” or “link” (Mitchell v Newcastle Permanent Building Society Ltd [2013] NSWWCCPD 55). In applying the test under s 10(3A)), there must be a determination in a commonsense and practical manner (Bina v ISS Property Services Pty Limited [2013] NSWWCCPD 72).

[3.490] Recess claims If a worker has first attended at his or her place of employment and is temporarily absent from the workplace during any ordinary recess or authorised absence, such as a tea break or a lunch break, the worker will be covered for workers’ compensation benefits if injured while on that recess or absence. Workers’ compensation law deems the injury to have arisen out of or in the course of the worker’s employment, despite it occurring during a temporary absence from work (s 11 of the 1987 Act). An ordinary recess denotes a break in the actual execution of work, during a period of time when the worker is in the course of employment. It is unlikely that a short period of time between shifts (eg, two hours), during which the worker was free to do what he or she liked, would be classed as an ordinary recess. Each would more likely be defined as a separate period of employment. There is a restriction on injuries received while on a temporary recess or absence from work where a worker voluntarily submits to an abnormal risk of injury while on the break. For example, a worker who crosses a busy highway on foot during a lunch break, rather than using an overhead pedestrian bridge or traffic lights, may be found to have voluntarily submitted to an abnormal risk of injury. While the risk of injury is a risk faced by every pedestrian, it is the fact of the worker exposing him or herself to an abnormal risk.

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[3.500] Serious and wilful

misconduct of worker If the injury suffered by a worker is solely attributable to the worker’s serious and wilful misconduct, workers’ compensation

is not payable unless the injury suffered by the worker results in death or serious and permanent disablement (s 14(2) of the 1987 Act). Intoxication during work, leading to an injury, may constitute serious and wilful misconduct by a worker.

Compensation [3.510]

Workers’ compensation benefits can be classified into two categories: • economic loss, such as loss of wages and the incurring of medical and related expenses • non-economic loss, being compensation for permanent impairment to limbs and for pain and suffering. While non-economic loss may impact on economic loss, it is not always the case. Often a worker may suffer a non-economic loss but no economic loss, and vice versa. In addition, workers’ compensation is payable in respect of a worker who dies as a result of a work injury.

[3.515] Weekly compensation

benefits under the 2012 and 2015 amendments The most significant change effected by the amending Act in 2012 is to a worker’s entitlement to weekly payments compensation, where a new claims structure has been introduced with additional dispute resolution processes established. Prior to 1 October 2012, weekly payments were made over two entitlement periods: the first 26 weeks and a second period of another 26 weeks. Following the changes in 2012, weekly payments are now spread out over four entitlement periods: • the first entitlement period up to the first 13 weeks • the second entitlement period from week 14 up to week 130 • the third entitlement period from week 131 up to week 260

• the fourth entitlement period after week 260. While the periods of entitlement have been set out over four distinct timeframes, a worker may only access those entitlements, particularly after the second entitlement period (s 40 of the 1987 Act), if certain requirements are met. The amendments also capped the weekly payments to five years before the entitlement ceases to be paid, except where a worker is certified to have a degree of permanent impairment of more than 20% whole person impairment (defined as a worker with high needs in s 32A of the 1987 Act). The 2015 amendments provided that a worker with high needs, who has been assessed by the insurer as having current work capacity, is no longer required to work at least 15 hours per week in order to receive weekly payments at the expiration of the second entitlement period. For a worker with highest needs (a worker with a degree of permanent impairment of more than 30% whole person impairment, s 38A of the 1987 Act), the minimum weekly payment amount is $788.32 per week. If the worker with highest needs earned below that amount, the insurer will increase the payment to the minimum weekly payment amount per week. The minimum weekly payment amount is indexed in April and October of each year. Under the new regime, all injured workers will be paid according to rates that are calculated on the basis of that worker’s capacity for work. New concepts have been introduced – such as a work capacity assessment and a work capacity decision – that compound the difficulty of determining a worker’s entitlement to the benefits.

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Workers who were receiving the weekly payments on or around 1 October 2012 will need to be “transitioned” under the new regime by undergoing an assessment of their capacity for work. Once the assessment has been performed, the insurer is expected to make a work capacity decision, setting out the worker’s entitlements under the new regime and formally notifying the worker of that decision. The insurer has an obligation under the law to give the worker at least three months’ notice before the decision or its impact on the weekly payments entitlement takes effect. It is important to note that if a dispute arises out of a work capacity assessment or a work capacity decision of the insurer, a lawyer will not be entitled to legal costs if that dispute is pursued on behalf of the worker (s 44(6) of the 1987 Act). At this stage, however, there have been movements to introduce some form of legal costs funding for this purpose. Until the proposals are accepted and passed, the preclusion of legal practitioners from claiming legal costs for this purpose remains in effect. The avenues for a worker who is not satisfied by a work capacity decision of the insurer include an internal review by the insurer, a merit review or a procedural review (see Merit review at [3.645] and Work capacity decision review at [3.650]). If a work capacity decision is subject to the review process, the 2015 amending Act comes into effect in that the decision is stayed during that period of the review process and any reduction or decrease in the weekly payments does not operate. There are guidelines and regulations issued by the SIRA to administer the new weekly payments regime and further information may be obtained on the former WorkCover Authority’s website at www. workcover.nsw.gov.au. If a worker has not been “transitioned” and the old provisions for weekly payments still apply, the relevant principles, concepts and methodology for this entitlement are set out in the following paragraphs.

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The 2015 amendments further provided that weekly payments for claims made on or after 1 October 2012 will continue to be available for up to 12 months after reaching retiring age (see s 52 of the 1987 Act).

[3.520] Weekly compensation

benefits prior to the 2012 amending Act If as a result of a work injury a worker is incapacitated for work, the worker will be entitled to weekly payments of compensation for that incapacity. “Incapacity” is measured in terms of a worker’s reduced earning capacity in the open labour market reasonably accessible to the worker. If a worker has no earning capacity, as a result of the work injury, then the worker is deemed to be totally incapacitated for work. If a worker has a reduced earning capacity as a result of the injury, then the worker is deemed to be partially incapacitated for work.

Total incapacity A worker who is totally incapacitated for work is entitled to his or her current weekly wage rate for the first 26 weeks of total incapacity, subject to an overall cap on the amount of compensation payable. The overall cap on the amount of weekly compensation payable is set by s 35 of the 1987 Act, which is currently $2,058.10 per week (as at 1 October 2016). The maximum amount is usually indexed twice a year, on 1 April and 1 October. A worker’s currently weekly wage will usually be the award that the worker is being remunerated under, including any industrial agreement or enterprise agreement. If a worker is not employed under an award, the current weekly wage rate will be calculated as 80% of the worker’s average weekly earnings. A worker’s average weekly earnings is to be computed in such manner as is best calculated to give the rate per week at which the worker was being remunerated and includes regular overtime and allowances. Special legislative provisions apply to calculating the current

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weekly wage rate for part-time workers (refer to ss 42 and 43 of the 1987 Act). After the first 26 weeks of total incapacity for work, the maximum weekly compensation payable is 90% of average weekly earnings or a statutory rate, whichever is the lower (s 37(1) of the 1987 Act). The statutory rate of compensation is increased if the worker also has a spouse and/or children dependent upon him or her for support.

Partial incapacity If a worker is partially incapacitated for work it is necessary to quantify the worker’s reduced earning capacity in terms of lost income. In broad terms, this is done by calculating the difference between the worker’s probable weekly earnings, had the worker remained uninjured (including overtime, shift work, payments for special expenses and penalty rates) and the worker’s actual earnings. If the actual earnings are not a true reflection of the worker’s earning capacity, it is appropriate to determine the worker’s ability to earn in some suitable employment. For example, if a partially incapacitated worker decides to go on an overseas holiday instead of working, then the actual earnings will be nil even though the worker will have an ability to earn income. The weekly amount of compensation payable for partial incapacity for work cannot exceed the weekly amount that would be payable to the worker if it were a period of total incapacity for work.

Partial incapacity, deemed total incapacity Where a worker is partially incapacitated for work there is a general requirement on the worker’s employer to provide suitable employment to the injured worker. Where the employer has no suitable employment, there is a requirement on the worker to seek suitable employment from some other person. In cases where a worker is partially incapacitated for work as a result of an injury but the worker is not suitably employed during any period of partial incapacity, the worker is to be compensated as if totally incapacitated for work, provided

the worker is seeking suitable employment (s 38 of the 1987 Act). To be seeking suitable employment, the worker must be ready, willing and able to work, have requested suitable employment from their employer and be taking reasonable steps to obtain suitable employment from another employer. The maximum total period for which a worker may be compensated as if totally incapacitated for work is 52 weeks. After that period the worker reverts to the amount payable for partial incapacity for work.

[3.530] Medical, hospital and

rehabilitation expenses A worker is entitled to the costs of medical, hospital, rehabilitation and related expenses incurred as a result of a work-related injury (s 60 of the 1987 Act). There is a strong focus in the legislation on rehabilitation to facilitate early return to work. The costs are in relation to treatment and services provided to the injured worker, which are reasonably necessary. Treatment includes the provision of medication, surgery or other services designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. Whether treatments or services are reasonably necessary will depend on such factors as the appropriateness, possible alternatives, the cost, the effectiveness and acceptance by the medical profession of the treatment or service provided. Medical, hospital and rehabilitation expenses include: • ambulance services • chiropractor • dental prosthetist • hospital treatment • occupational rehabilitation services • workplace rehabilitation services • osteopath • public hospital charges, and • medical or related treatment including treatment by a medical practitioner, therapeutic treatment, crutches, artificial members and artificial aids, eyes, teeth, spectacles, nursing, medical supplies and domestic assistance.

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The 2012 and 2015 amending Acts introduced changes to the entitlement to medical treatment expenses, as the above expenses are collectively called, which aim to limit an injured worker’s right to access such an entitlement. Section 59A, which was inserted into the 1987 Act, and commenced on 1 October 2012, provides that a worker’s entitlement to medical treatment expenses is limited to 12 months after a claim was first made or within 12 months after the payment for weekly benefits has been stopped. If the worker is still in receipt of weekly payments, then the 12-month limitation will not apply. If the worker, however, stopped receiving weekly payments on a certain date, the 12 months will run from that date and there will be no entitlement to the expenses after the expiration of that period. The 2015 amending Act has now extended the limitation in s 59A of the 1987 Act, as follows: • workers with a degree of permanent impairment of 10% WPI or less – the limit to the entitlement to reasonably necessary medical treatment expenses is up to two years from the date the claim was first made or from the last date of weekly payments made • workers with a degree of permanent impairment of between 11% WPI and 20% WPI – the limit to the entitlement to reasonably necessary medical treatment expenses is up to five years from the date the claim was first made or from the last date of weekly payments made • workers assessed with a degree of permanent impairment of more than 20% WPI – there is no limit and the entitlement to reasonably necessary medical treatment expenses is for life. For claims made before 1 October 2012, a worker will continue to have access to the following medical and related treatment for life, regardless of the degree of permanent impairment as assessed: • crutches, artificial members, eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries) • modifications to vehicle and home • secondary surgery.

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Despite the extended or extinguished limitations above, a worker may still be required to seek prior approval from the insurer for certain types of medical treatment expenses (such as secondary surgery). Transitional provisions have also been introduced (Pt 19H, cl 17(2) of Sch 6 of the 1987 Act) to address claims for compensation made before 1 October 2012. In this instance, the claim for medical treatment expenses is now deemed to have been made immediately before the commencement of s 59A and previous weekly payments made before 1 October 2012 are not taken into account. If the worker was not receiving weekly payments for claims made before 1 October 2012, the 12-month period after the weekly payments ceased will be deemed to have commenced on 1 January 2013 and expired on 31 December 2013. A worker who is or was not in receipt of weekly payments and has incurred medical treatment expenses on or before 31 December 2013 may still claim for the s 60 expenses as long as the claim for it was, or the expenses were incurred within the 12-month period. What this all means is that a worker now has to take into consideration the circumstances under which a workers’ compensation claim was first made or whether or not weekly payments had been paid or had stopped before making a claim for medical treatment expenses. If a worker is deemed to be a “worker with highest needs” (which, in the context of the 1987 Act, is taken to mean a worker suffering more than 30% whole person impairment or if the degree of permanent impairment cannot as yet be ascertained), then that worker will be exempted from the operation of s 59A. A further exemption from the operation of s 59A also came into effect on 1 September 2014, where for a worker who had an “existing claim” (either a claim for weekly payments or medical treatment made before 1 October 2012), the 12-month limitation does not apply until the worker reaches retiring age, if that worker’s injury resulted in more than 20% whole person impairment or if the permanent impairment cannot as

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yet be ascertained. In addition, from 1 September 2014, a worker with an existing claim may be entitled to the cost of “secondary surgery” without being subject to s 59A if the second surgery is directly consequential to the earlier surgery to the same body part and if the insurer has approved that second surgery within two years of approving the earlier surgery. A worker is also entitled to the costs of fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining medical treatment or services (s 60(2)(a) of the 1998 Act). If a worker travels by private motor vehicle to attend medical treatment or service, the worker is entitled to the associated costs. The rate recoverable for private motor vehicles, since 1 October 2005, is $0.55 per kilometre. There is also a provision in s 60(2A) introduced in 2012 where a worker is now required to obtain the approval from the insurer prior to incurring the medical treatment expenses. Subject to other considerations, treatments obtained within 48 hours of sustaining the injury or those that are exempted from the WorkCover Guidelines that regulate treatment expenses do not require the insurer’s prior approval.

[3.540] Permanent impairment

compensation The 2012 amending Act has had a profound impact on entitlements to permanent impairment and pain and suffering compensation, which has attracted the most public and judicial scrutiny since its operation. For lump sum compensation claims for permanent impairment made on or after 19 June 2012, s 66(1) now applies where an injured worker who has received an injury after that date must satisfy a new threshold of greater than 10% whole person impairment (WPI) in order to be compensated, in lieu of the previous 1% WPI introduced in the relevant legislative amendments in 2001. The new threshold of 11% WPI must be satisfied for a physical injury, including as a result of hearing loss (which was previously 6% binaural hearing

loss (BHL), equivalent to 3% WPI). The threshold for a psychiatric or psychological injury remains at 15% WPI. The High Court of Australia has since laid down the accepted position that if a worker’s claim for permanent impairment compensation was made on or after 19 June 2012, regardless of that worker having made a general workers’ compensation claim prior to that date, the relevant compensable threshold that must be satisfied is 11% WPI (ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18). Despite this position, however, the judgment may be interpreted differently by various decision-making bodies such as the Workers Compensation Commission, where the circumstances of a particular claim or dispute may render the judgment not applicable and where the previous threshold may instead be applied (see Caulfield v Whelan Kartaway Pty Ltd [2014] NSWWCCPD 34). This means that a worker used to continue to argue against the accepted position if there was sufficient evidence to support such an argument and depending on the facts of a claim or dispute. Since 19 June 2012, a worker is also prevented from making more than one claim for permanent impairment compensation (s 66(1A) of the 1987 Act), which is a departure from the position prior to the amendments where a worker may continue to make a claim for further permanent impairment compensation if there is a deterioration in that worker’s condition since the last award or payment of s 66 compensation. The prohibition is supported by the decision of the NSW Court of Appeal in Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 in that a worker will only be entitled to one claim for lump sum compensation for permanent impairment. Despite this limitation, however, the Workers Compensation Amendment (Lump Sum Compensation Claims) Regulation 2015 (NSW) has now allowed one further claim for lump sum compensation for permanent impairment for a worker who has made a previous claim under s 66 of the 1987 Act before 19 June

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2012. See also [3.360] Entitlement to workers’ compensation benefits above. For an existing claim or dispute where the amendments to permanent impairment compensation do not apply, the determination of such a claim or dispute would be made in accordance with the previous position as set out in the following paragraphs. A worker who has received an injury is entitled to receive lump sum compensation for permanent impairment resulting from the work-related injury or disease (s 66 of the 1987 Act). Lump sum compensation for permanent impairment is payable in addition to any other workers’ compensation benefits. To be entitled to lump sum compensation, the impairment must be permanent and must be to a recognised body system, structure or disorder. Compensation is payable for permanent impairment resulting from primary psychological and psychiatric injuries, however, there is a requirement that the level of permanent impairment is at least 15% (s 65A of the 1987 Act). In relation to hearing loss, the threshold for entitlement to permanent impairment lump sum compensation is 6% BHL (equivalent to 3% WPI) (s 69A of the 1987 Act). For lump sum compensation claims due to hearing loss made after 19 June 2012, the amending Act increased this threshold to at least 11% (s 66(1) of the 1987 Act, with s 69A being repealed). Assessing permanent impairment involves clinical assessment by a WorkCover-trained medical specialist of the following: • whether the worker’s condition has resulted in impairment • whether the impairment has reached maximum medical improvement • whether the impairment is permanent • the degree of permanent impairment, expressed as a percentage. For injuries received on or after 1 January 2007 the maximum amount payable for permanent impairment is $220,000. The maximum amount is payable for impairments of 75% or more. For permanent impairment to the back resulting from injuries received on or after 1 January 2006, the amount payable for permanent impairment compensation is increased by 5%.

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[3.550] Pain and suffering

compensation If a worker suffers an injury resulting in at least 10% permanent impairment (except for psychological or psychiatric injuries, which require at least 15% permanent impairment), a further entitlement to lump sum compensation for pain and suffering exists (s 67 of the 1987 Act). For claims lodged on or after 12 January 1997 where the date of injury is on or after 1 February 1992, the maximum amount payable for pain and suffering is $50,000. “Pain and suffering” is defined in s 67(7) of the 1987 Act to mean actual pain or distress or anxiety suffered or likely to be suffered by an injured worker, whether resulting from the permanent impairment concerned or from any necessary treatment. The more severe a worker’s permanent impairment, the more the worker is likely to suffer and the greater the interference with the worker’s daily living, distress and frustration. Factors relevant when assessing the amount of compensation for pain and suffering include: • the actual individual experience by the injured worker including the intensity and duration of the pain and suffering • the age of the worker • interference with social activities and the effects on worker’s relationships including marriage • the type of surgical procedures undergone, the nature of the convalescent process and any complications flowing therefrom • the need for ongoing medication, and • difficulty sleeping. For new and existing claims made or determined on or after 19 June 2012 and where the High Court decision in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 applies, there is no longer an entitlement to pain and suffering compensation because s 67 has been repealed by the 2012 amending Act.

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[3.560] Property damage Compensation is payable for damage to artificial limbs, crutches, artificial eyes and teeth, spectacles and clothing (ss 74–78 of the 1987 Act). A wristwatch has been held to be an item of clothing. In each case it is not enough that the artificial limb, clothing etc is damaged – it is also necessary that the worker personally had an accident arising out of or in the course of employment. Therefore, if a worker falls over at work and breaks his or her glasses, compensation will be payable for repair or replacement of the glasses. If the glasses merely fall off the worker’s head, without an accident, compensation will not be payable for damage to the glasses. The compensation for property damage is relatively modest. Since 1 February 1992 the maximum amount payable for damage to artificial limbs etc is $2000 and the maximum amount payable for damage to clothing is $600.

[3.570] Compensation in

respect of death of a worker If a worker dies as a result of a work-related injury, dependants of the worker may claim workers’ compensation benefits (s 25 of the 1987 Act). In the event that the worker does not leave dependants (often the case when the worker is a young person), the compensation is paid to the estate of the deceased worker. Death does not have to be immediate and may occur many years after the injury. The compensation payable to dependants or to the estate of the deceased worker comprises: • lump sum compensation apportioned between dependants. In the event that there are no dependants, the lump sum is paid to the estate of the deceased worker and distributed to beneficiaries • additional weekly amounts for the maintenance of children of the deceased worker, payable until the child reaches 16 years of age, extended to 21 years of age for students • funeral and associated expenses.

The lump sum compensation amount is adjusted periodically, usually on 1 April and 1 October each year. The relevant lump sum amount is the amount payable as at the date of death, not the amount as at the date of claim or date of payment. As at 1 October 2016, the lump sum payable for the death of a worker is $765,650 and the weekly amount payable in respect of each dependent child is $137.10. The maximum amount for reasonable funeral expenses from 5 August 2015 is $15,000. Reasonable funeral expenses include: • funeral director’s professional fees • the cost of the funeral service (including cremation and burial) • coffin • mourning car • cemetery site • flowers • newspaper notice, and • death certificate. In addition, the reasonable costs of transporting the deceased worker’s body are payable. “Dependants” are those members of the worker’s family who were wholly or partially dependent for support upon the worker at the time of death. Members of a family include the worker’s wife or husband, daughter, son, mother, father, grandmother, grandfather, granddaughter, grandson, sister, brother, stepdaughter, stepson, stepmother, stepfather, half-sister and halfbrother. An unborn child of a deceased worker is a dependant. Persons who the worker stands in the place of a parent, persons who stand in place of the parent of the deceased worker, de facto partners and divorced spouses may also claim as dependants of a deceased worker. It is not enough that the person is a family member; the person must also establish that they were dependent for support upon the deceased at the time of death. There is a single lump sum apportioned between all dependants. The same amount applies regardless of how many persons are dependent. The amount apportioned to each dependant is determined having regard to

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the relevant facts including the extent of past dependence, the anticipated future dependence, the ages of dependants and any special needs such as health requirements. Lump sum compensation apportioned to a child is required to be paid to the NSW Trustee and Guardian and is applied for the

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child’s maintenance, education, advancement and benefit. Lump sum compensation apportioned in favour of an adult may be paid directly to that person. Weekly amounts in respect of each dependent child are paid to the guardian of each child.

Making a claim for compensation [3.580]

The Guidelines for Claiming Workers Compensation set out the procedures for: • the initial notification of an injury • making and handling of claims for compensation, and • disputing liability for claims for compensation. The guidelines aim to: • ensure the prompt management of a worker’s injury • ensure a worker’s timely, safe and durable return to work as early as possible after the injury • give a worker certainty and proper income support while incapacitated as a result of an injury • facilitate sound decisions regarding claims and reduce disputes. Further information and assistance regarding making a claim for workers compensation benefits are also available through the Workers Compensation Independent Review Office (see [3.625] Costs of making a claim or pursuing a dispute).

[3.590] Notice of injury Except in special circumstances, a worker may not make a claim for workers’ compensation benefits unless notice of the injury has been given to the employer as soon as possible after the injury. Special circumstances may be found to exist if the worker was unaware of the requirement to give notice of the injury or where the employer will not be prejudiced by the failure. Notice

of the injury is not required where the employer is already aware that the injury occurred. Notice of injury may be given orally or in writing. A notice of injury must include the following information: • the name and address of the injured person • the cause of the injury, and • the date on which the injury happened. Employers have responsibility to keep and maintain a register of injuries, which should be readily accessible so that injuries may be recorded. A person must not make a statement in a notice of injury that they know is false or misleading. Monetary penalties and/or imprisonment may be applied for false or misleading statements. All employers must notify their insurer or SIRA within 48 hours of becoming aware of a workplace injury where workers’ compensation is payable or may become payable. An employer who fails to notify their insurer or SIRA within 48 hours may be fined.

[3.600] Provisional payments

of compensation If a worker is incapacitated for work as a result of a work injury, the employer’s workers’ compensation insurer must commence provisional payments of weekly compensation to the worker within seven calendar days from the date of notification for an initial period of up to 12 weeks, while the insurer investigates the claim for compensation (s 267 of the 1998 Act). The insurer is

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not however required to commence provisional payments if it has a reasonable excuse. A reasonable excuse exists where: • there is insufficient medical information • the injured person is unlikely to be a worker • the insurer is unable to contact the worker • the injury is not work related • the injury is not a significant injury • the injury is notified after two months. During the 12-week period of provisional payments, or up to a further three weeks after the provisional liability period expires, the insurer must make a decision regarding liability for the claim for weekly compensation. The insurer will either accept liability and continue to make weekly payments or it will dispute liability for the claim, notify the worker and cease payments. If liability is accepted, weekly payments of compensation will continue until such time that the worker returns to work, or reaches retirement age (plus one year), or the insurer is no longer satisfied that the worker is incapacitated for work. During the period of incapacity for work the worker is required to provide ongoing medical certificates. The worker is also required to provide the insurer with authority to allow the insurer to obtain information from the worker’s treating doctors. An insurer can also provisionally accept liability for the payment of medical and related treatment up to $8,808.80 while it investigates and determines liability for the claim (ss 280 and 297 of the 1998 Act). The intention of provisional payments of medical expenses while liability is still being determined is to ensure an injured worker receives prompt medical attention, so as to lessen the long-term effects of an injury. The payment of medical expenses on a provisional basis is not an admission of liability and the insurer otherwise must make a decision either accepting or denying liability within 21 days after the claim for medical expenses compensation has been made.

[3.610] When to make a claim Claims for compensation are generally required to be made within six months of the injury (s 261(1) of the 1998 Act). The time for

making a claim can be extended, especially if the delay was occasioned by the worker’s ignorance, mistake or absence from New South Wales or for any other reasonable excuse. A claim form may be obtained from the employer or the employer’s workers’ compensation insurer. If a claim does not exceed the provisional liability period for weekly compensation (12 weeks) or the provisional liability amount for medical expenses compensation ($8,808.80), a claim form will usually not be required. If, however, the insurer has disputed liability to make provisional payments or the compensation claimed exceeds the provisional liability maximums, a claim form must be completed. A worker who is incapacitated for work as a result of a work injury must provide his or her employer or the employer’s workers’ compensation insurer with a medical certificate that provides sufficient medical information regarding the nature of the injury, the period of incapacity, whether the incapacity for work is total or partial and, if partial, the work restrictions of the worker. The claim form may be lodged with either the employer or the insurer. If a worker lodges the form with the employer, the employer has seven days to complete their relevant sections and forward it on to the insurer. The insurer has 21 days to gather sufficient information and make a decision on liability for weekly compensation and medical expenses compensation, noting the extended time to determine a claim if provisional payments are being made. In relation to lump sum compensation entitlements, the insurer will generally require a claim form. The claim form must include relevant particulars about the claim and a medical report from a WorkCovertrained medical specialist that supports the percentage impairment claimed. An insurer must determine a claim for permanent impairment lump sum compensation within two months after the worker has provided the insurer with all relevant particulars about the claim. The insurer may get an independent medical assessment by a WorkCover-trained medical specialist of

3 Accidents and Compensation

their choosing to assist them to determine a claim for permanent impairment.

[3.620] Disputing liability The reasons an insurer may dispute liability to pay workers’ compensation include: • the claimant was not a worker as defined by the workers’ compensation legislation • the worker did not suffer an injury or was not injured as alleged • the worker’s employment was not a substantial contributing factor to the injury • the worker is not incapacitated for work as a result of the injury • the medical treatment was not reasonably necessary • the worker does not suffer from permanent impairment as a result of the injury or the impairment is not to the extent claimed by the worker. An insurer must consider all relevant information before disputing liability for a claim and must carry out an internal review of the decision to dispute liability before notifying the worker of the decision (s 74(5) of the 1998 Act). If an insurer disputes liability, the insurer must provide the worker with a dispute notice that includes, in plain language, the following information: • a statement of the reason the insurer disputes liability and of the issues relevant to the decision • a statement to the effect that the worker can request a review of the claim by the insurer • a statement to the effect that the worker can refer the dispute to the Workers Compensation Commission, being the authority that reviews decisions to dispute liability • a statement to the effect that the worker can also seek advice or assistance from the worker’s trade union organisation or from a lawyer. If a dispute is based on the opinion of a medical practitioner, the insurer must attach a copy of the relevant medical report to the dispute notice.

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[3.625] Costs of making a

claim or pursuing a dispute Costs in the workers’ compensation scheme prior to the 2012 amending Act used to be determined by the Workers Compensation Commission under the provisions in s 341 of the 1998 Act, where one party to a matter or proceeding was ordered to pay the costs of the other party (“party/party costs”) and the extent of those costs payable. This followed the principle at common law that “costs follow the event”. Hence, the unsuccessful party would usually be ordered to pay the successful party’s costs, subject to other relevant considerations. The amending Act has since abolished the power of the tribunal to make an order for costs such that s 341 of the 1998 Act now reads that each party is to bear its own costs in relation to a claim, dispute or proceeding, regardless of the outcome of that matter. This costs prohibition applies to any claim or dispute made on or after 1 October 2012 and for which proceedings have been commenced in the Workers Compensation Commission after 2 April 2013. If a claim or dispute was made prior to 1 October 2012 and proceedings had been commenced prior to 2 April 2013, the old costs provisions where “costs follow the event” still apply. For new claims, however, the costs prohibition appears to contribute to the apprehension of an injured worker in making a claim or pursuing a dispute, in addition to the anticipated complexities of the workers’ compensation legislation. It also seemingly limits a worker’s ability to pursue a claim or dispute, despite its merits, due to this financial hurdle and risk. As part of addressing this concern, the amending Act in establishing the Workers Compensation Independent Review Office (WIRO) has vested it with a specific function of providing funding for legal aid to a lawyer in order to make a claim or pursue a dispute on behalf of a worker. Among its powers and functions under the amended 1987 Act, the WIRO provides accreditation to legal practitioners who possess sufficient skills and expertise in the

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workers’ compensation scheme. The office maintains a roll of approved lawyers that can lodge a legal aid application to fund a worker’s claim or dispute. The WIRO makes an independent and informed decision on whether or not to approve legal funding on the basis of information that the approved lawyer submits as to the merits of the claim or dispute and the reasonable prospects of success of such a case. Funding of a claim or dispute is sourced from a public fund and, if approved, is paid to the approved lawyer, regardless of the

outcome of the proceeding. Legal aid is available at all stages of a claim, dispute or proceeding, but WIRO will not fund any action or evidence that had been done or obtained prior to an approval of legal funding. A worker intending to lodge a claim or pursue a dispute must first inquire with WIRO as to the list of approved lawyers that could deal with the claim or dispute and for further information necessary to seek legal aid funding (www.wiro.nsw.gov.au).

Dispute resolution [3.630]

If a worker does not agree with an insurer’s decision to dispute liability for a claim, the worker may seek either an informal or formal review of the decision.

[3.640] Informal review A worker may request an insurer to review a claim after the insurer has disputed liability (s 287A of the 1998 Act). The worker may raise further issues and/or provide further information when making a request for review, although this is not essential. If a worker makes a request for review, the insurer must review the claim within 14 days of receipt of the request. Following review, the insurer may reverse the decision to dispute the claim or confirm the decision to dispute the claim. If the insurer maintains its dispute of the claim, a fresh dispute notice must be issued to the worker.

[3.645] Merit review If the decision of an insurer is a work capacity decision, made under the provisions for the new weekly payments regime according to the amending Act, and a worker is not satisfied with that decision, the worker may submit an initial informal review with the insurer (s 44(1)(a) of the 1987 Act). If there is still a dispute after the insurer’s informal review or the insurer has not provided a decision on the internal review

within 30 days, the worker may lodge an application to SIRA’s Merit Review Service for a further review (s 44(1)(b) of the 1987 Act). Within 30 days of receiving the application, the Merit Review Service must make a decision on the merits of the insurer’s decision and how the insurer has come to that decision. The merit reviewer may make a binding recommendation as to what the insurer should do or pay in relation to the worker’s weekly payments or the worker’s capacity for work.

[3.650] Work capacity

decision review If the worker is not satisfied with the decision of the Merit Review Service, a worker may within 30 days lodge an application for a review of that decision with the newly formed Workers Compensation Independent Review Office (WIRO), which under the amending Act has the power and function to perform a further review of the decision. The WIRO may conduct a review but only on a procedural basis, which means that the review will look into the procedures undertaken by the insurer in making the initial work capacity decision, including the time in which the insurer gave the worker formal notice of the work capacity decision. At the conclusion of the procedural review, the

3 Accidents and Compensation

WIRO may make recommendations that are binding on the insurer in relation to the work capacity decision that was initially made. If a decision is not a work capacity decision and is instead classified as a decision by the insurer to dispute liability for the claim, then the dispute goes instead to the Workers Compensation Commission after the insurer’s informal review. (Merit reviews and procedural reviews of the WIRO only apply if the issue in dispute is an insurer’s work capacity decision.) If a work capacity decision has been made and the matter goes to the Workers Compensation Commission on other grounds or issues concerning the weekly payments, the tribunal cannot make a determination of any entitlement or issue that is inconsistent with the work capacity decision (s 43(3) of the 1987 Act). The Workers Compensation Commission cannot make a decision on a dispute concerning a worker’s entitlement to weekly payments while there is a merit review or procedural review of a work capacity decision on foot (s 44(5) of the 1987 Act).

[3.655] Formal review The Workers Compensation Commission of New South Wales (“the Commission”) commenced operation on 1 January 2002 as the forum for resolution of disputed workers’ compensation claims. While not a court, the Commission is nevertheless a statutory body with jurisdiction to deal with all matters arising under the New South Wales workers’ compensation legislation. If a worker wishes to formally challenge an insurer’s decision to dispute a claim, the worker may lodge an application to resolve the dispute with the Commission. An insurer or employer may also lodge dispute applications for resolution by the Commission. At the outset, the Commission requires full and frank disclosure of documents between the parties. Therefore, a worker must attach to the dispute resolution application all relevant documents on which the worker proposes to rely. The employer is required to lodge a reply to the application

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and attach to the reply all relevant documents on which it proposes to rely. The early exchange of information is intended to fully inform each party of the relevant issues and documents in existence and provides the parties with an opportunity to attempt early resolution of the dispute. It is usual for each party to be legally represented in proceedings before the Commission and only in a small number of matters do workers proceed without a legal representative. Legal costs are regulated in workers’ compensation matters and workers have a general protection against the payment of legal costs, including their own legal costs, unless the proceedings before the Commission are held to be frivolous, vexatious, fraudulent or made without proper justification (s 341(4) of the 1998 Act, as it then was, before the 2012 amending Act). Most disputes lodged with the Commission proceed at first instance before an arbitrator. There is a strong focus on resolution of disputes by agreement of the parties. Arbitrators have a legislative requirement to use their best endeavours to bring the parties to a dispute to a resolution acceptable to them (s 355 of the 1998 Act). Failing agreement, an arbitrator will determine a dispute and issue a written decision with reasons for the decision. Given the focus on resolution by agreement of the parties, it is unsurprising that the first two listings before an arbitrator are a telephone conference (occurring 35 days from the date of lodgment of the dispute resolution application) followed, if necessary, by a face-to-face conciliation conference. The telephone conference is attended by all parties and their legal representatives. It is often the case, although not necessary, for a worker to attend the offices of his or her legal representative for the purposes of participating in the telephone conference. If the parties do not reach a settlement, the arbitrator will set the matter down for a conciliation conference which the parties and their legal representatives are required to attend in person. The same arbitrator will conciliate at the face-to-face conciliation

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conference. The face-to-face conciliation conference will be set down at a location suitable to the worker, unless the worker’s legal representative requests a different venue or the arbitrator deems that a different location is preferable. If the parties remain in dispute at the conclusion of the face-to-face conciliation conference, the arbitrator will proceed to a formal arbitration hearing. The arbitration hearing is held on the same day as the face-to-face conciliation conference and usually follows a short break to allow the parties time to prepare for the arbitration hearing. The same arbitrator who facilitated the conciliation will conduct the arbitration hearing. The arbitration hearing is sound recorded and witnesses may be called to give evidence. At the conclusion of the arbitration hearing, an arbitrator may either give a decision orally or conclude the proceedings and issue a written decision at a later time. On occasion, a dispute, may be determined by an arbitrator on the strength of the documents lodged by the parties, without holding a conciliation conference or arbitration hearing. The Commission also operates an expedited assessment resolution service for small

claims (weekly compensation up to 12 weeks and/or medical expenses up to $8,808.80, as at 30 September 2016) and for work injury management disputes. Matters proceeding to expeditious assessment are listed for telephone conference before the registrar or a delegate of the registrar. The telephone conference is usually held 14 days from the date of lodgment of the dispute resolution application. Expedited assessment applications are usually resolved or determined at the telephone conference and disputes usually do not proceed past this stage. A medical dispute, being a dispute between a worker and insurer about a medical question including the need for a proposed medical treatment or service (see s 319 of the 1998 Act), will be referred to a Commissionappointed approved medical specialist, who will examine the worker and provide the Commission and the parties with a medical opinion and report regarding the medical dispute. Failing resolution of the matter, the Commission will list the matter before an arbitrator who will conciliate the dispute and, if necessary, hold an arbitration hearing and determine the dispute if the parties fail to reach an agreement.

Common law damages [3.660]

The workers’ compensation scheme is established by legislation. Quite separate to workers’ compensation is a worker’s possible entitlement to damages at common law. It is well established that an employer has a duty of care to all employees to provide a safe place of work, adequate plant and equipment, safe systems of work and the engagement of competent people to carry out the work. In the event that a worker suffers an injury or death as a result of a breach of the employer’s duty of care, the employer may be liable in a claim for damages. In New South Wales the recovery of damages by injured workers, or their dependants in the case of death of a worker, has

been subject to numerous legislative modifications (refer to Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 per Kirby J for an historical review of the legislation modifying common law damages for work injuries). The current entitlement to common law damages for work injuries was introduced on 27 November 2001 by the Workers Compensation Legislation Further Amendment Act 2001 (NSW).

[3.670] Modified common law

damages Common law damages are an alternative to, and not in addition to, most workers’ compensation benefits. Damages take the

3 Accidents and Compensation

form of a single lump sum payment, calculated to compensate and indemnify a person in monetary terms for the loss they have suffered. In New South Wales, the calculation of damages for work injuries is modified by legislation (refer to Part 5 of the 1987 Act). Section 151G of the 1987 Act provides that the only damages that may be awarded for work injuries are to be calculated having regard to a worker’s past and future economic loss due to the injury. Other heads of damage, including the cost of future medical and related expenses, are not taken into account. Calculating damages for future loss of earnings is restricted to future loss of earning capacity up to pension age (s 151IA of the 1987 Act). The calculation of the present value of future economic loss is also subject to a discount (s 151J of the 1987 Act). Upon payment of damages an employer ceases to be liable for any further workers’ compensation benefits. In addition, any weekly workers’ compensation benefits already paid are to be deducted from the damages (s 151A of the 1987 Act).

[3.680] Threshold for common

law damages To be eligible to claim work injury damages a worker must have suffered at least 15% permanent impairment as a result of the injury (s 151H of the 1987 Act). A medical dispute as to whether a worker’s injury satisfies the 15% permanent impairment threshold is resolved by referral of the matter to the Commission. The Commission will refer the medical dispute to an approved medical specialist who will examine the worker and assess the degree of impairment resulting from the injury. The assessment of the degree of permanent impairment by an approved medical specialist is conclusively presumed to be correct (s 326 of the 1998 Act). The 2012 amending Act has now limited a worker’s ability to obtain a separate medical assessment for the purposes of a threshold matter or dispute (whether or not the degree of permanent impairment is at least 15% WPI). Section 322A of the 1998 Act, inserted by the amending Act, provides that only one

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medical assessment may be made of an injured worker’s degree of permanent impairment. Prior to the 2012 amending Act, a worker could obtain a medical assessment for the purpose of a lump sum compensation claim within the statutory scheme and a separate medical assessment for the purpose of a common law damages claim. Section 322A now limits that process, such that a worker’s medical assessment made in relation to a statutory claim for permanent impairment lump sum compensation is also the medical assessment made in relation to a claim for damages at common law.

[3.690] Other restrictions on

entitlement to damages Mitigation In assessing work injury damages, regard must be had to the reasonable steps taken by an injured worker to reduce the effects of the injury. Relevant factors to be considered include whether the worker sought appropriate medical treatment and rehabilitation, and whether the worker promptly sought suitable employment when fit to return to work (s 151L of the 1987 Act).

Voluntary assumption of risk While the defence of volenti non fit injuria (that to which a man consents cannot be considered an injury – M Woodley (ed), Osborn’s Concise Law Dictionary (11th ed, Sweet & Maxwell, London, 2009)) is not available to an employer, the amount of any work injury damages is to be reduced to such extent as is “just and equitable” on the presumption that the injured or deceased worker was negligent in failing to take sufficient care for their own safety (s 151O of the 1987 Act).

Contributory negligence While not a complete defence, an award of work injury damages may be reduced by such percentage as is “just and equitable” having regard to the worker’s responsibility for the injury (s 151N of the 1987 Act).

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[3.700] Making a claim A claim for work injury damages cannot be made unless a claim for lump sum workers’ compensation for permanent impairment has been made (s 280A of the 1998 Act). A work injury damages claim must include details of the alleged economic losses and details of the alleged negligence or other tort of the employer. A worker making a claim for damages must prove that: • the injury was reasonably foreseeable. It is not necessary that the employer should have foreseen the precise risk of injury or how it occurred. It is sufficient if the risk was within a class of risk that the employer should have foreseen. It may be reasonably foreseeable even though the injury was unlikely to occur but not if the likelihood of injury was far-fetched or fanciful • the employer’s failure to take steps to avoid the risk showed a lack of reasonable care for the worker’s safety. What the employer could have reasonably practicably have done to avoid the risk will be relevant • the employer’s failure to take reasonable care caused the injury or damage that occurred. A worker may also claim damages for an injury received as a result of the negligent act of a fellow worker. Generally, employers are legally responsible for the acts of their employees. An employer who can show that no reasonable person could have anticipated what occurred, or that reasonable steps were taken to avoid injury, may not be liable for damages.

[3.710] Proceedings for work

injury damages (excluding dust diseases) Court proceedings for work injury damages cannot be commenced until a claim for the damages has been made (s 262 of the 1998 Act). The workers’ compensation legislation also sets out procedures for pre-trial nego-

tiation and mediation in an attempt to facilitate resolution without the need to commence court proceedings.

Pre-filing statement and pre-filing defence If, after a claim is made, the employer disputes entitlement to damages or the extent of the entitlement, the parties are required to serve on each other their proposed court pleadings (statement of claim and defence). The Workers Compensation Commission Rules 2011 (NSW) (2011 Rules) require that the worker and employer serve with their respective proposed pleadings a copy of all information and documents on which they propose to rely (rr 17.4 and 17.6).

Mediation A claimant must refer a disputed claim for work injury damages to the Commission for mediation before they can commence court proceedings for the recovery of work injury damages (s 318A of the 1998 Act). An employer may decline to participate in mediation of the claim if the employer wholly disputes liability in respect of the claim, however, in all other cases the employer must participate in the mediation process (s 318A(3) of the 1998 Act). Upon receipt of a mediation application, the Commission will refer the matter to a Commission-appointed mediator who has a legislative mandate to use his or her best endeavours to bring the parties to agreement on the claim (s 318B of the 1998 Act). If a matter fails to resolve at mediation, the mediator will issue a certificate certifying the final offers by the parties. Offers at mediation cannot be disclosed in court proceedings, however, the certificate may be used in relation to arguments over entitlement to legal costs at the conclusion of court proceedings.

Court proceedings At the conclusion of mediation, if the parties remain in dispute, the claimant may commence court proceedings in a court of competent jurisdiction, usually the District Court of New South Wales. The parties are restricted to the pleadings and supporting documents and information that they served

3 Accidents and Compensation

on each other in the pre-trial dispute resolution process. However, the court may give leave to amend the pleadings or to introduce new evidence. Court proceedings must be commenced within three years of the injury (s 151D of the 1987 Act), subject to some exceptions. In proceedings for damages, workers are not afforded the same protection against costs as is afforded in proceedings for workers’ compensation. A worker who does not succeed in common law proceedings to a greater extent than their last offer in the mediation stage may be liable for their own costs and the costs of the other party or parties (refer to Smith v Sydney West Area Health Service (No 2) [2009] NSWCA 62, Chubs Constructions Pty Ltd v Chamma [2009] NSWCA 98 and Pacific Steel Constructions Pty Ltd v Barahona (No 2) [2010] NSWCA 9). Given the restrictions on entitlement to and calculation of common law damages, and the costs associated with court proceedings, it is often preferable for a worker to remain on workers’ compensation benefits rather than to pursue damages, even though they may have a strong case. This is especially the case where a worker has the need for extensive ongoing medical treatments and services, which have to be personally funded by a worker once a damages settlement or award is received, even though the costs of future medical treatments and services are not taken into

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account to calculate the amount of damages to which a worker is entitled.

[3.720] Dust diseases A worker who suffers from a dust-related condition that results from exposure in his or her employment has an entitlement to pursue damages under a specialist jurisdiction established by the Dust Diseases Tribunal Act 1989 (NSW) (1989 Act). “Dust-related condition” is defined in the 1989 Act to be: • aluminosis • asbestosis • asbestos induced carcinoma • asbestos related pleural diseases • bagassosis • berylliosis • byssinosis • coal dust pneumoconiosis • farmers’ lung • hard metal pneumoconiosis • mesothelioma • silicosis • silico-tuberculosis • talcosis, or • any other pathological condition of the lungs, pleura or peritoneum that is attributable to dust (s 3 and Sch 1 of the 1989 Act). Claims for dust-related conditions are brought in accordance with the 1989 Act. The 1989 Act establishes a specialist tribunal (Dust Diseases Tribunal of New South Wales) to hear and determine damages claims.

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Contact points [3.730]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au. Aboriginal Medical Service

Fair Trading, Office of

ph: 9319 5823

www.fairtrading.nsw.gov.au

Animal Welfare Branch

ph: 133 220 or 9895 0111

NSW Primary Industries

For a list of regional offices see Chapter 10, Consumers, Contact points.

www.dpi.nsw.gov.au/agriculture/ livestock/animal-welfare ph: 6391 3149

Health Care Complaints Commission (HCCC)

Tuncurry, Wagga Wagga, Wallsend, Wollongong, Woy Woy, Wyong. Medicare enquiries (Medicare Australia) www.medicareaustralia.gov.au ph: 132 011

www.hccc.nsw.gov.au

Motor Vehicle Repair Industry Authority

ph: 1800 043 159 or 9219 7444

www.fairtrading.nsw.gov.au

Insurance & Care NSW (iCare)

ph: 9895 0696

www.icarensw.gov.au

NRMA

LawAccess NSW

www.nrma.com.au

www.lawaccess.nsw.gov.au

Member Legal Service

Attorney General & Justice, Victims Services

Law and Justice Foundation of NSW

www.mynrma.com.au

www.victimsservices.justice.nsw. gov.au/vss/vs_index.html

www.lawfoundation.net.au

Australasian Legal Information Institute (AustLII)

www.legalaid.nsw.gov.au

Animal Welfare League (NSW) www.animalwelfareleague.com.au ph: 8899 3333 Ingleside Shelter ph: 8899 333 Kemps Creek Shelter ph: 8777 4424

www.austlii.edu.au Australian Industrial Relations Commission www.airc.gov.au ph: 8374 6666 out of hours emergency: ph: 0419 318 011 Centrelink www.centrelink.gov.au Comcare Australia www.comcare.gov.au ph: 1300 366 979 CRS Australia www.crsaustralia.gov.au ph: 1800 277 277

Legal Aid NSW Metropolitan offices in Ashfield, Bankstown, Blacktown, Campbelltown, Chatswood, Darlinghurst, Dee Why, Epping, Fairfield, Hurstville, Liverpool, Maroubra, Marrickville, Mt Druitt, Parramatta, Penrith, Rockdale, Sutherland, Windsor. NSW regional offices in Albury, Armidale, Ballina, Batemans Bay, Bathurst, Bega, Broken Hill, Brunswick Heads, Charlestown, Coffs Harbour, Deniliquin, Dubbo, Gosford, Goulburn, Grafton, Griffith, Katoomba, Kempsey, Lismore, Macksville, Maitland, Merimbula, Mittagong, Moree, Mudgee, Nambucca Heads, Newcastle, Nowra, Orange, Port Macquarie, Queanbeyan, Shellharbour, Tamworth, Taree,

ph: 131 122 Police, NSW www.police.nsw.gov.au ph: 9281 0000 Customer Assistance Unit ph: 1800 622 571 Insurance Services Unit ph: 8835 8377 Police Assistance Line ph: 131 444 Private Health Insurance Ombudsman www.phio.org.au ph: 1800 640 695 or 8235 8777 Roads & Maritime Services www.rma.nsw.gov.au ph: 132 213 For location and business hours of motor registries ring the number above.

3 Accidents and Compensation

Royal Society for the Prevention of Cruelty to Animals (RSPCA)

email: [email protected]

Interpreter service

Unions NSW

ph: 131 450

www.rspcansw.org.au

www.unions.nsw.gov.au

ph: 9770 7555 or 1300 278 3589

ph: 9881 5999

State Insurance Regulatory Authority www.sira.nsw.gov.au

Workers Compensation Commission www.wcc.nsw.gov.au

Workers Compensation Independent Review Office (WIRO)

ph: 1300 137 131

ph: 1300 368 040

www.wiro.nsw.gov.au ph: 13 94 76

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4 Assistance with Legal Problems Sally McAtee Senior Solicitor, Legal Policy Branch, Legal Aid NSW Georgia Millar Office of the Legal Services Commissioner Lynda Muston Assistant Commissioner (Legal), Office of the Legal Services Commissioner Ludmilla Robinson Barrister and Lecturer in Law, Western Sydney University

Contents [4.20]

Free legal assistance

[4.190]

Lawyers

[4.120]

Legal aid from Legal Aid NSW

[4.260]

Interpreters

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[4.10]

Legal problems can be confusing and expensive. There are, however, quite a few places where people can go for information and help. This chapter looks at the different forms of legal assistance available in NSW, including:

• free legal services and sources of advice • Legal Aid NSW • what you need to know about using a lawyer • the interpreting services available to people in the NSW legal system.

Free legal assistance [4.20]

If you can’t afford a lawyer, there are ways of getting help for free. Some preliminary free advice is also a good way to work out whether it is worthwhile paying a lawyer to act for you.

[4.30] What assistance is

Which agency? Some agencies direct their services to a particular group of people or specialise in a particular area of law. If you are unsure which agency is appropriate for your situation, phone LawAccess or a community legal centre, or the chamber service at a Local Court. They are aware of the services available, and can direct you to the right one.

available? The main forms of legal assistance offered by the services discussed in this section are: • legal information • legal advice, including where to go for further help • legal representation (for example writing letters on a person’s behalf, negotiating with third parties or appearing in court) • legal education (programs and publications to improve access to legal services and understanding of legal rights).

Means and merits tests Some of the services described in this section are available free to anyone, while others are: • means tested (only available to people whose income and assets are below certain levels), and/or • merits tested (the case must be likely to succeed, and the cost of funding it must not exceed the benefits to be expected). Legal information and advice are generally available without means testing. Legal representation usually involves an application for legal aid, and is usually means tested (see Who is eligible for legal aid? at [4.130]).

[4.40] Legal Information

Access Centre The Legal Information Access Centre (LIAC) is a law library for non-lawyers that gives the general public access to information about the law.

What they do LIAC helps people find legal information. Its staff can help you: • find the relevant piece of legislation if you have a problem • locate books, pamphlets and internet sites on parts of the law that interest you • find the meaning of legal words • find out whether a law has been changed • find agencies that provide legal advice. Cost Anyone can use LIAC for free.

What they don't do LIAC does not offer legal advice or legal representation.

Where to find them LIAC is based at the State Library in Sydney. There are also LIAC “Find legal answers” toolkits (a collection of easy-to-read, practical books about the law) and Hot Topics

4 Assistance with Legal Problems

publications (legal issues in plain language) in many public libraries across the state. Some public libraries have an additional collection of legal resources and staff trained to provide a legal information service. LIAC is an initiative of the State Library of NSW.

[4.50] Community legal

centres Community legal centres offer free advice to help people sort out their legal problems, and can be a useful first contact point. They will also explain whether you might be eligible for legal assistance from other organisations, including Legal Aid NSW.

What they can do Where no other legal assistance is available and a person cannot afford to pay a private solicitor, a community legal centre may assist by negotiating on the person’s behalf, preparing legal documents and, in some cases, representing the person in court. Specialist centres Some centres operate in a specialist area of law (such as Seniors Rights Service and the Intellectual Disability Rights Service). Anyone who has a problem in that area of law can approach these centres. Local centres Generalist community legal centres can only assist people who live in the communities they serve.

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seeking assistance in person. They are open during business hours, but generally have limited hours during which advice is available. Evening appointments Some centres will make appointments for evening interviews if a person is unable to get there during the day. Outreach services Many community legal centres also provide outreach services in other towns and suburbs in the areas they cover. Telephone assistance Many centres offer assistance over the telephone, ranging from direct legal advice to suggestions about other organisations that may be a more appropriate source of help. There is a list of community legal centres and their contact details in Contact points at [4.300].

[4.60] The Aboriginal Legal

Service The Aboriginal Legal Service (ALS) offers free legal advice and representation for Aboriginal and Torres Strait Islander people. ALS lawyers work in the areas of criminal law, family law and children’s care and protection law. For civil law matters they give information and referrals to other service providers. There is no means test except for contested family law hearings.

Legal education and reform Community legal centres not only give legal advice, but they also work to change laws when they are unfair or unjust, and undertake community education to help people in the community understand their legal rights and responsibilities.

A full list of ALS offices is in the Contact points in Chapter 2, Aboriginal People and the Law.

[4.70] Law Society of NSW Contacting a community legal centre It is always a good idea, if possible, to phone the nearest community legal centre for information about their services before

The Law Society of NSW offers a range of legal assistance services for the general community. These services are primarily aimed at improving people’s access to the legal system and to justice.

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Solicitor Referral Service The Law Society conducts a Solicitor Referral Service to appropriate NSW legal firms and other agencies. It can also refer people to firms that are prepared to make legal aid applications, or that have expertise in such areas as mediation, community languages and foreign law.

Pro Bono Scheme The Law Society runs a Pro Bono Scheme, which offers legal assistance to people who: • cannot afford a private solicitor • do not qualify for legal aid, and • meet the guidelines for the Scheme. The Scheme can refer eligible people to solicitors prepared to provide legal advice or representation free or at a reduced cost to pro bono clients.

Neighbourhood centres Some regional law societies coordinate neighbourhood legal referral and advice centres. These centres are staffed by volunteer solicitors, and are usually open one evening each week in a local community centre. Contact your community centre to find out if there is an advice and referral centre in your area.

[4.80] LawAccess NSW LawAccess NSW is a free service providing a single point of access to legal and related assistance in NSW through: • a telephone legal information, referral and advice service, and • legal information resources including fact sheets, forms and publications. You can access the LawAccess NSW website for legal information including answers to common problems and assistance for people who are dealing with a legal problem without a lawyer or representing themselves in court.

[4.90] Justice Connect Justice Connect (formerly PILCH) matches public interest cases or disadvantaged

groups who need free legal assistance with law firms willing to help them. There are detailed eligibility criteria. Individuals and groups seeking assistance should contact Justice Connect for further information. Justice Connect is a membership based organisation. Members include the Law Society of NSW, the NSW Bar Association, Legal Aid NSW and the Public Interest Advocacy Centre, as well as law firms and barristers.

[4.100] Chamber service at

Local Courts Most full-time Local Court registries have a registrar or deputy registrar who can provide information and assistance on Local Court procedures and applications. The chamber service does not provide legal advice and cannot represent people in court. A person who wishes to consult the chamber service should contact their nearest Local Court. This service is particularly useful to a person handling their own case, and can also help with taking out a summons or filing a defence. Sometimes it is necessary to make an appointment, or go to another court, to use the chamber service.

[4.110] NSW Trustee &

Guardian NSW Trustee & Guardian will help prepare wills free of charge, provided the NSW Trustee & Guardian has been appointed executor to administer the estate. A fee is normally charged for executor services. Details of the charges should be obtained before a decision is made to appoint the NSW Trustee & Guardian as executor. See Chapter 40, Wills, Estates and Funerals for more details about getting help with preparing wills and administering estates.

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Legal aid from Legal Aid NSW [4.120] Legal Aid NSW Legal Aid NSW is funded by the State to provide legal assistance for matters arising under NSW law. It also has an arrangement with the Commonwealth to provide legal assistance for matters arising under Commonwealth law.

Getting legal advice Legal Aid NSW has staff in 23 offices around NSW who can answer general queries about legal aid and legal issues from 9am to 5pm. You can also get legal advice from a Legal Aid NSW solicitor at a Legal Aid NSW office or outreach service. There is no means or merit test for general legal advice. It is generally limited to about 15 minutes. For a full listing of Legal Aid NSW offices, go to the Legal . Aid NSW website at www.legalaid.nsw.gov.au

Contacting Legal Aid NSW It is a good idea to telephone the nearest Legal Aid NSW office to find out when it is open for interviews and to make an appointment if necessary. Telephone advice Legal advice is not given over the telephone; if you need help over the phone start by calling LawAccess. If you are under 18 and need help with a criminal law problem you can call the Legal Aid Youth Hotline. Interpreters Interpreters can be arranged for people who don’t speak English well or have a hearing difficulty. A person who needs an interpreter should let the office know well before the interview so that this can be organised.

[4.130] Getting legal aid Someone who needs more than basic advice will need to make an application for legal aid.

Duty solicitors are also available in all Local Courts and some other courts to provide limited assistance for court appearances. Legal aid lawyers If a person is granted legal aid, Legal Aid NSW will provide them with a lawyer to help them with their case. The lawyer may be a Legal Aid NSW lawyer, a private lawyer or a community legal centre lawyer. When appropriate, Legal Aid NSW can also provide a barrister or, in serious criminal cases, a public defender. Public defenders are barristers retained by Legal Aid NSW to represent legal aid clients appearing in the District or Supreme Courts on criminal charges.

Who is eligible for legal aid? Legal aid is available for a wide range of civil, criminal and family law matters. It is also available through Legal Aid NSW specialist services, which include the Mental Health Advocacy Service, Prisoners Legal Service, Veterans’ Advocacy Service, Child Support Service and Children’s Legal Service. Legal Aid NSW uses eligibility policies to decide who is eligible for legal aid in these different areas of law. The policies aim to be fair and consistent, and to target people in the community who are most socially and financially disadvantaged. Eligibility tests Five tests are used in deciding whether a person is eligible for legal aid: • merit test, which looks at whether the case is likely to succeed, and other issues • means test, which looks at the income and assets of both the applicant and anyone who provides or is likely to provide them with financial support • jurisdiction test, which looks at the type of case and the area of law in which aid is sought • availability of funds test – legal aid will only be granted if Legal Aid NSW determines that sufficient funds are available

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• unpaid contributions test – legal aid will not be granted if there is a debt owing to Legal Aid NSW.

• some matters associated with Children’s Court proceedings (such as appeals from the Children’s Court to the District Court).

This is a guide only. When Legal Aid NSW makes a decision about who gets legal aid, the full eligibility policy guidelines are used. For details and advice about eligibility for legal aid, contact any Legal Aid NSW office or community legal centre (see also Applying for legal aid at [4.170]).

Matters not subject to a merit test

[4.140] Merit tests There are two merit tests: Merit Test A, used for criminal and civil law matters and state family law matters; and Merit Test B, used for Commonwealth family law matters.

Criminal and civil law matters In applying the merit test for criminal and civil law matters, Legal Aid NSW asks: Is it reasonable in all the circumstances to grant legal aid? Several matters are considered in answering this question. The main ones are: • the benefit to the applicant if aid is granted, or the detriment they may suffer if aid is refused • whether the case has reasonable prospects of success.

Commonwealth family law matters The merit test for Commonwealth family law matters is based on three considerations: • does the matter have reasonable prospects of success (that is, is it more likely to succeed than not)? • would a prudent self-funding litigant risk their funds in the proposed proceedings? • is it appropriate to spend limited public legal aid funds on the particular matter?

Matters subject to a merit test A merit test is applied in the following matters: • most non-criminal matters (civil, family law, care and protection, and veterans’ matters) • appeals in criminal matters • Supreme Court bail matters, and

A merit test is not applied to: • criminal law matters (except appeals and Supreme Court bail applications) • children in the Children’s Court • most Mental Health Act 2007 (NSW) matters • the subject of the proceedings in matters before the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT).

[4.150] Means test Legal Aid NSW applies a means test which looks at an applicant’s income and assets to: • assess whether that person is eligible for legal aid, and • determine how much contribution a successful applicant will have to pay towards the cost of the legal services. The means test includes both income and assets tests, and also considers the applicant’s ability to pay legal costs. Applicants who receive a Centrelink income support payment at the maximum rate automatically satisfy the income test. Otherwise, eligibility is determined by assessing the net assessable income (after subtracting allowable deductions) and assets (after excluding allowable assets) of both: • the applicant, and • financially associated persons (anyone who provides or is likely to provide financial support to the applicant). The means test applies to both State and Commonwealth matters. Details of the means test are on the Legal Aid NSW website at www.legalaid.nsw.gov.au including a Means Test Indicator to assist in estimating whether an applicant is likely to meet the means test.

What matters are means tested The means test does not apply to: • legal advice and minor assistance services • first appearance bail applications in the Local Court

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• family law and civil law duty matters • children in the Children’s Court • children in appeals to the District Court in care matters • children represented by an independent children’s lawyer in family law proceedings • some Mental Health Advocacy Service matters • ex-service personnel and their dependents for proceedings in the Administrative Appeals Tribunal under Pt II of the Veterans’ Entitlements Act 1986 (Cth) and the Military Rehabilitation and Compensation Act 2004 (Cth) • Drug Court matters • Drug and Alcohol Treatment Act 2007 (NSW) matters (except for appeals). All other matters are means tested.

Contribution from the applicant A person receiving legal aid is usually required to make an initial contribution of $75 or more based on their income and assets. If the payment required is greater than the estimated cost of proceedings, the person is not eligible for aid. Where there is no initial contribution An initial contribution is not required for pleas of guilty in Local Court criminal matters, most mental health matters and some other matters. Criminal law Local Court

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The final payment If the person recovers a sum of money or other asset, or if there is a substantial improvement in their financial situation, they must also usually make a payment at the end of the case. If the person owns real property they will be required to give a charge over that property to secure a final payment. The final payment is usually the full cost of the grant of legal aid. Apart from such initial contributions and final payments, the person granted legal aid does not pay any legal fees either to Legal Aid NSW or their lawyer. Discretion to grant aid In some exceptional cases there is a discretion to grant legal aid in matters where the applicant's income and assets exceed the means test limits (for example, where the applicant would suffer special hardship if aid was refused).

[4.160] Jurisdiction test The jurisdiction test looks at whether legal aid is available in that jurisdiction and area of law. The following table sets out the types of matters where legal aid is available.

Legal aid may be available for the following criminal law matters: • applications for annulment of conviction or sentence • bail applications • committal proceedings • contesting a forensic procedure application • defended hearings where there is a real possibility of jail or exceptional circumstances exist • domestic violence proceedings • Drug Court matters • matters commenced by a police court attendance notice (excluding drink driving offences unless there is a real possibility of jail or exceptional circumstances exist) • matters commenced other than by a police court attendance notice if there is a real possibility of jail or exceptional circumstances exist • participation in a restorative justice program, eg Circle Sentencing

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District Court, Supreme Court, Court of Criminal Appeal and High Court

• appeals • bail applications • extended supervision order, continuing detention order and control order matters, including matters under the Crimes (High Risk Offenders) Act 2006 (NSW) • indictable matters • matters where a conviction is to be quashed following a free pardon or inquiry • matters where the applicant is the defendant in a prosecution in the Land and Environment Court under environmental protection legislation, in limited circumstances • matters where the Director of Public Prosecutions has applied for an acquitted person to be retried • petitions for review of a conviction or sentence, inquiries into a conviction or sentence, and applications to a review panel to review a conviction or sentence • preventative detention, contact order and prohibited contact order matters • protected confiders in sexual assault communication privilege matters

Children’s matters

• • • • •

appeals matters where the child is acting as an informant, in limited circumstances matters where the child is participating in a restorative justice program proceedings in the Children’s Court including committals trials and sentence matters in the District and Supreme Courts

Prisoners’ matters

• • • •

life re-sentencing applications Parole Authority hearings reviews of segregation directions visiting justice proceedings

Excluded matters

Legal aid is not available for the following criminal law matters: • applicants in Apprehended Personal Violence Order matters unless it is a child • Local Court defended hearings where the defence is frivolous or has no possible prospects of success • proceedings under the Confiscation of Proceeds of Crime Act 1989 (NSW) and other legislation related to tainted monies/property • to commence proceedings in the Local Court except for ADVO proceedings

Family law State matters

Legal aid may be available for the following family law matters: • adoption proceedings in exceptional circumstances • care and protection • compulsory schooling order proceedings in the Children’s Court • property settlement

Commonwealth matters

Excluded matters

• • • • • • • • • •

child support and child maintenance contempt of court proceedings where the applicant for legal aid is the respondent contravention of parenting orders dissolution and nullity of marriage, in limited circumstances international child abduction, in limited circumstances matters relating to the location and/or recovery of a child parenting matters (separate representation for children is also available) proceedings in the Family Court concerning a special medical procedure for a child property settlement spousal and de facto maintenance

Legal aid is not available for the following family law matters: • enforcement proceedings

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Civil law State matters

Commonwealth matters

Excluded matters

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Legal aid may be available for the following civil law matters: • breach of civil liberties, eg false imprisonment, malicious prosecution • consumer protection • coronial inquests in limited circumstances • discrimination matters • extended supervision order, continuing detention order and control order matters, including matters under the Crimes (High Risk Offenders) Act 2006 (NSW) • matters relating to the making or review of a public health order • matters under the Working with Children legislation • matters where it is likely the applicant will lose his or her home • mental health and guardianship matters • public interest human rights matters • reviews under the National Disability Insurance Scheme Act 2013 (Cth) • sexual assault communication privilege matters • NSW Trustee and Guardian Act 2009 matters (protected estate matters) • • • •

Centrelink income and pension matters employment law matters where the applicant is a person at special disadvantage extradition proceedings matters arising from a Commonwealth decision which affect a person’s capacity to continue employment • migration matters including cancellation of visa on character grounds • proceeds of crime • war veterans’ matters Legal aid is not available for the following civil law matters: • building disputes • disputes arising from commercial or investment transactions • intra-association disputes such as disputes between members of unions or clubs • Local Court proceedings where the amount at issue is $3,000 or less

[4.170] Applying for legal aid Application forms (and assistance in completing them) are obtainable from Legal Aid NSW offices, community legal centres and Local Courts. Forms are also available from the Legal Aid NSW website. Applicants should give as much detail as possible on the form. Where possible, supporting documents such as police reports, medical opinions and the statements of witnesses should be included. A person pleading not guilty to a charge should apply before a date is set for the hearing.

Applying through the duty solicitor A person with a criminal matter in the Local Court who has not had the chance to apply for legal aid can apply at the court. All Local Courts have a lawyer – the duty solicitor – rostered by Legal Aid NSW, on duty every

sitting day, who can give advice about making an application. Bail applications The duty solicitor can also represent anyone in police custody making a first appearance in court for a bail application. There is no means test in this situation.

[4.180] Appeal against legal

aid decisions If an application for legal aid is refused or the applicant does not agree with the conditions of the grant, an appeal can be made to the Legal Aid Review Committee. The letter giving details of the decision made by Legal Aid NSW includes information on how to appeal.

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Time limit The appeal must be lodged within 28 days of receiving the decision.

Where there is no right of appeal There is no appeal for Local Court criminal matters where: • the application is refused on the basis of the means test, or

• the person is required to pay a contribution. There is no appeal against assignment of a matter to a Legal Aid NSW lawyer or a private practitioner specified by Legal Aid NSW. For advice and assistance in appealing a legal aid decision, contact a community legal centre.

Lawyers [4.190] Do you need a

[4.200] Choosing a lawyer

lawyer?

It is essential to have a good relationship with your lawyer. It is worth looking for a lawyer who not only has experience in the area of the law that concerns you, but whom you like and respect. Any advice a lawyer gives you should be independent, so do not choose a firm or a solicitor already advising someone opposing you in a legal action or dispute. Remember that you are employing the lawyer. Take the time to shop around, and don’t hesitate to ask questions.

In many cases, a person who needs legal assistance must consider consulting a lawyer in private practice. The decision will depend on: • the type of problem you have • the sort of action you want to take • how much money you have available.

Is legal action the answer? Legal action is often only one alternative. For instance, problems with neighbours can often be solved by approaching them directly (see Chapter 32, Neighbours for more about this).

Getting advice and information There are a number of ways of getting free initial advice and information about your legal situation. See Free legal assistance at [4.20]. You can use this information to find out whether your problem has a legal solution, and decide whether to take legal action.

Cost Whether it involves letter writing, negotiation or going to court, legal action is likely to involve seeing a lawyer, and will mean at least some expense if you are not eligible for legal aid. Cost may be a major consideration. For information about fees, see Fees charged by lawyers at [4.220].

Finding a lawyer Ask friends and colleagues A common way of finding a solicitor is to ask friends or colleagues whether they are happy with a solicitor they have used in the past. Look in the phone book Solicitors are listed alphabetically and by locality in the Yellow Pages of the phone book, and some give details of their special areas of practice. Look for newspaper advertisements Many solicitors advertise, mainly newspapers.

in

Contact the Law Society The Law Society’s Solicitor Referral Service can refer you to firms that: • practise in particular areas of the law in your local area, or wherever is convenient

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• have accredited specialists in certain legal areas • will make legal aid applications on your behalf • will visit you at home or in hospital • offer services in community languages. This information can also be found on the society’s website at www.lawsociety.com.au. Contact the Bar Association The NSW Bar Association can refer you to appropriate barristers, and also has a directory of barristers online. Their website address is www.nswbar.asn.au.

Legal aid If you think you will not be able to afford a solicitor, you can contact a Legal Aid NSW office. They offer assistance, provided you pass the means and merit tests. See Legal aid from Legal Aid NSW at [4.120]-[4.180]. If you are at court without a lawyer Assistance from the duty solicitor If you are at the Local Court and have no lawyer, you may be able to see the Legal Aid NSW duty solicitor. It is best to be at court early so that there is time to discuss your case. If it is complicated, the duty solicitor can ask that your matter be adjourned (put off) until a later date so that you can get further advice. The duty barrister scheme The Bar Association has a duty barrister scheme operating in some Local and District Courts to help people who cannot afford a lawyer and who do not qualify for legal aid.

Solicitors and barristers The term “lawyer” refers to both solicitors and barristers. In NSW lawyers qualify as legal practitioners, but may only practise as a solicitor or a barrister, not both. Solicitors Solicitors are the lawyers people most often deal with. They usually undertake a range of legal work, including preparing wills, contracts and deeds, and doing conveyancing and probate work. They also work in government organisations, advising and representing those bodies in legal matters, and in community legal centres and Legal Aid NSW. This section looks mainly at solicitors in private firms, although much of the information also applies to solicitors providing free assistance.

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Solicitors can, and many do, appear in court to represent a client, but if a case is complex they may advise a client to use a barrister to represent them in court. Barristers Barristers are courtroom specialists. They often develop a high level of expertise in particular areas of law, and are therefore often asked by solicitors for their opinion on technical and complex legal questions. Members of the public can approach barristers directly, but it is usual to see a solicitor first (some barristers only accept instructions through solicitors). The solicitor may then advise that a barrister should be briefed (ie, hired to act in the case). Barristers are usually employed by the solicitor, not the client, though the client pays their fees. Collectively barristers are referred to as the Bar, and individually as counsel. Qualifications Lawyers in NSW are trained in a variety of ways. Most have law degrees, but it is also possible to qualify by completing the courses offered by the Legal Profession Admission Board. All practising lawyers must have a practising certificate. These are issued by the Law Society for solicitors and the Bar Association for barristers.

[4.210] The lawyer–client

relationship The retainer Once you agree to employ a lawyer and they agree to represent you, you have entered into a contract called a retainer. Formal requirements The retainer can be a verbal agreement, or it can be in writing. It is sensible to have a written agreement setting out what each party expects from the other, although it is not compulsory for a lawyer to provide a general written agreement. Lawyers must provide written costs disclosure in matters where total legal costs are expected to exceed $750 disclosing the basis upon which costs will be calculated and an estimate. See [4.230]. What you need to know You will need to find out: • what your lawyer expects to happen as your matter progresses • how your lawyer will keep you up to

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date with the progress of your matter • if you are dealing with a firm, the name of the lawyer who will be handling your matter (and of the partner who will be supervising that person, if they are not a partner in the firm). Ending the agreement Either you or your lawyer can end the agreement for good reason and with reasonable notice.

The lawyer's duty to keep you informed Your lawyer has a duty to keep you informed of developments in your case. If you feel that you are not being kept informed, you can arrange for regular contact. However, lawyers can charge for all the time they spend on a case, including client visits and phone calls. It is better, therefore, to have an agreement about how you will be kept informed and to contact the lawyer only when there are specific issues to be dealt with. The lawyer’s staff may be able to answer your minor queries.

Responsibility to act on instructions You, the client, are instructing the lawyer, and they are obliged to follow your instructions, provided those instructions are legal and ethical.

Lawyers should never act without instructions from a client.

If you change solicitors Obtaining your file from the solicitor If you engage a solicitor and then decide to employ another solicitor, the first solicitor does not have to hand over the file until their bill is paid in full or their costs are satisfactorily secured. The first solicitor has a lien over the file. (A lien is simply a right of possession over something of value that lasts until obligations under a contract or agreement have been fulfilled.) If the file is needed for court proceedings, the solicitor may be required to hand it over regardless of the lien. Obtaining a brief from a barrister If a barrister is holding the brief relating to your case, this brief belongs to the instructing solicitor, and the barrister cannot give it straight to you. You can contact the Office of the Legal Services Commissioner for assistance in retrieving your file from your lawyer.

The first interview When you go to see a lawyer for the first time, you should try to get as much as possible from the interview. You may save both time and money if you are well prepared, with all your information and documents ready. It is also important to ask questions when you do not understand something. The law is full of jargon, and lawyers are inclined to use specialised language, sometimes without realising it. What to ask your lawyer Some important questions to ask are: • is the first appointment free? (Ask this when you make the appointment.) • can you start straight away? • what are my chances of success? • what other matters like mine have you handled? • how do you charge – by the hour or a fixed amount? • can you estimate the overall cost?

• will you send me a letter outlining how I will be charged? • how long is the case likely to take? • what possible delays or problems are there? • will you be handling the case personally? • how will we communicate with each other? • will you send me an itemised bill? • can I pay in instalments? • do you think there will be any additional costs? • what is the worst possible outcome if I lose? Find out what the lawyer can and cannot do You need to understand the limits of what your lawyer can actually do for you. To avoid later disappointment, try to establish from the beginning what can and cannot be accomplished by legal action. You need to understand what benefits you could gain, and at what cost in time and money. Ask the lawyer to explain this carefully.

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[4.220] Fees charged by

lawyers One of the most important issues you need to agree on with your lawyer is costs. You should establish as soon as possible: • what your matter is likely to cost • how you will be billed • how you will pay • what you will be charged for.

Costs and disbursements There are two parts to legal expenses – costs and disbursements. Costs Costs are the fees charged by a lawyer for all work done in handling a matter. This includes: • lawyer–client costs for the work done by the lawyer, and • party–party costs for work which directly relates to court proceedings. Party–party costs can be recovered from the other side if you win the court case. You may be required to pay the other side’s party–party costs if you lose. Lawyer–client costs are paid by the client, whether you win or lose. Disbursements Disbursements are the expenses that the solicitor pays out on your behalf. They include: • payments for applying for official records and certificates (for example, a traffic accident report from the NSW Police, or a certificate of title from Land and Property Information) • fees for filing documents at court • fees for serving documents on other people involved in the proceedings • barrister’s fees, if relevant.

[4.230] Costs disclosure

requirements What must be disclosed Section 174 of the Legal Profession Uniform Law (NSW) (“LPUL”) (which came into force on 1 July 2015, replacing the Legal Profession Act 2004 (NSW) (now repealed)),

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requires lawyers to disclose the basis of their costs to clients up front, including: • an estimate of total legal costs, and • the basis for calculating it • arrangements for billing the client. The LPUL applies if the client first instructs a law practice on or after 1 July 2015. If the client first instructs a law practice before 1 July 2015, the requirements of the Legal Profession Act 2004 in relation to disclosure apply. Formal requirements The costs disclosure must be in writing (s 174(6)). It may be a separate document, part of a costs agreement, or in a retainer agreement (see The retainer at [4.210]). It must include information about the client’s rights to: • negotiate a costs agreement with the law practice • negotiate the billing method • to receive a bill from the law practice, and • to request an itemised bill after receiving a bill that is not itemised or is only partially itemised, and • to seek the assistance of the Legal Services Commissioner in the event of a dispute about legal costs. Your lawyer must be satisfied you understand the costs disclosure (s 174(3)).

Exceptions to costs disclosure requirements Costs expected to be below a certain limit The lawyer does not have to provide the costs disclosure referred to above when the total legal fees (excluding GST and disbursements) are expected to be below $750. If the lawyer does not take reasonable steps to provide a costs disclosure, and the costs exceed the limit, the cost agreement may be void in which case the lawyer cannot recover their costs without having the bill assessed by the NSW Costs Assessment Scheme or the costs dispute is resolved by the Legal Services Commissioner.There is also a standard (simplified) costs disclosure form for matters where the total legal costs are not likely to exceed $3000 (excluding GST and disbursements).

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The lawyer does not have to disclose costs when the client is a “commercial or government client” (s 170). Family law matters With the introduction of the LPUL on 1 July 2015, the costs disclosure requirements for solicitors working on family law matters where instructions are received after 1 July 2015 is the same as for other types of legal matters. The Family Court sets a fixed scale of fees that applies to costs payable on a party-party basis. Solicitors may charge for work done in family law proceedings at scale rates, or otherwise, but they should still disclose their estimate, and on what basis it is calculated.

[4.240] Methods of charging Because there are several ways in which lawyers can charge for their work, it is important that you understand how you will be charged. Lawyers in NSW are generally free to charge on any basis they choose as long as their charges are fair and reasonable, although fees in some types of matters are regulated. Where fees are not regulated, most solicitors: • charge a fixed amount, or • calculate their costs on an hourly basis. It should be clear from the costs agreement provided by your lawyer which method of charging is to be used.

Regulated fees

Ask what other charges apply, particularly disbursements. A low lump sum fee may include larger-than-usual disbursements as a hidden cost.

Charging item by item Another method is to charge on an item-byitem basis. In this case, the lawyer may charge a fixed amount for particular work, eg writing a letter, reading a letter or drafting a statement of claim to commence court proceedings.

Charging an hourly rate The lawyer may charge for the time spent on the matter. There must be a specific agreement between lawyer and client as to the rate per hour, or per day. Different solicitors charge different rates, so you should shop around. Charges are usually levied in minimum units of time, most commonly six minutes. That is, work that takes less than six minutes will be charged at a minimum of six minutes.

No win, no fee Some lawyers sometimes offer conditional (“no win, no fee”) agreements under which the client only pays if the case is successful. No win, no cost? If your lawyer is working on a “no win, no fee” basis, you should find out exactly what this means in your case. It is important in most civil cases, because if you lose you can be required to pay the legal costs of the winning side, even if you don't have to pay your own lawyer. You may also have to pay for your disbursements.

The matters in which the fees a solicitor can charge have been fixed by legislation include: • motor accident claims (unless there is a costs agreement) • victims compensation matters • deceased estates (obtaining a grant of probate only).

[4.250] Payment

Charging a lump sum

The solicitor's trust account

One method is to charge a lump sum fee. This is usually done for conveyancing, for example, where fees are likely to depend on the value of the property being bought or sold.

Solicitors operate two different accounts. Any money paid by a client in advance of work being done must be placed in a trust account until it is used for the client’s expenses.

Lawyers often ask for money in advance at an early stage to pay for costs and disbursements.

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This money cannot be used to benefit any other client, or the solicitor, and the solicitor must have the client’s authority to spend it. Any breach by a solicitor of the regulations that control their use of client’s money can lead to serious consequences for the solicitor.

setting out any money paid into and out of the account must also be provided. If the solicitor has paid some of the expenses/disbursements out of the office operating account, they will send a letter asking for authority to withdraw money from the trust account to repay it.

The solicitor's bill

Party–party costs

When your case is finished, the solicitor will send you a final bill. This is called the memorandum of costs and disbursements. If the bill does not itemise all the work done and all the disbursements paid on your behalf, you may request an itemised bill. If the solicitor has put your money in a trust account, a trust account statement

The bill of costs from the solicitor will include party–party costs (see Costs and disbursements at [4.220]) if the matter has gone to court, even though that money may be recoverable from the other side (this can sometimes take a long time). When the other side pays the costs, the solicitor will refund the amount to the client.

Problems with lawyers If you are dissatisfied with the service you are receiving or feel there is a problem with your case, there are a number of avenues you can pursue. Usually the simplest way to resolve a problem is to raise the issue with the lawyer yourself, as early as possible,

either in person or by letter. This can often resolve the problem easily and quickly. If direct communication is not successful, you may need help. See Complaints about lawyers in Chapter 9, Complaints, for detailed information about how to proceed.

Interpreters [4.260]

A person who has difficulty communicating effectively in English must have access to an interpreter in situations involving the law or legal proceedings. Accurate communication is essential, whether the person is being interviewed by police, is having a conference with a lawyer, or is a witness in court. Interpreters may be needed not only by people from non-English speaking backgrounds, but also by people with hearing or speech disabilities. Even if someone can understand perfectly what is being said, they may have difficulty answering questions accurately.

[4.270] Right to an interpreter International law The right of a person to an interpreter in

legal matters is recognised in international law; for example, in Article 14 of the International Covenant on Civil and Political Rights.

NSW law In NSW, only a small number of statutes provide that an interpreter must be made available for a person who cannot communicate in English. An example is the Mental Health Act 2007 (NSW), ss 70 and 158.

Giving evidence Under both the Evidence Act 1995 (NSW) and the Evidence Act 1995 (Cth), an interpreter may be used by a witness giving evidence in court where that person:

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• has difficulty communicating in English (s 30) • is deaf and/or speech impaired (s 31). However, these provisions apply only to witnesses, and do not give litigants the right to have all of the court proceedings interpreted. Rules of the courts The Rules of the Local, District and Supreme Courts give the presiding judicial officer, either judge or magistrate, the discretion to decide whether an interpreter should be used.

interpreter if that person is unable to communicate with “reasonable fluency” in English because of either inadequate knowledge of the language or a disability. An interpreter need not be provided if the “difficulty of obtaining an interpreter makes compliance with the requirement” impractical ( s 128(3) and (6)). A person also has the right to an interpreter before the police carry out any forensic procedure, such as the taking of finger prints, a body search or the taking of biological samples for testing (Crimes (Forensic Procedures) Act 2000 (NSW), s 98).

Most judicial officers now recognise that for justice to be done, an interpreter must be made available to people appearing before the court who have difficulty communicating in English.

Arranging for interpreters Interpreters are now provided for initial interviews in criminal matters, if needed, by arrangement with Multicultural NSW (formerly the Community Relations Commission).

Federal law

Aboriginal suspects

Some federal legislation (for example, the Customs Act 1901 (Cth), s 219ZD and the Migration Act 1958 (Cth), s 366C) provides that when a person cannot understand or adequately reply to questions in English, interpreter services may be provided.

In addition to the statutory right to an interpreter in NSW, the courts have developed special rules in relation to the interrogation of Aboriginal suspects by police. These rules, which apply throughout Australia, are known as the Anunga Rules because they were first formulated in R v Anunga (1976) 11 ALR 412.

Attitude of the courts

The Administrative Appeals Tribunal The federal Administrative Appeals Tribunal has specific guidelines for the use of interpreters for matters within its jurisdiction.

[4.280] Being interviewed by

the police When a person is arrested Under federal law Under ss 23J and 23N of the Crimes Act 1914 (Cth), when a person is arrested for an offence under a federal law, whether by federal or state police, an interpreter must be provided if required. Under NSW law Pursuant to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 128, a person, who is detained by police in connection with any investigation, has a right to an

The Anunga Rules The Anunga Rules state that: • unless the suspect is as fluent in English as the average person of English-speaking background, an interpreter must be used • wherever possible, a “prisoner's friend”, that is, someone in whom the suspect has confidence, should be present. The prisoner's friend may be an interpreter • the caution should be given in simple language, and care should be taken to ensure that the suspect fully understands what it means • care should be taken to frame questions that do not suggest specific answers. Although these rules apply specifically to Aboriginal people being held in police custody for questioning, it could be argued that they should apply to the protection of anyone unable to communicate effectively in English.

4 Assistance with Legal Problems

[4.290] Interpreter services Why use an accredited interpreter? It is essential that interpreters are properly trained and accredited. Interpreting is an extremely specialised profession and requires a high degree of competence in both English and the other language. In the case of legal interpreting, it also requires a detailed knowledge of legal terminology. The fact that a person is able to speak two languages does not qualify them to be an interpreter.

National Accreditation Authority for Translators and Interpreters In Australia, interpreters and translators are accredited by the National Accreditation Authority for Translators and Interpreters. Accreditation ensures that an interpreter has achieved a specified level of competence in English and the other language. Levels of competence The levels of competence recognised by the National Accreditation Authority for Translators and Interpreters are: • paraprofessional interpreter and translator (formerly level 2), this is a level of competence which indicates that a person is able to interpret or translate nonspecialised information • professional interpreter and translator (formerly level 3), the first professional level, which represents the minimum standard of competence for a professional interpreter or translator. Any interpreter used in legal interpreting should be accredited to at least this level • conference interpreter and advanced translator (formerly level 4), the advanced professional level. People accredited to this standard are able to interpret in complex technical situations, including conferences and court proceedings • conference interpreter (senior) and advanced translator (senior) (formerly level 5), which requires that the interpreter demonstrate extensive experience and a high degree of excellence in their language use.

151

Non-accredited interpreters Except in emergencies, people should never use the services of a friend or relative for interpreting in legal situations unless that person is a professional interpreter. An incompetent interpreter may cause more problems than having no interpreter at all.

Availability of accredited interpreters For legal interpreting, as noted above, it is essential that the interpreter be accredited to at least paraprofessional interpreter and translator level. Usually, interpreters supplied by state and federal government departments are accredited to this level. However, there may be a few languages in which it is impossible to obtain suitably qualified and accredited interpreters – perhaps where only a very small number of people in Australia speak that particular language.

Obtaining the services of an interpreter In NSW there are a number of state and federal government authorities that provide interpreting and translating services.

Translating and Interpreting Service Where an interpreter is needed urgently, the federal Department of Immigration and Border Protection provides the Translating and Interpreting Service National (TIS National). The TIS National telephone service operates 24 hours a day, with interpreters available in all major languages spoken in Australia. The service is free. The Department also offers translating services. The Department of Social Services also offers free interpreting and translating services through TIS National.

Multicultural NSW Multicultural NSW provides legal interpreters and translators on a fee-for-service basis, 24 hours a day, seven days a week.

Document translation Multicultural NSW provides a service for translating documents into English. The translations are certified by an official stamp, and are made by interpreters accredited to at least paraprofessional interpreter and translator level.

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The fees charged for these services depend on the length and complexity of the document.

Private interpreting and translating services Besides the interpreting and translating services offered by government departments,

there are a number of private interpreting and translating agencies listed in the Yellow Pages online telephone directory.

4 Assistance with Legal Problems

153

Contact points [4.300]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au.

Free legal assistance Australasian Legal Information Institute (AustLII) www.austlii.edu.au Australian Government Solicitor

Justice (NSW), Department of www.justice.nsw.gov.au LawAccess NSW www.lawaccess.nsw.gov.au ph: 1300 888 529

Choice

Law and Justice Foundation of NSW www.lawfoundation.net.au ph: 8227 3200 Law Consumers lawconsumers.org ph: 9564 6933

www.choice.com.au

Law Reform Commission, NSW

Community Restorative Centre (CRC)

www.lawreform.justice.nsw.gov.au ph: 8346 1284 Law Society of NSW www.lawsociety.com.au

ags.gov.au ph: 9581 7777 Bar Association, NSW www.nswbar.asn.au ph: 9232 4055

www.crcnsw.org.au ph: 9288 8700 Federal Register of Legislation (formerly CommLaw) www.legislation.gov.au Find Legal Answers (State Library of NSW) www.legalanswers.sl.nsw.gov.au ph: 9273 1414 The State Library of NSW in Sydney has a comprehensive range of legal information resources and specialist staff. All public libraries in NSW have plain language legal information: the Find Legal Answers Toolkit (a collection of easy-to-read, practical books about the law) and Hot Topics publications (legal issues in plain language).

For a list of Aboriginal legal services see Contact points for Chapter 2, Aboriginal People and the Law.

Community legal centres Animal Defenders Office www.ado.org.au ph: 0428 416 857 Arts Law Centre of Australia www.artslaw.com.au ph: 1800 221 457 or 9356 2566

ph: 9926 0333 Law Society Solicitor Referral Service ph: 9926 0300 or 1800 422 713 Law Society Pro Bono Scheme ph: 9926 0364 Lawstuff (website for young people) www.lawstuff.org.au

Australian Centre for Disability Law

Legal Information Access Centre (LIAC) www.legalanswers.sl.nsw.gov.au/ about/liac

Community Legal Centres NSW

Legal Services Commissioner, Office of www.olsc.nsw.gov.au ph: 9377 1800 or 1800 242 958

www.justiceconnect.org.au

National Accreditation Authority for Translators and Interpreters www.naati.com.au

ph: 8599 2100

ph: 9267 1357

Justice Connect

Aboriginal legal services

disabilitylaw.org.au ph: 1800 800 708 or 9370 3135 Central Coast Community Legal Centre centralcoastclc.org.au ph: 4353 4988 www.clcnsw.org.au ph: 9212 7333 Domestic Violence Legal Service www.wlsnsw.org.au/legalservices/domestic-violence-legalservice ph: 1800 810 784 or 8745 6999 EDO NSW www.edonsw.org.au ph: 1800 626 239 or 9262 6989

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Elizabeth Evatt Community Legal Centre www.eeclc.org.au

Kingsford Legal Centre www.klc.unsw.edu.au ph: 9385 9566

ph: 1300 363 967 or 4782 4155

Macarthur Legal Centre

Far West Community Legal Centre

maclegal.net.au

www.farwestclc.org.au ph: 1800 300 036 or (08) 8088 2020 Financial Rights Legal Centre (NSW)

ph: 4628 2042 Macquarie Legal Centre www.macquarielegal.org.au ph: 8833 0911

financialrights.org.au

Marrickville Legal Centre

Insurance Law Service

mlc.org.au

ph: 1300 663 464

ph: 9559 2899

Credit and Debt Hotline

Mid North Coast Community Legal Centre

ph: 1800 007 007 Hawkesbury-Nepean Community Legal Centre www.hnclc.net.au ph: 4587 8877 HIV/AIDS Legal Centre (NSW)

mncclc.org.au ph: 6580 2111 Mt Druitt & Area Community Legal Centre www.mdclc.org.au

halc.org.au

ph: 9675 2009

ph: 9206 2060

National Children’s and Youth Law Centre

Hume Riverina Community Legal Service

www.ncylc.org.au

ph: 1800 229 529 or 4422 9529 South West Sydney Legal Centre www.swslc.org.au ph: 9601 7777 Tenants NSW www.tenants.org.au University of Newcastle Legal Centre www.newcastle.edu.au ph: 4921 8666 Welfare Rights Centre (NSW) www.welfarerights.org.au ph: 1800 226 028 or 9211 5300 Western NSW Community Legal Centre wnswclc.org.au ph: 1800 655 927 or 6884 9422 Wirringa Baiya Aboriginal Women’s Legal Centre www.wirringabaiya.org.au ph: 1800 686 587 or 9569 3847 Women’s Legal Services NSW www.wlsnsw.org.au ph: 1800 801 501 or 8745 6988

hrcls.org.au

ph: 9385 9588

ph: 6057 5000 or 1800 918 377

North & North West Community Legal Service

Legal Aid NSW

www.nnwcls.org.au

www.legalaid.nsw.gov.au

ph: 1800 687 687 or 6772 8100

See website for a full list of offices in NSW. Central Sydney office ph: 9219 5000

Hunter Community Legal Centre www.hunterclc.com.au ph: 4040 9120 or 1800 650 073 Illawarra Legal Centre Inc

Northern Rivers Community Legal Centre

www.illawarralegalcentre.org.au

northernriversclc.org.au

ph: 4276 1939

ph: 6621 1000

Immigration Advice and Rights Centre Inc

Public Interest Advocacy Centre

www.iarc.asn.au ph: 8234 0799 Indigenous Women’s Legal Program www.wlsnsw.org.au/legalservices/indigenous-womenslegal-program

www.piac.asn.au

Legal Aid NSW specialist services

ph: 8898 6500

www.legalaid.nsw.gov.au

Redfern Legal Centre

LawAccess NSW www.lawaccess.nsw.gov.au

rlc.org.au ph: 9698 7277 Refugee Advice and Casework Service (Australia)

ph: 8745 6977 or 1800 639 784 Inner City Legal Centre (ICLC) www.iclc.org.au

www.racs.org.au

ph: 9332 1966 or 1800 244 481 Intellectual Disability Rights Service (IDRS) www.idrs.org.au

seniorsrightsservice.org.au

ph: 1800 666 611 or 9318 0144

shoalcoast.org.au

ph:8355 7227 Seniors Rights Service ph: 1800 424 079 Shoalcoast Community Legal Centre Inc

ph: 1300 888 529 Child Support Service ph: 1800 451 784 or 9633 9916 Children’s Legal Service ph: 8688 3800 Legal Aid Youth Hotline ph: 1800 10 18 10 Coronial Inquest Unit ph: 9219 5156 or 9219 5000 Domestic Violence Unit ph: 9219 6300

4 Assistance with Legal Problems

Family Law Early Intervention Unit ph: 1800 551 589 Immigration Service ph: 9219 5790 Mental Health Advocacy Service ph: 9747 4277

Older Persons’ Legal and Education Program ph: 1800 424 074 Prisoners Legal Service ph: 8688 3888 Sexual Assault Communications Privilege Service ph: 9219 5888

155

Social Security Service ph: 9219 5790 Veterans’ Advocacy Service ph: 9219 5148 Work and Development Order Service ph: 1300 478 879

5 Banking Michael Blyth

Australian Securities and Investments Commission

Contents [5.20]

Accounts

[5.100]

Codes of practice

[5.70]

Electronic funds transfer

[5.130]

Disputes

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[5.10]

A person who opens an account with an authorised deposit-taking institution (ADI),which includes banks, building societies and credit unions, enters into a contract with that ADI with terms that depend on the type of account. The Code of Banking Practice and Customer Owned Banking Code of Practice require ADIs to give all customers who open

an account the terms and conditions applying to their contract (including fees and charges), in writing, whatever type of account they have. See Chapter 11, Contracts, for what is involved in a contractual relationship.

Accounts [5.20] Types of accounts There are various types of accounts that a person can hold. In very general terms, basic banking services are likely to involve either: • a deposit account (including savings accounts, transaction accounts and term deposit accounts), or • a credit product (including credit card accounts, personal or home loans and lines of credit). ADIs typically also offer a range of other products and services including investment and general or life insurance products. These are not directly considered in this chapter.

Who can provide an account Deposit accounts can only be provided by ADIs. Credit products can be provided by both ADIs and other entities. See Chapter 13, Credit, for a detailed discussion of regulation of credit.

[5.30] Opening an account The Anti-Money Laundering and CounterTerrorism Financing Act 2006 (Cth) (AML/ CTF Act) sets out rules that must be followed by a ADI (and some other types of organisations) when providing its services. Before providing account services, the ADI must take steps to collect and verify information about the identity of its customers, including the account holder and also anyone else using the account. The ADI must be reasonably satisfied that:

• an individual customer is who they claim to be, and • for a non-individual customer (eg, a company), the customer exists and their beneficial ownership details are known. This will involve collecting information about the people using the account (eg name, address and date of birth) and verifying that information. Depending on the individual ADI’s processes, verification of the information could involve viewing documents, such as a driver’s licence, or undertaking electronic verification (eg using information from a credit reporting body). If the ADI intends to access credit reporting information for this purpose it must obtain the customer’s express consent. In addition to the obligations placed on the ADI, the AML/CTF Act also makes it an offence for a person to: (a) produce false or misleading information or document in respect of the AML/CTF Act (eg, in relation to the person’s identity or verification documents), or (b) receive account services from an ADI using a false customer name or customer anonymity, or (c) structure a transaction to avoid a reporting obligation under the Act.

[5.40] Transactions Putting money in or taking money out of a bank account may be done by a variety of means. In the past, people were paid cash by their employer, deposited cash into or withdrew it from their bank account in an over-the-

5 Banking

counter transaction, and paid for goods and services either with cash or by cheque. Today, the great majority of transactions are electronic, whether using credit or debit cards, EFTPOS or telephone (including mobile telephone and other devices) or internet banking.

[5.50] Cheque accounts Cheques in Australia are dealt with under the Cheques Act 1986 (Cth). With increased reliance on electronic forms of banking, the use of cheques has decreased in recent years.

159

[5.60] Passbook savings

accounts Most savings accounts used to operate with a passbook. Now, most institutions allow customers to operate an account with an electronic card, which can provide regular statements and debit slips on each withdrawal. For detailed information about the law relating to passbook savings accounts, refer to earlier editions of The Law Handbook.

For detailed information about the law relating to cheques, refer to earlier editions of The Law Handbook.

Electronic funds transfer [5.70] The ePayments Code The ePayments Code regulates consumer electronic payments including ATM, EFTPOS, debit and credit card transactions (including contactless transactions), online payments, internet banking and BPAY. It contains guidelines on what information should be disclosed to a cardholder, and what steps can be taken to resolve any dispute that may arise. The ePayments Code replaced the earlier Electronic Funds Transfer Code of Conduct, with effect from 20 March 2013, and includes: • a new regime to resolve mistaken internet banking payments, and • a tailored set of light touch requirements for low value products (with a maximum balance of $500). The ePayments Code does not cover transactions made using a credit card where the cardholder authorises the transaction by signature. The ePayments Code is available at www. asic.gov.au, along with a register of current subscribers.

Who is bound by the code While the ePayments Code only applies to businesses that subscribe to it, all banks, credit unions and building societies that provide services affected by the code do so, as do a number of other payment and financial services providers. Subscribers agree to be bound contractually by the requirements of the code, and must reflect this commitment in the terms and conditions applying to their payment services.

[5.80] Liability for

unauthorised use The most common complaint about electronic transactions is unauthorised use of the card or Personal Identification Number (PIN) – a transaction made by someone else without the cardholder’s knowledge or consent. Liability for unauthorised transactions is dealt with in Chapter C of the ePyaments Code which provides, for example, that a cardholder is not responsible for any losses:

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• caused by the fraudulent or negligent conduct of the financial institution’s employees or of merchants linked to the system • resulting from transactions initiated by forged, faulty or expired cards • resulting from transactions initiated by the card or PIN before the cardholder received it.

• the maximum amount that the cardholder would have been entitled to withdraw in the period before notification. It’s important to remember that, even if the cardholder has disclosed the password or kept a record of it on or near the card, the cardholder will only be liable if the card issuer can show on the balance of probability that this contributed to the loss.

Where the card or PIN was not received

Importance of PIN security

Mere delivery of the card to a person’s address is not proof that it was received, and institutions cannot deem that mailing to the correct address is receipt. In a dispute about receipt of the card or PIN, it is to be presumed that the card was not received until the card issuer proves otherwise.

Lost or stolen cards Transactions after notification of the loss A cardholder who notifies the card issuer that the card has been lost or stolen or that PIN security was compromised in some way is not liable for any further transactions on the account. Transactions before notification of the loss If transactions occurred before notification, the cardholder’s liability depends on whether they contributed to the loss in some way. If they did not contribute to the loss, but their PIN (or other passcode) was used in the transaction, their liability does not exceed whichever of the following is least: • $150 • the balance of the account • the actual loss at the time of notification. Where the cardholder contributed to the loss The most common way in which cardholders contribute to a loss is to disclose the PIN or other passcode (voluntarily or negligently), or keep a record of it on or near the card so that it is available with the card if it is lost or stolen. In this case, the person is liable for whichever of the following is least: • the actual loss • the balance of the account

Surveys have repeatedly shown that 50% of cardholders keep the PIN either on the card or nearby. Doing so increases the likelihood of unauthorised transactions and may lead to loss of protections under the ePayments Code.

Another way in which the cardholder may contribute to the loss is to delay notification of the loss or known misuse of the card or PIN/passcode. However, the cardholder may only become liable for loss after he/she is deemed to have delayed notification. The cardholder does not become liable for loss that happened before the delay. In this case, the person is liable for the actual loss, limited by whichever of the following is less: • the balance of the account • the amount they could have withdrawn.

Contactless technology In recent years there has been an increase in the implementation of contactless technologies, which rely on a chip imbedded in a card rather than the traditional magnetic strip. These chips are far less susceptible to tampering than magnetic strips, and so provide additional protection to card issuers and cardholders. For transactions below a certain amount (eg $35 or $100) a PIN or signature may not be required and the card can simply be waved near or tapped against a terminal. Some retailers do not require a PIN or signature for transactions below a certain amount (eg $35) even where a card only has a magnetic strip. In both cases, the ePayments Code will protect cardholders where the transaction is unauthorised, perhaps because the card was

5 Banking

lost. In addition to that protection, which may be reliant in part on notification of the card being lost, the card schemes (eg Visa or Mastercard) provide additional protections which will generally see disputed amounts refunded to the cardholder’s account.

161

[5.90] Complaints All institutions that are a party to the ePayments code must have complaintshandling procedures with certain minimum standards. See Disputes at [5.130] for information on how to complain.

PIN or sign From 1 August 2014, many retailers ceased accepting signatures for credit and debit cards at point of sale, meaning that cardholders must use (and remember) their PIN.

Codes of practice [5.100]

The Code of Banking Practice (for banks) and the Customer Owned Banking Code of Practice (for mutual building societies and credit unions) outline a range of minimum standards that signatories must adhere to in their dealings with customers, including such matters as disclosure requirements and dealing with complaints.

Who is bound by the codes The Code of Banking Practice has been adopted by all the major banks in Australia and by many other banks. Most credit unions, mutual banks and mutual building societies in Australia subscribe to the Customer Owned Banking Code of Practice. The codes, together with a full list of subscribers are available at: • Code of Banking practice – www.bankers. asn.au • Customer Owned Banking Code of Practice – www.cobccc.org.au

[5.110] What the codes cover The codes cover a number of important issues for consumers, including: • disclosure of fees and charges • privacy and confidentiality • statements of account • direct debits • charge-backs on credit cards • debt collection

• complaints handling.

[5.120] What the codes

require Some of the important commitments the signatories to these codes make to their customers include: • to act fairly and ethically • to inform a customer promptly after exercising the bank’s right to combine accounts • to ensure that lending decisions are responsible and prudent • to work with customers to try to overcome financial difficulties • to provide prospective guarantors with a range of information • to provide details of accounts that may be suitable to the needs of low-income or disadvantaged customers where the customer advises that they are a low-income earner or a disadvantaged person (Code of Banking Practice). Account combination Account combination can occur where a customer has more than one account with a bank or other ADI. If the customer owes money on one account (other than on a credit account not in default), and has another account in credit, in some circumstances the bank may move funds between accounts to bring the first account into order. This right is subject to limitations, including that the accounts be held by the customer in the same

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capacity (for example, it would not be possible to combine a business account with a personal account).

Information for guarantors Guarantees involve a shifting of risk from a lender to a third party (not a borrower). The information that must be provided to prospective guarantors under the codes

includes general information about the risks involved in providing a guarantee, and information about the credit facility in respect of which the guarantee is being requested, to enable the prospective guarantor to better understand the particular risks involved in the transaction. See Chapter 13, Credit, for a discussion of the regulation of guarantees.

Disputes [5.130] Internal dispute

resolution All ADIs are required to have a formal internal dispute resolution process that meets requirements set by the Australian Securities and Investments Commission (ASIC). See ASIC RG 165 Licensing: internal and external dispute resolution. RG 165 establishes a broad definition of complaint, which is essentially “an expression of dissatisfaction” about an ADI’s products or services where a response or resolution is implicitly or expressly expected. In respect of most types of disputes, an ADI has 45 days from receipt of the complaint to provide a final (written) response. A written response may not need to be provided if the complaint can be resolved to the customer’s complete satisfaction within five business days. If the complaint is not resolved at this level, the customer can refer it to an external dispute resolution scheme. The ADI must advise the customer of this option at both the beginning and the end of the internal dispute resolution process.

[5.140] External dispute

resolution The Financial Ombudsman Service (FOS) and the Credit and Investments Ombuds-

man (CIO) are independent external dispute resolution schemes. In accordance with the requirements set by ASIC (see ASIC RG 139 Approval of external complaints resolution schemes), their services are free to consumers and their decisions are binding only on their members. Consumers unhappy with a decision of either scheme are free to pursue their complaint through other avenues, such as the courts. Both schemes have detailed rules/terms of reference, including monetary limits, which can be found at their respective websites.

[5.150] The court system If a customer has a legal right (resulting, for example, from a breach of contract by an ADI or a right arising out of the National Credit Code), they may seek to have it enforced in a court or, where it has jurisdiction to deal with the matter, the NSW Civil and Administrative Tribunal. Customers may also pursue a dispute in court if they have complained to the Financial Ombudsman Service or Credit and Investments Ombudsman and are unhappy with the outcome.

Federal and state regulators Complaints about the conduct of banks can be made to ASIC or NSW Fair Trading.

5 Banking

163

Contact points [5.160]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au. Australasian Legal Information Institute (AustLII)

Australian Securities and Investments Commission (ASIC)

www.austlii.edu.au

www.asic.gov.au

Australian Bankers’ Association

www.moneysmart.gov.au

www.bankers.asn.au

ph: 1300 300 630

ph: 8298 0417

Credit and Investments Ombudsman (CIO)

Australian Human Rights Commission

www.cio.org.au

www.humanrights.gov.au

ph: 1800 138 422

ph: 9284 9600

Customer Owned Banking Association

Complaints Infoline ph: 1300 656 419 General enquiries and publications ph: 1300 369 711 Australian Information Commissioner, Office of the

www.customerownedbanking. asn.au

ph: 1800 367 287 Information and Privacy Commission NSW (IPC) www.ipc.nsw.gov.au ph: 1800 472 679 Law and Justice Foundation of NSW www.lawfoundation.net.au ph: 8227 3200 Legal Aid NSW Head office www.legalaid.nsw.gov.au LawAccess NSW

ph: 8035 8400

www.lawaccess.nsw.gov.au

Fair Trading, Office of

ph: 1300 888 529

www.fairtrading.nsw.gov.au

www.oaic.gov.au

ph: 133 220 or 9895 0111

ph: 1300 363 992

Financial Ombudsman Service (FOS)

For a list of Legal Aid’s regional offices please see website. Treasury, Department of the www.treasury.gov.au

www.fos.org.au

ph: 6263 2111 or 1800 020 008

6 Bankruptcy Andrew O’Brien

Barrister

Contents [6.20]

Alternatives to bankruptcy

[6.60]

Entering bankruptcy

[6.120]

Effects of bankruptcy on property

[6.180] [6.200] [6.220]

Effects of bankruptcy on income Obligations, restrictions and rights Ending bankruptcy

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[6.10]

Bankruptcy was originally designed to keep people out of jail when they could not pay their debts. It relieves people of most of their liabilities to their unsecured creditors, and enables them to make a fresh start in their financial affairs. It is also a means of debt recovery for some creditors. When someone becomes bankrupt, a trustee takes over their financial affairs. Among other things, the trustee can sell some of their property, carry on their business for a time and sue for debts owed to them.

Probably the best way to understand bankruptcy is to see it as an exchange. In return for protection from further legal action by creditors and, usually, a total release from debts at the end of the bankruptcy, the debtor gives certain assets and (temporarily) a large degree of control over their financial affairs to the trustee. The law on bankruptcy is found in the Bankruptcy Act 1966 (Cth), which applies throughout Australia.

Alternatives to bankruptcy [6.20] An insolvent person (a person who cannot pay their debts as they fall due) need not always become bankrupt. The alternatives for debtors who, if given some breathing space, can work their way out of insolvency, are: • informal arrangements • debt agreements under Pt IX of the Act • personal insolvency agreements under Pt X of the Act. These options should be thoroughly explored with a solicitor, accountant or financial adviser before a person voluntarily enters bankruptcy. [6.30] Informal arrangements The first alternative is an informal arrangement with creditors, usually organised by a financial counsellor or, perhaps, an accountant or solicitor. An informal arrangement costs less to administer than a formal arrangement, but it won’t work unless all the creditors agree. If one creditor takes recovery action, the proposal will be unworkable. It must therefore be realistic, and it should be done as soon as the debtor finds they cannot meet their monthly commitments. It is usually too late when one or more of the creditors has commenced recovery proceedings.

[6.40] Part IX debt

agreements Debt agreements are available only to people with fairly small debts (at August 2016 the amount is $109,036.20), few assets (at August 2016 the amount is $109,036.20) and low incomes (at August 2016 the amount is $81,777.15). The limits are updated semiannually in March and September. Debt agreements are organised by the Official Receiver (see Who’s who in bankruptcy at [6.70]), and are generally administered by debt agreement administrators. They can also be administered by: • the Official Trustee, or • a registered trustee.

Fees The Official Receiver does not charge for setting up a debt agreement, but fees are payable for administering it (minimum $5, 000 as at August 2016). Consultants and debt agreement administrators who help debtors to formulate proposals and lodge them with the Official Receiver also charge a fee.

What the agreement should be about The agreement deals with any aspect of a debtor’s financial affairs; for example, it could provide for a compromise of their debts, a moratorium or a sale of property, or

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be limited to the debtor’s undertaking to obtain financial advice. Creditors want to be paid, if only in part. They are likely to be interested in proposals that involve payment of at least part of the debt, not moratoriums or undertakings to obtain advice.

Limitations on Part IX agreements A person cannot make a Pt IX agreement if they have at any time in the past 10 years been bankrupt, or entered into a Pt IX, or given an authority to appoint a controlling trustee under Part X (see Part X personal insolvency agreement proposals at [6.50]). Proposing an agreement The proposal should be made as soon as possible, while creditors are still prepared to listen. The main selling point is that they will get a better return from a debt agreement than from the alternatives (in most cases, at least some return) because administration costs are much less than for a bankruptcy or a Pt X proposal.

[6.50] Part X personal

insolvency agreement proposals The third alternative to bankruptcy is a proposal under Pt X of the Act. This can be administered by a registered trustee or the Official Trustee. Since December 2004, the three previous forms of Pt X proposals (assignment, arrangement and composition) have been merged into a single form: personal insolvency agreements. Section 188A of the Act prescribes the required contents of personal insolvency agreements, which may also have optional contents. The proposal can be flexible and can offer certain creditors a larger or smaller dividend than other creditors. The proposal must be achievable and realistic. It should be made before creditors commence recovery action, while debtor and creditors are still on speaking terms.

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Procedure The s 188 authority The debtor completes a s 188 authority, which authorises a solicitor, a registered trustee or the Official Trustee to take control of their property and call a meeting of creditors to consider their proposal for a personal insolvency agreement. The authority must be accompanied by: • a statement of affairs completed by the debtor • a draft personal insolvency agreement. The authority becomes effective when it is signed by the solicitor, registered trustee or Official Trustee, who thereby consents to become the controlling trustee. The controlling trustee The controlling trustee is required to: • investigate the debtor’s financial affairs • prepare a report to creditors informing them of what they can expect to receive from the proposed agreement and the trustee’s fees to administer it, compared with what they could expect to receive if the debtor instead became bankrupt. The creditors' meeting Creditors are invited to a meeting to vote on the proposal. A special resolution must be passed (by at least 51% of creditors having at least 75% of the value of the debts, voting in person or by proxy) for it to be accepted. Once the resulting deed is executed by the debtor, it is binding on all creditors. Creditors should attend the meeting, either in person or by proxy, and seek further information about the proposal – particularly the trustee’s fees, which are paid before the creditors receive any payment. Trustees' fees The fees for administering a personal insolvency agreement are usually charged on an hourly rate – if the proposal will operate for some time (for example, three years) they could be substantial. Creditors can set a limit for the trustee's fees by resolution. The Official Trustee's fees are set by the Bankruptcy Act and Regulations.

A solicitor cannot be a trustee While a solicitor can act as a controlling trustee to set up the personal insolvency

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agreement, a solicitor cannot act as the trustee of the agreement.

When a proposal has been accepted The debtor is required to execute the personal insolvency agreement by way of a deed within 21 days of creditors resolving to

accept the proposal. The debtor will be released from their debts in accordance with the terms of the agreement (one of the essential terms). A personal insolvency agreement cannot release the debtor from debts they would not be released from by becoming bankrupt.

Declarations of intention Subject to certain exceptions, a debtor may give the Official Receiver (see Who's who in bankruptcy at [6.70]) a declaration of their intention to present a debtor's petition (Bankruptcy Act, s 54A). Once accepted, this has the effect of freezing legal action (such as writs of execution and garnishee orders) for 21 days, which may give the debtor time to seek advice or make arrangements with creditors, and avoid bankruptcy. Alternatively, the debtor may present a debtor's petition which will stop the writ of execution or garnishee permanently. Creditors can often be persuaded that it is

better to reach a compromise and let the debtor continue without being declared bankrupt. These arrangements do not affect the rights of secured creditors to deal with their security, and are not available to business partners. A declaration of intention can be filed only once in any 12-month period. Filing a declaration does not mean the debtor must present a debtor's petition and become bankrupt. It is, however, an act of bankruptcy (ie, an act showing that the person may not be able to pay their debts).

Entering bankruptcy [6.60] Who can become

bankrupt? Only individuals can become bankrupt and they must have a connection with Australia by way of residence or business.

Spouses A married person’s bankruptcy has no effect on their spouse unless the spouse: • has guaranteed a debt of the bankrupt, or • is jointly liable for a debt and/or jointly owns divisible property with the bankrupt. In such cases, the creditor can normally require the spouse to pay the total debt.

Children A child (a person under 18) can enter bankruptcy voluntarily, but can be made bankrupt only if there is an enforceable debt (in most cases, only contracts for necessary goods or services are enforceable against children).

Necessaries The legal definition of necessary goods and services (necessaries) is complex. It appears in practice that trustees decide whether goods or services are necessary, and are generally sympathetic to children in these circumstances. A trustee might regard food, clothing and accommodation as necessaries, but not items such as cars, electrical goods or even trade debts.

Non-citizens People who are not Australian citizens can become or be made bankrupt and have their assets in Australia made available to their Australian creditors (Bankruptcy Act, s 43). Assets outside Australia may also be available to Australian creditors – this depends on the law of the country where the assets are located.

People with a mental illness or intellectual disability A person with a mental illness or intellectual disability cannot commit an act of bankruptcy (see Declarations of intention at [6.50]), and so cannot be bankrupted by a creditor.

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However, the affairs of such a person may be placed in bankruptcy by someone acting for them (s 308(c)).

Partnerships In the case of a partnership, or two or more people trading under a business name, it is not the firm but the people who are made bankrupt.

Companies Companies cannot become bankrupt under the Bankruptcy Act – they are wound up (or liquidated) under the federal Corporations Act 2001 (Cth). People who are not insolvent Sometimes people who are not insolvent – people with enough money or property to pay their debts – are made bankrupt because they take no action when a bankruptcy notice or petition is issued against them. Though they might pay the debts and obtain a discharge or annulment (cancellation), the disadvantages of having been made bankrupt remain.

[6.70] Becoming bankrupt

voluntarily Deciding to become bankrupt Anyone who has a provable debt (see Release from debts at [6.250]) of any amount can

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apply to enter bankruptcy voluntarily. The decision should only be made after getting the best available advice, and considering the advantages and disadvantages (see Advantages and disadvantages of bankruptcy at [6.90] for a summary of what these are).

Procedure Having decided to go ahead, the debtor should complete: • a debtor’s petition, and • a statement of affairs. Forms can be obtained from the Australian Financial Security Authority (AFSA), its website or a legal stationer. The forms can be filed personally at the AFSA or sent by mail or email to the Official Receiver (see Who’s who in bankruptcy at [6.70] for who this is), who accepts the forms and allocates a bankruptcy number. There is no fee. The statement of affairs All liabilities, provable or not, must be disclosed in the statement of affairs. The value of the debtor’s interest in assets must also be shown; for example, the debtor’s interest in jointly owned household furniture valued at $5,000 should be shown as a half-share worth $2,500.

Who might consider bankruptcy People for whom bankruptcy may be a good idea include: • pensioners who do not own a home, have household goods on credit (but not subject to a consumer mortgage or under a bill of sale), are unlikely to earn other substantial income in the near future, and are being harassed by creditors • people whose spouses have died or deserted them, who have debts of their own and who are otherwise in the same position as someone on social security benefits (however, if the debts are the responsibility of the other spouse, whether living or dead, bankruptcy may not be necessary)

• low wage earners, especially if they have a large family, pressing debt problems and heavy additional expenses, such as a child with a disability • people whose business venture has failed and cannot be salvaged, and who do not have the means to pay their debts. A debtor who would not benefit from bankruptcy may be able to arrange with creditors to pay all, or part, of the debt by instalments. However, this does not prevent a creditor from taking bankruptcy action. If the debtor does become bankrupt, any money paid to a creditor may be recovered later by the trustee (see Effects of bankruptcy on property at [6.120]).

Joint debts

and statements of affairs. Joint debts should be shown in full in each statement, because each joint debtor is fully liable for payment and the liability cannot be divided (for

For a couple (married or not) who have joint debts and wish to become bankrupt, it is simpler to lodge separate debtor’s petitions

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example, a joint debt of $6,000 should be shown on each individual statement as $6,000). For joint secured debts, the total amount of the debt less the value of the security is used to calculate the amount owing. Each debtor is responsible for the total debt, and should show it in full. Their equity in the asset, if any, is shared, and the value of the equity should be halved to show each person’s share.

When the debtor's petition may be rejected The Official Receiver has the discretion to reject the petition if, from the debtor’s

information, it appears that the debtor would be able to pay their debts within a reasonable time, and that either: • the debtor is unwilling to pay one or more of the debts, or • they have previously become bankrupt on a debtor’s petition: – three or more times, or – once in the past five years. The Official Receiver may also reject the petition if the debtor does not have an association with Australia – ie, they are not present or do not live in Australia, do not have a house in Australia or carry on business in Australia.

Who's who in bankruptcy Registered (“private”) trustees Private trustees are accountants in private practice registered with the Australian Financial Security Authority to act as trustees of bankrupt estates. A person wishing to appoint a private trustee must first obtain the trustee's written consent. Trustees will generally only act if there is enough money or assets to pay their fees. They are entitled to a minimum fee (currently $5,000 plus GST) payable from moneys in the bankrupt estate without having to seek the permission of creditors. A list of registered trustees is available from the Official Receiver and the Australian Financial Security Authority website. The Official Trustee in Bankruptcy The Official Trustee in Bankruptcy is part of the Australian Financial Security Authority, an executive agency in the federal Attorney-General's portfolio. If there is no private trustee, the Official Trustee automatically becomes the trustee. If assets are sold or payments made by the bankrupt towards their debts, the Official Trustee's fees, which are calculated on a percentage of the funds received into the estate, are paid

[6.80] Making someone

bankrupt A creditor, or group of creditors, can present a creditor’s petition to the Federal Court, or more commonly, the Federal Circuit Court to have a person who owes them over $5,000 made bankrupt.

first. However, on release from bankruptcy the person does not owe fees to the Official Trustee, even if no funds were received into the estate. The Official Receiver Official Receivers act in the name and on behalf of the Official Trustee. Prior to August 2010, Official Receivers administered bankruptcy districts: each state of Australia was a bankruptcy district for the purposes of the Bankruptcy Act. However since that date, there are no longer bankruptcy districts and there are only two Official Receivers being located in Sydney and Brisbane. Official Receivers accept debtors' petitions, issue bankruptcy notices and maintain the National Personal Insolvency Index (NPII). Official Receivers also have powers to issue notices on behalf of all trustees to help them recover assets and obtain information. The Inspector-General in Bankruptcy The Inspector-General in Bankruptcy is the head of bankruptcy administration in Australia, and can inquire into, and investigate, bankruptcy procedures (Bankruptcy Act, s 12).

Why make someone bankrupt? Sometimes bankruptcy is the only effective way for a creditor to collect all or part of their debt – for example, if the debtor’s property is subject to a mortgage or is owned jointly with another person who is not indebted to the creditor.

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The threat of bankruptcy

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[6.90] Advantages and

Though a creditor may threaten to make a debtor bankrupt, it is expensive, and the threat is rarely carried out against non-business debtors. Most non-business debtors who become bankrupt do so on their own application.

disadvantages of bankruptcy

In any case, a debtor served with a bankruptcy notice (a formal demand which is the first step in the process of making the debtor bankrupt) often either pays the debt or comes to an agreement with the creditor to avoid the consequences of bankruptcy.

Advantages

Procedure To make someone bankrupt, a creditor must: • first obtain a judgment for the debt from a court (see Chapter 15, Debt), then • prepare a bankruptcy notice based on the judgment, then • submit the notice to the Official Receiver for issue (this can be done online through the Australian Financial Security Authority’s website). The bankruptcy notice is a formal demand that requires the debtor to pay the debt within a set time (usually 21 days). A debtor who does not either pay or have the court set the bankruptcy notice aside within the time limit commits an act of bankruptcy, and the creditor can apply to the Federal Court or Federal Circuit Court to declare them bankrupt by presenting a creditor’s petition based on that act of bankruptcy. If the debtor can satisfy the court that they can pay all debts in a reasonable time (perhaps a month or two), the hearing may be adjourned. If not, the debtor may be made bankrupt. Sequestration orders The court order declaring someone bankrupt is called a sequestration order. When it is made, the bankrupt’s divisible property comes under the control of a private trustee (if nominated by the creditor) or the Official Trustee.

Bankruptcy is generally a last resort. It has both advantages and quite serious disadvantages.

Release from debts Once discharged, a bankrupt is released from most provable debts incurred before bankruptcy (see Chapter 15, Debt). Protection of some property Most of the person’s personal property is protected under the Bankruptcy Act, s 116(2) (see Property a bankrupt can keep at [6.130]). Return of some property If a bailiff has taken necessary household items to be sold to pay creditors, it may be possible to get them back. If they have been sold, it may be possible to receive the proceeds. No more harassment by creditors Bankruptcy should stop harassment by unsecured creditors – all communication takes place between creditors and the bankrupt’s trustee (s 58). Prevention of a garnishee on wages Bankruptcy stops a garnishee on wages being enforced (see Chapter 15, Debt).

Disadvantages Public examination of affairs In complex estates the trustee can hold a public examination of the bankrupt and/or persons associated with them before a Federal Court registrar or Federal Circuit Court, requiring the bankrupt to produce any document that may be relevant and answer the trustee’s or a creditor’s questions on oath, even if the answers are incriminating. Effect on reputation The bankruptcy is recorded on the National Personal Insolvency Index (NPII) (a permanent record of every bankruptcy since 1928), and may be published in trade journals and local papers.

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Need to make payments while bankrupt A person who is bankrupt must make payments to the trustee from their income while they are bankrupt if they earn over a certain amount. Problems obtaining credit Former bankrupts may have trouble obtaining unsecured credit. (Veda, previously Baycorp Advantage Ltd, keeps details of bankruptcies, debt agreements and Pt X agreements for seven years.) Penalties for non-cooperation Bankrupts who do not cooperate with trustees or fulfil certain duties (such as notifying earnings), may be punished by the court and/or have the term of their bankruptcy extended to five or eight years (see Extension of bankruptcy at [6.240]). Having money and assets taken Money and valuable goods (with some exceptions) owned or being paid off at the date of bankruptcy, or acquired during bankruptcy, may be taken. For example, if a bankrupt has equity in a house or boat etc but owes money on it through a mortgage, the trustee can sell it and pay the secured creditor under the mortgage. The surplus becomes available for the unsecured creditors. Restrictions on involvement with a company Under the Corporations Act 2001, a bankrupt cannot be a director, promoter or manager of a company without the permission of the court.

Restrictions in employment There are restrictions on people in certain types of employment and public office who have been bankrupt, including chartered accountants, barristers, solicitors, security licence holders, tradespeople and justices of the peace. Restrictions on borrowing A bankrupt must not borrow or incur a debt of $5,360 or more without informing the lender or credit provider of their bankruptcy.

[6.100] When does bankruptcy

start? A debtor is considered to have become bankrupt on the first moment of the day on which either their debtor’s petition was accepted or a sequestration order was made against them.

[6.110] Insolvent estate of a

deceased debtor (Part XI) If an insolvent debtor dies leaving insufficient assets to pay their debts, a creditor owed $5,000 or more may apply for an order of administration (Bankruptcy Act, s 244). This requires the trustee to distribute the deceased person’s assets to pay part, or all, of the debt in accordance with the Act. The person administering the estate of a deceased person may also seek an order for the administration of the estate in bankruptcy (see Chapter 40, Wills, Estates and Funerals).

Effects of bankruptcy on property [6.120] Divisible property A trustee can take certain of a bankrupt’s property, in Australia or elsewhere (subject to the law of the country where the property is) (Bankruptcy Act, s 116). Property the trustee can take to pay creditors includes: • the bankrupt’s interest in a house • cash in the bank • jewellery

• stocks, shares and debentures • fixtures and fittings • gifts and legacies received under a will • crops • certain other things. Certain money owed to the bankrupt can also be recovered by the trustee. Property available to the trustee to pay creditors is called divisible property.

6 Bankruptcy

Sale of assets The trustee’s decisions about what to do with the assets available for sale and distribution among creditors will depend on what they are. If the assets have little value, the trustee may ask the bankrupt to find a buyer rather than incur the expense that might be involved if the trustee had to find one. The trustee may even be prepared to accept less than market value where costs will be saved by not seizing and selling the goods. Sale to relatives Where the bankrupt wishes to retain use of the goods, such as a car, a relative may be prepared to make the trustee an offer. Trustees usually cooperate in these circumstances.

[6.130] Property a bankrupt

can keep Property the trustee cannot take is listed in the Bankruptcy Act, s 116(2). Among other things (some of which are discussed below), it includes: • ordinary clothing • necessary household goods (such as TV and video, lounge and kitchen furniture, a domestic refrigerator and washing machine) • tools of trade if they are to be used to earn income, up to the value of $3,750 • most policies of life assurance, endowment assurance, endowment or annuities or the proceeds from such policies • amounts paid to the bankrupt under certain rural assistance agreements between the Commonwealth and the states. The separate property of a non-bankrupt spouse is not affected by the bankruptcy.

Motor vehicles A bankrupt can keep a vehicle used for personal transport in which they have a net equity of up to $7,700. If the equity is more the trustee can sell the vehicle, but must give $7,700 to the bankrupt from the proceeds so they can buy another vehicle. Sometimes where the equity is over $7,700 a vehicle is sold by the trustee to a relative

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or friend of the bankrupt. If it is security for a finance contract and payments are not kept up, however, the finance company may still seize it.

Money from damages or compensation The trustee may not take: • money received as damages or compensation for personal injury or death to the bankrupt or their family, or • defamation payments, or • any property (such as a house or car) bought with, or mostly with, that money. Where property has been paid for partly, but not substantially, with the compensation money (for example, 10% of the price), the bankrupt is entitled to receive that percentage from the proceeds of the sale of that property.

Superannuation The trustee may not take: • superannuation policies • the person’s interest in a superannuation fund • lump sum superannuation payments received after the date of bankruptcy, or • property bought with such money after the date of bankruptcy. However, the trustee does have power under the Bankruptcy Act to recover from a superannuation fund “out of character payments” made into the fund prior to bankruptcy where it can be shown that the payments were made with the intention of putting those funds beyond the reach of creditors.

[6.140] The bankrupt's home If a bankrupt owns, or is purchasing, a home, or a couple who are joint owners are both made bankrupt, the trustee normally sells the home if there will be a surplus after paying the mortgage and sale costs (unless it was bought wholly or substantially with compensation money for an injury – see Money from damages or compensation at [6.130]).

Defence Service homes If the home is mortgaged to the Defence Service Homes Division, it is protected

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under the Defence Service Homes Act 1918 (Cth), and the director of the Defence Department will rarely give permission for a sale.

Joint ownership with a non-bankrupt person If the home is owned jointly (joint tenancy) by the bankrupt and someone who is not bankrupt, the trustee either: • becomes registered as a tenant-incommon of the home with the nonbankrupt person, or • lodges a caveat on the title to protect the bankrupt’s interest. Rights of the mortgagee This does not affect the rights of the mortgagee, and if mortgage payments fall into arrears the mortgagee can sell the property. Selling the home Non-bankrupt joint owners have first option to buy the bankrupt’s interest in the home from the trustee. If they cannot afford to do so they may agree with the trustee to sell the home, and receive an equal share of any money left over after the mortgage and costs are paid. Where the joint owner will not cooperate If the joint owner will not cooperate, the trustee can apply to the Federal Circuit Court or the Supreme or District Courts (depending on the value of the property) for an order that the property be sold and the proceeds divided. Where the joint owner claims more than 50% If the non-bankrupt person considers that they have made a greater than 50% contribution towards the acquisition of the property they should submit documentary evidence of their claim to the trustee for consideration. However, if the property is jointly owned by a married couple the trustee will generally assert that the “Cummins Principle” applies; ie, irrespective of unequal contributions to the acquisition of matrimonial property and/or registration in one spouse’s name only and/or borrowings benefiting only one spouse secured against

the property, the property is beneficially owned 50/50 (see Trustees of the Property of John Daniel Cummins v Cummins [2006] HCA 6). If the trustee does make that assertion then the non-bankrupt person should seek legal advice promptly. Bankruptcy of one spouse does not stop the other spouse from starting or continuing property settlement and/or maintenance proceedings in the Family Court. The Family Court is now empowered to order a bankruptcy trustee to transfer property in the estate of the bankrupt spouse to the non-bankrupt spouse to satisfy a liability determined by the Family Court in such proceedings.

If the bankrupt has no equity If the bankrupt has no equity in the property the trustee will not sell it and the bankrupt can live in it as long as the mortgage and rates are paid. However, the trustee can sell it later when there is equity, even after discharge from bankruptcy. The trustee may give the bankrupt first option to buy back the equity in the property upon discharge from bankruptcy.

[6.150] Money and goods

received At any time during the bankruptcy the trustee may take any money (excluding accumulated income) or other items the bankrupt receives, such as gifts, lottery winnings or money received under a will. If the bankrupt does save up and buys items that are not protected during bankruptcy, these may also be taken by the trustee in certain circumstances (Bankruptcy Act, s 58(1)). However, a bankrupt’s accumulated income held in a bank account is protected.

[6.160] Consumer mortgages

and bills of sale Finance companies and other lenders often secure loans with a consumer mortgage or bill of sale over a person’s goods. If a person becomes bankrupt, and payments are in arrears, the lender can seize the

6 Bankruptcy

goods and sell them. Money still owed to the lender after the sale is added to the bankrupt’s list of debts.

Exempt goods Where the mortgage or bill of sale is over goods exempt under the Bankruptcy Act (such as household furniture or a motor vehicle worth less than $7,700 – see Property a bankrupt can keep at [6.130]), the exemption stops the trustee from selling the goods. However, they can still be taken by a lender with a bill of sale or consumer mortgage if the borrower is behind in payments. The goods cannot be taken by the lender and sold just because the debtor becomes bankrupt. There must be a default under the agreement.

Non-exempt goods Where the mortgage or bill of sale is over goods that are not exempt under the Bankruptcy Act, the trustee may be able to: • sell the goods • pay the lender what is owing on them, and • keep the balance to pay other creditors. This is only possible if:

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• the lender agrees, and • the goods are worth more than the amount still owing on them. Otherwise, the bankrupt can keep them as long as payments are made on time. When they are finally paid for, the trustee can seize and sell them (s 58(1)).

[6.170] Property previously

disposed of Some debtors, seeing the threat of bankruptcy, try to put their property beyond the reach of creditors by transferring it to others, often family members. Property can be reclaimed by the trustee if it was: • given away or sold in the five years before bankruptcy for less than its full value, or • given away or sold at any previous time with the intention of defeating creditors (Bankruptcy Act, ss 120, 121).

Transfer under a maintenance agreement Transfers of property under a maintenance agreement before bankruptcy are not affected, unless fraud can be established.

Effects of bankruptcy on income [6.180]

While a person is bankrupt they must make payments to the trustee from their income if they earn over a certain amount. This threshold income is linked to benefit payments under the Social Security Act 1991 (Cth). For a person without dependents, the threshold is $54,518.10 net of tax as at August 2016. The threshold increases if there are dependents.

[6.190] Income contribution If the bankrupt’s assessed income (see Calculating assessed income below) is above the threshold amount, the bankrupt must pay 50 cents in each dollar above the threshold (Bankruptcy Act, ss 139J–139ZZ). That is, what the bankrupt must pay the trustee for

the benefit of creditors (the income contribution) is found by subtracting the threshold amount from the bankrupt’s assessed income and halving the result. If assessed income is less than the threshold, no contribution need be paid.

Frequency of payment The trustee decides how often the contribution is to be paid (weekly, fortnightly or at some other interval). Bankrupts are encouraged to have the payments directly credited to the trustee’s account from either their salary or bank account. Calculating assessed income To calculate assessed income, the trustee: • adds up the income the person is likely to earn

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(income includes wages, the value of fringe benefits, rental income, business earnings less expenses, interest, dividends, and periodic payments received from superannuation funds, life policies or trusts) • subtracts income tax paid or likely to be paid • subtracts child support or maintenance paid or liable to be paid • adds any amount received or likely to be received in a tax refund.

If payments are missed If payments are missed without satisfactory explanation, the trustee may arrange for the contribution to be garnisheed directly from the bankrupt person’s wages.

Hardship A person suffering hardship can apply in writing to the trustee to reduce the assessed amount. The trustee can reduce the amount if: • the bankrupt or a dependent has an illness or disability • the bankrupt has to pay for childcare to enable them to work

• the bankrupt is forced to pay high private rent (for example, because they live in a remote area), or • the bankrupt has substantial travelling costs to get to work.

Appeal A bankrupt person can appeal to the Inspector-General in Bankruptcy if: • they disagree with the calculation of their assessed income contribution, or • they are unhappy with the trustee’s response to a hardship application. If the person is not happy with the Inspector-General’s decision they can appeal to the Administrative Appeals Tribunal. The assessed contribution must continue to be paid until the appeal has been determined. Penalty for failing to give information The maximum penalty for failing to give the trustee information and evidence about income is 12 months' jail.

Obligations, restrictions and rights [6.200] Obligations and

restrictions on bankrupts Keeping the trustee informed A bankrupt person is required to keep their trustee fully informed of any change in their: • name • marital status • number of dependents • residential address • employment • income. They must also disclose to the trustee any divisible property they acquire or become entitled to during bankruptcy; for example, an interest in a relative’s deceased estate.

Restrictions on credit A bankrupt person cannot obtain credit for goods or services with a value over $5,360 without telling the lender they are bankrupt.

Restrictions on overseas travel A bankrupt person: • may have to hand over their passport to their trustee if requested to do so • cannot travel overseas without the trustee’s written permission. Trustees must follow strict guidelines for authorising overseas travel, and a bankrupt should make their request for the trustee’s permission sooner rather than later, to enable the trustee enough time to properly consider the request. Maintaining a positive relationship with the trustee will no doubt improve the bankrupt’s prospects of having the trustee approve any request for overseas travel. A person considering bankruptcy who intends to travel overseas while bank-

6 Bankruptcy

rupt should discuss this with their solicitor, accountant or financial counsellor. If the bankrupt person leaves Australia without the trustee’s permission the period of bankruptcy can be extended to run for eight years, starting from when they re-enter Australia. They can also be prosecuted.

[6.210] Rights of bankrupts Review of decisions A bankrupt can ask the Inspector-General to review the decisions of their trustee about income contributions and discharge from bankruptcy. The Administrative Appeals Tribunal can review the decision of the Inspector-General. The bankrupt can apply to the Federal Court or Federal Circuit Court for a review of any decision made by their trustee. However, the courts will not consider any applications concerning contributions or discharge until the Administrative Appeals Tribunal has considered the matter.

Legal proceedings A bankrupt person can continue legal proceedings begun before the bankruptcy for personal injury to themselves, or death or personal injury in relation to their spouse or other family members, and also a “wrong done” to the person, such as defamation. Property bought wholly or substantially with compensation or damages received in such proceedings is not available to creditors. Also, a bankrupt person can continue or start proceedings concerning their employment, such as unfair dismissal or harassment in the workplace.

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Any other legal proceedings commenced before bankruptcy are automatically stopped, but if the trustee believes the proceedings have merit, and creditors are willing to fund the action and indemnify the trustee for costs, then the trustee can continue them. Trustees must act reasonably. They have a duty to consider whether the proceedings have merit and should be continued.

Bank accounts The person can have a savings account, but most banks need the trustee’s consent. There is no limit on the amount of income that a bankrupt can accumulate in their bank account during bankruptcy, however, if the money is withdrawn from the account and used to purchase an asset that is not “protected” (eg shares) the trustee can take such assets as “after-acquired property”.

Travel in Australia The person can travel freely in Australia, though the trustee must be notified of changes in name, address or employment, including simply using a different name or an additional name.

Right to examine file The person may examine the trustee’s file on their bankruptcy. It will probably contain: • the trustee’s reports • copies of relevant court transcripts • a list of proofs of debt lodged by creditors. Copies of all relevant documents can be obtained under the Freedom of Information Act 1982 (Cth) (see Chapter 25, Freedom of Information), though a cheaper option may be to simply ask to look through the file.

Ending bankruptcy [6.220] Automatic discharge A person is automatically discharged from bankruptcy three years after filing their statement of affairs, unless there is an objection by the trustee (see Extension of

bankruptcy at [6.240]). Early discharge Early discharge provisions were repealed as from 5 May 2003.

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[6.230] Annulment of

bankruptcy The bankruptcy is annulled when the trustee has, from the sale of divisible property and/or income contributions: • paid the creditors in full, and • paid the trustee’s fees and expenses. No court order is needed.

Payment by contributions A bankrupt who is not required to make income contributions to their trustee can arrange to make payments to creditors that, when completed, will annul the bankruptcy. The trustee’s fees must still be paid before the trustee will grant an annulment.

Part payment The bankruptcy is annulled if creditors, by special resolution, accept an offer of composition made via the trustee, such as 50 cents in the dollar. There are mechanisms for proposing such arrangements without entering bankruptcy (see Pt X personal insolvency agreement proposals at [6.50]).

Defects in process The court may annul a bankruptcy where it can be established that there was a defect in the legal process that led to the person becoming bankrupt. Going to court Under the Bankruptcy Act, both the Federal Court and the Federal Circuit Court can hear and decide bankruptcy cases, and either court may alter orders made by it under the Act and may annul a person's bankruptcy. Appeals from a single judge of the Federal Court are heard by the Full Court of the Federal Court. Appeals from a Federal Circuit Judge are generally heard by a single Federal Court judge. Legal aid is not available in bankruptcy matters.

[6.240] Extension of

bankruptcy Discharge may be delayed by a further two or five years, making the period of bankruptcy five or eight years, if:

• there are objections to automatic discharge after three years, or • the bankrupt has not complied with the trustee’s directions and/or has failed to co-operate with the trustee in the administration of the bankrupt’s estate.

Extension to five years The period of bankruptcy will be extended to five years if the trustee makes an objection on the grounds that the bankrupt failed to: • disclose all debts and creditors • disclose all property • attend an interview with the trustee • attend an examination by the court • sign documents when asked by the trustee • notify the trustee of a change of address, or • attend a meeting of creditors.

Extension to eight years The period can be extended to eight years if the trustee objects on the grounds that the bankrupt: • failed to pay income contributions • failed to provide details of property and income to the trustee • failed to explain to the trustee how money was spent or assets disposed of • borrowed more than $5,507 without disclosing bankruptcy to the lender • left Australia without permission, or • managed a company while bankrupt.

[6.250] Release from debts After discharge from bankruptcy (usually three years after filing the statement of affairs) the bankrupt is released from most of their outstanding debts, called provable debts.

Victims compensation debts On discharge, the bankrupt is relieved of any debt created by a provisional order and/or a final determination by NCAT’s Administrative and Equal Opportunity Division made before the date of bankruptcy.

6 Bankruptcy

Charges for electricity and other services Accounts for electricity, gas, telephone and so on, unpaid at the date of bankruptcy, are provable debts from which the bankrupt is released. However, the service will probably be disconnected if the person does not pay the bill. A person who wants the service connected at a new address and has a debt to the service provider at the previous address may have to pay a higher security deposit. Legal advice should be sought if the service provider will not reconnect the service unless arrears incurred before the bankruptcy are paid.

Income tax Income tax unpaid at the date of bankruptcy (whether or not returns have been lodged or assessments issued) is a provable debt. If any returns have not been lodged the bankrupt should lodge them at once to avoid possible prosecution by the Australian Taxation Office (ATO), which is notified of everyone who becomes bankrupt. The ATO cannot take legal action to recover provable tax debts from a bankrupt, but it has the right to retain refunds from tax returns during the bankruptcy and apply them to tax debts, child support debts and Centrelink debts.

[6.260] Debts from which the

person is not released There are some debts from which the bankrupt person is not released.

Child support debts The creditor (either the bankrupt’s former partner or the Child Support Agency) can continue recovery action for child maintenance debts incurred before and during bankruptcy. The bankrupt is only released from liability for interest owing on such debts at the date of bankruptcy.

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Bail bonds and court fines The person is not released from debts arising from bail bonds and court fines. Penalties imposed by way of infringement notices (eg parking and speeding tickets etc) are provable debts because they have not been imposed by a court and the bankrupt will be released from them on discharge. However, if they are not paid the State Debt Recovery Office (SDRO) will probably suspend the bankrupt’s driver’s licence and/or vehicle registration until the penalty is paid. If the bankrupt requires their licence for work or other necessity, the SDRO will usually consider an application to lift the suspension if the bankrupt has entered into a repayment agreement with the SDRO.

Proceeds of crime The person remains liable for pecuniary penalty orders under the federal Proceeds of Crime Act 1987 (Cth).

Debts incurred through fraud The person is not released from debts incurred through fraud or a breach of trust, including money owed to Centrelink or the ATO obtained through fraud or misrepresentation.

Unliquidated claims The person is not released from debts arising from unliquidated claims (such as a claim arising from a car accident in which the bankrupt was at least partly at fault) which, although arising from something that happened before the bankruptcy, are not resolved at the date of bankruptcy. A debtor should finalise such matters before becoming bankrupt.

Debts incurred since entering bankruptcy The person is liable for any debt incurred since the date of bankruptcy.

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Student loans and higher education charges Loans to students under either the Student Assistance Act 1973 (Cth) or the youth allowance and Austudy schemes (Social Security Act 1991 (Cth)) are not provable – a debtor is not released from them on discharge from bankruptcy. All Higher Education Contribution Scheme (HECS) debts are provable since

7 June 2001, but the person is not released from the HECS debt upon discharge from bankruptcy. Council rates Local councils have a first charge on real estate when rates are not paid. This means they have a right to take what is owed to them from the proceeds of sale before unsecured creditors are paid.

6 Bankruptcy

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Contact points [6.270]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au. Administrative Appeals Tribunal

Australian Taxation Office

www.aat.gov.au

www.ato.gov.au

ph: 1800 228 333 or 9276 5101

ph: 13 28 65

Australasian Legal Information Institute (AustLII)

Certified Practising Accountants Australia

www.austlii.edu.au

www.cpaaustralia.com.au

Australian Disputes Centre

ph: 1300 73 73 73

www.disputescentre.com.au

Chartered Accountants Australia and New Zealand

ph: 9239 0700 Australian Competition and Consumer Commission (ACCC) www.accc.gov.au ph: 1300 302 502 Australian Finance Conference www.afc.asn.au ph: 1800 231 587 or 9231 5877 Australian Financial Security Authority

www.charteredaccountants.com.au ph: 1300 137 322 Customer Owned Banking Association www.customerownedbanking. asn.au ph: 8035 8400 Fair Trading, Office of Specialist Support Unit

www.afsa.gov.au

www.fairtrading.nsw.gov.au

ph: 1300 364 785

ph: 132 220 or 9895 0111

Australian Prudential Regulation Authority (APRA) www.apra.gov.au

Financial Counsellors Association of NSW (includes a list of accredited financial counsellors in NSW)

ph: 1300 55 88 49 or 8037 9015

www.fcan.com.au

Australian Securities and Investments Commission (ASIC)

ph: 1300 914 408

www.asic.gov.au ph: 1300 300 630

Financial Ombudsman Service www.fos.org.au ph: 1300 780 808

Financial Planning Association (FPA) www.fpa.asn.au ph:1300 337 301 or 9220 4500 The FPA has a Professional Standards Department. For complaints, see also the Financial Ombudsman Service. Financial Rights Legal Centre (previously the Consumer Credit Legal Centre) financialrights.org.au ph: 9212 4216 Credit and debt hotline ph: 1800 007 007 The Financial Rights Legal Centre deals with matters concerning credit, debt, bankruptcy and banking issues. It does not deal with general consumer issues. LawAccess NSW www.lawaccess.nsw.gov.au Legal Aid NSW www.legalaid.nsw.gov.au Local Courts: Going to the local court about a debt www.localcourt.justice.nsw.gov.au Veda www.veda.com.au ph: 13 VEDA (13 8332) or 9278 7900 Holds and distributes information on credit ratings and histories.

7 Children and Young People Julieanne Mahony Department of Family and Community Services Jane Sanders The Shopfront Youth Legal Centre

Contents [7.20] [7.20]

Children and criminal law Children in the criminal justice system

[7.30] [7.130] [7.200]

Children and police The Young Offenders Act Criminal proceedings in the Children’s Court Sentencing children Appeals Convictions and criminal records

[7.280] [7.340] [7.370] [7.400] [7.410] [7.490]

Care and protection of children and young people Children and young people in need Care applications to the Children’s Court

[7.580] [7.590] [7.630] [7.700] [7.760] [7.790] [7.850] [7.850] [7.910] [7.990] [7.1010] [7.1030] [7.1050] [7.1070]

Adoption What is adoption? The adoption process Consents to adoption Court procedure and court orders Information rights after adoption Other legal issues affecting children School Leaving home and other legal transitions Sexual relationships Medical treatment Alcohol and tobacco Court proceedings Cyber-crime and cyber-safety

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[7.10]

This chapter considers legislation and legal issues applying specifically to children. It discusses: • the criminal law as it applies to people under 18, from dealing with police to the operation of the Children’s Court • the legislation dealing with the care and protection of children • the law dealing with adoption • other legal issues specifically affecting children. Our society recognises that children’s needs are, in many important ways, different from those of adults. It also recognises that children, like adults, have rights. Australia is a signatory to the UN Convention on the Rights of the Child, an agreement between signatory countries to observe common standards for protecting the rights of children.

These rights have not become part of Australian domestic law, so they cannot be enforced through our courts or tribunals. However, they can be used to assess whether our laws and practices meet international standards. Some of the rights expressed in the Convention are summarised in the box below. Who is a child? Legally, a child in NSW is a person under the age of 18. (In some cases, for example in the Children and Young Persons (Care and Protection) Act 1998 (NSW), a distinction is made between a “child”, defined as a person under 16, and a “young person”, defined as someone aged 16 or 17).

The United Nations Convention on the Rights of the Child The four basic principles of the UN Convention on the Rights of the Child are: • non-discrimination • the best interests of the child • the right to life, survival and development • the right to respect for views expressed. The convention has 40 articles, some of which are summarised below. • Article 2: Children should be protected from discrimination on the basis of their family background. • Article 3: A primary consideration when courts or welfare institutions make decisions about children should be the best interests of the child. • Article 5: Governments are to respect the responsibilities, rights and duties of parents (or extended family and community members) to give the child guidance and direction in the exercise of their rights under the convention. • Article 12: Children capable of forming their own views have the right to express those views when decisions are made about them. • Articles 19, 34 and 39: Governments have a responsi-

• •

•

• •

bility to protect children from neglect, abuse and sexual exploitation. Child victims of abuse should be assisted to recover in a supportive environment. Article 25: Children placed in care have the right to periodic review of their treatment and placement. Articles 26 and 27: Children have the right to a standard of living adequate for their physical, mental, spiritual, moral and social development, and to social security benefits when families and children need them. Article 28: Children have the right to education on the basis of equal opportunity. School discipline should be consistent with the child's human dignity and in conformity with the convention. Article 30: Children of minority or Indigenous communities have the right to enjoy their own culture, language and religion. Article 40: Children have rights in the criminal justice system; for example, the right to be presumed innocent, or to have legal or other assistance, and to be dealt with without resort to judicial proceedings where appropriate.

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185

Children and criminal law Children in the criminal justice system [7.20] Some general

considerations Generally, children can be charged with the same offences as adults, and the evidence required to prove a criminal charge in the Children’s Court is the same as for adults. The general criminal law, and police and court processes, are discussed in detail in Chapter 14, Criminal Law.

However, there are a number of things that should be kept in mind in relation to children in the criminal justice system.

The age of criminal responsibility Children under 10 No child under 10 can be charged with a criminal offence in NSW (Children (Criminal Proceedings) Act 1987, s 5). Children between 10 and 14 Where the child is between 10 and 14, the prosecution must prove, in addition to the usual matters, that the child knew that what they were doing was seriously wrong and not just naughty (the principle of doli incapax).

Alternatives to court Formal court proceedings are not the only option for dealing with certain types of offences committed by children. Police may give a child a warning or caution, or refer them to a youth justice conference, under the Young Offenders Act 1997 (NSW) (see The Young Offenders Act at [7.130]).

Court procedure The Children (Criminal Proceedings) Act governs the way courts deal with children who are charged with criminal offences.

Section 6 sets out some important principles that courts and other decision-makers must have regard to when dealing with children. Most children charged with criminal offences are dealt with by the Children’s Court. In general, court proceedings for children are less formal than for adults. Children involved in criminal proceedings also have a right to privacy.

Penalties for children Penalties in the Children’s Court are different from those imposed on adults, usually emphasising rehabilitation over punishment (see Options in the Children’s Court at [7.290]).

Particular offences Generally, children can be charged with the same offences as adults. However, children are particularly vulnerable to being charged with particular types of offences including: • offences unique to children (eg offences concerning access to licensed premises and alcohol) • offences involving consensual under-age sex • child pornography offences associated with “sexting” • public order and “street” offences (eg disobeying police directions, offensive conduct, trespassing, resisting and assaulting police) due to young people’s frequent use of public space and vulnerability when dealing with police • offences committed by groups (eg affray, robbery in company) • traffic offences, particularly relating to driving while unlicensed, suspended or as an unaccompanied learner.

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Even if a court imposes a lenient penalty, the consequences of some of the above offences can be severe, for example, lengthy automatic disqualification periods for traffic offences, or entry on the child protection register for child pornography or sex offences.

Police powers

same in relation to children as they are for adults. However, there are some special protective measures for children when dealing with police. For an explanation of police powers, and of many of the terms and procedures referred to in this section, see Chapter 14, Criminal Law.

Most police powers (such as the power to arrest, search or issue directions) are the

Children and police [7.30]

There are some special protections for children in any dealings they have with the police. Largely due to their vulnerability and the way in which they use public space, there are also special problems that children encounter with police (and with other authority figures such as security guards).

Protections for children when dealing with police There are special laws to protect children who are arrested or being investigated by police. For example, children have the right to a support person at the police station if they are under arrest, and police need a court order to take a DNA sample from a child or to take fingerprints from a child under 14. An important protection for children is the right to have an adult (a parent, carer, lawyer, or other adult independent of the police) present during police questioning. In most cases, unless such a person is present, any evidence obtained is not admissible in court. The right to an adult support person during police questioning does not affect the child’s right to silence. Nobody, adult or child, has to answer any questions asked by police except in the specific circumstances mentioned in When police questions must be answered at [7.90].

The right to legal advice Children should not answer questions, or write or sign a statement for police, unless they have had legal advice. Police must tell children that they have a right to legal advice, and where to get it (for example, the Legal Aid Youth Hotline – see The Legal Aid Youth Hotline at [7.160]).

[7.40] Searches When police can search a person Police can stop and search a person in a variety of situations, including: • with the person’s consent • with a search warrant • if the person is under arrest or in police custody (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 27, 28) • if police suspect on reasonable grounds that the person is carrying prohibited drugs, stolen goods, or something (such as a weapon) used or intended to be used to commit an offence (s 21) • if police suspect on reasonable grounds that a person in a school or public place has a knife or a “dangerous implement” (s 24). In this situation police may request the person to undergo a frisk search, or a search of their bag or school locker. There is no power to forcibly search, but it is an offence to refuse (s 25) • if police have been authorised to use special powers (such as to set up roadblocks or lockdowns of suburbs) to control large-scale public disorder, they may

7 Children and Young People

search anyone in the area that is the target of the authorisation. No warrant or reasonable suspicion is required (ss 87J–87K). Strip searches are not permitted in this situation.

Police obligations Police must provide evidence that they are a police officer (unless they are in uniform), and their name and place of duty. They must tell the person the reason for the search and (in some cases) warn them that failure to submit to the search may be an offence. Police must provide this information as soon as reasonably practicable (Law Enforcement (Powers and Responsibilities) Act, Pt 15). Forcible and intrusive searches should be a last resort. There are procedures that police must observe so that the search is conducted with a minimum of interference to the person’s privacy and dignity (ss 32, 33).

Strip searches of children Strip searches should not be done unless the seriousness and urgency of the circumstances justify it. Where practicable, a child being strip-searched should have a support person present. Under no circumstances may a child under 10 be strip-searched (ss 31, 33, 34).

Searches by consent Young people should be wary of police officers asking them questions such as “Have you got anything on you that you shouldn’t have?” and “Would you mind if I look in your bag?” This is often a way of trying to gain the person’s consent to a search, which means that the police may search the person without the need for any reasonable suspicion. Recent amendments to the Law Enforcement (Powers and Responsibilities) Act 2002 (which came into force on 1 September 2016) clarify that police may search by consent. However, police are required to provide their name and place of duty and evidence that they are police officers, and to obtain consent before conducting the search (s 34A).

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[7.50] Move-on directions When police can give a direction Police may give a direction when they believe on reasonable grounds that a person’s behaviour or presence in a public place: • is obstructing another person or persons or traffic, or • constitutes harassment or intimidation of another person or persons, or • is causing or likely to cause fear to another person or persons (so long as the relevant conduct would be such as to cause fear to a person of reasonable firmness), or • is for the purpose of unlawfully supplying, or obtaining any prohibited drug (s 197). Police may also give a direction to a person if police believe on reasonable grounds that the person’s behaviour in a public place as a result of intoxication: • is likely to cause injury to any other person or persons or damage to property, or • otherwise gives rise to a risk to public safety, or • is disorderly (s 198).

What sort of direction police may give If a direction is given under s 197, there is no restriction on the type of direction the police may give, except that it must be reasonable in the circumstances for the purpose of reducing or eliminating the “relevant conduct” which is of concern. If police are giving a direction to an intoxicated person under s 198, they may direct the person to leave the public place and not return for a specified period of up to six hours.

Police obligations When giving a direction, police must provide evidence that they are a police officer (unless they are in uniform), their name and place of duty, and the reason for the direction. The police must also warn the person that they are required by law to comply, unless they have already complied or are complying.

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If the person is being given a direction under s 198, police must also warn them that it is an offence to be intoxicated and disorderly in any public place within six hours after the direction is given.

Failure to comply with a direction It is an offence to fail to comply with a police direction without reasonable excuse (s 199), but only if the direction is reasonable in the circumstances, the police have followed the correct procedures, and the person persists with “relevant conduct” (ie, doing something that would give the police a reason to give them a direction) after the direction has been given.

[7.60] Demanding name and

address Police may demand a person’s name and address in a variety of situations, including: • if police suspect on reasonable grounds that the person may be able to assist in the investigation of an indictable offence because they were at or near the scene (Law Enforcement (Powers and Responsibilities) Act, s 11) • if police propose to give the person a direction to leave a place under s 197 or s 198 (s 11) • if police suspect on reasonable grounds that an apprehended violence order has been made against the person (s 13A) • if police suspect on reasonable grounds that a person is under 18 and is carrying or consuming alcohol in public without the supervision of a responsible adult (Summary Offences Act 1988 (NSW), s 11) • if police suspect on reasonable grounds that the person has committed a public transport-related offence (Passenger Transport Act 2014 (NSW), s 162) • if police suspect on reasonable grounds that the person has committed an offence in certain precincts which are covered by their own laws (eg Sydney Harbour Foreshore Authority Regulation, Sydney Olympic Park Authority Regulation) • if police are trying to serve a fine default warrant (Fines Act 1996 (NSW), s 104)

• if police have been authorised to use special powers (such as to set up roadblocks or lockdowns of suburbs) to control large-scale public disorder, and: – the person is in an area or in a vehicle on a road that is the target of the authorisation, and – police suspect on reasonable grounds that the person has been involved or is likely to be involved in a public disorder (Law Enforcement (Powers and Responsibilities) Act, s 87L) • if the person is driving a motor vehicle (Road Transport Act 2013 (NSW), s 175) and in a number of other situations relating to vehicles and traffic (eg, Road Transport Act, ss 176, 177). In most of these cases it is an offence to refuse to provide the information, or to provide false information. The police can ask for documentary identification but there is no obligation to provide it (except in traffic situations where a driver may be required to produce their licence; or where a young person is suspected of consuming or possessing alcohol in public, in which case they can be required to provide proof of age).

[7.70] Arrest If a person is arrested, they are deprived of their liberty and are no longer free to go as they please. A person’s rights during and after arrest depend on why they are being arrested.

Arrest for an offence Police may arrest a person without a warrant if: • they catch the person committing an offence or suspect on reasonable grounds that the person has committed an offence, and • certain other conditions are met (see “Arrest is a last resort” below) (Law Enforcement (Powers and Responsibilities) Act, s 99). Arrest is a last resort Police can commence criminal proceedings against someone without arresting them first, eg by giving or

7 Children and Young People

sending them a court attendance notice. The law makes it clear that arresting someone for an offence is a last resort, especially where children are concerned. Police may arrest a person for an offence if they are “satisfied that arrest is reasonably necessary” for a purpose listed in s 99(1)(b). These include: • to ensure that the person attends court • to protect witnesses or evidence • to stop the person from continuing the offence or committing another offence, or • to preserve the safety or welfare of any person, including the person being arrested, or • because of the nature and seriousness of the offence. Section 8 of the Children (Criminal Proceedings) Act (referred to elsewhere in this chapter) also suggests that arrest should be a last resort when commencing proceedings against children.

Must a child go to the police station if asked? No one, regardless of their age, has to go to a police station when asked by police, unless they are arrested. However, in some situations it may be advisable for a child to go to the police station if asked - it may save them from being arrested. A young person in this situation should seek legal advice.

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There is a range of options for police to deal with a suspected breach of bail (eg giving the person a warning, or issuing a notice to appear at court), and police must consider certain factors before deciding to arrest the person (Bail Act 2013 (NSW), s 77). See Bail at [7.230].

Arrest with warrant If there is a warrant for a person’s arrest, police may arrest the person without having to consider other options. Warrants are commonly issued by courts when a person fails to appear, or when action is being taken for breach of a court order (eg a bond, community service order, parole).

[7.80] Detention after arrest Part 9 of the Law Enforcement (Powers and Responsibilities) Act sets out proceduries for police to deal with people who are detained at the police station after being arrested for an offence. It also sets out the rights of people who are under arrest.

The investigation period Police obligations The arresting police officer must tell the person their name and place of duty and the reason for the arrest (Pt 15). They must also caution the person about their right to silence, which means telling the person that they do not have to say anything but that anything they say may be used in evidence.

Security guards and citizen's arrest A person who is not a police officer may conduct a “citizen’s arrest” if they catch someone committing an offence (s 100). This is the power used by security guards, transit officers, loss prevention officers and so on. It is important to be aware that these people are not police and do not have the power to arrest on mere suspicion. Nor do they have the power to search a person or their belongings without consent.

A person under arrest may be detained for a “reasonable” period to allow police to investigate the alleged offence. This is called the investigation period, and it must not exceed six hours (amended from four hours, with effect from 1 September 2016) (ss 114–116). If the police want to extend the investigation period, they must obtain a detention warrant from a court to extend the period by up to six hours, to a total of 12 hours (ss 118–120). Time that is not included Many periods (including time spent talking to a lawyer or support person, waiting for a support person to arrive, eating, sobering up, waiting for police to complete paperwork) count as time out from the investigation period, so a person could end up in police custody for much longer than four hours even without an extension (s 117).

Arrest for breach of bail

Rights during detention

Police may arrest a person if they believe on reasonable grounds that a person has breached (or is about to breach) their bail.

Everybody who is detained under Part 9 has some basic rights which must be explained to them by the custody manager at the

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police station. These are set out in ss 123–130 of the Law Enforcement (Powers and Responsibilities) Act, and include the right to: • obtain legal advice • consult a friend or relative • have an interpreter or consular official present if appropriate • be provided with reasonable refreshments and facilities.

Children's rights in detention Children are defined as “vulnerable people”, and have a number of additional rights under the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW). Parent or guardian must be notified If a child is in police custody, a parent or person responsible for the child’s welfare must be notified (cl 36). Right to a support person Children have the right to have a support person present during any investigative procedure, such as a search or interview (cll 30–32). A child cannot waive this right (cl 33). Right to information and assistance The police custody manager must tell the child about their rights and help them to exercise their rights (for example, by giving them the telephone number for the Legal Aid Hotline) (cl 29). Right to separate accommodation from adults Children in police custody must not be kept in the same cells as adults (Children (Detention Centres) Act 1987 (NSW), s 9).

After the investigation period At the end of the investigation period the police must take some action. Usually this will be one of the following: • releasing the child without charge • referring the child for a caution or youth justice conference under the Young Offenders Act • commencing criminal proceedings in the Children’s Court.

[7.90] Police questioning Must a child answer police questions? Every suspect, regardless of their age, has the right (with a few exceptions) not to answer police questions or make a statement. Except in the situations discussed below, children should politely tell police officers that they are under 18 and do not wish to answer any questions until they have spoken to a lawyer and/or have an adult support person present. After speaking to a lawyer or support person, the child may still decline to answer questions if they wish. Police will often tell the suspect that, if they do not wish to answer questions, they must go into an interview room and have their refusal recorded on audio and video (commonly known as ERISP – Electronically Recorded Interview with Suspected Person). However, this is incorrect - the police cannot lawfully compel a person to be recorded on ERISP. When police questions must be answered Police have the power to require a person to provide their name and address in variety of situations (see [7.60]). In most cases, the person has no obligation to answer any other questions. However, a person may be required to answer other questions in some situations including motor accidents and certain vehicle-related offences (for example, a person can be required to provide details about an accident, and/or details about a vehicle's driver or passengers).

Police questioning of children Special rules apply when people under 18 face police questioning. Confessions or statements made to police by a child are admissible in evidence only if: • there is an independent adult (who is not a police officer) present when the statements are made, or • the court considers that there is a very good reason for the absence of such an adult and that the statement should be admitted into evidence (Children (Criminal Proceedings) Act, s 13).

The independent adult Section 13 of the Children (Criminal Proceedings) Act sets out who the independent adult

7 Children and Young People

can be. The independent adult cannot be a police officer (except a police officer who is the child’s parent or carer). For children under 14, the adult must be: • a person responsible for the child (usually a parent or carer), or • another adult present with the consent of the person responsible, or • a solicitor or barrister chosen by the child. For young people aged 14 or over, the adult can be any of the people listed above, or an adult present with the young person’s consent. What the independent adult should do It is important that the adult protects the child; for example, by making sure the child knows that they do not have to answer questions, and by ensuring that the child receives legal advice before deciding whether to answer questions. If possible, the adult should also take notes of proceedings in the police station, in case a dispute arises later on about what was said. Evidence from someone other than the police can be useful. Most police interviews are recorded on audio and video (ERISP), but police may try to rely on conversations occurring outside the formal interview. If the child decides to participate in an interview, the independent adult is not restricted to being a mere observer. As long as they do not dominate the interview or answer questions on the child's behalf, the independent adult is entitled to speak and to help the child to assert their rights. If the child does not wish to be interviewed, an adult support person may need to advocate on their behalf, for example, to ensure that the child is not taken to an interview room and recorded on ERISP. Even where the child has made it clear they do not wish to answer questions, the police sometimes use an ERISP as an opportunity to ask further questions.

[7.100] Photographs and

fingerprints People arrested for offences, including children, usually have a photograph and fingerprints taken by police for identification purposes.

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Children under 14 Police may not photograph or take fingerprints from a child under 14 without a court order (Law Enforcement (Powers and Responsibilities) Act, s 136).

Destruction of photographs and fingerprints The fingerprints and photographs of children must be destroyed if: • the child is found not guilty • the charge against the child is dismissed (with or without a caution) under Children (Criminal Proceedings) Act, s 33(1)(a)(i) • the court orders it (s 38), or • 12 months have elapsed and no criminal proceedings have been commenced against the child (Law Enforcement (Powers and Responsibilities) Act, s 137A).

[7.110] Forensic procedures The Crimes (Forensic Procedures) Act 2000 (NSW) sets out the conditions under which police may conduct forensic procedures (see Chapter 14, Criminal Law). Forensic procedures include, for example, taking a blood sample, or collecting a DNA sample by taking a strand of hair or a buccal swab (a swab from inside the mouth).

Who may be subject to a forensic procedure A forensic procedure may be carried out on: • a suspect – ie, a person who police suspect on reasonable grounds has committed an offence • a convicted indictable offender or an untested former offender – that is, a person who has been imprisoned for an offence carrying a maximum penalty of five years or more. This may include a child sentenced to imprisonment by a superior court (see Sentencing in the District Court and the Supreme Court at [7.320]), but not a child sentenced to a control order by the Children’s Court (unless he or she has turned 21 by the time the control order is imposed) • a victim • a volunteer (for example, a person who is not a suspect but wants to clear their

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name or help police).

When a forensic procedure may be carried out on a child who is a suspect Police may carry out a forensic procedure on an adult suspect with the person’s informed consent. Children are deemed unable to give informed consent (Crimes (Forensic Procedures) Act, s 7). To carry out a forensic procedure on a child, there must be a court order (ss 22–38, 74). Who must be with the child Some parts of the Act require a child to have an interview friend (support person) or legal representative present during any application for a court order, and

during the procedure itself (ss 30, 54).

[7.120] Improper or unlawful

police behaviour If police behave improperly or illegally (for example, by using threats or violence, or unlawfully arresting a child), this could have consequences if the child is charged with a criminal offence. The child may also be able to pursue a formal complaint or civil action against the police (see [9.450] Complaints against police). It is important to get legal advice in such cases. This is dealt with in more detail in Chapter 14, Criminal Law.

The Young Offenders Act [7.130]

The Young Offenders Act 1997 (NSW) provides an alternative to court proceedings in the form of: • informal warnings • formal cautions • youth justice conferences.

[7.140] Purpose of the Act The aim of the legislation is to divert young people away from formal court processing, to encourage them to take responsibility for their offending, and to meet the needs of victims as well as offenders. In 2008, a further object was added to the Act: to address the over-representation of Aboriginal and Torres Strait Islander children in the criminal justice system (s 3).

[7.150] People covered by the

Act Like the Children (Criminal Proceedings) Act, the Young Offenders Act applies to young people aged at least ten but under 18 at the time of the alleged offence, and under 21 when dealt with under the Act (s 7A).

[7.160] Offences covered by

the Act Offences covered by the Act include most offences that can be dealt with by the Children’s Court (see [7.210]), subject to a few exceptions (s 8).

Offences not covered by the Act Offences not covered by the Act include: • offences resulting in the death of any person • serious children’s indictable offences • sexual offences • offences of stalking/intimidation or breaching an apprehended violence order • most drug offences, except for possession or use of small amounts • traffic offences, if the child was old enough to hold a licence at the time of the offence • offences where the person investigating the offence is not an “investigating official” within the meaning of the Act (in practice, this means offences dealt with by bodies other than the police, such as local government or public transport authorities). • graffiti offences are covered by the Act, but with some restrictions. The police

7 Children and Young People

may not caution a child or refer them to a youth justice conference for an offence covered by the Graffiti Control Act 2008 (ss 18, 37) but these options are still available to the court (ss 31, 40). It is also worth noting that there are no restrictions on cautioning or conferencing for an offence under the Crimes Act 1900 of “destroy/damage property” (which may include graffiti).

What police must do For offences covered by the Act, police must consider a warning, caution or conference. Court proceedings should be commenced only if these three options are clearly inappropriate. If police decide not to warn or caution a child, they must refer the matter to a specialist youth officer to decide how the child should be dealt with (ss 14, 20, 21). A specialist youth officer is a police officer with special training in dealing with young people and the Young Offenders Act. The Legal Aid Youth Hotline The Young Offenders Act promotes the principle that children are entitled to be informed about their right to legal advice and to have an opportunity to obtain it (s 7). The Legal Aid Youth Hotline provides children with telephone advice from 9am to midnight Monday to Thursday and for 24 hours on weekends and public holidays. The phone number is 1800 101 810.

To be referred for a caution or youth justice conference instead of going to court, the child must admit the offence (in the presence of a responsible adult) and consent to a caution or conference. A warning may be given without the child admitting the offence.

[7.170] Warnings What offences are covered? A child is entitled to be dealt with by way of an on-the-spot warning if they have committed, or it is alleged that they have committed, a non-violent summary offence – for example, trespassing or offensive language (s 14). The investigating officer may consider it appropriate not to give the child a warning

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but to deal with them by other means. However, a child is not precluded from being given a warning merely because they have a prior record (s 14(3)) or have not admitted to the offence. No conditions Conditions, or additional sanctions, may not be imposed on a warning (s 15).

Effect on the child's record The child’s name is recorded, but the incident does not form part of the child’s criminal history or court alternatives history. Records of warnings must be destroyed or expunged once the young person turns 21 (s 17).

[7.180] Formal cautions When can a caution be given? A formal caution may be given if the child: • has admitted the offence in the presence of a responsible adult (the categories of adults who may fulfil this role, and who has a say over who the adult should be, are similar to those set out in s 13 of the Children (Criminal Proceedings) Act) (ss 10, 19) • consents to being given a caution (s 19).

What must be considered by the police Issues that must be taken into account by police in deciding whether to give a caution include: • the seriousness of the offence • the degree of violence involved • the harm caused to any victim • the number and nature of any previous offences committed by the child • the number of times the child has been dealt with under the Young Offenders Act (s 20(3)).

If the child has a record A history of prior matters does not preclude a child from being given a caution, but the Act imposes a limit of three cautions (s 20).

What must be explained to the child The police must explain:

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• the nature of the allegations against a child • the child’s right to legal advice and where that may be obtained • the purpose, nature and effect of the caution • the child’s right to choose to deal with the matter in court (s 22).

Notice of caution Police do not give the caution on the spot. They must give the child a notice of caution which includes information such as the offence, the date and time the caution will be delivered, the consequences of failing to attend, the child’s right to obtain legal advice, and the child’s right to choose to go to court instead of proceeding with the caution (s 24).

The cooling-off period There is a cooling-off period during which the child can seek legal advice and, if they wish, change their mind. The child is entitled, at any time before a caution is given, to elect to have the matter dealt with by a court (s 25).

Timing of the caution A caution must be given not less than ten days and not more than 21 days after the notice of caution is given (s 26).

Who gives the caution The caution is given by: • a senior police officer or specialist youth officer, or • sometimes, a respected member of the community such as an Aboriginal elder (s 27).

Who may accompany the child It is the responsibility of the officer giving the caution to ensure, as far as practicable, that the child is accompanied by a person responsible for the child or an adult chosen by the child (s 29). Other people such as an interpreter, social worker, community elder, disability worker or juvenile justice officer may also attend if appropriate (s 28).

Conditions imposed on a caution No conditions may be imposed on a caution, other than reading out a statement from the

victim and requesting the young person to provide a written apology to the victim if asked (ss 24A, 29).

If the child does not attend for the caution If the child does not attend, the police may arrange for the caution to be given at a different time, or may commence court proceedings (s 64).

Effect on the child's record A record of the caution is kept (s 33). This will appear on the child’s “court alternatives history”, and may be seen by the Children’s Court if it deals with the child for further offences. However, there is no criminal conviction, and the caution may not be taken into account by an adult court (s 68). Any photographs or fingerprints taken by the police must be destroyed if the child is cautioned (s 33A). Cautions given by the Children's Court The Children's Court may also give a caution under the Young Offenders Act in appropriate circumstances. For example, the child may have chosen not to answer police questions, but has now admitted to the offence at court. The court must notify the police and give reasons why the caution was given (s 31).

[7.190] Youth justice

conferences Youth justice conferences are the next step up from cautions. If a caution is not considered appropriate, the investigating police officer must refer the matter to a specialist youth officer to consider a conference. The scheme establishing youth justice conferences is based on principles of: • responsibility for criminal behaviour • strengthening of family support • identification of appropriate services • victim participation and reparation • cultural appropriateness (s 34). Referral to a conference Ideally, a child will be referred to a conference by the police, without having to go to court first. However, a

7 Children and Young People

court or the Director of Public Prosecutions can also refer a child to a conference (s 40).

Eligibility for a conference A conference can be arranged only if the child: • has admitted the offence in the presence of a responsible adult (s 10, 36), and • consents to the holding of a conference (s 36). As with cautioning, police must consider a number of issues in deciding whether or not to refer the child to a conference (s 37).

The cooling-off period There is a cooling-off period during which the child can seek legal advice and, if they wish, change their mind. The child may at any time before the conference elect to have the matter dealt with by a court (s 44).

When must the conference be held? According to the Act, a conference must be held not less than ten days and not more than 28 days after the referral is received (s 43). However, in practice, conferences often take much longer to arrange.

Who runs the conference? Youth justice conferences are not run by the police. They are run by independent convenors appointed by Juvenile Justice (s 42).

Before the conference The convenor speaks to the child, and everyone else involved, before the conference. The convenor also gives the child a notice outlining the details of the conference and the right to legal advice (s 45).

Who attends the conference? The following people are entitled to attend (s 47): • the child • the conference convenor • a person responsible for the child • members of the child’s family or extended family • an adult chosen by the child • a lawyer advising the child

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• the investigating official • a specialist youth officer • an additional police officer, for training purposes, with the consent of the child, person responsible, victim and convenor • the victim or a representative of the victim • a support person for the victim. Other people (such as interpreters and disability support workers) may attend where appropriate. Legal representation A lawyer is entitled to attend and advise the child, but not to represent the child unless permission is obtained from the conference convenor (s 50).

How should the conference be conducted? The purpose of the conference is to determine an outcome plan for the child (s 34), and it should be conducted in a way which best enables the reaching of an agreement or outcome plan (s 48).

Outcome plans The outcome plan must reflect the consensus of the participants, and must be agreed to by both the child and the victim. Decisions and recommendations may include an apology, reparation, voluntary community work, participation in a program, or anything else that is considered appropriate. The only limitation is that the outcomes must not be more severe than those a court may have ordered, and must be realistic and appropriate (s 52). Supervision of the outcome plan The outcome plan is supervised by a conference administrator from Juvenile Justice (s 56). If the plan is satisfactorily completed When the outcome plan has been satisfactorily completed, notice is given to the child, the victim, and the police (or the Director of Public Prosecutions or the court, if they referred the child to the conference) (s 56). No further criminal proceedings may be taken against a child who has satisfactorily completed an outcome plan (s 58). If the

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matter was referred by a court without making a formal finding of guilt, the court must dismiss the charge (s 57). If the plan is not completed If the outcome plan is not completed, court proceedings may be commenced or continued against the child (s 64).

will appear on the child’s “court alternatives history”, and may be seen by the Children’s Court if it is dealing with the child for further offences. However, there is no criminal conviction and the conference may not be taken into account by an adult court (s 68).

Effect on the child's record As with a caution, the fact that the child has attended a conference will be recorded. It Can police use information obtained in cautions and conferences? Any statement or information given by a child during a caution or conference is not admissible in subsequent criminal or civil proceedings (s 67).

However, any information obtained by police during a conference may be used to investigate other criminal matters (s 69).

Criminal proceedings in the Children's Court [7.200]

If it is not considered appropriate to refer a child for a warning, formal caution or youth justice conference under the Young Offenders Act, the child may be required to appear in court.

[7.210] The Children's Court The NSW Children’s Court consists of several specialist children’s magistrates and is headed by a President, who is a District Court judge. In metropolitan Sydney, Wollongong, Newcastle and the Central Coast there are specialist Children’s Courts. In other areas, the Local Court sits as a Children’s Court on certain days of the week. The Children’s Court has a criminal jurisdiction (discussed in this section of the chapter) and a care and protection jurisdiction (see Care and protection of children and young people at [7.400]).

Jurisdiction of the Children's Court The Children’s Court deals with most criminal matters not dealt with under the Young Offenders Act where the child was between

ten and 18 when the offence was committed, and is under 21 when charged. The criminal jurisdiction and procedure of the Children’s Court is governed by the Children (Criminal Proceedings) Act. Summary offences The Children’s Court has jurisdiction over summary offences (such as offensive conduct, drug possession and trespassing) (Children (Criminal Proceedings) Act, s 28). Indictable offences The Children’s Court has jurisdiction over all indictable offences except “serious children’s indictable offences” (see definition below). The Children’s Court can deal with some types of serious offences (for example, robbery and sexual assault) that would have to go to the District Court if the defendant was an adult. Traffic offences The Children’s Court has jurisdiction over traffic offences only if: • the person was not old enough at the time of the alleged offence to hold a licence or permit to drive the vehicle to

7 Children and Young People

which the offence relates (this generally means 16 years of age for a car, 16 years and 9 months for a motorcycle), or • the traffic offence arose out of the same circumstances as another charge that involves appearing in the Children’s Court (Children (Criminal Proceedings) Act, s 28). Apart from these two situations, Local Courts have sole jurisdiction over traffic matters. The Local Court magistrate may, however, choose between adult sentencing options and children’s sentencing options when dealing with a child convicted of a traffic offence (Criminal Procedure Act 1986 (NSW), s 210).

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Committal proceedings The Children’s Court can conduct committal proceedings in relation to serious children’s indictable offences (and other indictable offences where the court or the child has chosen to have the matter dealt with according to law). The Children’s Court may also hear committal proceedings against an adult if the adult is jointly charged with a child and is less than three years older than the child. For these purposes, the Children’s Court may exercise the jurisdiction of the Local Court rather than that of the Children’s Court (s 29).

Children's matters heard in the District or Supreme Courts Serious children's indictable offences Serious children's indictable offences cannot be finalised by the Children's Court and must be dealt with by the District or Supreme Courts (s 17). These are: • homicide offences • offences punishable by imprisonment for life • offences punishable by imprisonment for 25 years or more • some sexual assault matters • certain firearms offences. The Children's Court can only conduct committal pro-

ceedings in these cases (see Chapter 14, Criminal Law). Other indictable offences For other indictable offences, the Children's Court magistrate decide that the charge may not be properly dealt with by the Children’s Court. In this case the magistrate may commit the matter to the District Court for trial or, if the child pleads guilty, for sentence (s 31(3), (5)). In some cases a child charged with an indictable offence may choose to be dealt with “according to law”. This means that the child will be committed for trial or sentence in the District Court (s 31(2)).

[7.215] Principles for courts

offence should be no greater than that imposed on an adult who commits an offence of the same kind • it is desirable that children who commit offences accept responsibility for their actions • (subject to the other principles set out above) consideration should be given to the effect of any crime upon the victim.

dealing with children The following principles, set out in s 6 of the Children (Criminal Proceedings) Act, must be considered by all courts dealing with children: • children’s rights and freedoms before the law are equal to those of adults • children who commit offences are responsible for their actions but, because of their dependence and immaturity, need guidance and assistance • it is desirable, if possible, for a child’s education to proceed without interruption • it is desirable, if possible, for a child to live at home • it is desirable that children who commit offences be assisted with reintegration into the community • the penalty imposed on a child for an

[7.220] The court attendance

notice All criminal proceedings commence with the issue of a court attendance notice (CAN). The notice gives such details as the nature of the charge and the court date and venue. A field, future or no bail court attendance notice means that the person is at liberty and has no obligations except to appear at court on the stated date.

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A bail court attendance notice involves the person signing a bail agreement or, in some cases, being refused bail and held in custody until court.

Court attendance notices for children Section 8 of the Children (Criminal Proceedings) Act requires criminal proceedings against children to be commenced by way of a court attendance notice unless: • the offence is a serious children’s indictable offence • the offence is one of certain drug offences • the police believe the child is unlikely to comply with a court attendance notice • the police believe the child is likely to commit further offences, or • the police believe that due to the violent behaviour of the child or the violent nature of the offence the child ought to be in custody. In fact, all court proceedings commence with a court attendance notice, so the language of the section is outdated. The intention of the section is that children should be issued with a field, future or no bail court attendance notice wherever possible. In practice, however, children are often given bail court attendance notices, usually with conditions attached. Often this is because police believe that conditions need to be imposed to ensure the young person attends court or does not re-offend.

[7.230] Bail If the police decide not to issue a field, future or no bail court attendance notice, the custody manager at the police station must make a decision about bail. Bail is essentially a promise to attend court on a criminal charge, and it may be granted unconditionally or subject to conditions. It may be granted by the police (or, if refused by the police, by a court. The general provisions of the Bail Act also apply to children (see Chapter 14, Criminal Law).

If bail is not granted by the police A child who is not granted bail by the police must be brought before a Children’s Court

as soon as practicable. This is normally the next day. On Saturdays and Sundays, there are bail courts at Parramatta in metropolitan Sydney. Children usually appear at these weekend bail courts by audio-visual link from a detention centre. If the child is held overnight awaiting court after being refused bail by the police, the child is held in a detention centre run by Juvenile Justice. The child should be removed from a police station to the nearest regional detention centre as soon as practicable (Children (Detention Centres) Act, s 9). This also applies if bail is not granted by the court. In some cases (but very rarely) a child may be remanded in an adult prison (see Juvenile offenders and prison at [7.330]).

Applying for bail at court Bail applications (also known as release applications) in the Children’s Court are conducted in much the same way as bail applications in the Local Court (see Chapter 14, Criminal Law).

Assistance with bail applications Duty solicitors provided by Legal Aid NSW are available at the court to assist children with bail applications. At most specialist Children’s Courts, a duty juvenile justice officer also attends to assist children in custody with accommodation and other matters relevant to bail. The officer gives the court informal information about options for accommodation, and family and other support.

Restrictions on bail applications Section 74 of the Bail Act restricts the number of bail applications a person may make. If a person over 18 has been refused bail by a court, the court cannot deal with another bail application unless: • the person was not legally represented when the first bail application was made, or • the first bail application was dealt with by a Justice of the Peace (these people sometimes sit at weekend bail courts) and not a magistrate or judge, or

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• there are “new facts or circumstances” that justify another bail application being made (for example, a person who was previously homeless has found accommodation), or • there is new information presented to the court (for example, a report that was not available when the first bail application was made). The situation for children is the same, except that children may make two unsuccessful bail applications before the restrictions start to apply. A child who is refused bail by the Children’s Court may still apply for bail to the Supreme Court without having to present new information or show a change in circumstances.

Factors to be considered in deciding whether to grant bail The police, or the court, must consider whether there are any “unacceptable risks” that the person will, if released on bail: • fail to appear at court • interfere with witnesses or evidence • commit a serious offence while on bail, or • endanger the safety of victims, individuals or the community (s 19). The police or court must consider a range of factors including the person’s age, health, housing , family and employment situation, criminal history (especially anything that would suggest they are likely to commit a serious offence while on bail or fail to appear at court), the nature and seriousness of the alleged offence, the likely penalty if found guilty, the length of time before the matter is likely to be finalised, and any bail conditions that can be imposed (s 18). If there is an unacceptable risk, bail must be refused; if there are no unacceptable risks, the person must be released (ss 19, 20). A high risk of failing to appear or reoffending on bail is not necessarily an unacceptable risk, particularly if the accused is a child charged with a minor offence which is unlikely to result in a custodial sentence. In some cases, an adult applying for bail is first required to “show cause why his or her detention is not justified”. This does not

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apply if the person was under 18 at the time of the alleged offence (s 16A).

Bail conditions Bail conditions may be imposed for the purpose of “mitigating a bail concern” (Bail Act, s 17). This means a concern that the person on bail may fail to appear at court, interfere with witnesses or evidence, commit a serious offence while on bail, or endanger the safety of victims, individuals or the community (s 17). Bail conditions must be reasonable, proportionate to the offence for which bail is granted, and no more onerous than necessary to deal with the bail concern (s 20A). Despite this, bail conditions imposed on children, especially by police, are often quite onerous. Types of bail conditions commonly imposed on children include: • to report to a police station on certain days of the week • to reside at a particular address, or at an address approved by Community Services or Juvenile Justice • to keep a curfew (ie, not to be away from their home address between certain hours) • restrictions on entering certain areas or associating with certain people. It is common practice for police to conduct “curfew checks” on young people who are subject to curfew conditions. This involves attending their home (usually late at night) to check that the young person is home. It is important to understand that police do not have the power to enter premises to check whether a person is complying with their bail, nor does the child have to answer the door or otherwise prove that they are at home, unless the child has an “enforcement condition” as part of their bail. The police may apply to a court for an “enforcement condition”, which is a condition imposed for the purpose of monitoring or enforcing compliance with another bail condition (s 30). For example, if a young person is subject to a curfew condition, the court may also impose a condition requiring the young person to answer the front door if

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directed to by police. When making an enforcement condition, the court must impose some limits to ensure that the condition is not too onerous (for example, by specifying that the police may only attend the young person’s home once per night, or once per week, or between certain hours).

[7.240] Legal representation

Variation of bail

Legal Aid

Because children’s circumstances often change (eg they may change address or become homeless), and because bail conditions can often be quite onerous, a child may need to apply to vary their bail conditions. A bail variation application can be made by lodging a form with the court; the application will usually be listed within a few days. Alternatively, a bail variation application can be made on any day when the child is appearing in court, without the need to lodge a formal application. In practice, the court is unlikely to grant a variation unless it is uncontroversial or the prosecution has been notified at least a couple of days in advance. A child wishing to vary their bail conditions should get legal advice as soon as possible.

Legal aid from Legal Aid NSW is available to children appearing on all matters in the Children’s Court. There is generally no means test applied to the child or the child’s parents, except in committal hearings. For appeals (see Appeals at [7.340]), legal aid is subject to a merits and means test. Legal aid is available through the duty solicitor at the Children’s Court, who may be a Legal Aid NSW solicitor or a private lawyer on a roster. The child should arrive at court by 9am on their first court date to see the duty solicitor. Representation in defended matters For matters where the child is pleading not guilty, they may be represented by an in-house legal aid solicitor, or by a private solicitor or barrister chosen from the Legal Aid Children’s Court panel. The solicitor who enters the plea of not guilty and has the matter set down for hearing often continues with the case and represents the child at the hearing.

Breach of bail It is an offence to fail to appear at court when bailed to do so (s 79). It is not an offence to breach other bail conditions, but an alleged breach of bail can have consequences. Police have a range of options available, including: • issuing a warning • requiring the child to attend court, or • as a last resort, arresting the child and taking them to court (s 77). If the court is satisfied that a child has breached their bail, the court may decide to revoke the child’s bail, or to continue bail with the same or amended conditions (s 78). If the alleged breach is minor, and the child has not committed any new offences, the court will usually re-release the child on bail. However, in practice, many young people spend time in custody on remand following a breach of bail. See Arrest for breach of bail at [7.70].

A child should be represented by a lawyer whether they are pleading guilty or not guilty. In particular, a child who is pleading not guilty will find it difficult to succeed if they are not represented.

Keeping in touch with the lawyer It is important that children who have pleaded not guilty know who their solicitor is and keep in touch with them. This is because the solicitor will probably need to see the child to prepare for the hearing. A child cannot just turn up on the hearing date and expect a duty solicitor to be able to act for them.

Alternatives to Legal Aid representation Some children may be represented by a lawyer from an Aboriginal Legal Service or a community legal centre rather than Legal Aid NSW. A child may also choose to be represented in court by a private lawyer, if the child or their parents are willing and able to pay for one.

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Taking instructions from the child The lawyer's job is to represent the child, not the child's parents or guardians. Unless the child really lacks the capacity to give instructions (which is rare) the lawyer must act according to the child's wishes rather than on some notion of what may be in the child's best interests.

[7.250] Procedure in the

Children's Court Attendance at court The child should try to attend with at least one parent or other adult support person. In practice, many young people are not accompanied by a parent. In such cases a youth worker or other adult support person can be a great asset. The Children’s Court has the power to adjourn court proceedings and to direct parents to attend (Children (Protection and Parental Responsibility) Act 1997 (NSW), s 7), but this power is not often used.

Court procedure Procedure in the Children’s Court is similar to that in the Local Court, but proceedings are generally conducted with less formality.

Explanation of proceedings The court must ensure that the child understands the proceedings (s 12). The court may be asked to explain to the child any aspect of procedure or any ruling made, and must make sure that the child has the fullest opportunity to be heard and to participate. In practice, the court usually relies on the child’s solicitor to explain these matters to the child. When will the case be heard? Most cases are listed to start at 10am, but they cannot all be heard at the same time. Usually short matters (like requests for adjournments and simple guilty pleas) and matters involving children in custody are dealt with first. Sometimes people may have to wait until late afternoon before their case is heard. If there is any special reason for a case to be dealt with quickly (for example, the child may need to go to school, or the family may have young children or aged grandparents present), the child or their parents should tell their

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solicitor or the court officer, who will usually arrange to have the matter dealt with early.

Adjournments Cases are often adjourned. Reasons include: • giving the child a chance to get legal advice • allowing police to prepare a brief of evidence, if the child pleads not guilty or if the matter is likely to go to the District or Supreme Court (see Jurisdiction of the Children’s Court at [7.210]) • setting the matter down for a defended hearing (on a date when all relevant witnesses are able to attend) • allowing time for a background report to be prepared for sentencing, if the child has pleaded or been found guilty. During the adjournment the child may be: • remanded in custody (usually in a juvenile detention centre) • out on bail (with or without conditions) • at liberty without requiring bail.

Who can attend the Children's Court? The general public are excluded from Children’s Courts, and from any other courts hearing criminal proceedings involving a child. Section 10 of the Children (Criminal Proceedings) Act sets out who may be present in court. Family, friends and support people Parents and other support people may sit in the courtroom if the child wishes them to be present. If a young person does not wish their parent(s) or other adult present, their wishes should be respected. The child does not have an absolute say over who enters the courtroom – for example, a magistrate may allow a parent to be present despite the young person’s objection, or a magistrate may exclude people such as younger siblings and friends from the courtroom. Victims and their families Victims and their immediate family members or support people may be present in court while their matter is being dealt with.

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Lawyers and officials Lawyers, police prosecutors and juvenile justice officers are usually allowed to remain in court, even when not directly involved in the case being heard. The policy on this varies between courts. The media Media reporters are entitled to be in the courtroom unless the court says otherwise (s 10). Children’s matters can be reported in the media, but the name of any child involved (or any other material that would identify them) may not be published or broadcast (s 15A) without the consent of: • the child, if the child is 16 or over, or • the court, if the child is under 16. The court must also obtain the child’s consent if possible (s 15D). However, the name of a child convicted of a “serious children’s indictable offence” in the District or Supreme Courts may be published without the child’s consent if the court orders it (s 15C). The prohibition on publication of names and identifying details applies to witnesses and any other children involved in criminal proceedings, not just to a child defendant.

Going into court When the court is ready to deal with the child’s case, a court officer will usually call the child’s name outside the court. The child, preferably with a parent and/or other support people, goes into court. The court officer or the child’s lawyer tells the magistrate who is present.

[7.260] Pleas and hearings Entering a plea In most cases, the child will be required to enter a plea of either guilty or not guilty. There are some situations in which a plea does not need to be entered (see Diversionary options at [7.270]).

Pleading not guilty If a child pleads not guilty, the prosecution will have to prove the case against the child beyond reasonable doubt.

The hearing Where a plea of not guilty is entered, the matter will usually be adjourned for several weeks to allow the police to prepare and serve a brief of evidence. After the brief is served, the matter will be adjourned again for a hearing. The hearing date is when all relevant witnesses give their evidence and the magistrate reaches a finding of guilty or not guilty. The procedure is similar to the procedure for adults in a Local Court (see Chapter 14, Criminal Law). However, some special considerations may arise from the fact that the accused persons (and often many of the witnesses) are children. Doli incapax If the child is under 14, the principle of doli incapax (a Latin phrase meaning “incapable of wrong”) applies. As well as proving that the child did the alleged act, the prosecution must also satisfy the court that the child understood that their actions were “seriously wrong” as opposed to merely naughty. To demonstrate that the child was capable of understanding the criminality of their actions, the police will often call evidence from people such as school teachers who know the child and can comment on their level of maturity. Police may also rely on admissions made by the child, evidence of flight, and so on. Children giving evidence A child who is very young or has a developmental disability may not be competent to give sworn evidence. In this case, they may be able to give unsworn evidence if they are capable of understanding the difference between the truth and a lie, and that it is important to tell the truth (Evidence Act 1995 (NSW), s 13). Certain children may be entitled to give evidence by CCTV or to give part of their evidence by means of a recorded statement (see Giving evidence at [7.1060]). Parents giving evidence against children It is not uncommon in the Children’s Court for parents to be called as prosecution witnesses, to give evidence against their

7 Children and Young People

children. A parent may object to giving evidence against the child, and they may be excused from giving evidence if the magistrate is of the view that giving evidence may harm the relationship between the parent and the child (s 18). If the child is found guilty If the child is found guilty, the matter will proceed to sentencing in a similar way to dealing with a guilty plea (except the police do not hand up a fact sheet, because the magistrate has already heard the evidence and made findings about the facts).

Pleading guilty If the child pleads guilty and admits the facts alleged by the police, the charge can sometimes be finalised on the first court date. The usual order of events is described below. Entering the plea The magistrate asks whether the child will plead guilty or not guilty. This question is usually answered by the solicitor on the child’s behalf. The police fact sheet When a guilty plea is entered, the prosecutor hands up to the magistrate a document setting out the police version of the facts and surrounding circumstances of the offence. The child should already have been given a copy of this by the police, or shown a copy by their solicitor. A child who disagrees with anything in the fact sheet should tell their solicitor immediately. The child's record A Children’s Court magistrate may be told about police cautions and youth justice conferences (which will appear on the child’s court alternatives history) as well as offences that have been proved against the child in court. The police prosecutor will hand up a copy of the child’s criminal record and court alternatives history (if any).

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The child is entitled to look at the record to make sure it is correct. If the child disagrees with anything in it, they should say so immediately. Reports and references The child or their lawyer may hand up reports or references on the child’s behalf. In some cases. reports may be provided to the court from other sources (see below). Deciding whether to adjourn The magistrate will usually then decide whether the matter can be finalised immediately, or if it should be adjourned for any reason. If the child is a first offender, or the offence is not particularly serious, the matter is often finalised on this first occasion. Otherwise, the magistrate may adjourn the case to obtain a background report (see below), to enable the child to undertake some kind of program or just to prove that they can keep out of trouble for a time. Address by the child's solicitor After all reports have been obtained and read by the magistrate, the solicitor is asked whether they have anything to say on the child’s behalf. This is the opportunity to tell the magistrate if there are any mitigating factors; for example, that the child was led into the offence by older people, or is having difficulties at home or school, or has any relevant disabilities or health problems. Statement by the child or their parents The child or parents may be asked if they want to say anything directly to the magistrate. This can be an opportunity for the child to apologise and to demonstrate some remorse or insight into their behaviour. Sentence After considering all the material, the magistrate makes a decision about the sentence , and whether to record a conviction (see Options in the Children’s Court at [7.290]).

References and reports A child who pleads (or has been found) guilty should try to obtain references or reports from people they know

such as youth workers, school teachers, religious leaders, or other members of their local community.

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Children who intend to plead guilty and who are attending court for a first offence should try to obtain these references before the first court date, because their matter may be finalised on that date. It is usually not necessary for the referees to attend court to give evidence. Psychiatrists, psychologists and counsellors Sometimes, lawyers may decide to seek more detailed reports from psychiatrists, psychologists or counsellors. Juvenile justice officers For more serious or repeat offences, the court usually requests a background report from Juvenile Justice. Most

of these are provided by juvenile justice officers. Juvenile Justice also employs psychologists who provide reports at the request of the courts. The child need not be in custody for a psychological report to be prepared. Juvenile justice officers are located in all regions, and their services are available at most Children's Courts. For a full list of juvenile justice centres, see under Government bodies in Contact points at [7.1080]. Justice Health At some Children's Courts, mental health court liaison officers employed by Justice Health are available to assess and write reports on children who are thought to have mental health problems.

[7.270] Diversionary options

Coast, and will soon be expanded to the Central West, Coffs/Clarence, and New England regions. Eligible young people in these areas may be referred to the scheme directly by the police.

Depending on the child’s circumstances, they may be eligible for a diversionary option, sometimes without having to enter a plea. The availability of diversionary options varies from place to place, and may also change over time (for example, the Youth Drug and Alcohol Court was discontinued in 2012, the Youth Conduct Order scheme no longer operates, and there are programs such as Youth on Track and the Youth Koori Court available in some areas).

Young Offenders Act If the offence is covered by the Young Offenders Act (see [7.140]) and the child admits the offence, the Children’s Court may deliver a caution or refer the child to a youth justice conference under the Act. The child must admit the offence but does not have to formally enter a plea.

Youth on Track Youth on Track is a pilot program aimed at young people who do not have an extensive criminal history but who are at high risk of becoming entrenched in the juvenile justice system. It is aimed at children who have had their first contact with police before the age of 14, and who are vulnerable due to factors such as disability, mental health issues, abuse or neglect, homelessness or Aboriginality. Youth on Track aims to provide these children with services and support to reduce their risk of re-offending. The program is being run on a pilot basis in Blacktown, Newcastle and the Mid-North

Youth Koori Court The Youth Koori Court operates mainly at Parramatta Children’s Court. Its aim include reducing the risk of re-offending among Aboriginal and Torres Strait Islander young people, and increasing the Aboriginal and Torres Strait Islander community’s confidence in the criminal justice system. To be eligible, a young person must: • be an Aboriginal person or Torres Strait Islander • be charged with an offence that is capable of being finalised in the Children’s Court • be aged 10-17 at the time of the offence • have pleaded guilty to (or been found guilty of) the offence, and • be willing to participate. The Youth Koori Court has the same powers as the Children’s Court but is usually less formal and involves the Aboriginal community in the process. The program runs for up to six months and involves the development of an “Action and Support Plan”. The young person will be sentenced at the end of the program, and their participation will be taken into account. For more details see Youth Koori Court Fact Sheet at www.childrenscourt.justice. nsw.gov.au.

7 Children and Young People

Diversion for young people with mental health problems or intellectual disabilities Section 32 of the Mental Health (Forensic Provisions) Act provides a special procedure for a magistrate to deal with charges against a person with an intellectual disability, a mental illness or a mental condition for which treatment is available in a mental health facility. If the magistrate thinks it is more appropriate to deal with the matter in this way than according to law, he or she may dismiss the charges, usually on the condi-

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tion that the young person complies with a case plan or treatment plan for six months. Section 33 of the Act is similar to s 32 but applies to people with a mental illness who are in need of care, treatment or control for their own or others’ protection. Section 33 allows a magistrate to send a mentally ill person to hospital. A defendant does not have to enter a plea to be dealt with under s 32 or s 33. A s 32 or s 33 dismissal does not amount to a finding of guilty, nor is it equivalent to a finding of not guilty. See also Chapter 26, Health Law.

Sentencing children [7.280] Sentencing principles for young offenders The principles in s 6 of the Children (Criminal Proceedings) Act (see [7.215]) are especially important in sentencing children. Over the years, courts have emphasised that rehabilitation should generally be given greater weight than deterrence when dealing with young offenders. However, where young people engage in “grave adult behaviour” and commit very serious offences, the courts often see a need to impose heavy sentences to set an example.

[7.290] Options in the

Children's Court The sentencing options open to a magistrate in the Children’s Court following a plea or finding of guilty are set out in s 33(1) of the Children (Criminal Proceedings) Act. They are discussed below in increasing order of severity.

Dismissal, or dismissal with caution This is the best possible result. It means that no punishment is given, and there is no conviction. It is usually available only for relatively minor offences (s 33(1)(a)(i)).

Bond A child may be released on a good behavior bond for up to two years under: • s 33(1)(a)(ii), which means that no conviction is recorded, or • s 33(1)(b), which means that the court

may decide to record a conviction if the child is 16 or over. A child released on a bond must sign a document in which they promise to be of good behaviour (that is, commit no further offences) for the period of the bond. Bond conditions The court may, and often does, impose other conditions on the bond, such as: • that the child accept supervision by a Juvenile Justice Officer • that the child undertake a certain program (such as drug and alcohol rehabilitation) • that the child refrain from certain activities (such as drinking alcohol). Supervision Supervision as a bond condition is usually by a juvenile justice officer.

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If the child is aged 17 and a half or more, the court may order supervision by the adult Community Corrections (formerly known as Probation and Parole) Service.

If the child breaches the bond If the child commits further offences or does not keep the bond conditions, they may be brought to court and re-sentenced for the original offence. Application to vary the bond A bond or probation order may be terminated or varied on application to the court by the child, or by an authorised officer from Juvenile Justice (s 40). The period of an order may be reduced, but cannot be extended.

Fines

currently $110), whichever is the lesser, can be imposed (s 33(1)(c)). A fine may be imposed in combination with a bond or probation (s 33(1)(d), (e1)). The court must take into account the child’s capacity to pay, and the potential impact of a fine on the child’s rehabilitation. A fine is not normally imposed unless the child has some source of income (such as wages or social security). The court allows the child 28 days to pay the fine. A child who is unable to pay the fine within this time should ask the office of the court where the fine was imposed for an extension of time. Such requests are usually treated sympathetically. What happens if the child fails to pay the fine is discussed in Unpaid fines below.

A fine up to the maximum for the prescribed offence, or 10 penalty units (a penalty unit is Unpaid fines If a person fails to pay a fine, it is referred to State Debt Recovery (SDR) for enforcement action under the Fines Act.

Chapter 15, Debt). However, in practice, it is very difficult to pursue a child in this way.

A person who cannot pay a fine by the due date may apply for more time to pay. For vulnerable people there are other options including Work and Development Orders or applying to have fines written off. A young person should seek legal advice about these options. Referral to RMS State Debt Recovery can refer the matter to Roads and Maritime Services (RMS), which can suspend a fine defaulter's driver's licence or car registration, or stop them applying for a licence or registration, until the fine is paid. Driving while unlicensed or suspended is a serious offence that can lead to more fines and long periods of licence disqualification. The RMS cannot suspend or cancel a fine defaulter's licence in relation to non-traffic fines incurred when the person was under 18 (Fines Act, s 65(3)). However, it can still cancel the fine defaulter's vehicle registration, refuse to issue a licence, or refuse to engage in certain other dealings with the fine defaulter. The Fines Act does not stop the RMS from issuing proof of age cards.

State Debt Recovery can make a community service order if it is satisfied that:

Civil enforcement action State Debt Recovery can also try to recover the debt through civil enforcement such as repossession of property, garnishment of earnings, and so on (see

Community service orders

• civil enforcement has not been successful, or is unlikely to be successful, and • the child is capable of performing work under a community service order. It is very rare for SDR to make community service orders. Detention Adult fine defaulters can be imprisoned as a last resort after all other options have been exhausted. A person cannot be imprisoned because of fines incurred as a juvenile – unless they have defaulted on adult fines as well, in which case they may serve time in an adult prison for the lot (s 92). Work and Development Orders A Work and Development Order (WDO) is an option available to people who are affected by homelessness, mental illness, cognitive impairment, drug or alcohol dependency, or extreme financial hardship. A WDO allows a person to “work off” their fines by way of community work or participation in courses, counselling, rehabilitation and the like. Unlike a community service order, a WDO is not a last resort before imprisonment and can be applied for at any time.

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Referral to a youth justice conference

Community service orders

A magistrate can refer a young person to a youth justice conference as a sentencing option after they have pleaded or been found guilty (s 33(1)(c1)) (see Youth justice conferences at [7.190]). The young person must comply with the terms of the outcome plan developed at the conference, or return to court to be sentenced. Children are usually referred to conferences according to the provisions of the Young Offenders Act, and not as a sentencing option under s 33 of the Children (Criminal Proceedings) Act.

Community service orders can be imposed on children (s 33(1)(f)). The child does unpaid work for the benefit of the community, usually with a charity or community organisation. A community service order can now be imposed in combination with a probation order (s 33(1)(f1)). Procedures are set out in the Children (Community Service Orders) Act 1987.

Adjournment for rehabilitation purposes The court may order an adjournment for up to 12 months (s 33(1)(c2)). This is usually done in cases where the court is thinking of imposing a serious penalty but wants to give the child a chance to demonstrate rehabilitation. The adjournment will usually be subject to strict conditions such as participating in programs and not committing further offences. This option is sometimes referred to as a Griffiths remand. At the end of the adjournment, if the child complies with the conditions, they are likely to receive a less serious penalty than they otherwise would have done.

Probation Probation is like a bond, but it almost always carries a condition of supervision (s 33(1)(e)). It can now be imposed in combination with a community service order (s 33(1)(f1)). If the child does not meet probation conditions A child who does not keep the terms of the order may be taken back to court and dealt with for breach of probation, even if they have not committed any further criminal offence. Probation is a more serious punishment than a bond, so the consequences of a breach are usually more severe. Variation Like a bond, a probation order may be varied by the court on the application of the child or a juvenile justice officer.

When can community service orders be made? A community service order is the last resort before a control order (committal to a detention centre), and the court can only make one where a control order would otherwise be made (s 5). A Juvenile Justice background report is required, saying that the child is suitable and that work is available (s 9). Duration of orders The court can order: • up to 250 community service hours for young people aged 16 or over • up to 100 community service hours for children under 16 (s 13(2)). Administration of orders Orders are administered by juvenile justice officers.

Control orders A control order means that the child is sent to a detention centre run by Juvenile Justice (Children (Criminal Proceedings) Act, s 33(1)(g)). When a control order may be made A control order may not be made unless the court is satisfied that it would be wholly inappropriate to give a less severe penalty (s 33(2)), and it must record its reasons for the decision (s 35). A background report on the child is required before a control order can be made (s 25). The term of the order The term of the order must be specified. The Children’s Court can only sentence a child to such an order for a maximum of two years, and on consecutive orders up to a total of three years.

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If the sentence is longer than six months, it must be divided into non-parole and parole terms. Where the child will be sent There are a number of detention centres in Sydney and in other parts of NSW. It is up to Juvenile Justice to decide where the child is sent. Generally, this will depend on the child’s age, gender, seriousness of the offence, any security risk factors, and where the child’s family lives. In the detention centre, the child will either attend school or undertake other programs. Offenders aged 21 and over If the court imposes a control order on an offender who has already reached the age of 21, the sentence will be served in an adult prison. Transfer to adult prisons Juvenile offenders aged 16 or over may also be transferred to adult prisons in some circumstances (Children (Detention Centres) Act, ss 28, 28B, 28BA) (see Juvenile offenders and prison at [7.330]). Leave The child may be eligible for leave for such purposes as employment, education or family commitments (s 24(1)). Early release A child serving a control order may be eligible for early release even before the end of the fixed term or non-parole period (s 24(1)(c)). In practice early release is rarely, if ever, granted. Suspended sentences A control order may be suspended on condition that the child enters into a good behaviour bond (Children (Criminal Proceedings) Act, s 33(1B)). In this case the child does not go into detention immediately, but must serve the control order in custody if they breach any conditions or commit further offences during the term of the bond.

Other sentencing options Instead of sentencing a child under the Children (Criminal Proceedings) Act, other options available to the Children’s Court include: The Children (Protection and Parental Responsibility) Act This Act gives the Children’s Court an alternative to the Children (Criminal Proceedings) Act, allowing it to release the child on an undertaking to (s 8(1)): • submit to parental or other supervision • reside with a parent or other person • participate in a specified program or attend a specified activity centre, or • do such other thing as may be specified by the court. A child who fails to comply with the undertaking will be required to reappear before the court. The child may be released by the court, or an alternative penalty may be imposed. This sentencing option is very rarely used. The Mental Health (Forensic Provisions) Act The court may make an order under s 32 or s 33 of the Mental Health (Forensic Provisions) Act 1990 (NSW) if the child has a mental illness or intellectual disability (see Diversionary options at [7.270] and Chapter 26, Health Law). This is not strictly a sentencing option, as the child is not required to enter a plea to be dealt with under one of these sections. However, these orders may still be made after a plea or finding of guilt.

[7.300] Other orders in

addition to sentence In addition to the sentencing options described above, a range of other orders may be made, including:

Court costs and levies Court costs levy The Children’s Court (or Local Court, if dealing with a traffic offence) may impose a court costs levy on a child found guilty of an offence (Criminal Procedure Act, s 211A). At the time of writing this levy is $85.

7 Children and Young People

For adults, the levy is automatically imposed and cannot be waived, However, for children it can be waived. If the court imposes the levy at the time of sentencing, a child may later apply to the registrar of the court for the levy to be waived (s 211A(3)). Unpaid levies will be referred to SDR and dealt with in the same way as unpaid fines. Victims support levy For people found guilty of most types of offences, there is also a victims support levy (Victims Rights and Support Act 2013 (NSW), ss 105–108). As of 1 July 2016, the levy is $77 for matters dealt with by a Local or Children’s Court, or $172 for matters finalised in the District or Supreme Court. As with the court costs levy, this is compulsory for adults but may be waived for children. If it is not waived at the time of sentencing, the child may later apply to the court for it to be waived. Unpaid levies will be referred to SDR and dealt with in the same way as unpaid fines.

Compensation Payment to the victim The Children’s Court may require a child to pay compensation to the victim of an offence, for example, to cover the cost of replacing or repairing stolen or damaged property (Victims Rights and Support Act, ss 94, 97). The court must consider the child’s means and income Children (Criminal Proceedings) Act, s 24). The maximum the court may order is 10 penalty units for a child who is under 16 when the compensation order is made, or 20 penalty units for a child aged 16 or over (Children (Criminal Proceedings) Act, s 36). A penalty unit is currently $110. Victims' compensation restitution Under the Victims Rights and Support Act, the state government pays compensation to victims of violent offences (see Chapter 39, Victims Support). Part 5 of the Act allows NCAT’s Administrative and Equal Opportunity Division (formerly the Victims Compensation Tribunal) to take proceedings (restitution proceedings) to recover the amount from the offender. Restitution proceedings may be taken against a child who has been found guilty

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by a court (but not against a child who has been given a caution or diverted to a conference under the Young Offenders Act). Restitution proceedings often do not commence until several years after the offence. In the case of juvenile offenders, the tribunal usually waits till the person is 18 before commencing restitution proceedings. The fact that an offender was a child at the time of the offence does not affect their obligation to pay restitution, but may influence the tribunal to reduce the amount payable.

Apprehended Violence Orders If a child is found guilty of a personal violence offence, the court is usually required to make an apprehended violence order (AVO) for the protection of the victim (Crimes (Domestic and Personal Violence) Act 2007, s 39). AVO applications may also be made against children in the absence of a criminal charge. These applications are made in a similar way to AVO applications against adults, except that they are heard by the Children’s Court if the respondent is under 18 when the application is made (see Chapter 19, Domestic Violence). Instead of proceeding to a final AVO (as a Local Court usually would) the Children’s Court will often make an interim order and adjourn the proceedings for about 3-6 months. If there are no breaches of the interim order during this period, the AVO application will often be withdrawn and dismissed.

Non-association and place restriction orders A court that sentences a child for an offence carrying a maximum penalty of six months’ imprisonment or more (in practice, this includes most offences) may impose an order prohibiting contact or association with certain people, or entry to certain areas (Children (Criminal Proceedings) Act, s 33D). These orders cannot be used to prohibit a child from associating with close family members or from going to their own home, close family members’ homes, regular

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workplace, educational institution or place of worship, unless there are exceptional circumstances. Before making an order, the court must be satisfied that the order is reasonably necessary to ensure the offender does not commit further offences. The maximum duration of a non-association or place restriction order is 12 months. Breach of an order without reasonable excuse is an offence.

Driver licence disqualification See Children and traffic offences at [7.310].

[7.310] Children and traffic

offences Local Court jurisdiction Children charged with traffic offences will go to the Local Court unless: • they are too young to obtain a learner’s licence (the licensable age is 16 for cars, or 16 and nine months for motorcycles), or • they are charged with a related criminal offence (for example, stealing a motor vehicle) that is being dealt with in the Children’s Court.

Sentencing options available to the Local Court If the child pleads or is found guilty, the Local Court may choose from adult sentencing options or the sentencing options in s 33 of the Children (Criminal Proceedings) Act. However, a child may not be sentenced to adult imprisonment (Criminal Procedure Act, s 210).

Licence disqualification Many traffic offences carry automatic licence disqualification periods. These apply to children who are sentenced to adult penalties in the Local Court (unless the court decides to deal with the matter under s 10 of the Crimes (Sentencing Procedure) Act 1999 instead of recording a conviction). A Local or Children’s Court using children’s sentencing options (except for a dismissal or bond under s 33(1)(a)) may impose a licence disqualification (Children (Criminal Proceedings) Act, s 33(5)(a)).

[7.320] Sentencing in the

District Court and the Supreme Court Many of the provisions of the Children (Criminal Proceedings) Act also apply to the District and Supreme Courts when a person is committed for trial or sentence from the Children’s Court.

Serious children's indictable offences For serious children’s indictable offences the young person is dealt with according to law (s 17). This means that the full range of adult penalties is open to the court, including: • intensive correction orders (only if the child has turned 18 by the time of sentencing) • home detention (only if the child has turned 18 by the time of sentencing) • imprisonment.

Other indictable matters For other indictable matters, the court may deal with sentencing in one of three ways: • according to law (s 18(1)(a)) • by exercising the sentencing options and powers of the Children’s Court (s 18(1)(b)) • by remitting the person to the Children’s Court for sentence (s 20).

Sentence to a juvenile detention centre Where the court imposes a sentence of imprisonment it may, if the person is under 21, order that the whole or part of the sentence be served in a juvenile detention centre, at least until the age of 21. Such an order may only be made if the judge considers there are special circumstances arising from the child’s vulnerability or the lack of suitable programs in adult correctional centres (s 19). However, the judge’s decision may be over-ridden and the person may be transferred to an adult prison in the circumstances listed in [7.330].

7 Children and Young People

[7.330] Juvenile offenders and

prison Children on remand Children on remand (ie, children in custody awaiting trial or sentence) are usually held in juvenile detention centres. Detainees aged under 16 A child under 16 cannot be remanded in an adult prison under any circumstances. Detainees aged 16 or over Under s 28A of the Children (Detention Centres) Act, a child over 16 may be remanded in an adult prison if: • the child is charged with an indictable offence, or is already serving a sentence for an indictable offence and is charged with a detention centre offence (as defined by s 28C – for example, escape or assaulting a detention centre staff member), or another indictable offence, and • application is made to the court by the Secretary of the Department of Justice (Juvenile Justice and Corrective Services are both part of this Department) or the prosecuting agency, and • the court believes the child is not a suitable person for detention in a detention centre, and • the minister administering the Crimes (Administration of Sentences) Act 1999 (NSW) (the Minister for Corrective Services) consents (s 28F), and • the child not suitable for detention in a detention centre (assessed using the criteria in s 28E). Under s 28 of the same Act, a remand detainee aged 16 or 17 may be transferred to a “juvenile correctional centre” if he or she is on remand for: • a “serious children’s indictable offence”, or • a less serious offence and his or her behaviour is thought to warrant a transfer (ss 28(2), (2B)). A transfer under s 28 requires an order in writing from the Secretary of the Department of Justice, with the consent of the Commissioner of Corrective Services.

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A “juvenile correctional centre” is a highsecurity centre for juvenile offenders, run by Corrective Services. Until 2015, there was only one such centre, at Kariong on the Central Coast. Kariong is now used as an adult prison, and most high-security male detainees now go to Cobham Juvenile Justice Centre. Detainees aged 18-20 A remand detainee aged 18-20 may be transferred to a juvenile correctional centre or adult prison in a range of circumstances, including: • on behavioural grounds • if the detainee requests it in writing • if the transfer is authorised by the Children’s Court • if the detainee has been in a detention centre for at least six months and the Secretary thinks it would be “preferable” for the detainee to be in a correctional centre, or • if the detainee has previously been in an adult prison for a period of (or periods totalling) more than four weeks (s 28(2A)). A transfer under s 28 requires an order in writing from the Secretary of the Department of Justice, with the consent of the Commissioner of Corrective Services. Detainees aged 21 or over A detainee aged 21 or over may be transferred to an adult correctional centre simply by reason of their age, with an order in writing from the Secretary of the Department of Justice, with the consent of the Commissioner of Corrective Services (s 28).

Young people arrested on warrants A young person aged 21 and over, who is arrested on a warrant in relation to an offence allegedly committed as a juvenile, may not be detained in a detention centre but must be held in an adult prison (Children (Detention Centres) Act, s 9A(1)). A young person between the ages of 18 and 21, arrested on a warrant issued for breach of a court order (for example, a bond, probation or community service order) or for an alleged escape from custody, must also be detained in an adult prison (s 9A(2)).

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Children sentenced by the Children's Court An offender may not be sentenced to an adult prison by a Children’s Court unless he or she has already reached the age of 21 at the time of sentencing. However, some children serving control orders may be transferred to a prison or a juvenile correctional centre. Detainees aged 16 or over A detainee aged 16 or over serving a control order may be transferred from a detention centre to a juvenile correctional centre if, in the opinion of the Secretary of the Department of Justice, their behaviour warrants the transfer (s 28). Such a transfer requires an order in writing from the Secretary of the Department of Justice, with the consent of the Commissioner of Corrective Services. Detainees aged 18 or over A detainee aged 18 or over serving a control order may be transferred to a juvenile correctional centre or an adult prison if: • the detainee requests it in writing • the transfer is authorised by the Children’s Court • the detainee has been in a detention centre for at least six months and the Secretary of the Department of Justice thinks it would be “preferable” for the detainee to be in a correctional centre • the detainee has previously been in an adult prison for a period of (or periods totalling) more than four weeks, or • in the opinion of the Secretary, their behaviour warrants the transfer (Children (Detention Centres) Act, s 28). Such a transfer requires an order in writing from the Secretary of the Department of Justice, with the consent of the Commissioner of Corrective Services. Detainees aged 16 or over who commit further offences The Children’s Court may order that a child be committed to a prison (s 28B) if: • the child is 16 or older, and • the child is serving a control order for an indictable offence, and receives a further

control order for certain types of offences committed in the detention centre, and • an application is made to the court by the police or the Secretary of the Department of Justice, and • the court decides that the child is not a suitable person to be in a detention centre, and • the minister administering the Crimes (Administration of Sentences) Act 1999 (the Minister for Corrective Services) consents (s 28F). Detainees aged 18 or over who commit further offences A young person serving a control order will be required to serve the balance of their term in an adult prison if: • they have turned 18, and • they have committed an offence such as assaulting an officer in the detention centre (s 28BA). Detainees aged 21 or over sentenced to control orders If a young person is sentenced to a control order, and is 21 or over at the time of sentencing, the control order is deemed to be a sentence of imprisonment and must be served in an adult correctional centre (Children (Criminal Proceedings) Act, s 33(1)(g)(ii) and s 33(1C)).

Children sentenced according to law A young person serving a sentence of imprisonment must be transferred to an adult prison on turning 21, unless the fixed term or non-parole period is due to expire within six months (s 19(2)). A child serving a sentence of imprisonment for a serious children’s indictable offence will be transferred to an adult prison on turning 18, unless: • the fixed term or non-parole period is due to expire within six months, or • the sentencing court decides there are special circumstances (for example, vulnerability) justifying the person’s detention in a detention centre (s 19(3)). However, even if a court makes an order under s 19(3), this can be overridden by an order made by the Secretary of the Depart-

7 Children and Young People

ment of Justice under s 28 of the Children (Detention Centres) Act. A detainee who has been sentenced according to law may be transferred to a juvenile correctional centre (if aged 16 or over) or to an adult prison (if aged 18 or over).

Requirements applying to transfers under s 28 of the Children (Detention Centres) Act As discussed above, s 28 of the Children (Detention Centres) Act gives the Secretary of the Department of Justice a very broad power to transfer detainees from detention centres to correctional centres. In many situations (for example, if the detainee has been sentenced according to

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law), s 28 allows a transfer to be made without any specific reason. However, a Supreme Court decision (ID, PF and DV v Director-General, Department of Juvenile Justice [2008] NSWSC 966) suggests that a detainee being transferred under s 28 is entitled to procedural fairness (that is, to be given reasons and the right to have a say) before the transfer is made.

Transfer of adult prisoners to juvenile detention centres Where the Minister for Corrective Services and the Minister for Juvenile Justice agree, a prisoner under 21 may be transferred from a prison to a detention centre (Children (Detention Centres) Act, s 10).

Appeals [7.340] Appeal to District

Hearing of appeal

Notice of the appeal must be given within 28 days of the matter being finalised in the Children’s Court. Leave to appeal may be obtained from the District Court if the 28-day period has expired, as long as the application is made within three months. Leave to appeal out of time is more likely to be given to children than to adults.

The District Court deals with an appeal on its merits, that is, the judge does not need to find that the Children’s Court magistrate made an error of law. When hearing an appeal against sentence, the judge will read the material that was tendered in the Children’s Court (for example, police facts, criminal history, background report) and will usually accept further evidence and information from the child. The District Court has power to increase the sentence, but must warn the child before doing so (this is known as a “Parker warning”). The child may then seek (and will usually be granted) leave to withdraw the appeal. An appeal against conviction is usually dealt with by reading the transcript of evidence given in the Children’s Court. New evidence may be given with the leave of the court, if the court is of the view that it is in the interests of justice.

Appeal bail

Legal representation

A child who is appealing against a control order may apply for bail pending their appeal.

Legal aid for appeals is subject to a merits test. This means that aid will not be granted unless the appeal has a reasonable chance of success. Children are more likely to pass the merits test than adults, especially if they are

Court Any child may appeal to the District Court against a conviction or sentence imposed by the Children’s Court (Crimes (Appeal and Review) Act 2001 (NSW), s 11).

Grounds of appeal An appeal may be made against a finding of guilt, against the severity of a sentence, or both.

Time limits

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appealing against a custodial sentence (see also Chapter 14, Criminal Law).

[7.350] Appeal to Supreme

Court Instead of appealing to the District Court, a child may appeal to the Supreme Court on an issue of law. Appeals to the Supreme Court from the Children’s Court are rare.

[7.360] Appeal to Court of

Criminal Appeal A child who is convicted or sentenced by the District or Supreme Courts may appeal to the Court of Criminal Appeal. The child will need to show that the court’s decision was based on an error of law.

Convictions and criminal records [7.370] When no conviction

can be recorded The Children’s Court has no power to record a conviction against a child under 16 (Children (Criminal Proceedings) Act, s 14(1)). This means that the Children’s Court can find a child guilty and impose any penalty, including the most severe, without the lasting stain of a conviction or criminal record that could affect the person for the rest of their life; for example, in employment, entry to certain professions, and visas for certain countries.

[7.380] Discretion to record a

conviction The Children’s Court (or the Local Court, if dealing with a traffic offence) has a discretion to record a conviction against a child aged 16 or over. The Supreme or District Court may record a conviction against a child of any age (s 14).

What the courts consider The Act does not set out a list of matters to be taken into account by the court in deciding whether or not to record a conviction. However, in practice, the court is likely to consider factors such as: • the child’s age • the child’s mental health or intellectual capacity • whether the child has been dealt with before by a court or under the Young Offenders Act

• the seriousness or otherwise of the offence • the particular circumstances of the offence (for example, others may have been more to blame) • mitigating factors such as an apology to, or offer to compensate, the victim.

[7.390] Spent convictions There is a commonly-held, but incorrect, belief that any convictions recorded against a child automatically disappear when the child turns 18. Convictions can become spent after a period of time, which means that (for most purposes) they no longer form part of the person’s criminal record.

When Children's Court convictions become spent Children’s Court convictions will generally be spent after a three-year crime-free period (Criminal Records Act 1991 (NSW), s 10). This means that, for at least three years after the date of conviction, the child has not been: • subject to a control order • convicted of an offence punishable by imprisonment • in prison because of a conviction for any offence, or • unlawfully at large.

When convictions of other courts become spent A child who has been convicted by the Local Court (for a traffic offence), District Court or Supreme Court will have their conviction spent after a 10-year crime-free period.

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Matters where no conviction was recorded There is some inconsistency between the Children (Criminal Proceedings) Act and the Criminal Records Act. In some cases, the Criminal Records Act deems a conviction to have been recorded even if the court has not recorded a conviction.

Convictions that cannot become spent Some convictions never become spent. The main examples are: • sexual offences • offences for which the sentence was more

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than six months’ imprisonment (this does not include a control order) (s 7).

Disclosure requirements If a conviction is spent (or there is a finding of guilt but no conviction recorded), the young person does not normally have to disclose it to anyone, including an employer (s 12). There are exceptions for employment in certain occupations (s 15), including law, policing, childcare and firefighting. Exceptions also apply to applicants for certain types of licences, such as those relating to security and firearms.

Disclosing other people's spent convictions It is an offence for a person who has access to records regarding spent convictions to disclose to any other person information about the spent conviction.

There are some exceptions to this rule which relate to law enforcement agencies and others (Criminal Records Act, ss 13, 14).

Spent convictions and sentencing

• no conviction was recorded, and • the offender has not been punished by a court for any other offence for at least two years before the adult court proceedings (Children (Criminal Proceedings) Act, s 15).

Courts may still take into account spent convictions (and even matters where there was a finding of guilt but no conviction recorded) when sentencing someone for later offences. However, an adult court cannot take a Children’s Court matter into account if:

Care and protection of children and young people [7.400]

According to the United Nations Convention on the Rights of the Child, every child (person under 18) has the right to protection from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parents, legal guardians or any other person who has care of the child. The convention also sets out that the child has the following rights in relation to decisions or actions designed to protect them:

• the best interests of the child must be a primary consideration. • the child has a right not to be subjected to arbitrary or unlawful interference in their privacy, family, home or correspondence, or unlawful attacks on their honour or reputation. • the child has a right not to be separated from their parents against their will except when competent authorities, subject to judicial review, determine, in accordance with applicable law and procedure, that it is necessary in the child’s best interests.

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• a child separated from parents has the right to maintain their identity, personal relationships and direct contact with their family, except where this is contrary to their best interests. • a child capable of forming their own views has a right to express those views

freely in all matters concerning the child, and to have them given due weight according to the child’s age and maturity. In particular the child is entitled to be heard in any judicial or administrative proceedings concerning them.

Protection of children in NSW In NSW, the Department of Family and Community Services (FACS) protects children from abuse or neglect within the family. FACS is authorised to provide assistance to families so as to prevent abuse or neglect, and to intervene where a child is in need of care and protection. Such intervention can range from providing family support and other preventative services, such as respite child care, to the action of removing children from their families and taking police action against the perpetrators of abuse.

The police also have a role in ensuring the protection of children and young people from abuse and neglect, by investigating allegations of child abuse or neglect that involve criminal conduct, in bringing criminal proceedings against perpetrators of abuse or severe neglect and in applying for AVOs for the protection of children and young people.

Children and young people in need [7.410] Legislation The Children and Young Persons (Care and Protection) Act 1998 (the Act) governs the work of FACS to protect vulnerable children and young people from harm and abuse.

Principles guiding decisions under the Act The Act sets out principles and objectives that are to guide decision making by FACS and the Children’s Court (ss 8, 9). In any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are to be paramount.

ing care and protection issues and avoiding court proceedings wherever possible, although this aspect has not been used extensively (s 37). Indigenous people The Act contains principles to be applied where a child or young person is an Aboriginal person or Torres Strait Islander. These principles provide for inclusion in decision-making, and set out the order of preferred placements where the child or young person must be placed in out-ofhome care (s 13). Terminology

Participation in decision-making The Act emphasises the importance of the child or young person's participation in all decisions made by FACS that will have a significant impact on their life. FACS is required to provide the child or young person with adequate information concerning the decisions to be made, and to facilitate the child or young person's participation in those decisions (s 10).

The Act encourages the use of alternative dispute resolution (ADR) as a way of resolv-

Children and young people The Act defines a child as someone under 16 and a young person as someone aged 16 or 17. “In need of care and protection” A child or young person “in need of care and protection” is essentially one who requires some kind of intervention in their family due to an assessment by FACS of risk of significant harm to the child or young person.

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[7.420] Children and young

people at risk What is “risk of significant harm”? Under s 23, children or young people may be at risk of significant harm if there are current concerns for their safety, welfare or wellbeing because one of the following circumstances is present to a significant extent: • their basic physical, psychological, medical or educational needs are not being met or are at risk of not being met • they have been, or are at risk of being, physically or sexually abused or ill-treated • they are living in a situation of domestic violence and are at risk of serious physical or psychological harm • a parent or caregiver has behaved in such a way towards them that they have suffered, or are at risk of suffering, serious psychological harm • they were the subject of a prenatal report to FACS and the mother subsequently did not engage with support services to eliminate or minimise the risks to them.

Seeking help from FACS A child or young person may seek help from FACS for any reason (ss 20, 113). A parent may also seek assistance, specifically: • to obtain services that would enable the child or young person to remain in or return to their home (s 21) • where there is serious and persistent conflict between the parents and the child or young person to such an extent that the child or young person’s safety, welfare and wellbeing are in jeopardy (s 113) • where the parents are unable to provide adequate supervision for the child or young person, such that their safety, welfare and wellbeing are in jeopardy (s 113). The child or young person need not meet the definition of “at risk of significant harm” for assistance to be sought by them or by a parent.

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What FACS may do after receiving a request for assistance If it is asked for help, FACS must provide whatever assistance or referrals to services it considers necessary to safeguard or promote the safety, welfare or wellbeing of the child or young person (s 22). It may choose not to provide assistance if it is not considered necessary. If the request relates to serious or persistent conflict between a parent and a child or young person, FACS may provide such advice or assistance as is necessary to: • resolve the conflict • ensure that the child or young person is adequately supervised, or • enable the family to have access to appropriate services (s 113). However, if FACS considers that any request for assistance from a child or young person or from a parent gives rise to concerns that the child or young person is at risk of significant harm, it may treat the request as a report (see below).

[7.430] Reporting a child or

young person at risk of significant harm Anyone who has reasonable grounds to suspect that a child or young person is at risk of significant harm may make a report to FACS (s 24). Unborn children A report may also be made about an unborn child who may be at risk of significant harm after birth (ss 23(f), 25).

How to report or seek help A phone call, which may be made anonymously to the FACS helpline, is sufficient to make a report to FACS about a child or young person (s 26). Under the Act, reports are treated confidentially, and a person who reports concerns that a child or young person is at risk of significant harm is protected from actions such as defamation or breach of professional ethics (s 29).

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The helpline is also the first port of call for a parent, child or young person who is seeking help from FACS.

Mandatory reporting The Act provides that some people must make a report to FACS if, during the course of their work, they become aware of a person under 16 who they suspect is at risk of significant harm. Who must report? The mandatory reporting requirement is broader than that under the previous Act. It extends to all paid workers who deliver to children, or are responsible for delivering to children: • health care • welfare services • education • children’s services • residential services • law enforcement (s 27). Reporting children away from home Anyone who provides accommodation for a child who they believe, on reasonable grounds, to be under 16 and living away from home without parental permission is required to report the child's whereabouts to FACS (s 122).

Reports where the circumstances do not meet the threshold of “risk of significant harm” Once a report is made, FACS must make whatever further investigation and assessments it considers necessary to determine whether a child or young person is at risk of significant harm. It may decide not to investigate a report if it considers there is insufficient reason to believe, on the basis of the information contained in it, that this is the case. If the allegations in the report include potentially criminal conduct, the police may be involved in investigation of the report through joint investigation and review teams. If FACS is satisfied after its investigation and assessment that the child or young person is in need of care and protection, it can do one or more of the following:

• take no action if it considers that there are proper arrangements for the care and protection of the child, and that the concerns that led to the report are being adequately addressed • arrange for support services to be provided to the family • make an arrangement with the parents for the child or young person to be placed in the temporary care of FACS • develop a care plan with the family to meet the needs of the child or young person • develop a parental responsibility contract with the primary caregivers of the child or young person • remove the child or young person from their family • make a care application to the Children’s Court.

[7.440] What FACS may do

after receiving a report The Act provides flexibility in the options available to FACS in responding to children and young people at risk of significant harm and/or in need of care and protection. Once a report is made, FACS must make whatever further investigation and assessments it considers necessary to determine whether a child or young person is indeed at risk of significant harm. It may decide not to investigate a report if it considers there is insufficient reason to believe, on the basis of the information contained in it, that this is the case. If the allegations in the report include potentially criminal conduct, the police may be involved in investigation of the report through joint investigation and review teams. If FACS is satisfied after its investigation and assessment that the child or young person is in need of care and protection, it can do one or more of the following: • take no action if it considers that there are proper arrangements for the care and protection of the child, and that the concerns that led to the report are being adequately addressed • arrange for support services to be provided to the family

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• make an arrangement with the parents for the child or young person to be placed in the temporary care of FACS • develop an agreed care plan with the family to meet the needs of the child or young person • develop a parental responsibility contract with the primary caregivers of the child or young person • remove the child or young person from their family • make a care application to the Children’s Court. Action by police If the police are involved in the investigation through a joint investigation and review team, or if FACS refers a

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matter to them during or after the investigation or assessment process, they may take additional or alternative actions, including laying charges against the adult or seeking an AVO on behalf of the child or young person.

Requirement to consider dispute resolution When responding to a report FACS is to consider using dispute resolution services to seek early resolution of the issues and to reduce the likelihood that an application for care of the child to the Children’s Court will be needed. If an application for care orders is to be made, FACS is to work towards making of consent orders that are in the best interests of the child or young person (s 37).

Principles to be applied when responding to a report When deciding the appropriate response to a report, FACS must apply the following principles: • the immediate safety, welfare and wellbeing of the child or young person, and of other children or young persons in that person's usual residential setting, must be given paramount consideration • any action must be appropriate to the age of the child or young person, any disability they or their

[7.450] Temporary care

arrangements The Director-General of FACS may make a temporary care arrangement for a child or young person who is, in the DirectorGeneral’s opinion, in need of care and protection. Such an arrangement can only be made with a parent’s consent, unless the parents cannot be reasonably located, and must include a restoration plan (s 151). Temporary care arrangements cannot be for more than three months, though they can be extended by FACS for one additional three-month period. A temporary care arrangement cannot be made for a child or young person who has been the subject of temporary care arrangements for more than six months in the previous 12 months.

family members have, and the circumstances, language, religion and cultural background of the family • removal of the child or young person from their usual caregiver may occur only where it is necessary to protect the child or young person from the risk of serious harm (s 36).

Termination of temporary care arrangements A temporary care arrangement can be terminated by FACS at any time if it believes that the child or young person is no longer in need of care and protection. It can also be terminated by the parent who made the arrangement. However, if a parent terminates a temporary care arrangement and FACS believes that the child or young person is still in need of care and protection, FACS will make a care application to the Children’s Court and seek care orders that would permit it to retain the child or young person away from the parent.

[7.460] Agreed care plans A care plan sets out the steps that will be taken by the family to resolve FACS’ concerns about the child or young person. It may:

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• set out the support services that will be sought by and/or provided to the family, and/or • reallocate parental responsibility to someone other than a parent.

Registering the plan Care plans can be registered with the Children’s Court and used as evidence that alternative actions have been attempted if a subsequent application is made to the Children’s Court for a care order (s 38). However, registration has no legal effect.

Care orders by consent If a care plan reallocates parental responsibility (or some aspect of parental responsibility) to a person other than a parent, or if it is intended that aspects of the care plan are to have legal effect, consent orders must be sought from the Children’s Court that give effect to those aspects of the plan (s 38). The Children’s Court will only grant the order if it is satisfied that: • the order will not contravene the principles of the Act • the parties to the care plan understand its provisions and have freely entered into it • each party to the plan who is affected by the consent orders has received independent advice concerning the provisions of the plan that the proposed order will give effect to.

[7.470] Parental responsibility

contracts A parental responsibility contract is an agreement between FACS and one or more people who are the primary caregivers for a child or young person (whether or not that person is their parent) that contains provisions aimed at improving the primary caregivers’ parenting skills and encouraging them to accept greater responsibility for the child or young person (s 38A). It has serious consequences for the adult, and ultimately for the child or young person, if it is entered into and subsequently breached.

Registering the contract A parental responsibility contract must be registered with the Children’s Court and

takes effect only upon registration (s 38F). Its term of operation cannot be more than 12 months from the date of registration (s 38A(2)).

What can be in the contract A parent responsibility contract may include, but is not limited to, requirements that the primary caregiver: • attend alcohol, drug or other substance abuse treatment during the term of the contract • attend counselling • undergo alcohol or drug testing • permit information about the contract (including compliance with the contract) to be shared between agencies involved in implementing it • participate in courses aimed at improving their parenting skills (including, for example, courses relating to behavioural management and financial management). It may also include provisions regarding how and when FACS will monitor the primary caregiver’s compliance with the terms of the contract. What cannot be in the contract The contract cannot include placement of the child or young person in out-of-home care or re-allocation of parental responsibility for them. If they require out-of-home care or reallocation of parental responsibility, other action must be taken.

If the contract is alleged to have been breached A parental responsibility contract must set out the circumstances in which a breach may result in FACS filing a contract breach notice in the Children’s Court. If the primary caregiver breaches a term of the contract under the specified circumstances, FACS may (not “must”) file such a notice. A contract breach notice is a care application. It must specify: • the terms of the contract alleged to have been breached • how the primary caregiver is alleged to have breached them • the care orders sought in regard to the child or young person.

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In the care proceedings that ensue, the Children’s Court must presume that the child or young person concerned is in need of care and protection. That presumption may be rebutted by a party to the proceedings (s 38E). It does not appear that there is any requirement for the Children’s Court to determine in these circumstances whether or not there was in fact a breach of the relevant term of the contract.

[7.480] Removing a child or

young person From home A child or young person can be removed from their family under the Act in a number of different ways, depending on the circumstances: • FACS or the police may obtain a warrant to search for and remove children or young people believed to be at risk of serious harm (s 233) • if FACS or the police believe that a child or young person is at immediate risk of serious harm and that an AVO would be insufficient to protect them, they may remove them from the place of risk without a warrant (s 43(1)) • FACS may assume the care of a child or young person who is at risk of serious harm but is currently in a safe location (for example, they are in hospital) (s 44) • on the making of a care application, the

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Children’s Court may order the removal of a child or young person if they have not already been removed.

From involvement in prostitution or pornography If FACS or the police suspect that a child or young person is in need of care and protection and that the child or young person either is or has recently been: • on premises where it is suspected that acts of child prostitution take place or where persons are used for pornographic purposes, or • participating in child prostitution or been used for pornographic purposes the child or young person can be removed from the place where such activities are occurring or any adjacent place (s 43(3)). There is no need for FACS or the police officer to seek a warrant or to believe that the child or young person is at immediate risk of serious harm to remove a child or young person in this situation.

From a public place FACS officers and police can remove a child or young person from any public place if they suspect on reasonable grounds that the child or young person: • is in need of care and protection, and • is not under the supervision or control of a responsible adult, and • is living in or habitually frequenting a public place (s 43(2)).

Effect of removal FACS has care responsibility (see below) for children and young people removed in any of the circumstances described above (s 49). A child or young person removed by a police officer must not be held in police cells while awaiting place-

ment in FACS' care. A child or young person who is in the care responsibility of FACS after a removal (or under the parental responsibility of the minister after a court hearing) cannot be accommodated or held in police cells or detention centres.

Information to be given on removal

• their name and the nature of their authority • why the child or young person is being removed • the fact that the law authorises them to remove the child or young person

At the time of the removal, the person removing the child or young person must advise the child (if over ten) or young person, and anyone who is present and appears to have care responsibility for the child or young person, of:

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• what is likely to happen in relation to the care and protection of the child or young person as a consequence of their being removed (s 234). Care responsibility Care responsibility is defined in s 157. It is essentially the power to make decisions about the day-to-day care and control of a child or young person, including decisions about: • minor medical or dental treatment not involving surgery • emergency medical or dental treatment • permission to participate in activities • correcting and managing behaviour.

Information to be given after removal Once a child or young person is in the care responsibility of FACS, FACS must inform the parents and the child (if over ten) or young person how to apply for discharge from FACS’ care (s 51(1)). FACS must also advise the parents of the child or young person’s whereabouts. If FACS believes that full disclosure would be prejudicial to the safety, welfare or wellbeing of the child or young person, it may disclose only information that is not high level identification information. “High level identification information” High level identification information about a child or young person in the care responsibility of FACS may only be disclosed to a parent by order of a Children's Court.

It includes: • the family names of the foster carers and any other person living in their household • the foster carers' street address and locality • the foster carers' telephone number • details of the foster carers' employment or activities that would be sufficient to identify them • the name of the school that the child or young person is attending.

Following removal FACS may discharge a child or young person from its care responsibility (ie, return them to their family) at any time after a removal (s 50). A Children’s Court order must be sought if FACS does not want to return the child or young person to their parents after an emergency removal (s 45(1)). The application must be made no later than three working days after the removal. FACS need not seek an order if it considers that no order is necessary, because, for example: • the child or young person is returned to the care of a parent • a temporary care arrangement is signed by a parent, or • a care plan is made and consent orders sought. However, if no order is sought by three working days following a removal, FACS must explain to the court at the first available opportunity why no care application was made (s 45(3)).

Legal advice and assistance If a child or young person is removed from their family, the parents or any other person with a significant interest in their welfare should contact FACS immediately and seek information on: • the reasons for the removal • the actions that may be taken to effect the child or young person's return, and/or • the likelihood of a care application being made to a Children's Court.

They may also seek legal advice. Free legal advice is available from community legal centres, the Legal Aid Commission and other specialist legal services. Children and young people may also seek legal assistance following a removal. However, if an application is made to the Children's Court for a care order following a removal, a solicitor will be automatically appointed to represent the child or young person and to provide legal assistance or advice in the course of the proceedings.

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Care applications to the Children's Court [7.490] Types of care

applications For emergency care and protection orders An emergency care and protection order places a child or young person in the care responsibility of FACS (s 46). It lasts for up to 14 days, and may be extended once only, by order of the Children’s Court, for an additional period of up to 14 days. An emergency care and protection order may only be made if the court is satisfied that the child or young person is at risk of serious harm. It is a final order, and may be appealed. FACS typically applies for emergency care and protection orders when it has removed a child or young person without a warrant and requires more time to conduct its investigation before deciding whether an application should be made for a final care order or whether other actions are appropriate, such as returning the child or young person to the family, providing support services, making a temporary care arrangement or reaching agreement on a care plan and consent orders.

For assessment orders An assessment order permits: • the physical, psychological, psychiatric or medical examination and assessment of a child or young person (s 53), or • an assessment of the parenting capacity of a person with, or who is seeking, parental responsibility for a child or young person (s 54). Any party to care proceedings may apply for an assessment order, but FACS may also apply for an assessment order even if there are no care proceedings on foot. In practice, applications for assessment orders are usually made only in conjunction with or in the course of ongoing care proceedings.

The Children's Court Clinic Assessments made under assessment orders must be carried out by the Children's Court Clinic, unless it is unwilling or unable to do so. The clinic does not usually undertake physical or medical assessments.

Right to refuse assessment A child or young person may refuse to submit to the examination or assessment if they have enough understanding to make an informed decision (s 53(4)). An assessment of a person’s parental capacity can only take place with the person’s consent (s 54(2)), although it is possible that an adverse inference could be drawn by the Children’s Court if the person refuses.

For final care orders Applications for final care orders include applications for any of the following: • orders accepting undertakings • orders for provision of support services • orders for supervision • orders allocating parental responsibility, or one or more aspects of parental responsibility, to: – the Minister for Family and Community Services, or – one parent rather than the other, or – one or both parents jointly with the Minister for Family and Community Services, or – any other suitable persons. Applications for final care orders are discussed in more detail in Court proceedings at [7.510] and Final care orders [7.540].

[7.500] Formal requirements Information that must be in the application A care application must be accompanied by a written report succinctly summarising the information available to FACS, sufficient to support a determination that the child or

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young person is in need of care and protection (see Children’s Court Practice Note No 2). If an application is made for an emergency care and protection order it must be accompanied by an affidavit (Children’s Court Rule 2000, r 22) If the application is for final care orders, FACS must set out: • the support and assistance provided for the safety, welfare and wellbeing of the child or young person • the alternatives to seeking care orders that it has considered, and • why those alternatives were rejected (s 63).

Who must be notified FACS must: • notify the child or young person about the application in a way they can understand • make reasonable efforts to notify the parents and serve them with a copy of the application and supporting documents (s 64). However, the Children’s Court may order that: • a child or young person not be notified of the care application • a parent not show a care application to, or discuss it with, their child (ie, whether that child or young person is the subject of the application or not), or • a particular parent not be served with the care application and/or supporting documents.

[7.510] Court proceedings The conduct of proceedings Under s 93, care proceedings should be conducted with as little formality and legal technicality as possible. The Children’s Court is not bound by the rules of evidence unless it decides to apply them in a given case. Proceedings are “not to be conducted in an adversarial manner”, although this provision appears to be aimed at minimising open hostility between the parties rather than changing the general structure of court proceedings.

In any proceedings before the Children’s Court, the standard of proof is “on the balance of probabilities”, and if the court must be “satisfied” as to something, it must be satisfied on the balance of probabilities.

Who can appear in court? Under s 98, in any proceedings that relate to a child or young person, the following have a right to appear before the court: • the child or young person • each person with parental responsibility • FACS • the Minister for Family and Community Services. The court has a discretion to allow other interested people to appear in the proceedings (ie, become a party to the proceedings) if they have a genuine concern for the safety, welfare and wellbeing of the child or young person. A person granted leave to appear in these circumstances may be restricted to appearing as a party in respect of only certain aspects of the case.

Participation by the child or young person Generally, children and young people participate in care proceedings through their independent or direct legal representatives (see Legal representation for the child or young person below). While the Children’s Court must take reasonable steps to ensure that the child or young person understands the proceedings and has the fullest opportunity practicable to be heard and to participate (s 95), it generally does this by appointing the legal representative for the child (Practice Direction 24, cl 11). At the request of the child or young person, or of anyone on their behalf, the Children’s Court must explain to them directly any aspect of the court’s procedure or any ruling or decision of the court (s 95(2)).

Attendance at court If a parent does not attend The court may proceed to hear and determine a care application in the absence of a parent if the parent has been given notice of the application but fails to attend (s 97).

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Compelled attendance The court may, on its own initiative or at the request of a party to the proceedings, require the child or young person, or a parent, to attend the courthouse (s 96(1)). In doing so the court must take into account any wishes of the child or young person not to attend (s 96(2)). The court may also require the attendance of: • anyone else who has, or has had, care responsibility for the child or young person, or • if the whereabouts of the child or young person are unknown, any person the Children’s Court has reasonable cause to believe knows, or has information about, their whereabouts (s 96(1)). The court issues a care proceedings attendance notice to the person required to attend. If a person fails to attend the court after receiving such a notice, the court may issue an arrest warrant to compel attendance (s 109B). Compelled absence The court may require a child or young person to leave the court at any time if it considers that the prejudicial effect to them of making such a direction is outweighed by the psychological harm they are likely to suffer if they remain present (s 104). The court may require any other person who is present when the proceedings are heard to leave the court if the interests of the child or young person so require, even if that person is directly interested in the proceedings (for example, the person may be a parent or other adult who is a party to the proceedings) (s 104A). Evidence from children and young people Children and young people cannot be compelled to give evidence in care proceedings (s 96(3)).

Legal representation for the child or young person In care proceedings in the Children’s Court, children and young people are represented by a solicitor, provided or paid for by Legal

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Aid NSW, who acts as either an independent legal representative or a direct legal representative, depending on the circumstances. Independent legal representatives The solicitor must act as an independent legal representative if: • the child or young person is not capable of giving the solicitor proper instructions, or • a guardian ad litem is appointed for the child or young person (s 99A). Children under 12 are presumed to be not capable of giving proper instructions. However, this presumption can be rebutted, and the legal representative for a child under 12 may make an application for a declaration that the child is capable of giving proper instructions and that the solicitor must act as a direct legal representative (s 99B). Independent legal representatives assess and then act in the child or young person’s best interest. The representative should interview the child or young person and present their wishes to the court, but is not bound to act in accordance with those wishes. Direct legal representatives The solicitor must act as a direct legal representative if: • the child or young person is capable of giving proper instructions, and • no guardian ad litem (see below) is appointed for the child or young person (s 99A). Children aged 12 and over, and young people, are presumed capable of giving proper instructions. However, this presumption can be rebutted and the legal representative for a child aged 12 or over or for a young person may make an application for a declaration that the child is not capable of giving proper instructions and that the solicitor must act as an independent legal representative (s 99C). The presumption of capacity to give proper instructions is not rebutted merely because the child or young person has a disability.

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A direct legal representative must act on the instructions of the child or young person. Guardians ad litem In special circumstances (such as the child or young person having special needs due to age, disability or illness), the Children's Court may appoint an adult called a guardian ad litem to instruct the legal representative on their behalf (s 100). Guardians ad litem may also be appointed for parents in some circumstances, such as where the parent has an intellectual disability or mental illness and is incapable of giving proper instructions to their legal representative (s 101). The role of a guardian ad litem is to safeguard and represent the best interests of the person for whom they are appointed, and to instruct the legal representative on behalf of that person.

Legal representation for parents and other adults Parents and other adults who are parties to care proceedings are entitled to either appear in person, or be legally represented. They may also appear by an agent who is not a legal representative, with the leave of the court (s 98).

Legal aid Legal aid is available to: • all children who are the subject of care proceedings • parents in applications for emergency care and protection orders (s 45 of the Act) subject to a means test only • parents in applications for all other care applications, subject to both a means and a merits test (though Legal Aid NSW has issued guidelines for the interpretation of the merits test when it is applied to parents who are respondents to a s 61 application for final care orders) • other adults who have been made party to the proceedings, subject to both a means and a merits test. If the application is for variation or rescission (cancelling) of an existing care order, for an extension of an existing supervision order or for further orders due to a breach of an existing order accepting an undertaking, legal aid is only available for parents or other adults subject to both a means and a merits test.

Publication of proceedings The Children’s Court is a closed court, but members of the news media are permitted to observe proceedings (s 104C), and information can be published or broadcast about care matters as long as it does not identify the child or young person who is or is likely to be the subject of the proceedings, or who is the subject of a report (s 105(1)). The prohibition against publication lasts until the child or young person turns 25, or dies. An exception is made if: • in the case of a child, the Children’s Court consents • in the case of a young person, the young person consents • in the case of a child or young person under the parental responsibility of the minister, the Children’s Guardian consents.

[7.520] Interim care orders The Children’s Court can make interim care orders that provide for the care and protection of a child or young person pending its determination of an application for final care orders (ss 62, 69, 70). The court may make an interim care order before determining whether the child or young person is in fact in need of care and protection (see below) (s 69(1A)). In practice, most applications for final care orders brought by FACS also seek interim care orders that enable the child or young person to remain in, or to be placed in, out-of-home care pending the final determination of the application. If FACS seeks such an interim order, it must prove to the court that it is in the best interests of the child or young person for them not to remain in the care of their parents pending determination of the application.

Interim orders that may be made The court may make such other interim care orders as it considers appropriate for the safety, welfare and wellbeing of the child or young person (s 70), including: • interim orders accepting undertakings (s 73) or interim supervision orders (s 76), if the court determines that the child or

7 Children and Young People

young person should remain in the care of the parents rather than be placed in foster care pending the determination of the application • interim orders allocating parental responsibility, or aspects of parental responsibility, to a person other than a parent (s 79) • orders prohibiting action (s 90A). If the court is satisfied that it is in the best interests of the child or young person to be placed in out-of-home care pending final orders, it can make an interim order allocating parental responsibility, or the residential aspects of parental responsibility, to the Minister for Community Services or any other suitable person (for example, a relative) (s 79).

[7.530] Determining need of

care and protection Before making any final care orders (other than an emergency care and protection order), the Children’s Court must be satisfied that one of the grounds for making a care order found in s 71 (see Grounds for making final care orders below) has been proved (s 72), and that the child or young person is therefore “in need of care and protection”. This is often called the establishment, threshold test, finding or determination phase of court proceedings in relation to a care application. The hearing at which the court determines “in need of care and protection” is usually held separately from and well before the hearing at which final care orders are determined.

Proof of need of care and protection FACS, as the applicant in care proceedings, has the responsibility for proving one or more of the grounds for need of care to the required standard (on the balance of probabilities). The child or young person, the parents or any other person who has been made a party to this aspect of the proceedings has the right to test the evidence presented by FACS and to provide the

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Children’s Court with evidence in support of their own case in regards to the need for care. The parent or caregiver's history If the parent or primary caregiver has previously had children removed by order of a court and those children have not been restored, or if the parent or caregiver has been named as a person of interest by a coroner or police in relation to the death of a child or young person (if that death is reviewable by the Ombudsman), this must be admitted as evidence by the Children’s Court. Such evidence establishes a “prima facie” case that the child or young person who is the subject of a later care application is in need of care and protection. The parents or primary caregivers can rebut this presumption that the child or young person is in need of care and protection by satisfying the court that the circumstances that gave rise to the removal of the other children no longer exist, or that they were not involved in the death.

If there is not a need for care and protection The court may dismiss a care application if it finds that the child or young person is not in need of care and protection (s 72(2)). Although this is not a directive, it is unlikely that a court would not dismiss a care application if it cannot make a finding as to need of care. Family Court orders Orders cannot be made by the Family Court about a child who is the subject of Children's Court care orders unless: • the Family Court order is specified to take effect after the child or young person ceases to be the subject of the Children's Court order, or • FACS consents in writing.

Consent to a finding of need of care and protection The parents and child or young person can consent to the Children’s Court finding that the child or young person is “in need of care and protection” based on one of the grounds

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in s 71 without admitting or denying that any of the evidence provided by FACS in

support of its application is true.

The preliminary conference After the determination phase of the case, but before the application proceeds to a final hearing (the hearing at which the Children's Court determines what, if any, final care orders should be made), a Children's Registrar usually arranges a preliminary conference between the parties to attempt to resolve the matter by consent

(s 65). If the matter cannot be resolved by agreement the Children's Registrar and the parties determine the issues in dispute, and a timetable is set that ensures the case is ready for the final hearing (s 65). Parties may be legally represented in the preliminary conference (s 65(3)).

Grounds for making final care orders The Children's Court may only make final care orders if it is satisfied, on the balance of probabilities, that the child or young person is in need of care or protection for any of the following reasons (s 71): • there is no parent available to care for the child or young person • the parents acknowledge that they have serious difficulties caring for the child or young person and that the child is in need of care and protection • the child or young person has been or is likely to be physically or sexually abused or ill treated • the child or young person is suffering, or is likely to suffer, serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which they are living • the child or young person's basic physical, psychological or educational needs are not being met, or are

[7.540] Final care orders Principles and considerations When deciding what final care orders should be made, the court is guided by the principles of the Act. Under principles set out in s 9: • the court’s paramount concern is the safety, welfare and wellbeing of the child or young person • the court must adopt the least intrusive intervention in the life of the child or young person and their family that is consistent with that principle • the views of the child or young person must be given due weight in accordance with their capacity and the circumstances • the permanent placement principles are to guide all actions if the child or young person is placed in out-of-home care.

not likely to be met by their parents or primary caregivers • a child under 14 has exhibited sexually abusive behaviours and an order is necessary to ensure attendance or access to an appropriate service • the child or young person is the subject of a care and protection order of another state or territory that is not being complied with • the child or young person is presumed to be in need of care and protection due to the filing of a parental responsibility contract breach notice, and that presumption has not been rebutted. The fact that a parent has a disability or that the family is in poverty is not sufficient reason to determine that the child or young person's basic needs are not likely to be met.

The views and interests of siblings The views of any siblings may be obtained by the court, and their interests must be considered in making a final decision (s 103). Orders reallocating parental responsibility An order reallocating parental responsibility for the child or young person is the most drastic measure available to the Children’s Court, and must not be made unless the court is satisfied that no other order would be sufficient to meet their needs (s 79(3)). Permanency planning The Children's Court must not make any final care order unless it expressly finds that permanency planning for the child or young person has been appropriately and adequately addressed (s 83(7)). If the court is considering making an order that places or retains a child or young person away from their parents,

7 Children and Young People

there are other permanency planning issues and timeframes that it must take into account. In preparing a permanency plan the Director-General must consider whether adoption is the preferred option for a child or young for whom there is no realistic possibility of restoration to his or her parents.

Final orders that may be made If the court is satisfied that the child or young person is in need of care and protection, it can make one or more of the final care orders specified in the Act. Order accepting undertakings (s 73) This order is usually made when the child or young person: • is to remain in the care of their parents, or • is to remain in out-of-home care in the short term and restoration is planned to a parent provided that the parent does certain things, or • is placed under the parental responsibility of another person such as a relative, and the court wishes to ensure that this person complies with certain requirements. Order prohibiting action (s 90A) The court may, at any stage in care proceedings, make an order prohibiting any person, including a parent of the child or young person, from doing anything that could be done by the parent in carrying out their parental responsibility. This could include AVO-type prohibitions. Order for support services (s 74) The support services must be directed at the child or young person, and the order cannot last for more than 12 months. The court cannot make an order for support services unless: • it gives notice of its intention to consider making the order to the person or organisation who would be required to provide support, and • the person or organisation is given an opportunity to appear and be heard by the Children’s Court before it makes the order, and • the person or organisation consents to the making of the order, and

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• the views of the child or young person in relation to the proposed order have been taken into account. The support services may be provided by FACS or any other agency, and can include counselling, family support, supervision of contact, and so on. The court cannot require any person or agency, including FACS, to provide support services if they do not consent to do so. Order that the child or young person attend a program for sexually abusive behaviour (s 75) This order can only be made if the ground on which the child or young person was found to be in need of care and protection was that relating to the exhibiting of sexually abusive behaviours. Order for supervision (s 76) This order places the child or young person under the supervision of FACS. It is usually made when the child or young person: • is to remain in the care of their parents, or • is placed under the parental responsibility of another person such as a relative and the court wishes to ensure that this person complies with certain requirements. A supervision order cannot last for more than 12 months, though it can be extended by the court up until 24 months. Order allocating parental responsibility (ss 79, 81) The court can make an order allocating parental responsibility, or aspects of parental responsibility: • to one parent • to a parent or both parents jointly with the Minister for Community Services or another suitable person • to the Minister for Family and Community Services solely, or • to any other suitable person or persons jointly. The aspects of parental responsibility that may be allocated include, but are not limited to: • residence • contact • education and training • religious and/or cultural upbringing

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• medical decisions. If the court makes an order allocating parental responsibility to the minister, it must specify what, if any, aspects of parental responsibility: • may be the sole responsibility of anyone else • are to be the sole responsibility of the minister • are to be exercised jointly by the minister and other persons. Orders allocating parental responsibility can be made for any period until the child or young person turns 18. If the order is made in anticipation that the child or young person is to be restored to the care of their parents, it is usually made for a short period (often six months to two years). Allocation of parental responsibility by guardianship order The court allocate all aspect of parental responsibility for a child or young person until the child or young person reaches the age of 18 years of age by a guardianship order (s 79A). The court may make such an order only if satisfied that there is no realistic possibility of the child or young person being restored to his or her parents and that the child or young person will be provided with a safe, nurturing, stable and secure environment. Orders in relation to contact between a child or young person and a parent, relative or other person of significance to the child or young person (s 86) The Act currently enables the court to make orders setting out a minimum contact regime for a child or young person with their parents, relatives or any other person of significance. It can also order that such contact be supervised, but only with the consent of both the person with whom the child is to have contact and the person who is to supervise that contact. The duration of initial contact orders (where there is no realistic possibility of restoration of the child or young person to his or her parents) is a maximum period of 12 months.

Evidence required for an order reallocating parental responsibility Care plans Before an order reallocating parental responsibility is made by the Children’s Court, FACS must prepare, and the court must consider, a care plan (s 78). Permanency planning FACS must also prepare a permanency plan that considers options for permanent placement of the child or young person (s 83), which could include placement back with the parents (restoration) or long-term placement away from the parents. If FACS considers that there is no realistic possibility of the child or young person being restored to their parents, the permanency plan must set out the plans being made for their long-term placement, including whether adoption is the preferred option. If FACS considers that there is a realistic possibility of restoring the child or young person to their parents, the permanency plan must include: • a description of the minimum outcomes that FACS considers must be achieved before it would be safe for the child or young person to return to their parents • details of the services FACS can provide, or arrange, to the child or young person or their family in order to facilitate restoration • details of other services the Children’s Court could ask other government departments or funded non-government agencies to provide to the child or young person or their family in order to facilitate restoration • a statement of the length of time during which restoration should be actively pursued (s 84). What the court must decide Before making an order allocating parental responsibility during which the child or young person is to be restored to the care of their parents, the court must find that there is indeed a realistic possibility of restoration having regard to: • the circumstances of the child or young person, and

7 Children and Young People

• the evidence, if any, that the parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care (s 83(7)(b)). Before making any final care order, the court must expressly find that permanency planning for the child or young person has been appropriately and adequately addressed (s 83(7)(a)). The court is required to make a decision about the feasibility of restoration within a specific timeframe of having made interim orders: for a child who is less than two years, the court must make a decision within six months for a child or young person over the age of two years, the court’s decision is to be made within 12 months (s 83(5)).

What the court must consider

[7.545] Rights of appeal

Effect of a grant of leave

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The Children’s Court may (not “must”) grant leave to a person to bring an application to vary or rescind final care orders if it appears that there has been a significant change in any relevant circumstance since the orders were last made or varied. Before granting leave to apply to vary or rescind the order, the court must take the following matters into consideration: • the nature of the application • the age of the child or young person • the length of time for which the child or young person has been in the care of the present carer • the plans for the child • whether the applicant has an arguable case.

Under the Act, an application may be made to rescind (cancel) or vary final care orders at any time until the young person turns 18 (s 90). Such an application may only be made with the leave of the Children’s Court.

Once leave has been granted, the Children’s Court considers the evidence presented by all parties as to whether it is appropriate to vary or rescind the orders. If FACS relies on a ground in support of its own application, or in opposition to an application by any other person, that was not considered by the Children’s Court when it made the relevant final care orders, FACS must prove that ground as if the application was a fresh care application (see Grounds for making final care orders at [7.530]). If the Children’s Court decides to rescind a final care order, it may make any other care orders in place of the order that was rescinded.

Who may make an application?

[7.560] Reviews

An application to rescind or vary care orders may be made by: • the child’s parents or caregivers • the child or young person • FACS • anyone who has a sufficient interest in the welfare of the child or young person (s 90).

Periodic review is very important to the wellbeing of children and young people in care, particularly to guard against systems abuse. The Convention on the Rights of the Child recognises the right of children in care to a periodic review of the care provided, and all the other circumstances of their placement.

A party to the proceedings who is dissatisfied with a final order of the Children’s Court may appeal to the District Court (s 91(1)). Such an appeal is a new hearing, and new evidence – or evidence in addition to or substitution for the evidence that was before the Children’s Court – may be introduced.

[7.550] Applying to cancel or

vary orders

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Reviews of Children's Court orders Orders for supervision If the Children’s Court makes an order placing a child or young person under the supervision of FACS, it can require that one or more written reports be provided to it during the period of the supervision, setting out whether the outcomes of the supervision have been met and whether there is a need for further supervision (s 76(4)). Orders allocating parental responsibility If the Children’s Court makes an order allocating parental responsibility of a child or young person to anyone other than a parent, it may also order that a written report be provided to it, at such a time as it decides, regarding progress in implementing the care plan, and progress towards achieving a permanent placement. If the court is not satisfied that proper arrangements have been made for the care and protection of the child or young person, it can order that the case be brought back before it and may review the final care orders that were made (s 82).

Reviews of placements Section 150 of the Act requires reviews of the placements and case plans of children and young people who have been placed in out-of-home care by order of the Children’s Court. Reviews by the agency responsible for placement Agencies responsible for the placement of a child or young person must conduct reviews: • within two to four months of the Children’s Court order, depending on the age of the child • within every 12-month period after that, and • in certain other circumstances (s 150). Reviews of permanency plans involving restoration Where the court order places a child or young person in out-of-home care but also approves a permanency plan involving restoration, a review must be conducted by the agency responsible for the placement:

• at the end of the period stated in the permanency plan as the period during which restoration should be actively pursued, or • if a review is directed by the Children’s Guardian, or • within 12 months after it was last considered by the Children’s Court (s 85A). The review is to consider: • whether the provisions of the permanency plan should be changed, particularly with regard to the length of time during which restoration should be actively pursued • whether other arrangements should be made for the permanent placement of the child or young person, and • whether an application for a care order or for variation or rescission of the care order should be made. The Children's Guardian The role of the Children's Guardian has been established by the Advocate for Children and Young People Act 2014 (NSW). Generally, the oversight functions of the Children's Guardian in relation to out-of-home care are to: • promote the best interests of children and young people in out-of-home care • prescribe accreditation for agencies that provide out-of-home care.

Reviews by the NSW Ombudsman The NSW Ombudsman has the authority to: • carry out a review of the circumstances of a child or young person in care • make a recommendation about the care arrangements of a child or young person • advise the Minister for Family and Community Services whether any change in the circumstances or status of a child or young person would promote their welfare and interests (Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW); Ombudsman Act 1974 (NSW)). The Ombudsman cannot make a substitute decision, only a recommendation.

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[7.570] Investigation of

complaints The NSW Ombudsman can investigate complaints about services provided by FACS and any agency it funds, and make recommendations.

Services for children in care The Ombudsman has a children’s liaison officer to help make it more accessible to children. It also manages a team of community visitors authorised to: • visit residential care units • advocate for residents • resolve complaints • refer serious issues to the Ombudsman for action (Community Services (Complaints, Reviews and Monitoring) Act 1993; Ombudsman Act 1974).

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Parental responsibility of the minister The Minister for Family and Community Services has parental responsibility for those children and young people (formerly called state wards) who have been placed in the minister's care. The minister's powers and duties have never been precisely defined. It is clear that the minister owes a general duty of care to these children and young people (as stated by the High Court in Bennett v Minister for Community Welfare (1992) 176 CLR 408), as well as a statutory duty to provide accommodation under the Children and Young Persons (Care and Protection) Act (s 164). Children and young people leaving care The Act also gives the minister authority to provide for the reasonable needs of people for whom the minister had parental responsibility until they are 25, and beyond that age at the minister's discretion (s 165). Leaving care and after care services have been established to assist young people in care through their transition to independence.

Adoption [7.580]

Adoptions in NSW are covered

by: • the Adoption Act 2000 (NSW), which deals with: – adoption procedures – the effects of adoption orders – the rights of the parties to an adoption to obtain adoption information • Supreme Court Rules, which deal with

Supreme Court procedures for applications under the Adoption Act • the Family Law Act 1975 (Cth), which deals with: – certain effects of an adoption order – procedures for adopting a step-child – procedures for recognising adoption orders from some overseas countries.

What is adoption? [7.590]

Adoption is the permanent legal transfer of all parental rights from biological parents to another person or couple. Adoptive parents have the same rights and responsibilities as biological parents, and adopted children have all of the emotional,

social, legal and kinship benefits of biological children. This change in parentage is permanent unless the Supreme Court (which deals with adoption applications) discharges the order, or another adoption occurs.

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Where adoption provides for continued contact to be given to birth parents, this is documented in an adoption plan approved by the court. The arrangement is often referred to as an open adoption. Why adopt? It is through adoption that the law recognises the adoptive parents as the child's parents, rather than just legal guardians and custodians. Adoption is often seen as an expression of a higher level of commitment, but it is also a means of giving the child security in the permanency of the relationship, family identity and family membership beyond the age of legal independence. Adoption is seen as a service for children who, for whatever reason, are unable to grow up in the care of their birth parents.

cultural and religious ties should, as far as possible, be identified and preserved (s 8(1)).

Rights to inherit The child’s right to inherit from the birth family will cease (unless the child is referred to by name in a will) and be replaced by a right to inherit from the adoptive family. This change does not affect any vested or contingent rights (s 97). For example, a member of the birth family may have died but the estate has not been distributed before the child’s adoption. If the child (as a member of the birth family) was entitled to a share in the estate or a gift, they will not lose that share or gift because of the adoption.

[7.610] Is adoption [7.600] Effects of adoption An adoption order changes legal relationships in a number of ways.

Birth family's rights The birth family loses all rights concerning the child except those specifically preserved under the legislation (such as the right to information) or granted by a court (such as the contact arrangements set out in an adoption plan).

Adoptive parents' responsibilities The adoptive parents have parental responsibility for, and a duty to care for the child.

Change of name The child gets a new birth certificate in their adopted name, with the details of the adoptive parents and their other children (if any) shown on the certificate rather than the birth family’s details. The original birth record is filed. The given name of a child can only be changed if the court is satisfied that the change of name is in the best interests of the child (s 105(1)). The court, in making decisions about the adoption is to take into account the general principles of the Adoption Act, which include that a child’s given name or names, identity, language and

appropriate? Adoption is just one of the legal options for giving a child long-term or permanent care, and its appropriateness should be assessed according to the needs and wishes of the parties (especially the child) and existing relationships. The Adoption Act sets out the principles to be taken into account when making decisions about the adoption of a child. The emphasis is that the best interests of the child are the paramount consideration, both in childhood and later life. The Adoption Act recognises that adoption is a concept that is absent in customary Aboriginal child care arrangements and includes special provisions that Aboriginal people should be given the opportunity to participate with as much self-determination as possible in decisions relating to the placement for adoption of Aboriginal children

[7.620] Alternatives to

adoption Given the effects of an adoption and the fact that it is permanent, it is important to be aware of the alternatives so that the most appropriate choice can be made. When people want long-term care of a non-related child their choices are:

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• foster care • adoption • parenting or guardianship orders until the child turns 18.

When the child is already with the carers When the child is already with the carers, especially if one of them is a birth parent, options to be considered as alternatives to adoption include: • a power of attorney from the parents of the child to the step-parent living with the child • a change of name for the child • parenting orders under the Family Law Act (see Chapter 24, Family Law) • specific inclusion of the child in a will or family trust.

Long-term foster care Like adoption, long-term foster care of a non-related child cannot be arranged privately (Children and Young Persons (Care and Protection) Act, s 136). Foster care must be arranged or authorised by the Department of Family and

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Community Services (FACS) or a designated agency authorised to provide out-of-home care services.

Parenting orders The Family Court cannot make a parenting order by consent in favour of people who are not the child’s parents, grandparents or other relatives, either about who the child is to live with or parental responsibility for the child, unless the parties have attended a conference with a family consultant to discuss the matter, or this requirement has been dispensed with (Family Law Act, s 65G(2)).

Considering the alternatives The Adoption Act requires that people consenting to an adoption be given certain information, including information about alternatives (s 59). What the Supreme Court must consider In making an adoption order the Supreme Court will also be asked to consider that the best interests of the child will be promoted by the adoption and that the prospective adoptive parent or parents have been selected in accordance with the eligibility and selection criteria set out in the Act (s 90(1)).

The adoption process [7.630] Who can arrange an

[7.640] Types of adoption

adoption?

There are several types of adoption in NSW, which can be grouped as: • relative adoption, which involves the adoption of a child by a step-parent or close relation. • local adoptions, which include: – foster care adoptions, a process by which a child living in foster care is connected with an adoptive family through the assistance of FACS or an accredited service provider. – private adoptions, a process where birth parents or expectant parents wish to relinquish their child and are connected with a prospective adoptive family through an accredited adoption service provider, • intercountry adoptions, the process by

Under the Adoption Act, adoption arrangements can only be made by FACS or an accredited adoption service provider except when: • one of the people adopting the child is a step-parent or relative of the child, or • the person to be adopted is over 18 years of age. A private arrangement made in any other circumstances is an offence unless it is specifically authorised by FACS, and may lead to the prosecution of anyone involved in making or facilitating it (ss 177–179).

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which a family adopts a child from another country. The adoption process involves applying to the Supreme Court for an adoption order. Step-parents Step-parents must also apply to the Family Court for permission to adopt before making an application to the Supreme Court (Family Law Act, s 60G). If permission is not granted, any subsequent adoption order will not be fully recognised by the court, any pre-adoption court orders will remain in force and, for a child of a marriage, the Family Law Act will still regard the child as being a member of their birth family (s 60F(3), (4)).

Adopting a child through a NSW adoption service Local adoptions In this case, the adoption process begins with an expression of interest to FACS or an accredited adoption service provider, followed by an application seeking approval of suitability to adopt. Applicants are then assessed and, if they are considered suitable, their application is approved. Approved applicants are included in the pool of eligible applicants. There is a period following placement where the placement is monitored to ensure it is progressing well. Once that period has passed, approval can be given for any court action to finalise the adoption. Intercountry adoptions The procedure is the same as for NSW local adoptions, but applicants must meet the eligibility requirements of both the Adoption Act and the overseas adoption authorities. If they are approved, the details of their application are sent by FACS to the nominated overseas country’s approved adoption program. If the applicants are selected as the most suitable to adopt a particular child, and they accept the selection, the child is placed with them. Following placement and return to Australia, there is a period where the placement is monitored to ensure that it is

progressing well. Reports are often sent to the overseas authority about the placement. Once that period has passed, approval can then be given for any court action to finalise the adoption. Full details of NSW and intercountry adoption programs can be located at www.community.nsw.gov.au/ parents,-carers-and-families.

The next step is an application to the Supreme Court for an adoption order or, in some cases, recognition of a foreign adoption order (see below). Overseas adoptions Where an adoption order has been made in a country which (like Australia) is a signatory to the Hague Convention on Intercountry Adoption, or a country with which Australia has a bilateral arrangement about adoption, that country can issue an adoption certificate. If this certificate has been issued the adoption will automatically be recognised in Australia, (Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth), reg 16). For intercountry adoptions where an adoption order has been made overseas and the residency requirements of the adoptive parents being resident in that country for 12 months or domiciled in that country have been met (s 116), the adoptive parents on return to Australia must apply to the Supreme Court for recognition of the foreign order. The Hague Convention on Intercountry Adoption The Hague Convention came into force in Australia on 1 December 1998. Details of the convention are in Sch 1 to the Adoption Act. Under the convention, if an adoption of a child from one convention country to another takes place and an adoption compliance certificate is issued by the appropriate authority, the adoption order will be automatically recognised in any other convention country. Where recognition of an Australian adoption in another convention country is required, an adoption certificate under the Hague Convention should be arranged.

Details of countries that have signed and ratified the Hague Convention can be found at www.hcch.net/ index_en.php?act=conventions.status&cid=69.

7 Children and Young People

[7.650] Who can be adopted? Section 24 of the Adoption Act allows for the adoption of: • a person under 18, or • a person who has turned 18 and has been cared for by the applicants prior to reaching the age of 18 years.

[7.660] Who can adopt a

child? Under the Adoption Act, the court can make adoption orders in favour of: • married couples, (ss 26, 28 and definition of couple) • de facto couples (including same-sex couples), where their relationship is of at least two years’ duration, unless the court finds that there are special circumstances (ss 26, 28 and see definition of couple) • single applicants (ss 26, 27).

Age limits Except in adoptions by step-parents and relatives or where there are exceptional circumstances, the court cannot make an order if either of the applicants is: • under 21 • less than 18 years older than the child (ss 27, 28).

Character requirements Applicants must also be considered by the court as suitable to adopt; that is, they must be: • of good repute (this is usually demonstrated by references and police screening reports) • fit and proper persons to fulfil the responsibilities of a parent (s 27).

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• the step-parent must have lived with the child and the birth parent for at least two years • the adoption must be clearly preferable, in the child’s best interests, to any other action (s 30). Adoptions by relatives For adoptions by relatives: • the child must have had a relationship with the applicants for at least two years • the adoption must be clearly preferable, in the child’s best interests, to any other action (s 29). Indigenous children For Aboriginal children (ss 33–36) and Torres Strait Islander children (ss 37–39): • the placement must be in accordance with the Aboriginal placement principles • appropriate consultation must have taken place with a local, community based and relevant Aboriginal organisation • the adoption must be clearly preferable, in the child’s best interests, to any other action. The Aboriginal and Torres Strait Islander placement principles The principles set out in ss 35 and 39 of the Act require that Aboriginal and Torres Strait Islander children be placed with members of their own cultural communities wherever possible or, if this is not possible or not in their best interests, with people able to give them a positive cultural identity, knowledge of their culture and protection against discrimination. If Aboriginal children are to be placed with non-Aboriginal carers for adoption, the placement must be approved by the court at a preliminary hearing (s 80(2)). If the placement is by FACS, the consent of both the Minister for FACS and the Minister for Aboriginal Affairs is also required (Children and Young Persons (Care and Protection) Act, s 78A(4)).

Other requirements Stability of the relationship For adoptions by all couples, the couple must have lived together continuously for at least two years immediately before the application is made(s 28). Step-parent adoptions For adoptions by step-parents: • the child must be at least five

Applicants seeking to adopt through FACS Applicants who seek to adopt a child through departmental processes are assessed by FACS against eligibility criteria (see the Adoption Regulation 2003 (NSW)). If applicants are not approved, they have the right to a review of that decision or, in

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some circumstances, to possibly take action in the Supreme Court. Similar rights of review and appeal exist for accredited adoption agency programs. Applicants rejected by one agency (including FACS) are not barred from applying to another agency.

[7.670] Who can apply for an

adoption order? For local adoptions, applications can be made to the Supreme Court: • by, or with the consent of, the DirectorGeneral of FACS, or • by the principal officer of an accredited adoption agency. Applications can be made directly to the Supreme Court without the consent of the Director-General of FACS for: • intercountry adoptions • step-parent adoptions • relative adoptions (s 87(2)), or • adoption of a person aged over 18 years (s 91).

[7.680] Telling the child The Adoption Act encourages openness in adoption and the participation of the child

in decisions by the provision of information in a manner and language that the child can understand (s 9). If the child is under five, the applicants must give an undertaking to the court to do this.

[7.690] The child's consent At 12 and above, the child’s consent is required unless there are special reasons why the court should dispense with this requirement (s 55) (and see Consents to adoption at [7.700]).

Explanation and counselling Before being asked to consent, the child must be given written information about adoption, together with a copy of the consent instrument, and the legal effect must be explained by a counsellor (s 55). Indigenous children For Aboriginal and Torres Strait Islander children, the child should also receive special counselling about their customs and culture from an appropriate Indigenous person (ss 64, 65).

Consents to adoption [7.700] Whose consent is

required? Only the child’s consent is required if the child is: • 18 or over, or • between 12 and 18, and has been brought up, maintained and educated by the applicants for two years or more. In all other cases, consents are required from: • each person who is a parent or guardian of the child, and • the child, if the child is 12 or more.

Rights of the father Under the Adoption Act a birth father has the same rights as a birth mother to give

consent, but if his name is not on the child’s birth certificate he must establish paternity first. Notification requirements Where the Director-General of FACS or the principal officer of an accredited adoption agency knows or reasonably believes a person to be the birth father, they must send him a notice telling him how he can establish paternity and be registered as the father, as well as his right to consent to adoption once this is done (s 56).

[7.710] Consent forms There are official forms for giving consent.

7 Children and Young People

General consent Parents and guardians consenting to the adoption of their child by any person use a general consent.

Consent nominating the adoptive parents When the consent is for adoption by a step-parent or relative or by a foster carer who has had the care of the child for two years or more, a consent form nominating the adoptive parents is used.

The child's consent The child’s consent is given on a special form.

Information in consent forms The content of the forms of consent are prescribed under the Regulations to the Adoption Act. The forms include acknowledgments that: • the person giving consent has been given, and had explained to them, written information about adoption and the alternatives (s 58), and has received adoption counselling before giving consent (ss 63–65) • the person witnessing the consent is not the person giving counselling (s 62).

Time limits The person must be given the written information and the form of consent at least 14 days before being asked to give consent and at least 30 days after the child is born (s 60).

[7.720] Counselling A person giving consent to adoption should first be counselled by a registered counsellor approved by FACS about: • the legal effect of signing the consent • the procedure for revoking consent • the written information about adoption • the emotional effects of adoption • the alternatives to adoption (including, in the case of a birth parent, whether it is possible for them to keep the child) (s 63) • if the child to be adopted is an Aboriginal or Torres Strait Islander child, the infor-

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mation about their culture and customs (ss 64, 65). The counsellor must sign a statement saying that: • the consenting person has received the written information and counselling • the counsellor is of the view that the person understands the effect of giving consent (ss 61, 62).

If a person refuses certain counselling If counselling on Aboriginal and Torres Strait Islander culture and customs is refused by the person being asked to consent, consent cannot be given until at least seven days after the written information about culture and customs was given (ss 64).

Witnesses The signature on the consent form must be witnessed. The witness must certify that: • the witness is not aware of any mental, emotional or physical unfitness of the person to give consent • the witness is satisfied as to the identity of the person signing the form • the person signing the form has been given ample opportunity to read the form, and understands the effect of signing it (s 62; Adoption Regulation, cl 36). The Regulations list the people who can witness an adoption consent (cl 35). Notice of consent being given If someone other than an officer of an accredited adoption service provider or FACS witnesses the signing of a general consent to adoption, that person must send a notice to the Director-General of FACS about the signing of the consent within seven days of the consent being signed (Adoption Regulation, cl 37(2)).

[7.730] When consent is not

effective The child's consent A child’s consent is only effective if (s 58(1)): • it is informed consent • it has been given in accordance with procedures set out in the Act.

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The parent's or guardian's consent The consent of a parent or guardian can be regarded as defective if: • the proper procedures are not followed • the proper forms are not used • the consent has been altered materially without authority • the consent was obtained by fraud, duress or improper means • the person giving consent was not fit to give consent at that time (s 58(2)). Newborn children If the child to be adopted is a newborn child, the consent of the birth parents cannot be given until at least 30 days after the birth (s 60(a)). Birth parent less than 18 years of age Consent given by a birth parent who is less than 18 years of age is not effective if the birth parent has not received independent legal advice before signing the instrument of consent (s 58(4)).

consent. The court will send the notice to the appropriate people to let them know of the revocation (s 73).

[7.750] If consent is not given If a person whose consent is required under the Act refuses to consent or cannot be found, the adoption can only proceed if the court dispenses with that person’s consent.

Applying to dispense with consent An application for a consent dispense order can be made either before, or at the same time as, the adoption application (s 70). Notice requirements Fourteen days’ notice of the application must be given to: • the person whose consent is to be dispensed with • the Director-General of FACS, if the Director-General is not applying for the order (s 69).

Dispensing with parents' consent

Parents or guardians can only revoke their consent within 30 days after it has been given. If a parent or guardian does not revoke their consent within that period, it cannot be revoked unless there are grounds for the court to set it aside (ss 58, 73).

The court may dispense with the consent of a parent or guardian where: • the person after reasonable inquiry cannot be found or identified • the person is in such a physical or mental state as not to be capable of considering whether or not to consent • there is serious concern for the welfare of the child and it is in the child’s best interests to override the wishes of the parent or guardian • the court is satisfied that the child has established a stable relationship with an authorised carer and the adoption of the child by the authorised carer would promote the child’s interests and welfare (s 67).

How consent is revoked

Dispensing with the child's consent

To revoke a consent, the person must forward a notice to the adoption clerk at the Supreme Court no later than the last day of the revocation period. This notice can be in a special form, obtainable from the adoption service worker, or it can be a simple letter (with all relevant names and details, including contact details), addressed to the court, stating that the person wishes to revoke

If the child is 18 or over The court cannot under any circumstances dispense with the consent of the person to be adopted if they are 18 or older (s 69).

[7.740] Revoking a consent The child A child over the age of 12 who has consented to his or her adoption can revoke consent at any time before the adoption order is made (s 73).

Parents and guardians

The court may also dispense with the consent of a child between 12 and 18 where the child is in such a physical or mental state as not to be capable of considering whether or not to consent (s 69).

7 Children and Young People

Applying for revocation of the order If the consent dispense order is made, the

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court can be asked to revoke it at any time before it makes an adoption order (s 71).

Court procedure and court orders [7.760] Preliminary hearings

[7.770] Court orders

The Supreme Court can hold a preliminary hearing before an adoption order is applied for, most commonly about: • dispensing with the consent of a parent or guardian • placement of the child, and whether adoption action should proceed • contact arrangements in an adoption plan (s 80). The court must hold a hearing if placement of an Aboriginal or Torres Strait Islander child with someone other than an Aboriginal person or Torres Strait Islander is being considered (s 80).

Adoption plans

Opposing adoption Anyone wanting to oppose an adoption can apply to be made a party to the adoption proceedings. The court is only obliged to agree to this where that person’s consent was required and not given, especially birth fathers (s 118).

Who may attend the hearing? Adoption proceedings take place in closed court and anyone not directly involved in the case, including lawyers, will not be allowed into the courtroom without leave of the court (s 119).

Representation and support persons The Adoption Act allows for the appointment of legal representatives and guardians ad litem for the child (ss 122–123), as well as guardians ad litem and an amicus curiae for the birth parents (s 124). See the box below for what these terms mean. Support people are also allowed to be present in court, with its leave (s 125).

The Act allows parties to agree on an adoption plan (s 47) dealing with issues like exchange of information, contact, financial and other post-adoption support arrangements, and cultural upbringing (s 46). If a plan is agreed to, it is put in writing and lodged with the court at any time before the adoption order is made (s 48). If the court agrees with the plan it is registered, giving it the effect of a court order (s 50). Changing or revoking adoption plans Parties wishing to change or revoke a registered adoption plan, including after the adoption order is made, must apply to the court for a review. On review, the court can make orders confirming, varying or revoking the plan if it is satisfied it is in the best interests of the child to do so (s 51).

If an adoption order is not made The Supreme Court’s primary role is to decide whether an adoption order is appropriate. If the court decides to refuse the order, it can still make other orders (such as orders like the parenting orders made in the Family Court) (s 92).

Contact orders Contact orders can be made by: • the Supreme Court during the adoption proceedings (see Re Adoption Application A6507/83 [1984] 2 NSWLR 590), or • the Family Court after the adoption order is made (see In the Marriage of Newling & Mole (1986) 11 Fam LR 974).

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[7.780] Discharge of orders The Adoption Act allows any of the parties to an adoption, as well as the NSW AttorneyGeneral, to apply to the court for discharge (that is, termination) of an adoption order (s 93). The court can only make an order discharging the adoption order if: • the order, or any consent, was obtained by fraud, duress or other improper means, or • there is some other exceptional reason why the adoption order should be discharged.

What the court must consider The court must be satisfied that discharge will not be prejudicial to the best interests of the child. If the application is brought by the child If the application is brought by the child, the court must not make the order if it believes

the application is motivated by emotional or other considerations that do not affect the child’s welfare, where those considerations arise out of a relationship the child has formed following access to adoption information or contact with a person through an adoption reunion (s 93(5)).

Effect of discharge When an adoption order is discharged, the legal relationships that existed between the child and the birth parents before the adoption are restored. Vested property rights are not affected, and the court can also make other orders it thinks necessary in the interests of justice or to promote the child’s welfare and interests (s 93). General consents to the original adoption remain in operation unless the court orders otherwise.

Information rights after adoption [7.790]

Adopted people and their birth parents in NSW have access to identifying information and may be able to contact each other. Legislation Since 2010, there has been a shift towards greater access to adoption information, to better reflect the principle of openness in adoption. A new scheme of open access to information applies to all adoption orders made on or after 1 January 2010.

[7.800] Contact vetoes apply

to adoptions before 26 October 1990 An adopted person or birth parent who does not wish to be contacted may register their name on the Department of Family and Community Service’s (FACS) contact veto register to ensure that their wishes are

recorded before a birth certificate is issued by the registry. A veto can only be registered for adoptions that occurred prior to 26 October 1990.

Lodging a veto A contact veto can be registered by making an appointment and going to any FACS office, taking suitable identification (for example, a photo licence or a combination of other documents such as a passport and birth certificate). If your name has changed (for instance, through marriage) you will also need to provide documentation linking your previous and current names (such as a marriage certificate).

Effect of the veto If a contact veto is registered, access to the birth certificate will only be allowed if the person seeking it signs an undertaking not to make contact with the other person. It is an offence to contact or procure another person to make contact with, an

7 Children and Young People

adopted person or birth parent who has registered a contact veto, and penalties apply. A contact veto does not prevent the release of identifying information.

When does a veto expire A veto on contact expires when the person who lodged the veto cancels it by notification in writing to the Director-General of FACS, or when the person who lodged the contact veto dies.

Leaving a statement A person who registers a contact veto is encouraged to leave a statement with FACS about their wellbeing, their family background and their reasons for not wanting contact. This may help the person seeking contact to understand the decision.

Notification that a veto has been cancelled or varied The Director-General of FACS is required to notify a person of any cancellation or variation of a contact veto that affects them if the person requests such notification at the time they receive adoption information and are subject to a contact veto.

Notification to the person who lodged the contact veto The Director-General of FACS is required to notify a person who has lodged a contact veto of any application for the supply of adoption information. The Director-General of FACS may approach the person who lodged the contact veto and ask if they wish to confirm, cancel or vary the veto, where circumstances exist that justify the approach in order to promote the welfare and best interests of either or both parties concerned.

[7.810] Access entitlements

before 1 January 2010 For adoption orders made before the new open access scheme commenced on 1 January 2010, the entitlements to adoption information are as follows.

Adopted person An adopted person aged 18 and over is entitled to access to their:

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• original birth certificate • birth record, and • any other information relating to their birth parents. An adopted child under the age of 18 years is only entitled to receive their original birth certificate and other information with the consent of both their adoptive parents and birth parents.

Adoptive parents The adoptive parents may have access to the child’s original birth certificate, the child’s birth record and any other additional identifying information once the adopted child turns 18 or is over the age of 18 years, and with the consent of the adopted child.

Birth parents The acknowledged birth parents may receive the amended birth certificate and any other identifying information relating to the adopted person on the adopted person turning 18 years of age (s 136). For adopted children less than 18 years, the acknowledged birth parents may receive non-identifying information about the adoptive parents and the health and welfare of the child after placement for adoption, if the Director-General of FACS is satisfied it would, if disclosed, promote the welfare and best interests of the birth parents and adopted child.

Obtaining the original birth certificate and other identifying information An adopted person who is over the age of 18 years, or birth parent(s) seeking adoption information, must first apply to FACS for a supply authority. The supply authority fulfils two functions. First, it provides identifying information (including full name and date of birth) of the other party. Second, the supply authority authorises other adoption information sources to release information they might hold. Prior to issuing a supply authority, FACS checks the registers mentioned below and takes any necessary action. Applicants can then apply to the Registry of Births, Deaths and Marriages for the birth certificate.

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[7.820] Advance notice of

information requests Birth parents, adoptive parents and adopted people over 17 years and six months can apply for advance notice of any request for adoption information that includes personal information about themselves (s 146). This is to give the person time to prepare for any effect the release of information may have on themselves and their family or associates. An application for advance notice must be in writing and be accompanied by proof of identity (s 147). The applicant’s name and contact details are put on the advance notice register and, if a request for adoption information is received, they are notified. The supply of information can be delayed for up to three months, or longer in special cases with the approval of the DirectorGeneral of FACS. What information is available? It is possible to obtain certain “social and medical” information from adoption files held by FACS and other agencies. The Adoption Regulation 2003 sets out the type of additional information a person is entitled to receive, or may be supplied with, from FACS, the hospital where the adopted person was born, an adoption agency that arranged the adoption or the Supreme Court. There is, however, great variation in the quantity and quality of the information available from different sources.

[7.830] Access entitlements

after 1 January 2010 For adoption orders made on or after 1 January 2010, it has become easier for adopted people, adoptive parents and birth parents to access records about an adoption before the adopted person is 18 years of age.

Adopted person An adopted person under the age of 18 will be entitled to receive his or her birth certificate, birth record and other adoption information with the consent of his or her adoptive parents (or the Director-General of

FACS in certain circumstances). The consent of the surviving birth parents will not be required (s 133C). An adopted person who is 18 or over will have access to their original birth certificate and other identifying information, without the need for consent from their adoptive parents.

Adoptive parents Adoptive parents will be able to access the child’s birth certificate, birth records and other information at any age without the consent of the adopted child (s 133D).

Birth parents A birth parent will be entitled to receive adoption information about their child, unless the Director-General of FACS is of the opinion that supplying the information would pose a risk to the safety, welfare or wellbeing of the adopted child or adoptive parents (s 133E).

Non-adopted siblings Non-adopted siblings of either birth parent will be entitled to access information about their adopted sibling (with the consent of their parents if the sibling is under 18 years of age). If the adopted person is under 18 years, the -Director-General of FACS may refuse to supply the information if the release of the information would pose a risk to the safety, welfare or wellbeing of the adopted child or adoptive parents (s 133G). If one of the parties to the adoption dies If the adopted person or the birth parent dies, certain relatives or significant other persons can apply to FACS for the release of identifying information by FACS or the Registry of Births, Deaths and Marriages. If approved, the applicant can then apply for a supply authority that would have otherwise been issued to the birth parent or adopted person. This is referred to as inherited rights.

[7.840] The reunion

information register FACS operates a reunion information register for people who wish to be contacted. Any party to an adoption, extended family mem-

7 Children and Young People

bers and other people with a legitimate connection to the adopted person can ask to have their names entered. Over 30,000 people have registered their details. When the details of two or more registered people match, a reunion is arranged

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by adoption workers in consultation with the parties (s 166). People may register by contacting FACS.

If you want to make contact FACS holds adoption records for all adoptions that occurred in NSW since 1923. The FACS website (www.community.nsw.gov.au/ adoption) contains useful information to assist people wishing to gain information or search. The Post Adoption Resource Centre (PARC) can assist to mediate contact between parties and provides support and assistance to people who have a connection to an adoption. The Salvation Army Special Search Service can assist with additional searches when people connected to an

adoption have gained all the adoption information they are entitled to, and have been unable to locate the person they are looking for via the usual search methods. Each person has different feelings about how much contact or news they would like. The agency that arranged the adoption can assist birth and adoptive families to stay in touch, for example by facilitating the exchange of letters/emails, sending photographs or by face-to-face meetings. The exchange of news and contact usually begins with the support of the adoption caseworker involved, but can progress to direct contact between the parties if everyone agrees.

Other legal issues affecting children School [7.850] Enrolment

[7.860] Attendance

Parents of children aged from six to 16 inclusive must enrol their child in school (Education Act 1990 (NSW), s 22) or register their child for home schooling (ss 70–74). A child aged 15 or over may engage in paid work instead of attending school (s 21B). It is not uncommon for older students who are no longer living with their parents to enrol in school without parental permission or involvement. Students in this situation can sometimes encounter problems because the law does not specifically provide for this situation, but in most cases a student will be able to enrol.

Children must attend school or enrol in approved education from the age of six until they turn 17 (unless the child completes Year 10 before age 17, or is aged 15 or over and is in paid employment).

Truancy If a child misses a lot of school without a good reason, this is called truancy. The child is not committing any offence but the parent(s) may be committing an offence and can, in theory, be fined (Education Act, s 23). A home–school liaison officer might go to the child’s home and speak to the child and their parents about why they have not been

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at school. The school principal must contact FACS if they think the child might be in need of care. An officer authorised by the Minister for Education or a police officer may, during school hours, approach any child who is apparently of or above the age of six and below the age of 17 and request the child to provide the officer with their name, home address and school details. They may then accompany the child to their home or school (s 122).

Compulsory schooling order The Secretary of the Department of Education and Communities may apply to the Children’s Court for a compulsory schooling order. The order is usually made against the child’s parents. However, an order may be made against a child aged 12 years or over if the child is living independently, or if the parents cannot get the child to attend school because of his or her disobedience (s 22D). A compulsory schooling order may require a child to attend school, or where they have finished year 10, participate in training or work. It is an offence for a parent or child to fail to comply with a compulsory schooling order without reasonable excuse (s 22D(9)).

Exemption from school attendance The Minister for Education may grant a certificate exempting a child from attending school in certain circumstances (s 25); for example, if the child has obtained employment. This will usually not be granted until the child is at least 14 years and six months old.

[7.870] Suspension and

expulsion The Act gives the Minister for Education authority to control and regulate student discipline in government schools (s 35).

Departmental policy The grounds on which a student may be suspended or expelled are not set out in the Act or regulations, but are covered by departmental policy.

The procedures are set out in full in the document Suspension and Expulsion of School Students – Procedures released by the Department of Education and Training (now the Department of Education and Communities) in 2011. Anyone faced with or enquiring about a suspension or expulsion should refer to these procedures, since school principals must follow them. The procedures contain rights to procedural fairness – the right to be heard, the right to an impartial decision, and the right to appeal.

The principal's authority Principals now have the authority to: • suspend or expel a student from a particular school, and • recommend expulsion from the government school system (the decision is made by the minister on a recommendation from senior officers from the Department of Education and Communities).

Suspension Who must be suspended Principals must immediately suspend any student who: • is physically violent, resulting in pain or injury, or who seriously interferes with the safety and wellbeing of other students, staff or other persons • is in possession of a firearm, prohibited weapon (for example, knuckle-dusters, nunchakus) or knife without reasonable cause, or • uses, or is in possession of, a suspected illegal substance (not including alcohol or tobacco) or supplies a restricted substance (for example, a prescription drug). In such instances the matter may also be reported to the police. Who may be suspended Principals may suspend any student who: • is persistently disobedient • behaves in an aggressive manner, or • engages in criminal behaviour related to the school.

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Procedural fairness In coming to a decision, principals are required to apply rules of procedural fairness. These include: • conducting an interview with the student before making a decision to suspend (the student can have an independent person at the interview) • informing the student about the nature of the allegations • giving the student an opportunity to respond to the allegations • considering the student's response before a decision is made • notifying parents or caregivers in writing of the date, duration and reasons for suspension • providing: – a copy of the school's discipline code – the Suspension and Expulsion of School Students Procedures – information about the right to appeal against the principal's decision • making an impartial decision.

See ss 6.1.4, 6.3.4 and Appendix 2 of Suspension and Expulsion of School Students – Procedures.

Types of suspension Suspensions are either: • short suspensions (up to and including four school days), or • long suspensions (up to and including 20 school days).

When can a child be sent home? Students should not be sent home before the end of the school day unless a parent or caregiver specifically agrees or is formally notified by the principal of the decision to suspend.

Expulsion

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• unsatisfactory participation in learning by a student of post-compulsory school age. Expulsion from the government school system for misbehaviour A student may be expelled from the government school system on the decision of the minister on a recommendation from the Secretary of the Department of Education and Communities (and the principal). The student is expelled from all government schools in NSW, and cannot re-enrol without the approval of the minister. Procedure The student is put on a long suspension of 20 school days while a decision is being made about expulsion. During this time the student and parents or caregivers are given seven days in which to respond to the notification that expulsion is being considered. If a decision is made to expel a student from a particular school or to recommend expulsion from the government school system, the student and parents or caregivers must be informed in writing of the decision, and the right to appeal. Principals must apply the rules of procedural fairness (see Procedural fairness above]).

Appeals Students, parents or carers can appeal against a decision to suspend or expel on the grounds that: • correct procedures were not followed, or • the decision is unfair. The appeal should be in writing on the appropriate departmental appeal form. If the appeal does not succeed at this level, it may be possible to appeal to the Supreme Court. A complaint can also be made to the NSW Ombudsman.

There are two forms of expulsion. Expulsion from a school A student may be expelled from a particular school on the decision of the principal. A decision to expel from a particular school can be made on the basis of: • misbehaviour by a student of any age, or

Suspension and expulsion in private schools Private schooling is based on an agreement between the school and the parents, which may indicate the circumstances in which a student can be suspended or expelled. If there is no specific term in the enrolment contract, there is an implied term that a student will not be suspended or expelled unreasonably.

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Before suspending or expelling a student, private schools must make sure that: • the student and their parents are told of the grounds on which suspension or expulsion is being considered, and • they have an opportunity to answer the allegations and to be heard before a decision is made.

pay fees for education, but they can ask them to make a voluntary contribution towards expenses. Students should not be disadvantaged in any way because their parents or caregivers do not make the voluntary contribution.

[7.900] Excursions and [7.880] Discipline

activities

Discipline policy

The Department of Education and Communities in NSW has an excursion policy. It promotes the view that excursions are valuable educational experiences that are integral to teaching and learning. The policy also provides guidelines for managing the risks to health, safety and welfare of participants on excursion. For students to participate in excursions, written parental consent is usually required. However, it is important to note that this is not a legal requirement and is simply part of the department’s policy. The policy also states that excursions should be inclusive and all students should be given the opportunity to participate. The policy allows older students to attend excursions without parental consent if there is no parent readily available and the student is mature enough to consent in their own right.

Each government school is required to develop a school discipline policy that includes a discipline code for the school based on guidelines provided by the Department of Education and Communities. The discipline code should include: • a school dress code or uniform policy • a policy on anti-racism (including a grievance procedure) that reflects Department of Education and Communities policy • a school anti-bullying plan • a drugs-in-school policy.

Corporal punishment Corporal (physical) punishment is not allowed in any NSW school, state or private (Education Act, ss 35(2A), 47(h)).

[7.890] School fees Instruction in state schools is free (Education Act, s 31). State schools cannot ask parents to

Leaving home and other legal transitions [7.910] Leaving home A person under 18 has no absolute right to leave home but there is no law preventing them from doing so. A person over 16, or a young person at risk of violence or abuse at home, would normally not be forced to return home against their wishes. The law may intervene if the young person is considered in need of care. No child, no matter what their age, should be forced to return home to a violent or abusive situation (see Care and protection of children and young people at [7.400]).

Young people living away from home are legally entitled to sign a residential tenancy agreement for private rental accommodation (see Contracts and leases below).

[7.920] Contracts and leases As a rule, people under 18 are not bound by contracts, leases and other transactions unless it is for their benefit and they are mature enough to understand what they are entering into (Minors (Property and Contracts) Act 1970, ss 18, 19). A child is not bound by unfair and exploitative transactions, but would

7 Children and Young People

probably be bound by ordinary transactions, freely chosen, in ordinary market conditions (such as renting a flat, or buying something on credit).

Leases Like most contracts, a residential tenancy agreement (lease) is enforceable if it is for the young person’s benefit and he or she is mature enough to understand it.

Guarantors In practice, people doing business with a person under 18 often require someone else (such as a parent) to guarantee that the person will fulfil their part of the bargain. This makes the guarantor (the person giving the guarantee) liable as well. It is against the law for a landlord to require a guarantor in a residential tenancy agreement (lease) (Residential Tenancies Act 2010, s 160).

[7.930] Change of name To register a change of name, a person under 18 must generally have the consent of both parents or their legal guardian. In some circumstances, a court may dispense with the consent of one parent. The child must also consent, unless the child is unable to understand the meaning and implications of the change (Births, Deaths and Marriages Registration Act 1995, ss 28, 29).

[7.940] Driving A young person may obtain a learner’s licence for a car at age 16, or for a motorcycle at age 16 and nine months. A young person may apply for a provisional licence if they are 17 or over, have had a learner’s licence for at least 12 months, and have logged 120 hours’ driving time. The person is required to drive for 12 months with a provisional P1 licence and then two more years with provisional P2 plates before being eligible for a full licence. For more information about licences, contact Roads and Maritime Services or check its website. A learner who drives without being accompanied by a fully-licensed driver faces a

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heavy fine and an automatic three-month licence suspension. Learners and provisional licence holders who commit speeding and other traffic offences also face suspension due to loss of demerit points. Young people in this situation may be able to appeal the suspension and should seek legal advice. Driving while suspended is a serious offence and usually leads to at least 12 months of licence disqualification.

[7.950] Passports and travel To obtain a passport, a person aged under 18 will need: • the consent of all people with parental responsibility (in most cases this would mean both parents), or • a court order, or • special circumstances, such as an urgent need to travel internationally (Australian Passports Act 2005 (Cth), s 11). In some cases a young person under 18 may be able to renew their existing passport without parental consent if they are living independently.

[7.960] Voting Voting becomes compulsory at 18 for federal and state government elections (and for local government elections, for those who are enrolled to vote). It is up to each person to apply to the Electoral Office to be listed on the electoral roll. A person can be fined for failing to do so. A person has 21 days from the time of becoming eligible to vote to have their name placed on the electoral roll (Electoral Act 1918 (Cth), s 101). If a person is 17 years old and an Australian citizen, they may enrol but are not entitled to vote until they turn 18. If the young person will turn 18 years between the announcement of the election (date of the writ) and polling day and has not already applied for provisional enrolment, they have until close of rolls to apply for enrolment. If a person is homeless they may still enrol by using the “no fixed address” enrolment form.

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To find out more information, contact the Australian Electoral Commission or visit its website (www.aec.gov.au).

[7.970] Income support See Chapter 36, Social Security Entitlements, for information about Centrelink payments for young people.

[7.980] Employment Children under 18 The Industrial Relations (Child Employment) Act 2006 (NSW) regulates the employment of people under 18. Under the Act, employers must ensure certain minimum standards, determined by reference to conditions in a comparable state award. Where conditions differ from those in a comparable state award, the NSW Industrial Commission will determine whether there is a detriment to the child. The unfair dismissal provisions of the Industrial Relations Act 1996 (NSW) also apply to children, subject to some modifications.

Children under 15 Role of the Children's Guardian The NSW Office of the Children’s Guardian regulates the employment of children under 15 (or under 16 in the case of modeling) in various branches of the entertainment industry and in door-to-door sales. Under the Children and Young Persons (Care and Protection) Act and the Children and Young Persons (Care and Protection) (Child

Employment) Regulation 2015, employers in the prescribed industries must: • apply for an authority to employ children • submit pre-employment information at least seven days before employing a child • comply with a code of practice. The Children’s Guardian: • assesses employer applications • monitors employer compliance with the legislation • consults with employers about identified safety and welfare issues • investigates complaints and alleged breaches of the statutory provisions. The Children’s Guardian also has an educational role, and generally promotes the welfare of children employed in the relevant areas. Offences It is an offence for a person to employ a child under 15, or consent to a child under 15 in their care being employed, for the purpose of participating in entertainment, exhibition or offering anything for sale, unless the employer is exempt or is authorised by the Children’s Guardian (Children and Young Persons (Care and Protection) Act, ss 223, 224). It is an offence to cause or allow a child under 15 to take part in employment that puts the child’s physical or emotional wellbeing at risk (s 222). For further information on the regulation of child employment, contact the Office of the Children's Guardian or visit its website (www.kidsguardian.nsw.gov.au).

Sexual relationships [7.990] The age of consent Sexual intercourse is defined very widely under s 61H of the Crimes Act 1900 (see Chapter 35, Sexual Offences). A person can legally consent to have sexual intercourse at 16. A person who has sexual intercourse with someone under 16 is guilty of an offence (ss 66A–66D). Consent is no defence (s 77).

The provisions are mainly aimed at preventing the sexual exploitation of children by older people, but sometimes operate to criminalise young people for what is ageappropriate and consensual sexual activity. If both partners are under the age of consent, both may be guilty of an offence. In most cases, however, neither will be charged

7 Children and Young People

as long as they are fairly close in age and the sexual activity is consensual.

[7.1000] Marriage The marriageable age for both women and men is 18 (Marriage Act 1961 (Cth), s 11).

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Young people between 16 and 18 wishing to get married may apply to a court for authorisation, which will only be granted in “exceptional and unusual” circumstances (s 12). Parental consent is also required, unless dispensed with by a court (ss 13, 14).

Medical treatment [7.1010] Consent A young person is legally capable of giving consent for medical or dental treatment, without parental consent, if he or she is mature enough to understand the nature and implications of the treatment. This is sometimes referred to as “Gillick competence” (see box below). Medical or dental treatment provided without proper consent may be an assault. Under the Minors (Property and Contracts) Act 1970 (NSW), s 49, medical practitioners and dentists have a defence to assault if they obtain consent for treatment from: • the child, if he or she is aged 14 or over, or • a parent, if the child is aged under 16. For this reason, most medical practitioners and health workers will accept consent from children aged 14 and over. Because the Minors (Property and Contracts) Act does not afford protection to medical practitioners who treat children under 14 without parental consent, there may be some reluctance to accept the consent of a child under 14. However, It is important to note that young people under 14 may be capable of giving informed consent. The health worker must consider the nature of the treatment and the ability of the young person to understand the treatment. Conversely, a child over 14 may lack capacity to consent. Dwindling parental authority An English decision gives some protection to children's own wishes in the area of medical treatment. In the Gillick case (Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402), the House of Lords dismissed a parent's claim that it was necessarily wrong

for a medical practitioner to give contraceptive advice or treatment to children under 18 without parental knowledge or consent. The court decided that children with the maturity to give informed consent should be legally able to consent to treatment on their own behalf. The decision was based partly on the idea that parental powers over children “dwindle” as children grow up and their autonomy increases. These principles have been adopted by the Australian courts (Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (Marion's case).

Contraception A doctor can prescribe contraception subject to the “Gillick competence” test, discussed in the previous section. There is no age limit for buying contraceptives like condoms and spermicides from a chemist.

Abortion The Crimes Act 1900 forbids unlawful termination of pregnancies. Abortion is unlawful unless a doctor honestly and reasonably believes that continuing with the pregnancy will result in serious damage to the mother’s physical and/or mental health, taking into account the economic, social and medical aspects of her condition. As with most types of medical procedure, a girl who is mature enough to give informed consent does not need parental consent to have an abortion. Below the age of 14, most doctors would request parental consent for an abortion. If the girl’s parents do not consent, she could go to another doctor or could seek a court or tribunal order.

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In an emergency In a genuine emergency, medical treatment may be carried out without the consent of either the patient or a parent or guardian.

When court or tribunal orders may be required If a child is over 16 but still lacks the capacity to consent (because of an intellectual disability, for example), an order may need to be obtained from the Guardianship Division of NCAT or from a court (see Chapter 16, Disability). Where the medical treatment is a “special treatment” defined by regulation (such as treatment likely to render the child permanently infertile), such treatment of a child under 16 can only be carried out with the consent of the Guardianship Division of the NSW Civil and Administrative Tribunal (Children and Young Persons (Care and Protection) Act, s 175). Some kinds of medical treatment may not be performed on children under 18 (even with the child’s or parents’ consent) without a court or tribunal order. These procedures include sterilisation and certain psychiatric treatments.

[7.1020] Tattoos and piercing Tattooing A person under the age of 18 must have parental consent to get a tattoo or any permanent marking on the skin. A person performing tattooing or similar procedures without parental consent is committing a criminal offence under the Children and Young Persons (Care and Protection) Act, s 230.

Piercing A child under 16 may not lawfully have their genitalia or nipples pierced. A person performing such a piercing on a child under 16 (even with parental consent) will be committing an offence under the Children and Young Persons (Care and Protection) Act, s 230A. A child under 16 may have piercing to another part of the body with parental consent. A person performing piercing on a child under 16 years of age without parental consent will be committing an offence under the Children and Young Persons (Care and Protection) Act 1998, s 230A. Children aged 16 and over may have piercing done without parental consent.

Alcohol and tobacco [7.1030] Alcohol At home Generally it is not an offence for a person under 18 to drink alcohol at home or in a private place. However, children may not lawfully purchase alcohol and it is an offence to supply alcohol to (or buy alcohol on behalf of) a person under 18. The only exception is if the alcohol is supplied by a parent, or a person authorised by a parent, and is consistent with responsible supervision of a minor (Liquor Act 2007 (NSW), s 117).

In public places It is an offence for a person under 18 to possess or consume alcohol in a public place, unless they have a reasonable excuse

or are with a responsible adult. Police can take the alcohol and impose a $20 fine (Summary Offences Act 1988, s 11).

Licensed premises It is an offence for a person under 18 to be on licensed premises in a restricted area. The Liquor Act allows licensed premises to be authorised for use by people under 18 only if they are in the company of a responsible adult (s 124). If a person under 18 drinks or is given liquor on licensed premises, the young person, the licensee and anyone else who supplied the liquor are guilty of an offence (ss 117, 118). Licensees must ask for proof of age if there is the slightest suspicion that a person

7 Children and Young People

is under 18. Proof of age cards are available for 18 to 25-year-olds from Roads and Maritime Services. A person who uses false documentary evidence (that is, fake ID) to enter or obtain liquor from licensed premises is guilty of an offence (s 129).

[7.1040] Cigarettes

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possess or smoke cigarettes. However, the police may seize cigarettes or “non-tobacco smoking products” from persons under 18 (Public Health (Tobacco) Act 2008 (NSW), s 26). It is illegal to supply such products to people under 18 (Public Health (Tobacco) Act, s 22).

It is not against the law for children to

Court proceedings [7.1050] Civil proceedings in

court The need for a tutor Civil proceedings, as distinct from criminal proceedings, typically involve private disputes between individuals or organisations. Examples of civil actions include suing someone for compensation for a personal injury, or taking legal action to recover a debt. In most situations a person under 18 cannot commence or conduct civil proceedings without a tutor; that is, an adult whose name appears on the court documents and who has guaranteed to pay costs if they are ordered against the young person. The tutor must be legally represented unless the court orders otherwise (Uniform Civil Procedure Rules 2005 (NSW), r 7.14).

Limitation periods Until a few years ago, limitation periods for children (restrictions on the time within which they must commence a civil action) did not start to run until the child turned 18. The law now states that, if the child has a competent parent or guardian, in most cases the limitation period will start to run immediately. However, if a child does not have a capable parent or guardian, he or she is considered to be under a “disability” and then the limitation period does not start to run (Limitation Act 1969 (NSW), ss 50F, 52).

Reaching settlement If a person under 18 is suing and wants to settle out of court, the court must approve the settlement in order for it to be binding (Civil Procedure Act 2005 (NSW), ss 75, 76). For example, a 16-year-old injured in a car accident may sue to recover damages for their injuries. In almost all such cases, negotiations take place before the case actually goes to court and an agreement may be reached on the amount to be paid (see also Chapter 3, Accidents and Compensation.)

Damages for people under 18 If a person under 18 recovers damages (also referred to as compensation), the money is paid as directed by the court. A court will commonly direct that the money be paid to the NSW Trustee and Guardian and held in trust for the child (Civil Procedure Act, s 77). Legal advice should be sought about any legal proceedings either contemplated by or commenced against the child.

[7.1060] Giving evidence in

court Competence to give evidence In all courts, a child may give sworn evidence if they can understand the nature and consequences of taking an oath or affirmation.

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Under the Evidence Act (NSW), a person (including a child) is presumed to be competent to give evidence unless the court decides they are incapable of understanding that they are under an obligation to tell the truth (ss 12, 13). Someone who is not competent to give evidence on oath may give unsworn evidence if: • the court is satisfied that they know the difference between the truth and a lie • the court tells them it is important to tell the truth • the person indicates, by responding appropriately when asked, that they will not tell any lies during the proceeding.

Warnings about reliability of children's evidence In a proceeding before a jury, a judge should not give a warning or suggest to the jury that children are a class of unreliable witness, but a judge may warn a jury about a particular child with specific reasons as to why that child is unreliable. A judge may also give a caution as to the weight to be given to the evidence of a particular child (Evidence Act, s 165A).

Alternative means of giving evidence in criminal proceedings A child under 16 does not necessarily have to appear in court to give evidence in criminal proceedings. Part 6 of the Criminal Procedure Act provides a range of protections for vulnerable people, including children under 16, giving evidence in court. These apply mainly to cases involving offences against the person (for example assaults and sex offences). In many cases, a child who is a victim or a prosecution witness will have participated in a recorded interview with the police (Criminal Procedure Act, s 76). This recording may be played in court instead of requiring the child to give evidence-in-chief from the witness box. However, the child must be available for cross-examination and reexamination (s 306U). A child under 16, whether a victim, accused or other witness, may also be entitled to give evidence via closed-circuit television (ss 306ZB, 306ZC). A child under 16 also has the right to a support person when giving evidence (s 306ZK).

Cyber-crime and cyber-safety [7.1070]

“Cyber-crime” and “cybersafety” are increasingly important issues for children and young people. Children can easily become victims of online offences such as fraud, identity theft, threats and harassment and grooming. Children can (often unwittingly) find themselves charged with offences associated with: • cyber-bullying – eg, using a carriage service to menace, harass or offend (Commonwealth Criminal Code (Cth), s 474.17)

• sexting – eg, producing, possessing or disseminating child abuse material (Crimes Act, s 91H) • hacking – eg, unauthorised modification of data (Crimes Act, s 308D) • copyright infringement (eg, Copyright Act 1968, s 132AC) • recording private conversations without consent (Surveillance Devices Act 2007 (NSW), s 7) For more information on the internet and other online issues see Chapter 30, Internet Law.

7 Children and Young People

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Contact points [7.1080]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au.

Advice, information and help Association of Children’s Welfare Agencies (ACWA) www.acwa.asn.au ph: 9281 8822 Australian Children’s Contact Services Association (ACCSA) www.accsa.org.au Child Abuse Prevention Service (CAPS) www.childabuseprevention.com.au ph: 1800 688 009 or 9716 8000 Children’s Court Assistance Program (court support) Central Coast Community Legal Centre (Woy Woy and Wyong Children’s Courts) ph: 4353 0111 Illawarra Legal Centre (Port Kembla Children’s Court) ph: 4276 1939 Macarthur Legal Centre (Campbelltown Children’s Court) ph: 4628 2042 Macquarie Legal Centre (Bidura and Parramatta Children’s Courts) ph: 8833 0920 CREATE Foundation www.create.org.au ph: 1800 655 105 or 9267 1999 Kids Helpline www.kidshelpline.com.au ph: 1800 55 1800 Keep them safe (guidelines for reporting young people at risk) www.keepthemsafe.nsw.gov.au

Lifeline www.lifeline.org.au ph: 131 114 Link2home (for emergency accommodation)

Legal information, advice and representation Aboriginal Legal Service

ph: 1800 152 152

www.alsnswact.org.au

MyNite (NSW Police advice on safe parties)

Head office

www.mynite.com.au Relationships Australia NSW www.nsw.relationships.com.au ph: 1300 364 277 Salvation Army (24 hrs) www.salvos.org.au 13 SALVOS (13 72 58) Sexual Assault Services See www.kidsfamilies.health.nsw. gov.au/current-work/programs/ programs-and-initiatives/sexualassault-services for a list of services across NSW Rape Crisis Centre www.nswrapecrisis.com.au ph: 1800 424 017 (24 hours) or 1800RESPECT (1800 737 732) Victims Access Line (VAL) ph: 1800 633 063 (24 hours) or 8688 5511 YFoundations (formerly Youth Accommodation Association of NSW) www.yfoundations.org.au ph: 8306 7900 Youth Action www.youthaction.org.au ph: 8218 9800

ph: 8303 6600 Criminal matters ph: 1800 765 767 Care matters ph: 1800 733 233 An Employee’s Guide to Unfair Dismissal – www.lawaccess.nsw. gov.au/Pages/representing/ lawassist_employmentrights/ lawassist_employmentrights.aspx Australasian Legal Information Institute (AustLII) www.austlii.edu.au Burn (film produced by Legal Aid relating to group offending) www.burn-movie.com.au Children’s Legal Service (Legal Aid NSW) www.legalaid.nsw.gov.au/whatwe-do/criminal-law/children-andyoung-people Legal Aid Youth Hotline ph: 1800 101 810 Weekdays: 9am to midnight. Weekends and public holidays: 24 hours. Sydney ph: 9219 5120 Newcastle ph: 4929 5482

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Campbelltown ph: 4628 2922 Parramatta ph: 8688 3800 Sutherland ph: 9521 3733 Fined Out (guide to fine enforcement process) lacextra.legalaid.nsw.gov.au/ publicationsresourcesservice/ publicationimprints/files/109.pdf

Cyber bullying infomation and advice

Child Protection Helpline

Office of the Children’s e-safety Commissioner esafety.gov.au

ph: 1800 656 463 (24 hrs)

Bullying. No Way! bullyingnoway.gov.au

Adoption and permanent care services

Stay Smart Online www.staysmartonline.gov.au

Family information service

ph: 132 111 (to report child abuse and neglect, 24 hrs) FACS Domestic Violence Service See website for Community Service Centres. See Adoption above. See Adoption above. Department of Justice

Inner City Legal Centre www.iclc.org.au

Adoption

ph: 1800 244 481

The online gateway to law and justice information in NSW.

Adoption and Permanent Care Association of NSW www.apansw.org.au

www.justice.nsw.gov.au/

ph: 8091 5157 Adoption and Permanent Care Services (Pre-adoption enquiries) FACS www.community.nsw.gov.au/ adoption

www.odpp.nsw.gov.au

Free legal assistance to Sydney families with children who have gender dysphoria. Law Access www.lawaccess.nsw.gov.au Lawstufff (legal information site for young people) www.lawstuff.org.au Legal Information Access Centre -see now

www.mlc.org.au

ph: 9716 3000 Adoption Information Unit (Post-adoption enquiries) FACS ph: 1300 799 023 Link-Up Aboriginal Corporation www.linkupnsw.org.au

ph: 9559 2899

ph: 1800 624 332 or 9421 4700

National Children’s and Youth Law Centre

Post Adoption Resource Centre

www.legalanswers.sl.nsw.gov.au/ Macarthur Legal Centre www.maclegal.net.au ph: 4628 2042 Marrickville Legal Centre

www.ncylc.org.au ph: 9385 9588 National Welfare Rights Network www.welfarerights.org.au ph: 8384 0389 NSW Caselaw www.caselaw.nsw.gov.au The Shopfront Youth Legal Centre www.theshopfront.org ph: 9322 4808 Tenants NSW www.tenants.org.au/publications

www.benevolent.org.au/connect/ post--adoption--support ph: 9504 6788 Registry of Births, Deaths and Marriages See under Government bodies below. Salvation Army Special Search Service ph: 9466 3478 or 1300 667 366

Government Department of Family and Community Services (FACS) www.community.nsw.gov.au ph: 9377 6000

Director of Public Prosecutions, Office of ph: 9285 8606 or 1800 814 534 Witness Assistance Service www.odpp.nsw.gov.au ph: 1800 814 534 or 9285 2502 Juvenile Justice (Department of Justice) www.juvenile.justice.nsw.gov.au Head office ph: 8346 1333 See website for a list of Juvenile Justice Centres and services. Office of the Children’s Guardian www.kidsguardian.nsw.gov.au ph: 8219 3600 Ombudsman, NSW www.ombo.nsw.gov.au ph: 8219 3600 NSW Bureau of Crime Statistics and Research (BOCSAR) www.bocsar.nsw.gov.au ph: 8346 1100 Registry of Births, Deaths and Marriages www.bdm.nsw.gov.au ph: 13 77 88 or 9354 1370 Roads and Maritime Services www.rms.nsw.gov.au ph: 13 22 13 State Debt Recovery www.sdro.nsw.gov.au ph: 1300 138 118

7 Children and Young People

Victims Services www.victimsservices.justice.nsw. gov.au ph: 8688 5511 Youth Justice Conferencing www.juvenile.justice.nsw.gov.au Youth Strategy and Participation Unit, NSW Department of Family and Community Services www.youth.nsw.gov.au ph: 8753 8413

Courts and Tribunals Children’s Courts www.childrenscourt.justice.nsw. gov.au Bidura ph: 8667 2100 Broadmeadow ph: 4915 5200 Campbelltown ph: 4629 9777 Illawarra ph: 4274 0735 Parramatta ph: 8688 1888

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Woy Woy ph: 4344 0111 Wyong ph: 4350 3010 Local Courts The Children’s Court can also sit at non-specialist Local Courts with a specialist children’s magistrate. For a complete list of Local Courts go to www.localcourt.justice.nsw. gov.au. NSW Civil and Administrative Tribunal (NCAT) www.ncat.nsw.gov.au ph: 1300 006 228 or 1300 00 NCAT

8 Community Organisations Graham Wheeler

Solicitor

Contents [8.10] [8.20] [8.40]

Incorporation Ways of incorporating Incorporating as an association

[8.120]

Incorporating as a company limited by guarantee

[8.190]

Incorporating as a cooperative

[8.220]

Registration of names

[8.260] [8.270]

Dealing with money Community organisations and funding

[8.320]

Tax exemptions and concessions

[8.350] [8.400]

Federal taxation State taxation

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Incorporation [8.10]

Unless a community organisation takes the step of incorporating, it is simply a group of people doing something together, with no legal identity apart from that of its individual members. This will be so even if it has a written constitution or set of rules. In legal jargon, it is an unincorporated association.

There are very good reasons why community organisations should incorporate. This chapter discusses the requirements for becoming an incorporated association, then goes on to discuss the legal obligations of community and charitable organisations in fundraising and handling money.

Ways of incorporating [8.20]

An organisation can incorporate in various ways. The two most suitable for community groups are: • as an association under the Associations Incorporation Act 2009 (NSW) • as a company limited by guarantee under the Corporations Act 2001 (Cth). It is also possible to incorporate as a not-for-profit co-operative (referred to as a non-distributing co-operative) under the Cooperatives National Law although this form of incorporation is more commonly used by agricultural and trading groups. Organisations where a majority of the members and directors are Indigenous have the option of incorporating under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). This form of incorporation is administered by the Office of the Registrar of Indigenous Corporations (see Contact points at [8.450]). Personal liability in an unincorporated association Mr Smith was a spectator at a greyhound meeting run by the Taree Greyhound Racing Club. The grandstand he was in collapsed and he was injured. The club was not incorporated, so Mr Smith personally sued the eight

members of the committee. Mr Smith was awarded $26,500, to be paid by the committee members (Smith v Yarnold (1969) 2 NSWR 410).

[8.30] Why incorporate? A group without a separate legal identity relies on its members to act in their own name on the group’s behalf. Members who make and implement decisions – often the committee – are (usually) ultimately responsible for the group’s debts and other legal obligations. Incorporation gives the organisation a separate legal identity, and limits the personal liability of its committee and members. This protection is called limited liability. Incorporation is also usually required before the group can receive a government grant. Community legal centres can sometimes help local groups prepare for incorporation by reviewing forms and documents before they are lodged, or by recommending an appropriate solicitor. The Law Society of NSW also gives referrals to solicitors who work in this area.

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Incorporating as an association [8.40] Eligibility To be eligible to incorporate as an association under the Associations Incorporation Act 2009 (NSW), a group must: • have at least five members • adopt a written constitution • be non-profit • have the purpose of engaging in small scale and non-commercial activity. To be “non-profit”, an association’s constitution must prohibit the direct or indirect distribution of its profits and assets to its members. This prohibition applies during the life of the association, and also when the association is closed down. To be accepted as “small scale”, an association should have less than $2 million in assets and/or annual income. Associations that exceed these thresholds will probably be refused registration and advised to seek incorporation as a company or co-operative. A number of factors are taken into account by NSW Fair Trading when deciding whether an association is (or will be) engaged in commercial activities. Those factors are listed in the Fact Sheet “Commercial activities and monetary gain” and include: • the nature and extent of the proposed activities, including dealings with the public • if the commercial money-making activities will be a major part of its operations • if the proposed activities will be undertaken in a normal commercial manner • if goods or services are restricted to members or available to the general public • if it is operating on a profit basis rather than a cost recovery basis • if it is operating in competition with businesses undertaking the same commercial activities. The above factors are taken into account collectively, which means that an application could be approved even though one or more of the factors is not satisfied.

For example, a community transport association could be accepted as non-commercial even though it offers services to members of the public in a manner that competes with services offered by commercial operators. The level and extent of trading or commercial activities conducted for charitable purposes will be determined by NSW Fair Trading on a case by case basis. Where an association has doubts it should contact the Registry or seek its own legal advice. Where to get advice A group planning to incorporate as an association can contact NSW Fair Trading, which administers the Associations Incorporation Act (NSW), for advice and information. The office has application forms and information on: • eligibility to incorporate • the process of incorporating, and • requirements after incorporation. These are also available online at their website. For contact details see Contact points at [8.450].

[8.50] Cost of incorporation The initial cost is $164 if the name hasn’t been reserved, or $128 if the name is already reserved (it costs $49 to reserve a name). The process is relatively simple, and most groups can do the necessary paperwork without employing a solicitor. The only compulsory ongoing fee is the cost of lodging an annual summary of financial affairs with NSW Fair Trading each year – $187 for Tier 1 associations and $44 for Tier 2 associations.

[8.60] How to incorporate Holding a meeting Existing unincorporated associations An unincorporated association wanting to apply for incorporation must first hold a general meeting of members. The members must be given at least 21 days written notice

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informing them that the meeting will consider special resolutions for: • adopting a constitution suitable for incorporation (that includes the association’s name and objects) • appointing the association’s first public officer, and • specifying the association’s first official address. At the meeting: • a quorum must be present, and • at least three-quarters of those who vote must approve the special resolutions. It may also be useful for the meeting to clarify whether there will be any changes in the membership of the committee once incorporation has been granted. New associations If a group of five or more people wish to incorporate an association that has not previously existed as an unincorporated association then each of the individuals must authorise the: • adoption of a constitution suitable for incorporation (that includes the association’s name and objects) • appointment of the association’s first public officer, and • selection of the association’s first official address. It may also be useful for the foundation members to determine who will hold positions on the committee once incorporation has been granted.

Lodging the application The following documents must be lodged with NSW Fair Trading: • the completed Application for registration of an incorporated association (form A2) and $164 (or $128 if a name has already been reserved) • a copy of the special resolution authorising the application (only if the application is made by an existing unincorporated association) • the association’s constitution (unless the model constitution is used – see Constitution at [8.80]). The forms are available from the NSW Fair Trading website. Reserving a name Reserving a name before applying to incorporate is optional but ensures that the name you nominate on the application to incorporate will be accepted.

The certificate of incorporation Once the application has been lodged, checked and approved, NSW Fair Trading issues a certificate of incorporation.

If the application is unsuccessful If the application is unsuccessful, the group is told why. If there is a problem with the constitution, the group must call another meeting to pass a further special resolution to amend the constitution.

After incorporation After the certificate of incorporation has been issued, the association should: • consider registering with the Australian Tax Office to obtain an ABN • open a bank account in the association's name (the bank will usually require a copy of the rules and wish to see the original certificate of incorporation) • ensure that at least two people are authorised to sign official documents for the association – the public officer is authorised to do this under the Act and the committee can appoint committee members as additional signatories • set up books to record the association's financial transactions, a register of members, a register of committee members, and a folder or book to keep minutes, a record/register of disclosure of interests and a register of authorised signatories

• arrange for property registered in trustees' names to be transferred to the name of the association • hold the first AGM no later than six months after the end of the association's financial year • lodge the “Annual summary of financial affairs” with NSW Fair Trading within one month of the AGM • if the association will be raising funds for a charitable purpose it will need to apply for a charitable fundraising authority from the NSW government (see Charitable fundraising at [8.300]) • obtain a common seal if the constitution requires this (a rubber stamp showing the association's full name, which must include the word “Incorporated” or “Inc”). Registered numbers Although incorporated associations are given a registered number on incorporation, it is not necessary to

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display this number next to the association's name. This is not an Australian company number, which all companies must display (see Incorporating as a company limited by guarantee at [8.120]). Incorporated associations are only required to display a number if they have

been issued with an Australian registered body number by the Australian Securities and Investments Commission. A separate application is required for an Australian registered body number.

[8.70] Effect on property,

Drafting your own constitution A group can also draft its own constitution. If it does, the constitution should cover all the matters required by the Associations Incorporation Act, otherwise the relevant provisions in the model constitution will automatically form part of the association’s constitution, and it will be bound by them.

contracts and debts Once an organisation has incorporated, the ownership of all its property, liabilities and contracts passes automatically from the members and trustees of the unincorporated organisation to the new incorporated association. This means that: • all debts owed to (or by) the organisation’s members (on behalf of the group) immediately before incorporation are transferred to the incorporated association • all contracts and arrangements that were lawfully made for the organisation before incorporation become the contracts and arrangements of the incorporated association • members who could have personally sued or been sued immediately before incorporation are legally replaced by the association.

Transfers into the association's name It is still necessary to fill out the relevant forms so that title deeds and other official documents can be changed into the association’s name.

[8.80] Running an association Constitution There are minimum requirements for an association’s constitution, covering 17 areas – membership, the committee, general meetings, dispute resolution and so on. The model constitution The model constitution is part of the Associations Incorporation Regulation and a formatted version is also available for download from the NSW Fair Trading website. If this is used, there is no need to supply a copy of the constitution when applying for incorporation.

The public officer Every incorporated association must have a public officer who is a NSW resident aged 18 or more. This person is the association’s official contact person and is responsible for informing NSW Fair Trading of certain changes in the association. The public officer should bring all documents received to the attention of the committee as soon as practicable. The public officer can be a member of the committee, a member of the association, an employee or a person outside the association. The person who applies for incorporation will become the association’s first public officer. Official address The association must nominate one official address. This must be an address within NSW where the public officer can generally be found (such as a home or work address) and at which documents can be served on the association by post. The public officer must also notify NSW Fair Trading of any change in the association’s official address within 28 days (form A9). If a vacancy occurs The committee must appoint a new public officer within 28 days of a vacancy occurring, and that public officer must provide NSW Fair Trading with their name and date of birth within 28 days of the appointment (form A9).

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For associations registered as a charity with the ACNC An association that is registered as a charity with the Australian Charities and Not-for-profits Commission (ACNC) will also need to notify the ACNC of the following changes: • a change to its constitution • a change of its address details • a change in its “responsible persons” (ie, members of the management committee but not the public officer). These changes must be notified to the ACNC within 60 days for small charities, and within 28 days for medium and large charities.

The Committee An association must have a committee of three or more members to manage its affairs. All committee members must be at least 18 years of age and at least three must be resident in Australia. The association must keep a register of committee members with details of committee member’s names, residential address, date of birth and date of appointment. This register must be available for inspection by the public, free of charge. The committee must meet and make decisions in accordance with the provisions of the association’s constitution. Committee members must also ensure the association complies with the provisions of the Associations Incorporation Act, which includes requirements to: • keep proper financial records and minutes of meetings • hold an annual general meeting each year • lodge a Summary of Financial Affairs each year with NSW Fair Trading • act honestly and disclose any conflict of interests • act with due care and diligence for the benefit of the association. A failure to comply with these requirements can result in a fine, and in cases of dishonesty and fraud to a fine and/or imprisonment. Disclosure of interest If a committee member has: • a direct or indirect interest in a matter to be considered by the committee, and

• the interest appears to raise a conflict with the proper performance of the committee member’s duties in relation to the matter, the person must, as soon as possible after they become aware of the relevant facts, disclose the nature of the interest at a committee meeting. After making such a disclosure the committee member cannot: (a) be present during any deliberation of the committee with respect to the matter, or (b) take part in any decision of the committee with respect to the matter, unless the committee (without the person’s involvement and in their absence) otherwise determines. A committee member who fails to disclose an interest could be liable for a penalty of up to $6,600. The committee is obliged to keep a book recording any interests that have been disclosed and make that book available for inspection by members of the association.

Annual general meetings The first AGM A newly incorporated association must hold its first annual general meeting (AGM): • within 18 months of incorporation, and • within six months from the end of its first financial year. Subsequent AGMs After the first AGM, the association must hold an AGM at least once every calendar year and within six months from the end of its financial year. Each association may determine the period of its financial year (usually 12 months, but it can be less or up to 18 months, if the association determines this). Applying for variation If necessary, an association can apply to NSW Fair Trading for permission to vary these requirements. This should be done before the time periods have expired (form A11, plus a fee of $31). Financial statements At each AGM, the committee must present to the meeting financial statements for the association’s previous financial year.

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The statements must not be misleading and must give a true and fair view of the association’s income and expenditure, assets and liabilities, and mortgages, charges and securities for the year. In the case of large (Tier 1) associations (see below), the financial statements must be prepared in accordance with Australian Accounting Standards and accompanied by an auditor’s report. Large (Tier 1) and Small (Tier 2) associations and audit requirements Associations are classified as either Large (Tier 1) or Small (Tier 2) on the basis of their income and assets. A large association is one with gross annual receipts exceeding $250,000 (excluding GST) or current assets exceeding $500,000. “Gross receipts” are defined as “the total revenue recorded in the association’s income and expenditure statement for that financial year”. “Current assets” are defined as “the assets (other than real property or assets capable of depreciation) held by the association as at the end of the association’s last financial year, including amounts held in financial institutions, stocks and debentures”. Large (Tier 1) incorporated associations are required to have their annual financial statements audited. Small (Tier 2) incorporated associations are not obliged to have their accounts audited unless they are required to do so by a funding body or the Charitable Fundraising Act 1991 (NSW) (see Appeals for funds at [8.290]).

Lodging the annual summary of financial affairs Within one month after the AGM, the association must lodge an annual summary of financial affairs with NSW Fair Trading (form A12). Large (Tier 1) associations are also required to attach a copy of the financial statement, auditor’s report and any resolution passed at the AGM concerning the financial statement or auditor’s report. Small (Tier 2) associations are only required to include a summary of their financial affairs on the annual summary form itself.

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Fees The annual statement must be accompanied by the required lodgement fee ($187 for Tier 1 associations and $44 for Tier 2 associations if lodged within one month of the AGM). Additional fees apply for late lodgement. The committee's declaration Form A12 includes a declaration stating that the committee believes the financial statements to be true and fair and not misleading, and that there are reasonable grounds to believe the association can pay its debts as and when they fall due. This declaration must be signed by a person authorised by the committee. For associations registered as a charity with the ACNC An association that is registered as a charity with the Australian Charities and Not-for-profits Commission (ACNC) will also need to prepare an Annual Information Statement (AIS) and lodge it with the ACNC. In addition, medium charities (annual revenue between $250,000 – $1 million) and large charities (annual revenue over $1 million) registered with the ACNC will be required to provide annual financial reports to the ACNC. Large registered charities must have their financial reports audited. Medium registered charities can choose to have their financial reports reviewed or audited.

Special resolutions Decisions are made by passing resolutions at a meeting of members. A special resolution must be passed for decisions of particular importance – for example, to: • change the association’s name • amend its constitution or objects • amalgamate with another association • wind up or cancel the association, or • apply for registration as a company or cooperative. A notice giving details of the proposed special resolution must be sent to all members at least 21 days before the meeting. Passing a special resolution For a special resolution to be passed, a quorum must be present at the meeting, and at least three-quarters of those voting must support it.

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Offences The incorporated association, public officer, committee members, other members and employees may all be liable to certain penalties for offences under the Associations Incorporation Act 2009 (NSW). Penalties and fines NSW Fair Trading has the power to issue penalty notices of between $50 and $200 for minor offences such as failure to lodge a form. A penalty notice can be disputed by having the matter determined in a Local Court. Court proceedings must be initiated to prosecute more serious offences, such as where a committee member dishonestly uses their position to obtain gain (maximum penalty $26,400 and/or two years jail). Who is guilty? In most cases where an offence occurs, the public officer and each member of the committee can be found guilty unless they can show that: • they had no knowledge of the breach, or • they were not in a position to influence the conduct of the association, or • they used all diligence to prevent the breach.

[8.90] Transferring

incorporation A group already incorporated as a company limited by guarantee or a cooperative can transfer its incorporation to that of an incorporated association by: • passing a resolution to apply for incorporation (see How to incorporate at [8.60]), and • lodging application forms A1 (Reservation of name), and A4 (Registration of a company or co-operative) with NSW Fair

Trading to apply for the transfer. It is also possible for an incorporated association to change its incorporation and become a company limited by guarantee or a cooperative.

[8.100] Amalgamation Two or more incorporated associations can amalgamate to form one incorporated association. To do this, each association must pass special resolutions stating the terms of the amalgamation and adopting the objects and rules of the new association.

Forms required Form A3 (Registration of an amalgamated association) and form A3 supplement (Special resolution approving amalgamation) must be lodged with the NSW Fair Trading.

Fees The fee to amalgamate associations is $164 if the name hasn’t been reserved, or $128 if the name is already reserved (it costs $49 to reserve a name).

[8.110] Ending incorporation The simplest and cheapest way to end incorporation is to apply for voluntary cancellation. This option is only available to associations able to pay their debts and liabilities. An Application for voluntary cancellation of registration (form A8) must be lodged with NSW Fair Trading, which has an information sheet to help with making the application. There is no charge.

If there are financial problems If the association is in financial difficulties and unable to pay its debts, the committee should seek assistance from an accountant or solicitor with experience in this area.

Limits on the protection of limited liability Incorporation is not a licence for committees to spend up big and hide behind the shield of limited liability when the bills come in. If an association incurs a debt and there are reasonable grounds to expect that it will not be able to pay that debt (or other debts), committee members could be personally liable. They could also be

liable for a $5500 fine and/or one year's imprisonment. If fraud is involved, the penalties rise to $11,000 and/or two years' imprisonment. Committee members' responsibility A committee member who did not authorise or consent to a debt being incurred, or who has reasonable cause to believe that the association's debts would be met, is not

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liable for that debt. However, committee members should be aware that it is possible for them to “authorise or consent” to the incurring of a debt without

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actually knowing about it, if they do not check or take enough interest in areas for which they are responsible.

Incorporating as a company limited by guarantee [8.120]

Incorporating as a company limited by guarantee gives no better protection than other forms of incorporation. Generally speaking, companies are more expensive to incorporate and have more administrative requirements than incorporated associations. Unlike incorporated associations, which must have at least five members, a company limited by guarantee may have just one member. What does limited by guarantee mean? The “guarantee” simply means that members guarantee to contribute an amount, up to a specified maximum, if the company needs to be liquidated and its assets are not sufficient to pay its debts (ie, a member's individual liability is limited to the amount of the guarantee). The guarantee may be for a nominal sum – often about $20.

[8.130] Who should

incorporate as a company? Incorporation as a company provides automatic Australia-wide registration and so it is often used by groups wishing to operate regularly outside NSW. The company structure is also used by larger organisations (ie, with more than $2 million in annual income, assets or expenditure) because they will not normally be accepted for registration as an association. Public and private companies A company limited by guarantee is classified as a public company and as such is subject to greater controls than proprietary companies (for example, public companies

must have a minimum of three directors, at least two of whom must live in Australia).

[8.140] Before applying for

incorporation Before the application for incorporation can be lodged: • a name must be chosen (see below) • a constitution must be adopted, and • written consents must be given by members and directors.

Choosing a name Conducting a name search Before deciding on a company name, it is advisable to conduct a name search on the Australian Securities and Investments Commission’s free internet names database (asicconnect.asic.gov.au) or at any Australian Securities and Investments Commission business centre. Reserving a name Although it is not essential, a name can be reserved beforehand by lodging an Application for reservation of a name (form 410), with the relevant fee. The commission will reserve a name for two months, and this can be extended by paying a further fee. See Registration of names at [8.220] for more about choosing a name.

Rules Every company must have a set of rules to govern its internal management. This can be either:

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• a single set of rules called a constitution, or • the basic set of rules (replaceable rules) in the Corporations Act (Cth), which apply unless there is a constitution to replace part or all of them. Community organisations will usually need to prepare their own constitution as the replaceable rules are more suited to a profit-making company with shares. The ACNC website has a template constitution that may be used to assist charitable organisations develop their own document. The memorandum and articles of association A company's rules used to be called the memorandum and articles of association. The terminology was changed on 1 July 1998. Companies formed before that date continue to have their internal management governed by their memorandum and articles unless they repeal them and adopt the replaceable rules, or replace them with a new constitution.

The consent of members and directors Anyone who wants to be a member, director or secretary of the company must agree to do so in writing. Each member must agree in writing to the amount of “guarantee” they will pay. The written consents should be kept with the company’s records and the details recorded in the company’s register of committee members, directors and secretaries. The consents are not lodged with the application for registration.

[8.150] Lodging the

application Once the consents have been obtained an Application for registration as a company (form 201) is completed and lodged with the Australian Securities and Investments Commission, with the relevant fee and a copy of the constitution if the replaceable rules are not used. Applications can be lodged by mail or in person at any Australian Securities and Investments Commission service centre.

What must be in the application? The application must contain: • names and addresses of the initial members • details of directors and secretary (names, any former names, address, and date and place of birth) • the company’s office address and opening hours • the amount of the agreed guarantee • whether or not it is a “special purpose” company.

Special purpose company / company name without the word “Limited” A company which meets the criteria of a “special purpose company” is eligible for a reduced annual review fee. To qualify as “special purpose” the company must have a constitution that: • requires it to pursue only charitable purposes and apply its income to those purposes, • prohibits it from making distributions to its members and paying fees to its directors, and • requires the directors to approve all other payments the company makes to them. A company which meets these criteria and is registered under the Australian Charities and Not-for-profits Commission Act 2012 (Cth) is also eligible to apply to be registered without the word “Limited” at the end of its name. Special rule for companies registered as a charity with the ACNC A company registered as a charity by the Australian Charities and Not-for-profits Commission (ACNC) may omit the word “Limited” anywhere that the company's name is used if the company's constitution: • prohibits the payment of fees to its directors, and • requires the directors to approve all other payments the company makes to its directors. However, this does not remove the word “Limited” from the company's legal name. An application must be made to ASIC using Form 432 to make this change to the legal name.

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Fees

Opening a bank account

A fee of $387 must be lodged with the application for registration of a company. If the word “Limited” is not included in the company’s name a further $387 is payable and form 432 must also be lodged.

The company must open a bank account. The bank may require a copy of the constitution, and may wish to see: • the certificate of incorporation • a resolution by the directors to open the account.

Members, directors and registered office A person becomes a member, director or secretary of a company on registration if they are named in the application with their consent. The registered office specified in the application becomes the registered office of the company.

[8.160] After incorporation The registered office After receiving a certificate of incorporation, the company must establish its registered office, which must be open to the public on business days from 10am to 12 noon and 2pm to 4pm, or for at least three hours between 9am and 5pm. The company name must be displayed outside every office and place of business it uses (if the premises are the company’s registered office, those words must appear).

The common seal If its constitution requires it, the company must obtain a common seal showing the company name and Australian company number. A common seal, however, is not mandatory.

Records that must be kept The company must keep at its registered office: • proper financial records (for at least seven years after completion of the transactions) • minute books for general meetings and directors’ meetings • a register of consent forms signed by the directors and secretary • a register of members • a register of debentures (if any) • a register of charges (if any).

Appointing an auditor A registered company auditor (who must give written consent beforehand) should be appointed within one month of incorporation. At the company’s first annual general meeting, the auditor’s appointment must be ratified, or a new auditor appointed.

Information required by the Taxation Office The Australian Taxation Office (ATO) must be informed of the name and address of the company’s public officer within three months of commencing operations, if the company will be carrying on business or deriving income from property.

Tax concessions The company should consider what (if any) tax concessions it can apply for such as income tax exemption and endorsement as a deductible gift recipient by the ATO (see Tax exemptions and concessions at [8.320]).

Charitable fundraising If the company will be raising funds for a charitable purpose it will need to consider applying for a charitable fundraising authority from the NSW government (see Charitable fundraising at [8.300]).

[8.170] Running the company Annual General Meetings First AGM A company limited by guarantee must hold its first annual general meeting (AGM) within 18 months of its registration. Subsequent AGMs Subsequent AGMs must be held at least once per calendar year within five months from the end of the company’s financial year.

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Extensions It is possible to obtain an extension of these time periods by applying to the Australian Securities and Investments Commission and lodging form 2501 and a $38 fee.

registration). The statement contains information about the company’s: • registered office • principal place of business • officeholders and members.

Notice to members Members must be given at least 21 days written notice of: • the time, date and place of the meeting, and • the business to be transacted. Depending upon the size of the company, copies of some or all of the following documents may need to be sent with the notice of meeting: • the annual financial report • the annual directors’ report • the auditor’s report. The content of each of these reports is prescribed by the Corporations Act 2001.

Fees The annual review fee is currently $1176 unless the company is a “special purpose company” (see Special purpose company / company name without the word ’Limited’ at [8.150]) in which case the fee is $47. The fee must be paid within two months or a late payment fee will apply.

What the AGM may do Even if it is not specified in the notice of meeting, the AGM may: • consider the annual financial report, directors’ report and auditor’s report • elect directors • appoint an auditor and approve the auditor’s payment, when necessary. Special rule for companies registered as a charity with the ACNC A company that is registered as a charity with the Australian Charities and Not-for-profits Commission (ACNC) no longer needs to comply with the requirement to hold an annual general meeting each year. However, such companies are required to comply with the Governance Standards set out by the ACNC. The effect of Governance Standard 2 (Accountability to members) means that, in practice, most companies will still need to hold an annual general meeting each year and report to members in the same way as is required by the Corporations Act.

The annual statement The Australian Securities and Investments Commission sends an annual company statement and invoice to the registered office of every company on its review date (usually the anniversary of the company’s

Changes Any changes to the information in the annual statement should be made on form 484, not the statement. The commission must be notified within 28 days or a late review fee will be charged. A late lodgement fee will also be charged if the changes are notified outside the lodgement period. Solvency resolution The company’s directors must pass a solvency resolution within two months after the company’s review date, unless the company has lodged a financial report with the Australian Securities and Investments Commission within 12 months before the review date.

Financial reporting requirements The financial reporting obligations for a company limited by guarantee vary depending on the size of the company and other factors. Small company limited by guarantee A company will qualify as a small company limited by guarantee if its revenue for the year is less than $250,000 and it is not approved by the ATO as a deductible gift recipient. A small company limited by guarantee is not required to: • prepare a financial report or have it audited • prepare a directors’ report, or • notify members of annual reports unless either ASIC or at least 5% of the voting members request it.

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Annual company revenue less than $1 million A company with annual revenue of less than $1 million that is not a small company limited by guarantee: • must prepare a financial report • can elect to have its financial report reviewed, rather than audited • must prepare a directors’ report, although with less detail than that required of other companies • must give annual reports to any member who elects to receive them. A company may be able to save some money by having a review rather than an audit as the process is not as rigorous and it can be done by an accountant who is not a registered company auditor. Annual company revenue of $1 million or more A company with annual revenue of $1 million or more must: • prepare a financial report • have the financial report audited • prepare a directors’ report, although with less detail than that required of other companies • give annual reports to any member who elects to receive them. If an annual financial report, director’s report or auditor’s report is required then it must be lodged with ASIC within four months after the end of the company’s financial year using form 388 (there is no fee if the form is lodged on time). Special rules for companies registered as a charity with the ACNC A company that is registered as a charity with the Australian Charities and Not-for-profits Commission (ACNC) no longer needs to comply with the requirements to: • lodge an “annual statement” with ASIC each year • prepare a financial report • prepare a directors' report. However, all charities registered with the ACNC are required to prepare an annual information statement (AIS) and lodge it with the ACNC. In addition, medium (annual revenue between $250,000 and $1 million) and large charities (annual revenue over $1 million) registered with the ACNC are required to provide annual financial reports to the ACNC. Large registered charities must have their financial reports audited, and medium registered charities can choose to have their financial

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reports reviewed or audited.

Changes to be notified Although a company is reminded of its registered details when it receives its annual statement, it must notify the Australian Securities and Investments Commission of changes when they occur during the year, using the appropriate forms and, in some cases, paying a fee. Some of the more common changes, with the relevant forms, fees and lodgement time limits are summarised below: Change

Form

Fee

Change to company name

205

$387

Change to registered 484 office or principal place of business Change to office hours No form letter Appointments, 484 resignations, changes of name or address of the directors or secretary

Nil

Nil

Nil

Lodgement due 14 days after passing resolution 28 days after change Before the change 28 days after change

A director or secretary can also notify the commission if they resign, using form 370 in which case the company is not required to lodge a form 484. Obtaining forms Some of the forms can be obtained in pdf format from the Australian Securities and Investments Commission website and lodged via post. However, other forms (eg Form 484) are only available via the Commission’s online services and hence require registration as an online user. Late lodgement fees The amount of the late lodgement fee, late payment fee and late review fee is $76 for lodgement within one

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month of the prescribed time, and $316 for lodgement more than one month after the prescribed time.

Changing the constitution To change a company’s constitution, the members must pass a special resolution, following the same procedure as an incorporated association (see Special resolutions at [8.80]). A notification of resolution (form 205) should be lodged with the Australian Securities and Investments Commission within 14 days. There is no fee, as long as the form is lodged on time. Special rules for companies registered as a charity with the ACNC A company that is registered as a charity with the Australian Charities and Not-for-profits Commission (ACNC) no longer needs to comply with the requirement to notify ASIC of: • a change to its constitution • a change of address details • the appointment, resignation or retirement of directors, secretaries and alternate directors or submit personal details of directors and secretaries. Instead, the ACNC must be notified of these changes within 60 days of the change taking effect for small charities (for medium and large charities this must be done within 28 days).

Changing the company name To change its name, a company must pass a special resolution adopting a new name and lodge a copy of the resolution with the Australian Securities and Investments Commission on form 205 within 14 days of the date of the resolution. There is a fee of $387. What must be on company documents The company must have on certain documents: • its name, and • the words “Australian Company Number” or “ACN”, along with the relevant number, or • the words “Australian Business Number” or “ABN”, along with the relevant number. The information must be on:

• every public document issued, signed or published by or on behalf of the company • the common seal, if there is one • all negotiable instruments • all documents lodged with the Australian Securities and Investments Commission.

[8.180] Duties and liabilities of

directors Company directors have three broad duties imposed on them by both the Corporations Act and the general or common law: • the duty of care, diligence and skill • the duty to act in good faith for the benefit of the company as a whole • the duty to use their powers for proper purposes and to disclose any relevant interests. This puts a legal obligation on directors to acquaint themselves with, and take responsibility for, the running of the company. A director is expected to understand the company’s affairs and have a reasonably informed knowledge of its financial position. Who may not be a director A person cannot be a company director if: • they are bankrupt • they have been convicted of a serious offence in the past five years (Corporations Act, s 206B).

Specific obligations The Corporations Act also imposes a number of specific obligations on company directors. Breaches can result in civil or criminal liability, or both. For example: • if a company incurs a debt and there were reasonable grounds to expect that the debt (or other debts) could not be paid, the directors could be personally liable • a director who acts with the intent to defraud the creditors of the company, or anyone else, could be found guilty of a criminal offence.

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Special rules for companies registered as a charity with the ACNC A company that is registered as a charity with the Australian Charities and Not-for-profits Commission (ACNC) no longer needs to comply with most of the director's duties imposed by the Corporations Act. Instead, registered charities are required to make sure that directors understand and comply with Governance Standard 5 (Duties of responsible persons). This

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Standard largely reproduces the duties imposed by the Corporations Act but does not carry the same penalties.

For more information about incorporating as a company limited by guarantee, contact the Australian Securities and Investments Commission, or consult its website.

Incorporating as a cooperative [8.190] Who should form a

[8.200] Forming a cooperative

cooperative?

At least five people are required to form a cooperative. Interested organisations should obtain information from the NSW Fair Trading website. The website includes: • a copy of the standard rules • a guide to completing the disclosure statement. A set of rules and a disclosure statement must be completed and lodged with the Registry of Co-operatives, along with the application fee.

The cooperative is a form of incorporation commonly used by trading and agricultural groups in industries such as dairy, rice and fishing.

Community organisations This form of incorporation is not often used in the non-profit community sector, since cooperatives are primarily structured in a way that entitles members to a return on their shares and therefore puts them outside the non-profit category. This means that most are not eligible for such concessions as the exemptions from income tax applying to non-profit organisations. Non-profit cooperatives It is possible to form a non-profit cooperative. Under the Co-operatives National Law, they are called non-distributing cooperatives. They can exist with or without shares. These cooperatives are allowed to trade, but they cannot distribute profits to members or shareholders.

[8.210] Transfer of

incorporation A cooperative without share capital that wishes to transfer its incorporation to that of an incorporated association may do so under the Associations Incorporation Act by passing a special resolution by a special postal ballot. For more information about incorporating as a cooperative, contact the Registry of Co-operatives and Associations section of NSW Fair Trading.

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Registration of names [8.220] Incorporated bodies Incorporated bodies (such as companies and incorporated associations) must register a name as part of the incorporation process.

Incorporated associations Names that will not be accepted A name will not be accepted for registration as the name of an incorporated association if it is likely to be confused with or mistaken for the name of another association, company, cooperative or business, or contains unavailable words or phrases (see Unavailable names at [8.240]). Incorporated associations operating in other states An incorporated association can carry on business under its incorporated name in NSW without other registration. However, if it plans to carry on business in other states it must register with the Australian Securities and Investments Commission as an Australian registered body.

Companies Identical names The Australian Securities and Investments Commission will not register a name that is identical to a registered business name or the name of another incorporated body. In making its decision, the commission: • treats singular and plural words as equivalent • ignores “the”, “a” or “an” at the beginning. Similar names Unlike NSW Fair Trading, the Australian Securities and Investments Commission does not have to reject a name similar to, or likely to be confused with, an already registered name. This is because the Australian company number assigned to a company differentiates it. It does not mean that an organi-

sation with a similar name cannot take action to stop the new name being used (see Similar and deceptive names at [8.250]). Unavailable names The Australian Securities and Investments Commission will not register certain “unavailable” names (see Unavailable names at [8.240]). Companies operating in other states A company (or an Australian registered body) can carry on business under its company name throughout Australia without other registration.

Business names and incorporated names A company, association or other incorporated body can register a business name that is different from its incorporated name.

[8.230] Unincorporated bodies An unincorporated group need not register its name unless it intends to carry on a business.

Business names An unincorporated organisation that wishes to carry on a business must have a registered business name, unless the business is carried on under the name of an incorporated body. Names that will not be accepted A name will not be accepted for registration if: • it is likely to be confused with, or mistaken for, other registered names • it contains words or phrases that are “unavailable” (see Unavailable names at [8.240]). What registration does not do Registration or use of a business name does not create a legal entity or give the members of an organisation

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limited liability. This can be done only by incorporation.

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[8.250] Similar and deceptive

names Businesses run by individuals Individuals running businesses must also register a business name unless they conduct their business only under the name of the person or persons involved (ie, first name and surname, or initials and surname). National registration of business names Historically, business names were registered separately in each state or territory where the business was carried on. However, on 28 May 2012 the responsibility for the registration of business names became national and is now controlled by the Australian Securities and Investments Commission. Existing registered business names were automatically transferred to the national system and attained a national registration status. New businesses will need to obtain an ABN before they can register a national business name.

[8.240] Unavailable names Certain words and phrases cannot be used in company, association or business names without appropriate approval. These include: • words such as trust, university, chamber of commerce, building society and chartered • words suggesting a connection with: – government – the British royal family – an ex-servicemen’s organisation. This is to ensure that an organisation’s name is not misleading. Names that are offensive or suggest illegal activity will also not be registered. (For more detail see Associations Incorporation Act 2009 (NSW), s 18; Associations Incorporation Regulation 2010 (NSW), Sch 2 and Business Names Registration (Availability of Names) Determination 2015.)

Using a name that is deceptively similar to a name being used by another business can lead to action under the Competition and Consumer Act 2010 (Cth), or under the part of the common law called passing off. If an organisation misrepresents (even unintentionally) that it is connected with another business it could be forced to pay compensation and to stop using the name. The fact that a name has been registered is no protection.

When can action be taken? Legal action can be taken against names that are misleading because they: • create the impression that goods and services originate from a particular source when they do not • imply that a product or business has sponsorship, affiliation or approval that it does not have • wrongly suggest that a business or its goods or services have particular attributes or a particular status or function – for example, that the business is of a particular size, has been established for a particular length of time, or operates at a particular level in the distribution chain (wholesale or retail). Check before using Before using or registering a name it is advisable to check that it is not already registered as a name or trade mark by using the free online searches at www. asicconnect.asic.gov.au and www.ipaustralia.gov.au.

Dealing with money [8.260]

There are several ways in which a community organisation with limited funds can improve its financial position. These

involve raising money from grants, appeals and trading activities, and saving money through tax exemptions and concessions.

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A group’s ability to use any of these methods of raising and saving money de-

pends on a number of factors, which are discussed in this section.

Community organisations and funding [8.270]

A community organisation can obtain funds through: • grants from a government department, a foundation or a corporation • earning income from trading activities • appealing for funds from members or the general public.

[8.280] Government grants Funding agreements If a group is allocated government grant money, it will usually have to sign an agreement with the funding body setting out: • why the grant is made • the group’s responsibilities on receiving it. Each funding agreement is different, but a number of matters are common to most. Negotiation Most funding bodies offer their own standard agreement. This does not mean there is no room for negotiation. Funding agreements change from year to year, partly as a result of suggestions made by the groups asked to sign them. Any aspect of a funding agreement that is not clear (or not acceptable) should be raised in a letter to the funding body. Any agreed changes should be confirmed in writing, and included in the final agreement. The management committee's responsibilities Although the staff of an organisation may play an important role in negotiating and implementing a funding agreement, it is usually the management committee (or Board), not the staff, who must ultimately decide whether or not to sign the agreement, and then ensure that its terms are carried out.

Grant conditions Government grants are almost always made on condition that the recipient undertakes specified activities and meets specified requirements. Audit and reporting requirements Most funding agreements include conditions requiring audited financial statements and activity reports to be submitted to the funding body at regular intervals. A group may find that the requirements of one funding body are different from those of a joint funder (or a regulatory body such as the Australian Securities and Investments Commission). To make the process more efficient, it is possible to negotiate with funding bodies on the frequency and type of information required. Choosing an auditor Before choosing an auditor, it is important to find out what their qualifications are and to check that these meet the requirements of the relevant funding or regulatory body. Most funding agreements indicate exactly what qualifications are required, and usually specify that the auditor must not be either a member of the organisation's management committee or an employee.

Ownership of assets Most government departments require the return of any grant funds not spent (or committed) during the funding period. Some funders stipulate that anything purchased with grant money is the property of the department supplying the funds. (This can create problems if the group wishes to trade-in or sell outdated equipment, or if it is sued and a court order is issued to seize property.)

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Assets of a non-profit organisation All the assets (and income) of a non-profit group must be used for the group's objects as set out in its constitution. It is a fundamental principle that the members of a non-profit group have no personal right to the group's assets or income. This principle should be clearly stated in the group's constitution.

Surplus assets on winding up All associations incorporated under the Associations Incorporation Act 2009 (NSW) must, on winding up or voluntary cancellation of incorporation, return any surplus property that was “supplied by a government department or public authority”, including unexpended grant funds. The property must be returned to the supplying department or authority, or a body nominated by the department or authority. This applies even if there is nothing to that effect in the funding agreement. The requirement applies only to surplus property ie, it only comes into force if property remains after the payment of outstanding debts, liabilities and winding-up costs. There is no similar provision in the Corporations Act 2001 (Cth).

[8.290] Appeals for funds There are various methods a group can use in its quest for funds. The most straightforward is a simple request for donations from the public or a business sponsor. This approach may be more successful if the group can offer tax deductibility for donations. If it can’t, it may have to make requests for money more attractive by offering something in return, such as raffle tickets or entertainment.

What approvals are required? Before starting any fundraising activities, it is necessary to decide whether any of the following authorities, permits, licences or approvals are required: • a fundraising authority under the Charitable Fundraising Act 1991 (NSW) (see Fundraising authorities at [8.300]) • a permit under the Lotteries and Art Unions Act 1901 (NSW)

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• a liquor licence • approvals from bodies such as the police or the local council.

Liquor licences A liquor licence is not required if an organisation wishes to provide (not sell) liquor at meetings and functions held at its own premises. It does need a licence if it wishes to sell liquor at its premises or elsewhere (for example, in a public hall). A charge for food or entry to a function where liquor is provided is regarded as a sale of liquor. A “limited licence” can be obtained for a single function or for multiple functions. Applications Application forms can be obtained from the Office of Liquor, Gaming and Racing website along with fact sheets and guidelines that explain the types of licences available, their costs and the conditions which apply. It is also possible to apply for a licence online via the ServiceNSW website at www.onegov. nsw.gov.au/new.

Permits for games of chance Groups conducting games of chance such as raffles, lotteries, art unions or sweeps for a charitable purpose need: • a fundraising authority (see Fundraising authorities at [8.300]), and • in some cases, a permit as discussed below. Raffles – prize value under $30,000 A non-profit organisation does not need a permit to hold a raffle or lottery provided the total value of prizes does not exceed $30,000. There are, however, a number of other requirements. Contact Liquor and Gaming NSW for more information. Art unions – prize value over $30,000 Where the normal retail value of the prizes in a raffle exceeds $30,000 it becomes an art union, and a permit must be obtained from Liquor and Gaming NSW before tickets may be sold. Other games of chance A permit, as well as a fundraising authority, is required for games of chance such as

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chocolate wheels, bingo and lucky envelopes, which are otherwise unlawful. To apply for a permit, a group must complete an Application for a permit to conduct games of chance, available from Liquor and Gaming NSW. Sweeps and calcuttas Sweeps and calcuttas may be conducted on prescribed events (such as the Melbourne Cup) without a permit, provided the total value of tickets sold does not exceed $20,000. A permit from the Office of Liquor, Gaming and Racing is required for amounts over $20,000.

Other approvals required An organisation considering holding a large outdoor function or a roadside collection should consider notifying the local council and the NSW Police. Permission from the relevant government department is required to conduct a collection or other event on public property such as a park, railway station or wharf.

[8.300] Charitable fundraising Under the Charitable Fundraising Act 1991, an organisation that raises money for a charitable purpose must hold a fundraising authority.

What does “charitable” mean? The meaning of “charitable” adopted by Australian lawmakers comes from early English common law. Although there are only four “heads” of charity, the concept is flexible and can take into account changing community values. Charitable institutions At common law an organisation is a charitable institution if: • its main purpose comes under the heads of charity • it is a non-profit body. Examples of charitable institutions under the four heads are: • relief of poverty – welfare organisations, refuges and

The above common law meaning of charitable has recently been codified and expanded for the purposes of federal taxation law by the Charities Act 2013 (Cth). For more information, see [8.350].

Fundraising authorities When is a fundraising authority required? An authority may be required if the organisation: • solicits or receives money, property or some other benefit (by, for example, seeking or obtaining donations, selling tickets in a lottery or art union, seeking sponsorship in a walkathon, selling food, entertainment or other goods or services, or operating a commercial undertaking), and

crisis centres, disaster relief organisations • advancement of education – non-profit schools and business colleges, parents and citizens associations, scouts and guides • advancement of religion – organisations established to build or maintain a building of worship, seminaries and theological colleges • other purposes beneficial to the community – bodies that protect animals or preserve historic buildings, rescue organisations, bush fire brigades and surf lifesaving clubs, organisations that promote the health of a section of the community, organisations that educate the public about a particular disease, and organisations that provide community or neighbourhood facilities.

• represents that it is doing so for a charitable purpose. When a fundraising authority is not required A fundraising authority is not required for: • requesting or receiving membership fees • an appeal to (or receipt from) members • appeals for bequests of money or property • an appeal among workers for a fellow employee (or their family) • applications for (or receipt of) government funds • small fundraisers (being annual fundraising of up to $15,000 by volunteers) • money received for: – educational facilities or services – child-minding services – goods or services supplied through a supported employment service for people with disabilities

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– nursing and medical services – other care or welfare services • a request for, or the receipt of, money, property or other benefit from a registered club if the registered club applies profits to community development and support in accordance with the ClubGRANTS guidelines. Exemption for religious organisations Religious organisations recognised under the Marriage Act 1961 (Cth), and certain groups affiliated with them, are exempt from the requirements of the Charitable Fundraising Act. Religious organisations not recognised under the Marriage Act must be specifically mentioned in the regulations of the Charitable Fundraising Act to obtain an exemption. Obtaining a fundraising authority Application forms are available from NSW Fair Trading. There is no fee to apply. What does the authority cover? Fundraising authorities are granted for a specific period of time (usually five years) or a specific event or events. A standard set of “Fundraising Authority Conditions” apply to all authorities issued and a copy of these conditions may be obtained from the NSW Fair Trading website. Notification of changes A group holding a fundraising authority must notify NSW Fair Trading within 28 days, in writing, of: • changes to its name, address, phone number, constitution (unincorporated groups only), auditor, incorporated status, charitable objects and certain other details • any decision to stop conducting fundraising appeals. This can be done by email to charity. [email protected].

Conducting fundraising appeals Face-to-face fundraisers People engaged in face-to-face fundraising must prominently display a badge or card issued for the purpose.

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Paid direct marketing fundraisers If a group is paying someone for fundraising by telephone, fax, website or mail, they must ensure that the contractor: • discloses that they are being employed and by whom • if requested by the person being solicited, remove that person’s details from their list • if asked, disclose how they got the person’s name and telephone number. Privacy considerations An organisation must not sell or give away information about people from its database unless it has first given them the chance to refuse their consent. A person can ask to have their name removed from the database. Fundraising in association with business To overcome the problem of individuals or businesses deriving benefits under the guise of charitable fundraising, the holder of a fundraising authority may only contract a trader to assist in a fundraising appeal under certain conditions, including that all material relating to the appeal identifies both the authority-holder and the trader. Employees on the management committee The Charitable Fundraising Act 1991 allows a non-profit charitable organisation to have a paid employee on its board or committee of management. However, the prior approval of the relevant Minister is required.

When funds have been raised Any money received in the course of a fundraising appeal must be paid immediately – before expenses are deducted – into a bank, building society or credit union account containing only money raised in fundraising appeals conducted by the authorised fundraiser. An exception to this general rule occurs if all receipts are paid into the general account of the authorised fundraiser and accounting procedures are in place to ensure that money received in the course of a particular fundraising appeal can be clearly distinguished.

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Expenses All funds raised must be used for the group’s stated charitable purposes in conducting the fundraising, except that “proper and lawful expenses” in accordance with the terms of the fundraising authority may be deducted. Investment of funds Funds not needed at once may only be invested in accordance with laws regulating trust funds (for example, with a bank or building society). Expenditure outside NSW Money raised in a fundraising appeal may be used outside NSW if this does not contravene any other law or the organisation's own constitution.

• gross amounts received from each appeal • the net amount received after the deduction of expenses. Incorporated organisations Incorporated organisations need not lodge returns with the minister unless it is a condition of the fundraising authority that they do so. The group must, however, comply with the requirements for lodging annual returns contained in the Act under which it was incorporated. Liability of directors and managers A director or manager of an incorporated body who knowingly authorised or permitted a breach of the Act or Regulation can be held personally responsible for the breach.

Public access to information Financial recording requirements A group conducting a fundraising appeal must: • make records (in English) of income and expenditure, and keep them for at least seven years • show how the appeal’s proceeds were used • keep a cash book, register of assets, minute book, register of receipt books, register of identification badges and register of collection boxes • include certain specific information in the annual financial accounts.

Audit requirements If a group holds a fundraising authority, its accounts must be audited annually by a registered company auditor, or another person approved by the minister. There is an exemption from the audit requirement when the fundraiser receives less than $250,000 gross in any financial year from any fundraising appeals. Unincorporated organisations Unincorporated organisations or individuals holding a fundraising authority must send financial returns to the minister. The authority will specify how often the returns must be sent and they will need to include details showing:

If a group holds a fundraising authority (or has held one in the past 12 months) it must, within 30 days, supply to any member of the public who requests it: • audited financial statements for fundraising appeals over the past seven years • the organisation’s constitution • the names, qualifications and occupations of members of the committee. Fees The maximum fee that may be charged for this information is: • $17.50 for the first page • $1.50 for each additional page.

[8.310] Trading If a group is considering selling goods or services to raise money (trading), it will need to consider: • obtaining an Australian business number • registering for the goods and services tax • pay-as-you-go tax • restrictions imposed by its incorporation • restrictions imposed by its constitution • business licences.

Obtaining an Australian business number A community organisation can apply for an Australian business number (ABN) on the

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basis that it is an “entity carrying on an enterprise in Australia”.

au. Application forms for an ABN can also be obtained from the ATO.

Why obtain an ABN? Some advantages of having an ABN are that: • a charity must have an ABN to apply for endorsement as an income tax exempt charity or a deductible gift recipient • if you supply goods or services to another business and quote your ABN on the invoice, the business does not have to withhold tax (at the top marginal rate) from their payment. You can apply for an ABN online at the Australian Business Register www.abr.gov.

Registering for the GST Registering for the GST (goods and services tax) is a separate process from obtaining an Australian business number, although it can be done at the same time and on the same form. What non-profit organisations must register? Non-profit organisations must register for the GST if their annual turnover is $150,000 or more. Non-profit organisations with an annual turnover less than this can register if they wish.

GST free sales of goods and services Some concessional rules apply to sales made by charities, deductible gift recipients and government schools. Sales made by these organisations of donated second hand goods, raffle tickets and “non-commercial” goods or services are GST free.

What is a non-commercial sale? A sale is regarded as being “non-commercial” if the amount charged is less than 50% of the market value or less than 75% of the amount paid to acquire the good or service (if the supply is of accommodation then it will be GST free if the amount charged is less than 75% of the market value or cost of acquisition).

What must a GST registered organisation do? An organisation registered for the GST: • must include 10% GST on all its taxable supplies • can claim a credit for GST paid for acquisitions in certain circumstances • must complete a business activity statement and send it, and the GST payable, to the ATO at least once every three months.

and reporting systems, including the obligation to make deductions from employees’ wages and to withhold a percentage of payments to suppliers who do not quote an Australian business number. Organisations required to withhold money (for example, income tax deductions from staff wages) must be registered with the ATO and account for the money through regular business activity statements and payments.

Organisations that are not registered An organisation not registered for GST: • does not charge the 10% GST on its supplies • cannot claim a credit for GST paid on its purchases. Forms to register for the GST can be obtained from the ATO.

Pay-as-you-go tax Non-profit organisations that employ staff or purchase goods or services need to understand the PAYG (pay as you go) tax system. PAYG is a single reporting system that replaces more than 10 previous instalment

Paying by instalments Non-profit organisations that are not exempt from income tax, and that earn more than the threshold of $416, may be required to pay their tax by instalments. The ATO will give the organisation an income tax instalment rate, and require it to pay instalments as part of its regular business activity statement. If no instalment rate is provided, income tax is accounted for by lodging an annual company income tax return.

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See Chapter 38, Taxation for more about taxation requirements.

Restrictions on trading activities Incorporated associations Changes to the Associations Incorporation Act mean that an incorporated association can carry on trading activities provided they are small-scale and non-commercial (see Eligibility at [8.40] for an explanation of “small scale” and “non-commercial”).

Restrictions imposed by a constitution A group can restrict its ability to engage in trading activities by its constitution. This applies to unincorporated and all types of incorporated groups. Business licences A group planning to raise funds by starting a business operation may need a licence or permit. To find out what might be required, go to the Australian Business Licence Information Service (ABLIS) website at ablis.business. gov.au.

Companies and cooperatives There are no special restrictions on trading activities of cooperatives and companies limited by guarantee.

Tax exemptions and concessions [8.320]

A group’s eligibility for exemptions depends on: • the type of activities it undertakes, and • what is in its constitution.

[8.330] Applying for

exemption Community organisations should include a copy of their constitution and other information such as a website address, brochures or a statement of activities, when applying for exemptions or concessions. A copy of recent financial reports may also be required. The department processing the application will be looking for specific features allowing an exemption under the legislation creating the particular tax or charge. Each piece of legislation is different, and specifies the types of organisations that are eligible.

[8.340] Exemption

terminology It is helpful to understand the following terms which are commonly used to determine eligibility for exemption.

Not-for-profit (or non-profit) These terms mean the same thing. If an organisation is to qualify as non-profit, all its income, assets and surplus funds must be used to achieve its objectives and may not be distributed to members. A non-profit organisation can earn more than it spends (ie, it can make a profit). It may trade and have employees, and make payments to members in the form of wages, rent, interest and reimbursement for expenses. However, if it makes such payments to members above normal commercial levels, it could be regarded as distributing profits and hence not be considered a non-profit organisation.

Charity An organisation will be accepted as a “charity” for the purposes of federal taxation exemptions if it is a not-for-profit body and all of its main purposes are both charitable and for the public benefit. The Charities Act 2013 (Cth) has expanded the common law meaning of charitable purpose so that it now includes: • advancing health • advancing education • advancing social or public welfare

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• advancing religion • advancing culture • promoting reconciliation, mutual respect and tolerance between groups of individuals that are in Australia • promoting or protecting human rights • advancing the security or safety of Australia or the Australian public • preventing or relieving the suffering of animals • advancing the natural environment • any other purpose beneficial to the general public that may reasonably be regarded as analogous to, or within the spirit of, any of the above purposes. Other purposes that were recognised as charitable by the general law before the Charities Act 2013 came into effect continue to be charitable.

Public benevolent institution A public benevolent institution is a type of charity whose main object and activity is “the relief of poverty, sickness, suffering,

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distress, misfortune, destitution or helplessness”. To be recognised as a public benevolent institution a group must be an organisation or association formed to benefit the public and must: • provide relief for the benefit of a section of the public that is in need • make its services available without discrimination to those who the organisation aims to benefit • do more than just distribute money to other organisations ie, conduct its own activities and not act as a passive fund.

Health promotion charity An organisation can qualify as a health promotion if: • it is a charity as defined above • it is an institution which carries out activities (apart from just distributing funds) • it promotes the prevention or the control of disease in human beings, and • this is its principal activity.

Federal taxation [8.350]

The federal government is concerned with: • income tax • tax deductible donations • fringe benefits tax • superannuation contributions.

[8.360] Income tax All community organisations (incorporated and unincorporated) are regarded as having a separate legal entity for income tax purposes and are liable to pay income tax at company rates unless they are an exempt entity. What is income? Income tax is levied only on income. This means that while net trading revenue, interest and rental income are taxable, annual subscriptions and gifts to an association are generally not.

Non-profit groups that are not exempt Non-profit entities that are not exempt pay tax only if their taxable income is over $416 per year. If taxable income is between $417 and $863 per year the amount over $416 is taxed at 55%. If taxable income is $864 or more, the whole taxable income (not just the amount over $416) is taxed at a flat 28.5%.

Lodging tax returns If a group has to pay income tax it must lodge an income tax return and needs a tax file number. Paying tax on interest If the group holds money in an interestbearing account and does not want tax automatically deducted from any interest earned, it must quote its tax file number to the financial institution. The interest still forms part of the group’s income and must be shown in its tax return.

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Groups that do not need to lodge a return Groups need not lodge an income tax return if: • they are exempt from paying income tax, or • they earn less than the minimum taxable income of $416 per year.

Types of organisations that are exempt from income tax Exempt non-profit organisations include: • charities, public benevolent institutions and health promotion charities registered with the Australian Charities and Notfor-profits Commission (ACNC) • community service organisations • cultural organisations • sporting organisations. Obtaining an income tax exemption Charities, public benevolent institutions and health promotion charities must have an Australian business number (ABN) and be registered with the Australian Charities and Not-for-profits Commission before their application for income tax exemption will be considered by the ATO (see Obtaining an Australian business number at [8.310]). The registration forms have a section the applicant can use to notify the ATO that they wish to apply for exemption from income tax. Non-profit organisations that are not registered with the ACNC are required to make a self-assessment of their income tax status. The ATO has a worksheet and explanatory material to help with this called Income tax status review worksheet for self-assessing nonprofit organisations which is available on the ATO website. Other qualifications for exemption To qualify for income tax exemption, most organisations must have a physical presence in Australia, and pursue their objectives and incur their expenditure solely and entirely in Australia.

[8.370] Tax deductible

donations While many organisations are eligible for an income tax exemption, most will find it difficult to obtain tax deductible status for donors.

Deductible gift recipients The Income Tax Assessment Act 1997 (Cth) provides that gifts of $2 or more to certain organisations or funds are tax deductible for the donor. Many organisations are mentioned by name. There are also some general categories listed in the deductible gift recipient (DGR) table in the Act, including: • public benevolent institutions (see Public benevolent institution at [8.340]) • public funds for acquiring, constructing and maintaining school buildings • public funds for providing religious instruction in schools • approved research institutes • approved overseas aid funds • registered environmental organisations • public funds for setting up or maintaining marriage guidance organisations • charitable services institutions • animal welfare charities • fire and emergency services funds • developed country or Australian disaster relief funds. Applying for deductible gift recipient status To be endorsed as a deductible gift recipient (DGR), an organisation must have an Australian business number and be registered with the ACNC. The application form includes a section for notifying the ATO that it wants to apply for endorsement as a deductible gift recipient. An application form for endorsement is then sent to them. Other qualifications To qualify, an organisation must also: • have a dissolution clause providing that any surplus assets must go to another organisation with deductible gift recipient endorsement • have rules that establish a gift fund into which all donations can be deposited and accounted for separately from other funds (this is not essential where the

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organisation as a whole will be endorsed as a deductible gift recipient).

[8.380] Fringe benefits tax Non-profit organisations that provide fringe benefits to their employees are subject to fringe benefit tax, with four exceptions: • public benevolent institutions • health promotion charities • religious institutions, for certain employees • non-profit companies: – whose activities include caring for elderly or disadvantaged people, and – who provide benefits to live-in carers. Some minor benefits valued at less than $300, some taxi travel and some workrelated items (such as mobile phones and laptop computers) are also exempt.

The fringe benefits tax rebate Even though all other organisations are liable to pay fringe benefits tax, most nongovernment, income tax exempt organisations qualify for a fringe benefits tax rebate,

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reducing their liability by a rebate equal to 48% of the fringe benefits tax payable. The concessional fringe benefit tax treatment is capped at $30,000 of grossed-up taxable value for each employee. Any fringe benefits above this level is subject to normal fringe benefits tax treatment.

[8.390] Superannuation

contributions All community organisations who are employers (including income tax exempt charities) are subject to the superannuation guarantee legislation, which requires all employers to pay a superannuation contribution for each employee – full-time, parttime or casual – unless they are paid less than $450 in any calendar month. An employer who fails to pay superannuation contributions is liable to pay a superannuation guarantee charge. See Chapter 37, Superannuation for more about superannuation.

State taxation [8.400]

NSW government taxation affects community organisations in the areas of: • stamp duty on conveyances and mortgages • stamp duty on insurance policies • stamp duty on an application to register a motor vehicle • land tax • payroll tax.

[8.410] Stamp duty Conveyances and mortgages An exemption from stamp duty on conveyances of property and mortgages is difficult

to obtain, but may be granted if a group: • uses its resources for the relief of poverty • uses its resources for the promotion of education • is charitable or benevolent • promotes the interests of Aboriginal people. Applying for exemption To apply for an exemption, an organisation must lodge an “Application for Exemption Charitable & Benevolent Bodies” (ODA 048), available from the Office of State Revenue. For more information see the Duties Act 1997 (NSW), s 275 and revenue ruling DUT34. Copies can be obtained from the Office of State Revenue or its website at www.osr.nsw.gov.au.

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Insurance policies and motor vehicle registrations Non-profit organisations with a charitable, benevolent, philanthropic or patriotic purpose are eligible for an exemption from stamp duty on: • insurance policies other than life insurance (Duties Act 1997, s 259) • motor vehicle registrations (Duties Act, s 267). Applying for exemption To apply for an exemption, an organisation must lodge an “Application for Exemption from Duty” (ODA 006), available from the Office of State Revenue or its website.

[8.420] Land tax Taxable land Landowners in NSW do not have to pay land tax on land used as their principal place of residence. Land tax is payable on other land owned if the total value exceeds a specified threshold – $482,000 in 2016.

Exemptions An exemption from land tax is available for land owned by (or held in trust for): • a religious society • a charitable institution • an educational institution • a sporting group • another association that does not operate for the financial profit of members. Land used for farming or other primary production activities is generally exempt from land tax. Partial exemptions A partial exemption may apply in some situations where only part of the land or building is used and occupied for non-profit purposes. Applying for exemption Applications for exemption should be made to the Office of State Revenue. For more information see the Land Tax Management Act 1956 (NSW), s 10. Application forms for exemption are available from the Office of State Revenue (Forms OLT 25 and OLT 26) or its website at www.osr.nsw.gov.au.

[8.430] Payroll tax Exemptions Under the Payroll Tax Act 2007 (NSW), wages paid or payable by the following organisations are exempt from payroll tax: • a religious institution, public benevolent institution or a non-profit organisation having as its sole or dominant purpose a charitable, benevolent, philanthropic or patriotic purpose (but not including a school or educational institution), for work of a kind ordinarily performed in connection with the religious, charitable, benevolent, philanthropic or patriotic purposes of the institution or body and to a person engaged exclusively in that kind of work (s 48) • a school or college (other than a technical school or a technical college) that provides education at or below, but not above, the secondary level of education, and is carried on by a non-profit association (s 49) • a Community Development Employment Project funded by the Department of Employment and Workplace Relations of the Commonwealth or the Torres Strait Regional Authority for wages paid to an Aboriginal person who is employed under an employment project (s 50) • a health care service provider for work of a kind ordinarily performed in connection with the conduct of a health care service provider and to a person engaged exclusively in that kind of work (s 51).

Wages that are not exempt If non-exempt wages paid by an organisation exceed the Office of State Revenue’s prescribed monthly threshold, the organisation must register with the Payroll Tax Office. If the total payroll for non-charitable activities exceeds $750,000 for the year ended 30 June 2016, a liability for payroll tax will arise.

8 Community Organisations

Note: Religious institutions, public benevolent institutions, non-profit and charitable organisations that are, or would be exempt, under the Pay-roll Tax Act 1971 (NSW) as at 30 June 2007 will continue to be subject to the provisions of that Act unless they alter their constitution in respect of their charitable or equivalent objects after 30 June 2007.

Applying for exemption Application forms for exemption from payroll tax (Form OPT 007) are available from the Office of State Revenue or its website at www.osr.nsw.gov.au.

[8.440] Rates and charges Local government rates Under the Local Government Act 1993 (NSW), land is exempt from local council rates (including any water and sewerage special rates levied by the local council) if it is: • owned by a religious body and used for religious purposes, or • owned by a school and used as a school (s 555). Land owned and occupied by a public charity or public benevolent institution is also exempt from ordinary council rates if it is used for the organisation’s purposes (s 556(h)). In some cases, land owned by a public charity may be exempt from water supply and sewerage special rates levied by the local council. Applying for exemption Applications should be made to the local council.

Water rates An exemption from water service charges may be obtained for land: • owned by a public benevolent institution or public charity that uses or occupies it for its benevolent or charitable purpose

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• owned by a religious body that occupies and uses it for religious purposes, or as a hospital • used or occupied as a baby health centre, day nursery, kindergarten or amenities for the aged that is not conducted for private profit • used as a free public library and vested in the Crown, a public body or trustees. The relevant legislation for the Sydney area is the Sydney Water Act 1994 (NSW), s 67 and Sch 2. Applying for exemption Applications for exemption can be made to the local Sydney Water office. Outside the Sydney area, applications for exemption should be made to the local water supply authority (see the Water Management Act 2000 (NSW), s 312 and Sch 4, and the Local Government Act 1993 (NSW), s 558).

Electricity There are no concessions available to community organisations for electricity accounts. The best an organisation can do is qualify for billing under the lowest tariff. The rate (commercial, institutional, industrial or domestic) will be determined by the purpose for which an organisation uses its premises.

Motor vehicle registration When lodging an “Application for registration” a non-profit organisation with a charitable, benevolent, philanthropic or patriotic purpose is entitled to a concessional rate for vehicle registration, which is lower than the company rate. It may be necessary to give the Roads and Maritime Services a statutory declaration about the use of the vehicle. Non-profit organisations that qualify for this concession are also eligible for an exemption from paying stamp duty on the transfer of motor vehicle registration.

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Leasing premises Although community organisations are given preferential treatment in some areas of the law (such as tax exemptions and simplified forms of incorporation), they are otherwise subject to the same laws as the business community. One of the common commercial transactions a community group may engage in is leasing a property. For a group unsure about how to deal with a commercial situation, it is useful to talk to a local solicitor to give members an idea of the legal position and help them decide the next move. Understanding the lease Community organisations need to be cautious about signing a lease, not just relying on statements made by the landlord or real estate agent but reading the agreement carefully and making sure that each clause is understood. It is usually a good idea to obtain independent legal advice before signing.

Negotiation You don't have to agree to everything in the lease. Landlords often expect that it will be negotiated, so some of the terms they propose at first may be unreasonably burdensome. It may also be possible to negotiate some of the initial costs, including rent-free periods and sharing legal fees, depending on the rental market. You may not get all the concessions you want, but you won't get any concessions if you don't negotiate. Lease terms Most leases for commercial premises are offered for initial terms of two or three years. The organisation will need to ensure that lease obligations do not conflict with its funding guarantees. If possible, the organisation should have a clause inserted into the lease allowing early termination if its funding is not renewed. Otherwise, it should negotiate a lease for a shorter term.

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Contact points [8.450]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au. Australian Charities and Not-for-profits Commission

Department of Justice, Liquor and Gaming

ph: 9689 6200

www.acnc.gov.au

www.liquorandgaming.justice.nsw. gov.au

ph: 1300 139 816

ph: 13 22 62 Australian Government gateway to government information and services www.business.gov.au

ph: 9995 0300 Law Society of NSW www.lawsociety.com.au

Land tax Payroll tax ph: 1300 139 815 Stamp duties ph: 1300 139 814

Australian Securities and Investments Commission

ph: 9926 0333 NSW Fair Trading www.fairtrading.nsw.gov.au

www.asic.gov.au

ph: 13 32 20

ph: 1300 300 630

ph: 1800 622 431

NSW Legislation

Australian Taxation Office

www.legislation.nsw.gov.au

www.ato.gov.au

Office of State Revenue

Registry of Co-operatives and Associations www.fairtrading.nsw.gov.au

ph: 1300 130 248

www.osr.nsw.gov.au

ph: 1800 502 042

Office of the Registrar of Indigenous Corporations www.oric.gov.au

9 Complaints Scott Calnan Senior Lawyer Elisa Harris Commonwealth Ombudsman Madeleine Hunt Office of the NSW Ombudsman Georgia Millar Office of the Legal Services Commissioner Lynda Muston Assistant Commissioner (Legal), Office of the Legal Services Commissioner

Contents [9.10]

Complaints about government

[9.370]

[9.20]

State and federal administrative law The Ombudsman

[9.450]

Judicial review by the Courts of decisions by the Government Complaints about police

[9.450]

NSW Police

[9.130]

The Independent Commission Against Corruption

[9.540] [9.590]

Australian Federal Police Complaints about lawyers

[9.200]

Specialist tribunals and courts

[9.600]

The Legal Services Commissioner

[9.220]

The Administrative Appeals Tribunal - Reviewing decisions made by the Commonwealth Government

[9.660]

The Costs Assessment Scheme

[9.700]

Court action for negligence

[9.740]

Money held in trust

[9.60]

[9.300]

The NSW Civil and Administrative Tribunal (NCAT) - Reviewing decisions made by the NSW Government

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Complaints about government [9.10]

Someone who is dissatisfied with the decision of a government body may have various avenues for seeking a remedy,

from requesting the intervention of a member of parliament or complaining to the Ombudsman to bringing court proceedings.

State and federal administrative law [9.20]

The purpose of administrative law is to ensure that governments are accountable for their decisions and actions.

[9.30] State or federal law? Complaints about state and federal government departments and agencies are handled by different bodies. Different laws and court procedures apply to each. If it is not clear whether something is a federal or state matter, the offices of the Commonwealth or NSW Ombudsman can be contacted for advice.

Local councils Local councils are often described as the third level of government. This is not strictly correct, because local councils exist under state laws and, in NSW, they are ultimately controlled by the Minister for Local Government. However, they have a considerable influence on daily life in the local community, and their activities are subject to administrative law.

[9.40] Making a complaint Discussion with the decision-maker Anyone not happy about a decision made by a government department or agency should start by trying to discuss the problem with the officer who made the decision.

Internal review Some departments have an internal review system by which other officers in the department or agency reconsider decisions. A person who is unhappy with government administrative action or decisions is often required to use internal review procedures before other avenues are available.

Administrative Tribunals If the department or agency will not reconsider its decision you can sometimes go to an external merits review tribunal (such as the Administrative Decisions Tribunal (AAT) or the NSW Civil and Administrative Tribunal (NCAT)) that will often reconsider the decision and may replace the decision with what it considers to be a correct or preferable decision.

Judicial Review Judicial review is where a person applies to a relevant court to have it review whether the decision by the government department of agency was made in accordance with the applicable law. Normally, if the court finds that the decision was unlawful it will send the decision back to the department or agency to be made in accordance with the law.

9 Complaints

The government decision-making process Most government administration is carried out by government departments. Each department is responsible to a minister and is headed by a senior public servant, such as the Secretary of the Department of Human Services (DHS). Responsibilities in special areas may be given to statutory authorities such as the State Transit Authority. These bodies are set up by Acts of parliament that outline their functions, powers and operating procedures. Regardless of who carries out a particular decisionmaking process, the ultimate political responsibility lies with the minister. Delegation of authority Administrative functions are usually delegated to department or agency staff. For example, it would be impossible for the Secretary of the Department of Human Services (DHS) to personally decide every claim for the age pension. The secretary delegates this to the department's officers and its service delivery agency, Centrelink. Procedural manuals General instructions and guidelines for officers are usually set out in manuals, which contain detailed rules interpreting the various sections of the relevant legislation. These manuals must be made available to members of the public under freedom of information laws (see Chapter 25, Freedom of Information).

If the complaint cannot be resolved Federal government complaints If problems with a federal government department cannot be resolved, a person may be able to: • complain to the Commonwealth Ombudsman (see The Commonwealth Ombudsman at [9.70]) • appeal to a specialist tribunal • appeal to the Administrative Appeals Tribunal • seek judicial review by the Federal Circuit Court, the Federal Court or the High Court. NSW government complaints If problems with a NSW government department cannot be resolved, a person may be able to: • complain to the NSW Ombudsman (see The NSW Ombudsman at [9.80])

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• lodge an application for review to a specialist tribunal or court • lodge an application for review to the NSW Civil and Administrative Tribunal (NCAT), or • seek judicial review by the NSW Supreme Court.

Assessing the cost Where more than one avenue of review is available it is important to assess the cost and time required to pursue each avenue. For example, even if review by the Administrative Appeals Tribunal is possible (see The Administrative Appeals Tribunal – Reviewing decisions made by the Commonwealth Government at [9.220]), the time, energy and cost involved may be such that it would be better to ask the Ombudsman to investigate.

[9.50] Finding the reasons for

a decision The importance of getting reasons It is often through finding out the reasons for a government decision that a person discovers an error in the decision-making process. They can then decide whether any challenge is possible, and whether it is likely to succeed. Knowing the reasons may also show the person that while the decision was not the one they wanted, it was correct according to the rules under which the agency operates.

Is there a right to be given reasons? People have no general right to be given reasons for a decision made by a government officer. Under certain circumstances, however, the law requires that reasons be given. Rights under legislation A person may be entitled to be given the reasons for a decision under the legislation that regulates the decision-making process; for example, the Environmental Planning and Assessment Act 1979 (NSW) or the Local Government Act 1993 (NSW) for certain decisions made by local councils; or freedom of information legislation – the Freedom of

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Information Act 1982 (Cth) in relation to decisions made by the Commonwealth Government and the Government Information (Public Access) Act 2009 (NSW) in relation to decisions made by the NSW Government. For more information in relation to decisions by the NSW Government, see www.dpc. nsw.gov.au/about/accessing_dpc_ information/what_is_public_access_to_ government_information. Where decisions are reviewable A person may apply to the decision-maker for reasons if the decision is reviewable, amongst other bodies, by: • the federal Administrative Appeals Tribunal (under the Administrative Appeals Tribunal Act 1975 (Cth)) • the Federal Court (under the Administrative Decisions (Judicial Review) Act 1977 (Cth)), or • the NSW Civil and Administrative Tribunal (under the Civil and Administrative Tribunal Act 2013 (NSW)).

• the information was supplied in confidence • disclosure would reveal a trade secret • the information was given to comply with an Act or regulation • disclosure would breach a duty on the decision-maker not to divulge information of that kind. Exemptions Schedule 2 of the Administrative Decisions (Judicial Review) Act exempts certain types of decisions from the requirements of s 13 – for example, decisions relating to personnel management in the Australian Public Service. Under both this Act and the Administrative Appeals Tribunal Act 1975, the federal Attorney-General may issue a certificate stating that certain matters cannot be disclosed because it would be contrary to the public interest. What is the public interest?

Time limits Generally, where there is a right to be given reasons the person must apply within 28 days of receiving notice of the decision, and the decision-maker must reply within 28 days.

Public interest may be claimed where: • disclosure could harm Australia's security, defence or international relations, or • disclosure would reveal deliberations or decisions of Cabinet, or • the situation is one where privilege could be claimed in judicial proceedings.

What information must be given The decision-maker’s reply should: • set out the findings on questions of fact • refer to the evidence on which those findings were based, and • give the reasons for the decision.

Other ways to obtain information

Legislation The relevant sections of the Acts are: • Administrative Appeals Tribunal Act 1975 (Cth), s 28 • Administrative Decisions (Judicial Review) Act 1977 (Cth), s 13 • Civil and Administrative Tribunal Act 2013 (NSW), s 62. Information about third parties Under the Administrative Decisions (Judicial Review) Act a statement of reasons may omit information relating to the personal or business affairs of anyone other than the applicant where:

If none of the Acts authorising review applies and the legislation under which the decision was made does not impose an obligation to provide reasons, the only avenue for obtaining information about the decision-making process is to seek access to the government file and other relevant documents. This can be done by using: • freedom of information legislation - the Freedom of Information Act 1982 (Cth) in relation to decisions made by the Commonwealth Government and the Government Information (Public Access) Act 2009 (NSW) in relation to the NSW Government, or • with the court’s approval, a procedure called discovery.

9 Complaints

Public interest immunity The government may seek to refuse a claim on the basis that the documents are subject to public interest immunity (that is, that the

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balance is clearly in favour of protecting the public’s interests over those of the individual litigant).

The Ombudsman [9.60]

The federal government and the states have each established an office of the Ombudsman that is impartial and independent of government to receive and seek to resolve complaints about government departments, statutory authorities and public officials and employees. The services of the Ombudsman are free and confidential. An ombudsman is an official, usually (but not always) appointed by the government or parliament, who is charged with representing the interests of the public by investigating and addressing complaints reported by individual citizens. Approach the government agency first

Before complaining to the Ombudsman, an attempt should be made to resolve the problem by approaching the agency concerned. The Ombudsman may decide not to investigate a complaint where no such attempt has been made, and direct contact with the agency is often the quickest way of getting a satisfactory result. The aim of the Ombudsman Office is to resolve complaints impartially, informally and quickly. If they cannot assist with a particular complaint, they will explain why, and suggest other avenues for resolving the matter.

performs audits and inspections, encourages good administration and discharges specialist oversight tasks. Under the Ombudsman Act, the Commonwealth Ombudsman is also the: • Defence Force Ombudsman • Immigration Ombudsman • Law Enforcement Ombudsman • Overseas Students Ombudsman • Postal Industry Ombudsman • Private Health Insurance Ombudsman.

Australian government agencies and services The Ombudsman can investigate complaints about the actions and decisions of Australian government agencies to see if they are wrong, unjust, unlawful, discriminatory or just plainly unfair. Complaints about services delivered by contractors for and on behalf of the Australian government – for example contractors who operate immigration detention facilities can also be investigated.

Defence Force Ombudsman

[9.70] The Commonwealth

Ombudsman The Ombudsman Act 1976 (Cth) creates the office of the Commonwealth Ombudsman, with branches in most states and the Australian Capital Territory (see Contact points at [9.770] for the NSW address). The Commonwealth Ombudsman safeguards the community in its dealings with Australian Government entities and prescribed private sector organisations that it oversights. The ombudsman’s office handles complaints, conducts investigations, and

The Defence Force Ombudsman investigates actions taken in relation to members and former members of the Australian Defence Force (ADF) arising out of their ADF employment (other than some disciplinary actions and certain actions relating to honours and awards). Complaints about relevant matters such as promotion, demotion, discharge, postings, housing allowances and matters affecting their service can be lodged by current and former members of the ADF, their spouses and dependents. From December 2016, the Defence Force Ombudsman will have an additional function in relation to reports by serving or former members of the ADF, of serious instances of abuse.

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Immigration Ombudsman The Immigration Ombudsman can investigate actions taken by the Australian Government’s Department of Immigration and Border Protection (DIBP), including the Australian Border Force in relation to visas, citizenship, immigration and detention. This includes DIBP’s processing of visa and citizenship applications, and DIBP’s decisions to refuse or cancel visas. The Immigration Ombudsman has a compliance role and undertakes file inspections, site visits and observations of DIBP’s field operations. The Ombudsman monitors DIBP’s actions in relation to the location, identification, detention and removal of unlawful non-citizens. The Immigration Ombudsman regularly visits immigration detention centres and other facilities that are used to accommodate detainees. In the Immigration Ombudsman’s complaint role, detention-related complaints generally concern internal complainthandling procedures, access to health services, access to internal and external activities and property related matters. One of the Ombudsman’s roles is to ensure that the refugee assessment process for unlawful non-citizens is conducted in a timely and reasonable manner. In addition, under Pt 8C of the Migration Act 1958 (Cth), the Ombudsman must assess, report on and makes recommendations in relation to people held in immigration detention for more than two years. These reports are given to the Minister for Immigration and tabled in parliament in a deidentified fashion.

Law Enforcement Ombudsman and inspections role The Commonwealth Ombudsman has a special role under Pt 5 of the Australian Federal Police Act 1979 (Cth) in relation to the Australian Federal Police. In this role the Commonwealth Ombudsman may be referred to as the Law Enforcement Ombudsman. The Law Enforcement Ombudsman oversights the the AFP’s management of its professional standards issues through regular and ad hoc inspections of the AFP’s records.

Allegations of corruption within the AFP and the Australian Crime Commission (ACC) are referred to the Australian Commission for Law Enforcement Integrity (www.aclei.gov.au). The Commonwealth Ombudsman also inspects and reports on sensitive or intrusive law enforcement activities undertaken by the AFP, the ACC and other bodies including state police. In addition the Commonwealth Ombudsman also oversees the retention and storage of data by these organisations. These roles are provided by the: • Telecommunications (Interception and Access) Act 1979 (Cth), in relation to the interception of telecommunications, access to stored communications, and the retention of data • Surveillance Devices Act 2004 (Cth), in relation to the use of technology such as listening devices, and • Crimes Act 1914 (Cth), in relation to law enforcement controlled operations. Under these Acts, the Ombudsman reports to the responsible federal minister, who reports to parliament.

Postal industry The Postal Industry Ombudsman can investigate the actions of Australia Post and those of its commercial peers that register to be part of the Ombudsman Scheme created under the Ombudsman Act. The intent is that the Postal Industry Ombudsman acts in a similar manner to other industry Ombudsmen, but with the capacity to exercise set statutory investigation and reporting powers and to use their ombudsman powers in relation to Australia Post if warranted.

Overseas students The Overseas Students Ombudsman investigates complaints from overseas students about the actions of private education providers on the Commonwealth Register of Institutions and Courses for Overseas Students (www.cricos.education.gov.au). This register is administered by the Australian Government’s Department of Education and Training and includes education providers and services (eg, accommodation, student

9 Complaints

support and information services) that assist overseas students to adjust to life in Australia.

Private Health Insurance Ombudsman The Private Health Insurance Ombudsman deals with complaints related to private health insurance. For example, a complaint can be made about a private health fund, a broker, a hospital, a medical practitioner or other health practitioner. The Ombudsman also publishes information that compares health funds and reports on individual funds. The Ombudsman can investigate a complaint or refer a matter to mediation. The Ombudsman does not deal with complaints about the service or treatment provided by a health professional or hospital.

Taxation The Commonwealth Ombudsman no longer handles complaints about tax administration. These complaints are dealt with by the Inspector-General of Taxation (www.igt.gov.au).

Public interest disclosure scheme The Public Interest Disclosure Act 2013 (Cth) provides a whistleblower protection scheme for public officials at the federal level. Under this Act, the Ombudsman: • promotes awareness and understanding of the scheme • provides information, resources and guidance to agencies and disclosers • monitors the operation of the scheme, and • reports annually to parliament. Individuals who meet the definition of a public official – which includes most staff of Australian Government agencies, contractors, and employees of providers of goods and services under contract to the Commonwealth – can use the scheme to report wrongdoing. More information is available at www.pid.ombudsman.gov.au.

[9.80] The NSW Ombudsman The office of the NSW Ombudsman was created by the Ombudsman Act 1974 (NSW),

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which sets out the Ombudsman’s role and how it undertakes its work. Over time the Ombudsman’s jurisdiction has been expanded by legislation changes that have given the office new responsibilities.

The NSW Ombudsman's functions The various roles of the NSW Ombudsman are: • dealing with complaints about the conduct of NSW public authorities, including councils • dealing with complaints from inmates about correctional and juvenile justice centres • regular visits to, and inspection of, correctional and juvenile justice centres • overseeing serious police complaint investigations; auditing police handling of less serious complaints and direct investigation of police (Police Act 1990 (NSW)) • overseeing the implementation of the Public Interest Disclosures Act 1994 (NSW) including providing advice and assistance to public authorities and public officials on the operation of the Act, and dealing with public interest disclosures • determining appeals against decisions by the Commissioner of Police in relation to the witness protection program (Witness Protection Act 1995 (NSW)) • auditing certain records of agencies authorised to intercept telephone communications (Telecommunications (Interception and Access) (NSW) Act 1987 (NSW)) • auditing certain records of agencies authorised to conduct “controlled operations” (Law Enforcement (Controlled Operations) Act 1997 (NSW)) • monitoring the implementation and effects of new legislation, particularly in the area of policing • dealing with complaints about community and disability services (Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)) • coordinating the Official Community Visitors Scheme • reviewing the causes and patterns of deaths of certain children and people with a disability, and identifying ways in

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•

•

•

•

•

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which such deaths could be prevented or reduced overseeing the investigation and management of child abuse allegations and convictions against employees of certain government and non-government agencies, and monitoring systems for preventing child abuse by the employees of those agencies. overseeing the investigation and management of reportable incidents involving people with disability who live in supported group accommodation, and monitoring how organisations respond to and prevent such matters monitoring and reviewing the implementation of certain Aboriginal programs and the delivery of government services to Aboriginal people in NSW providing information and training to public authorities and community services about best practice complaint-handling providing information to users of community services about consumer rights and responsibilities and promoting their participation in decision-making about the services they receive. Recent complaints to the NSW Ombudsman

In 2014-2015, the NSW Ombudsman received 11,109 formal complaints, including written complaints and notifications, and 29,197 informal complaints, including verbal enquiries. Of these, there were 3,434 formal and 2,324 informal complaints about NSW Police; 2,323 formal and 4,719 informal complaints about public authorities; 1,425 formal and 780 informal complaints and notifications about employment-related child protection; 948 formal and 1,961 informal complaints about local councils; 738 formal and 3,096 informal complaints about custodial services; 788 formal and 1,028 informal complaints about community and disability services and 371 formal and 75 complaints and notifications about disability reportable incidents. The Ombudsman also received 1,082 formal and 11,094 informal complaints that were outside its jurisdiction.

[9.90] Complaints to the

Ombudsman Who can complain? Any member of the public (or their representative, such as a relative, friend, advocate, solicitor or welfare officer) can make a complaint to the Ombudsman, as can companies, organisations and associations.

How should the complaint be made? The NSW Ombudsman The Ombudsman generally expects that people have complained about the issue directly to the agency concerned (via its internal complaint or feedback process) before bringing their complaint to the Ombudsman. This is to ensure the agency has an opportunity to deal with a complaint before the Ombudsman becomes involved. Complaints to the NSW Ombudsman should be in writing, however the Ombudsman may accept a complaint that is not in writing if they consider it is appropriate to do so. People can complain using the online complaint form on the NSW Ombudsman’s website, or by post or email. Staff can help people to lodge complaints and complaints from people whose first language is not English may be written in their preferred language. The Commonwealth Ombudsman The Commonwealth Ombudsman may take complaints by phone, in writing or by electronic lodgment through the Ombudsman’s website. Interpreters can be arranged if needed. What should be in a written complaint A written complaint should include: • copies of any essential correspondence with the government official or body, including any response to an initial complaint to that agency • any other relevant documents • the nature of the complaint • the facts of the dispute • the preferred remedy or solution.

9 Complaints

What can the Ombudsman investigate? The Ombudsman investigates matters of administration. This word is not defined in the legislation, but the courts have interpreted it broadly to include most aspects of government decision-making other than judicial or legislative functions of government. The Ombudsman has the power to investigate such things as: • an agency’s administrative actions • an agency’s decisions or recommendations • refusal or failure to make a decision or recommendation, or to take some action • failing to properly explain a decision or conduct • delays in making a decision. Investigations where there has been no complaint The Ombudsman also has an own motion power to investigate – they can act on their own initiative, without having to receive a complaint. Both the Commonwealth and the NSW Ombudsman have investigated various matters on this basis.

What can't the Ombudsman investigate? The Ombudsman cannot investigate: • the actions of a government minister • the actions of a judge, magistrate or coroner • disputes about employment between the government and its employees (unless there are special circumstances; but see box below) • certain actions of government authorities that are specifically excluded in schedules to the NSW Ombudsman Act 1974. Complaints about employment The employment exception is intended to leave these questions to the industrial relations system. The NSW Ombudsman has found that most complaints about employment-related issues are outside its jurisdiction, although may look at matters affecting a person as an employee where the conduct falls within the exception to Sch 1 cl 12 of the Ombudsman Act 1974 (NSW). The Commonwealth Ombudsman has adopted the view that it may investigate certain complaints arising out of preand post-employment negotiations, as well as certain

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employment-related matters that arise once the employment contract has been cancelled.

Refusal to investigate The Ombudsman may choose not to investigate a complaint where: • the complaint could be resolved by internal government procedures • in the Ombudsman’s opinion the complainant does not have a sufficient interest in the subject of the complaint • the matter being complained about is too remote in time to justify investigation • the complaint is “frivolous or vexatious” • an alternate and satisfactory means of redress is or was available to the complainant, such as: – administrative appeal – the Federal Administrative Appeals Tribunal or the NSW Civil and Administrative Tribunal – judicial review – civil court action – other complaint handling or dispute resolution processes, for example the Energy and Water Ombudsman (EWON).

[9.100] The investigation Informal investigations Nearly always, government agencies cooperate with the Ombudsman and complaints are investigated informally. Where problems are identified in the course of the Ombudsman’s inquiries these can usually be resolved to the Ombudsman’s satisfaction, whether in favour of the complainant or the agency. For example, the agency may agree to provide reasons for its decision.

Formal investigations Where the Ombudsman decides to formally investigate a matter, it has the powers of a Royal Commission, including the power to: • examine files and records held by the agency concerned • enter government premises • question people • take evidence on oath.

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Confidentiality The Ombudsman must conduct investigations in private. This means that no-one, other than the agency concerned, is told that a complaint has been made. Information given to the complainant The complainant is usually informed in general terms about the investigation and is always given the reasons for the Ombudsman’s eventual finding. If the Ombudsman makes any recommendations, the complainant is always given a copy. However, the complainant is not given all the information revealed in the course of the investigation if there are legal or other good reasons to justify confidentiality.

Where the agency is found to be at fault After investigation, the Ombudsman may conclude that the action or decision that gave rise to the complaint was wrong because: • it appears to be against the law • it is unreasonable, unjust or oppressive • it is in accordance with a law or other rule or provision that is itself unreasonable or unjust • it involves unfair discrimination • it is based on a mistake about the law or the facts • irrelevant matters were taken into account.

[9.110] The Ombudsman's

report A report is only made where: • the Ombudsman has investigated formally, and • the findings are critical of the agency. The report contains a summing-up of the investigation, reasons and recommendations. The report is given to the minister and the agency, and the report or a summary of it is given to the complainant. Sometimes a report is made public, if it deals with a matter of public interest and there are no privacy or confidentiality difficulties.

[9.120] Recommendations The Ombudsman cannot force a change of decision or practice, but can recommend a change to the minister and the head of the agency. The Ombudsman may, for example, recommend that the agency should: • reconsider the action or decision complained of • do something to change the effects of an action or decision, or put right an injustice that has been done • change some rule or procedure used to reach the decision • give a full explanation of why it acted as it did • take some other action the Ombudsman thinks appropriate in the circumstances, such as compensating the complainant for financial loss.

If the recommendations are not accepted If an agency does not accept the recommendations, the Ombudsman may send copies of the report on the matter to the prime minister or premier or to parliament. Bringing a matter to the attention of parliament will mean the report is publicly available and there is an incentive for agencies to accept the Ombudsman’s recommendations to avoid this. The Ombudsman's effectiveness Intervention by the Ombudsman may result in an explanation for a decision, an apology or the speeding-up of the decision-making process. Public authorities may also change their decisions, policies or procedures in response to the recommendations or suggestions of the Ombudsman. In some cases, the Ombudsman recommends that compensation be paid to redress a complainant's grievance. Both the Commonwealth and NSW Ombudsman receive more complaints than they can investigate. Many complaints, particularly about delay, are resolved after an initial inquiry. In 2014-2015, of the 10,694 formal written complaints finalised by the NSW Ombudsman, only 11 of these were formally investigated (using Royal Commission or other powers of compulsion) while the remainder were dealt with informally.

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Matters the Ombudsman has investigated The NSW Ombudsman Examples of complaints investigated by the NSW Ombudsman are: • police using excessive force or abuse, breaking laws or rules, ignoring procedures, or failing to act when asked for help by a member of the public where this results in death, injury or serious financial loss • the management of asbestos issues by state and local government agencies • the barriers preventing people with mental illness from accessing and maintaining accommodation • the failure of government systems to protect vulnerable people

• use of force in juvenile justice detention centres and adult correctional centres • allegations of child abuse by government employees, as well as employees of non-government agencies such as schools and childcare centres. The Commonwealth Ombudsman Examples of complaints investigated by the Commonwealth Ombudsman are: • disputes about child support payments • delay or refusal by Centrelink to grant pensions and benefits • delays about immigration decisions

The Independent Commission Against Corruption [9.130]

The NSW Independent Commission Against Corruption (ICAC) began operations in 1989. Its job is to look into allegations of corrupt conduct by, or affecting, NSW public officials and public authorities, including local government officials.

[9.140] Functions The ICAC was established by the Independent Commission Against Corruption Act 1988 (NSW). Its three main functions are: • investigating possible corrupt conduct (the best known aspect of its operations) • educating public authorities and the community about corruption • prevention of corruption, by such means as advising public authorities about changes they should make to their practices and procedures to reduce the risk of corruption occurring.

When can the ICAC investigate? The ICAC can investigate conduct: • in response to a complaint • when required by parliament • on its own initiative.

Investigations about police The ICAC cannot investigate the conduct of police officers unless the matter also involves the conduct of a public official who is not a police officer. Alleged corrupt conduct by police officers is investigated by the Police Integrity Commission (see NSW Police at [9.450]).

[9.150] Complaints Who can complain Anyone can complain to the ICAC about something that may involve corrupt conduct.

How to complain Complaints can be made in writing, by telephone, in person, online and by email. They can be anonymous, although the ICAC finds it easier to follow up sourced complaints.

Refusal to investigate The ICAC can choose not to investigate a complaint (ss 10, 20) and, in practice, it formally investigates only a small percentage of the complaints it receives. For example, the ICAC might not investigate if the conduct complained of: • is trivial

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• occurred a long time ago, or • was made simply to annoy or harass. What the ICAC cannot investigate The ICAC cannot investigate a complaint that does not fall within its jurisdiction.

[9.160] Powers to investigate The ICAC has a wide range of powers to investigate, including powers to: • require public officials to provide written statements of information (s 21) • require any person to attend the ICAC and give it documents or items (s 22) • issue search warrants. Corrupt conduct Corrupt conduct is defined widely by the Independent Commission Against Corruption Act 1988. Broadly, it must involve both: • the dishonest or biased use of a position by a public official or public authority (ss 7, 8), and • a criminal offence or conduct sufficiently serious to justify disciplining or dismissing the official (for example, an official using public resources for a private purpose). Private individuals and organisations can also be investigated by the ICAC and found to be corrupt if their conduct causes (or could cause) a public official to misuse their position in a way the Act says is corrupt (for example, a company that wants to do business with the government paying an official to choose it for a job). Members of parliament The conduct of a member of parliament is “corrupt” only if it involves a substantial breach of the parliamentary code of conduct (s 9). For advice and information about whether conduct could be corrupt under the Act, telephone the ICAC, or visit its website.

Who may appear The ICAC can permit individuals, groups and unincorporated associations to appear at a hearing if they are “substantially and directly” interested in it (s 32); for example, if allegations have been made about them.

Legal representation Legal representation must be authorised by the ICAC, but people summoned to give evidence must be given a “reasonable opportunity” to be represented (s 33). The practice has been to allow representation, and a person at any risk of being implicated in a finding of corrupt conduct would be wise to seek this assistance.

[9.180] What the ICAC can do The ICAC cannot prosecute people or impose penalties (such as dismissal); what it can do is draw conclusions, express opinions and make recommendations. It may, for example, draw conclusions about whether there has been corrupt conduct, and if so, by whom.

Reports An ICAC investigation usually results in a public report. Copies can be obtained from the ICAC free of charge.

Recommendations to prosecute The ICAC may not report that anyone is guilty of, or has committed, a criminal offence (s 74B), but it can say that they are engaging in corrupt conduct or conduct that may constitute corrupt conduct. Given the ICAC’s power to conclude that people have behaved corruptly, and the media attention given to its reports, ICAC proceedings and outcomes should be taken very seriously.

[9.170] Hearings

[9.190] Appeals

The ICAC can hold a hearing as part of its investigation, but does not always do so. The ICAC Commissioner decides whether a hearing, or parts of it, will be held in public or in private (s 31). Public hearings are common, and they are likely to get a lot of media attention.

A person who considers that the ICAC has made a legal error in its decision-making – for example, by denying them procedural fairness – can seek judicial review in the Supreme Court (see Judicial review by the courts of decisions by the government at [9.370]).

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Specialist tribunals and courts [9.200]

The legislation under which a decision is made may provide a right to appeal to a specialist tribunal or court, such as the Land and Environment Court for decisions under the Environmental Planning and Assessment Act 1979 (NSW). The legislation may require the decisionmaker to tell the person about the right of appeal when notifying them of the original decision.

[9.210] Types of appeal An appeal may be made on the merits, or may be restricted to points of law.

Appeal on the merits In an appeal on the merits, the tribunal or court usually has all the powers of the original decision-maker, and can replace the original decision with its own. Appeal on a point of law In an appeal on a point of law, the tribunal or court can only find that the original decision-maker made a mistake in applying the relevant laws or procedures. There is more information about specialist tribunals and court in The Law Handbook chapters relating to the matters they deal with; for example, Chapter 23, Environment and Planning and Chapter 36, Social Security Entitlements.

The Administrative Appeals Tribunal Reviewing decisions made by the Commonwealth Government [9.220]

The Administrative Appeals Tribunal (AAT) was established by the federal government under the Administrative Appeals Tribunal Act 1975 (Cth) to review a wide range of administrative decisions made by Australian government ministers, departments, agencies and some other tribunals on their merits (see Merits review at [9.225]). In limited circumstances, the AAT can review administrative decisions made by state governments and non-government bodies. The AAT can also review decisions made by the Norfolk Island Government. On 1 July 2015, the Migration Review Tribunal (MRT), the Refugee Review Tribunal (RRT) and the Social Security Appeals Tribunal (SSAT) merged with the AAT.

Decisions previously made by the MRT or RRT are now made by the AAT’s Migration and Refugee Division. Decisions that were previously made by the SSAT are now made by the AAT’s Social Services and Child Support Division.

[9.225] Merits review Merits review of an administrative decision involves considering afresh the facts, law and policy relating to that decision. The tribunal considers the material before it and decides what is the correct - or, in a discretionary area, the preferable - decision. It will affirm, vary or set aside the decision under review.

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Section 33 of the Administrative Appeals Tribunal Act requires that proceedings of the AAT be conducted with as little formality and technicality, and with as much expedition, as the requirements of the Act and a proper consideration of the matters before the AAT permit. The AAT is not bound by the rules of evidence and can inform itself in any manner it considers appropriate. Information about the right of appeal If a decision can be appealed to the AAT, the agency must inform the person affected by the decision of that right. Failure to provide this information, however, does not affect the decision's validity (s 27A).

[9.230] What appeals can be

heard?

should request the reasons in writing within 28 days of being notified of the decision. In addition, the Freedom of Information Act 1982 (Cth) (FOI Act) gives any person the right to access copies of documents (except exempt documents) that a Commonwealth government department, agency or office holds. A person may also ask the relevant body for documents or information about them and ask for it to be changed or annotated if it is incomplete, out of date, incorrect or misleading. A person may seek a review of the decision not to allow them access to a document or not to amend their personal record and may also request the reasons for a decision, provided it does not fall into an exempt category. Exempt documents may include documents relating to national security, containing material obtained in confidence or subject to other types of exemptions set out in the FOI Act.

[9.250] Who may apply?

The AAT is not always the first avenue of review of an administrative decision. In some cases, the AAT cannot review a decision until there has been an internal review of the primary decision. In other cases, review by the AAT is only available after intermediate review by a specialist tribunal. The AAT’s jurisdiction is constantly changing. An up-to-date list as at 30 June of each year is given in its Annual Report.

An application may be made by anyone whose interests are affected by a decision (Administrative Appeals Tribunal Act, s 27). Other people may join in and support or oppose the application (s 30) if they are affected in some way by the decision and can persuade the AAT that they should be a party to the proceedings.

A person can find out whether the AAT can hear a particular case by contacting the local registry of the AAT in their capital city. In NSW contact details are located at the AAT website at: www.aat.gov.au/ ContactUs/NSW.htm.

An application to the Administrative Appeals Tribunal must be in writing, setting out the reasons for the application. Application forms are available from the AAT (s 29).

[9.260] Lodging an appeal

Fees

[9.240] Right to reasons for a

decision Under s 28 of the Administrative Appeals Tribunal Act, if a decision is reviewable by the AAT the decision-maker must give reasons if asked to do so by an affected person, whether the person is considering seeking review or not (see Finding the reasons for a decision at [9.50]). The person

There is no application fee for applications to the Administrative Appeals Tribunal (AAT) for review of some kinds of decisions, however, for some decisions, a fee must be paid. If a fee is payable, the full application fee is $861 if paid before 1 July 2016 and $884 if paid on or after 1 July 2016. In certain circumstances, the fee can be reduced to $100 or an exemption to the fee can be claimed (for example, people who have a health care or benefit card or a pensioner

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concession card issued by the Department of Human Services do not have to pay the fee). For more information on the Administrative Appeals Tribunal fees see: www.aat.gov.au/ applying-for-a-review/fees. Where the fee can be waived The fee can be waived by the AAT in cases of financial hardship. A person seeking a waiver should complete a request for fee reduction form, available at the same Internet address as information on AAT fees set out above. Refund for a favourable outcome The application fee is usually refunded if the outcome is favourable to the applicant. Taxation cases In taxation cases, where the amount in dispute is less than $5,000, there is a non-refundable fee of $85 if paid before 1 July 2016 or $87 if paid on or after 1 July 2016. These matters are dealt with in the Taxation and Commercial Division, which is part of the Administrative Appeals Tribunal.

Time limits The appeal must be lodged within 28 days of: • receiving notification of the decision, if reasons were provided with it, or • receiving a formal statement of reasons if they were requested under the Act. The time may be extended by the AAT (s 29). What happens to the original decision? The original decision usually continues to operate after an appeal has been lodged. If speedy action to implement the decision is required, the agency will take this action without waiting for the outcome. A person who wants to prevent action being taken on a decision they consider wrong can apply for an order to suspend its operation (s 41).

Dismissing an appeal The AAT may dismiss an appeal it considers to be “frivolous or vexatious” (s 42B).

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[9.270] Presenting a case Alternative dispute resolution Division 3 of Pt 4 of the Act allows for dispute resolution processes between the parties, to clarify the issues and, if possible, bring about a solution. They are an important part of the AAT’s procedures, and are used in most cases. Many cases are resolved at this stage without the need for a hearing. If agreement is reached, the AAT may make a decision in accordance with the terms of the agreement. Matters can also be referred for mediation, if the parties agree. If the case is not resolved If a case is not resolved at this stage it goes to a hearing, unless the AAT considers that it can be decided on the basis of documents alone, and the parties agree to this.

Hearings Hearings are usually fairly formal, and lawyers or other trained advocates may appear for the parties (most applicants in social security cases do not have legal or other representation). The AAT does not rely solely on oral argument, but will also receive statements of agreed facts and written submissions before or during the case. It is not bound by the rules of evidence, and may inform itself in whatever way it considers appropriate. Powers to obtain information The AAT has wide powers to call for government documents (ss 37, 38) and require persons to answer questions. Under ss 36–36D, it can do this under some circumstances even if the Attorney-General has decided that a person cannot receive certain information because: • it affects national security or deals with Cabinet deliberations (in this case the AAT cannot disclose the information obtained to anyone else) • it falls within the area of public interest immunity (see Public interest immunity at [9.50]).

Public or private hearings? Hearings are normally public, although the AAT has a discretion to close off all or part of a hearing (s 35).

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[9.280] What the AAT may do The AAT may review a decision on its merits, which means it has the same authority over a matter as the original decisionmaker (s 43). Unless its powers are limited by the legislation that allows it to hear an appeal, it may: • affirm the decision under review • vary the decision, or • set aside the decision and either: – make a new decision, or – return the matter to the decision-maker for reconsideration in accordance with its directions or recommendations. The AAT must give its decision in writing, and give reasons for it.

Costs Usually each side pays its own costs. The AAT cannot order costs except in in Security Division matters or in other matters set out in specific statutes. Legal aid It may be possible to get legal aid for an appeal to the AAT. The Legal Aid Commission can advise on eligibility (see Chapter 4, Assistance with Legal Problems). The Act also allows people appealing to the AAT to apply to the federal Attorney-General for legal aid (s 69). The Attorney-General must consider: • whether refusal would involve hardship for the applicant, and

• whether granting legal aid is “reasonable in all the circumstances”. There may be conditions attached to any grant.

[9.290] Appeal It is possible to appeal on questions of law from the AAT to the Federal Court (s 44). With some exceptions, the Federal Court may transfer appeals to the Federal Circuit Court. An appeal to the Federal Court does not stop a decision from taking effect unless the court orders otherwise (s 44A). A party who appeals from the AAT to the court and who would not be liable for the government’s costs in the AAT may be liable to pay its costs in the court. The AAT may also itself refer a question of law to the Federal Court (s 45).

[9.295] The Service Charter

and complaints about the AAT The Service Charter sets out the standards of service that people can expect when they deal with the AAT. The Charter also includes information on how to make a complaint about the AAT and its complainthandling procedures. See www.aat.gov.au/about-the-aat/ourcommitment-to-you/service-charter.htm.

The NSW Civil and Administrative Tribunal (NCAT) - Reviewing decisions made by the NSW Government [9.300]

The NSW Civil and Administrative Tribunal (NCAT) was established on 1 January 2014 by the Civil and Administrative Tribunal Act 2013 (NSW) as “a super tribunal” which consolidates the work of 22 NSW tribunals into a new, one stop shop,

for specialist tribunal services. It replaces the Administrative Decisions Tribunal in NSW. NCAT undertakes a merit review of decisions (see Merits review at [9.225]). It has retained the former specialist tribunal expertise and services while streamlining back office administration. NCAT aims to enhance ease of access to tribunal services by

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providing a single service gateway. Across all types of matters, NCAT is committed to: • timely, fair, high-quality decision-making • maintaining current levels of service • retaining specialist expertise and services • continuous improvement in service delivery. NCAT aims to provide tribunal services that are quick, accessible, economical and effective. NCAT has four divisions: • Administrative and Equal Opportunity • Consumer and Commercial • Guardianship, and • Occupational. It deals with a broad and diverse range of matters from disputes about residential tenancy and building works, to guardianship and administrative review of government decisions. Matters previously heard in the Administrative Decisions Tribunal (ADT) are mainly heard in the Administrative and Equal Opportunity Divison. A full list of former tribunals consolidated in the newly established NCAT can be located on the NCAT website at www.ncat. nsw.gov.au/Pages/about_us/former_ tribunals.aspx.

[9.305] Divisions of the NCAT Administrative and Equal Opportunity Division The work of the Administrative and Equal Opportunity Division within NCAT includes the review of administrative decisions made by NSW Government agencies and resolution of discrimination matters. This Division takes up some of the work of the former Administrative Decisions Tribunal. Review of administrative decisions made by NSW Government agencies Such decisions include decisions about access to information held by government; use of, and access to, personal information held by government; firearm licences; guardianship and financial management; and review of administrative decisions made in the community services sector and various State taxation decisions.

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Resolution of discrimination matters The Division is also responsible for providing services to resolve complaints referred to it by the President of the Anti-Discrimination Board. These complaints are about alleged breaches of the Anti-Discrimination Act 1977 (NSW). They relate to discrimination, harassment, victimisation and vilification. Other functions include deciding whether to give permission for a complaint to go ahead after it has been declined by the President of the Anti-Discrimination Board, deciding whether to register a conciliation agreement made at the Anti-Discrimination Board so it can be enforced, and reviewing a decision of the President of the AntiDiscrimination Board relating to an application for exemption from the AntiDiscrimination Act 1977.

Consumer and Commercial Division The Consumer and Commercial Division of NCAT resolves a wide range of everyday disputes such as tenancy disputes and other issues relating to residential property, and disputes about the supply of goods and services. For example: • agent commissions and fees • agricultural tenancy • boarding houses • consumer claims • conveyancing costs • dividing fences • holiday parks (long-term casual occupancy) • home building • motor vehicles • pawnbrokers and second-hand dealers • residential communities • retail leases • retirement villages • social housing • strata and community schemes • tenancy • travel compensation fund appeals.

Guardianship Division The Guardianship Division is a specialist disability division within NCAT. The Division conducts hearings to determine applications about adults with a decision-making disability who are incapable of making their

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own decisions and who may require a legally appointed substitute decision-maker. Applications may be made to the Guardianship Division to: • make guardianship orders to appoint a private guardian (family member or friend) and/or the NSW Public Guardian • make financial management orders to appoint a private financial manager and/or the NSW Trustee and Guardian • provide consent for treatment by a doctor or dentist • review enduring powers of attorney • review an enduring guardianship appointment • approve a clinical trial so that people with decision-making disabilities can take part. The Guardianship Division of NCAT considers applications about people who are in NSW or who have property or other financial assets in NSW. The Guardianship Act 1987 (NSW) sets out the limits of its responsibilities and functions and the principles to be applied when making decisions.

• initiating proceedings against members for unsatisfactory professional conduct • assessing registration applications. If you are dissatisfied with the work, service or advice you have received from an individual, for example a lawyer, you can contact the appointed body responsible for investigating complaints which, in the case of a lawyer, is the Office of the Legal Services Commissioner (See also Complaints about lawyers at [9.590]). If the complaint is of a serious nature or the individual does not abide by the decision of the investigating body, an application can by made by the appointed body to NCAT to conduct further disciplinary proceedings or to enforce their decision. If the individual, against whom the complaint was made, does not agree with the disciplinary decision, an application can be made to NCAT to review the decision. NCAT can also deal with decisions made by an appointed body including registration and licensing.

Occupational Division

review

Licensing - Reviews of administrative decisions NCAT can review decisions by government agencies about licences for drivers and operators of taxis, buses, hire cars and tow trucks; security guards; builders; real estate agents; motor dealers and repairers; pawnbrokers and second hand dealers; stock and station agents; business agents; travel agents; valuers and licensed conveyancers. When making a decision, the government department or agency should include a letter telling the applicant of their right to have the decision reviewed by NCAT. If a person is unsure whether a matter can be dealt with by NCAT, they should seek legal advice, or check the legislation that applies to their situation. Professional Discipline A range of occupations, including professions, are governed by a council, board, panel or authority. These appointed bodies aim to protect the public by: • investigating complaints

[9.310] What the NCAT can Decisions made by NSW government officers can only be reviewed by NCAT where the legislation under which the decision was made provides for it. Such decisions include: • freedom of information decisions • various types of licensing decisions • certain state taxation decisions • administrative decisions about adoption, community and disability services (see box below). It is usually necessary to seek internal review by the department or agency before applying to NCAT (see Internal review at [9.330]). NCAT cannot review decisions of local councils about development or building applications, nor can it review land valuations made by the Valuer General or the Chief Commissioner of State Revenue. Review of these decisions is the responsibility of the Land and Environment Court.

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Original decisions NCAT makes original decisions in some types of cases, including: • anti-discrimination cases • professional disciplinary cases • retail tenancy cases.

• • • •

[9.320] Rights contained in

the legislation The Administrative Decisions Review Act 1997 (NSW) gives a person the right to seek: • internal review of decisions reviewable by NCAT (with some exceptions), and • reasons for decisions reviewable by NCAT. If a decision can be reviewed by NCAT, the decision-maker must inform any interested person of their right to seek review at the time they inform them of the decision. The right to be given reasons Under s 49 of the Administrative Decisions Review Act 1997 if a decision is reviewable by NCAT the decisionmaker must give reasons, if asked to do so by an affected person, whether the person is considering seeking review or not (see Finding the reasons for a decision at [9.50]). The person should request the reasons in writing within 28 days of being notified of the decision.

Who may seek review? The Civil and Administrative Tribunal Act 2013 leaves it to the legislation providing a right to seek review to specify who is entitled to seek it. For example: • the Tow Truck Industry Act 1998 (NSW) limits the right to seek review of a licensing decision to the applicant for, or holder of, the licence or driver’s certificate. Appeals NCAT may hear The legislation under which the original decision was made empowers NCAT to review: • various licensing decisions, for example: – licensing of security guards under the Security Industry Act 1997 (NSW) – licensing of tow truck drivers under the Tow Truck Industry Act 1998

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– firearms licensing under the Firearms Act 1996 (NSW) decisions concerning an authority to drive a bus or taxi under the Passenger Transport Act 1990 (NSW) decisions made by the Minister for Community Services to terminate custody of a ward or to refuse to terminate guardianship of a ward refusals to provide certain information or assistance under adoption legislation taxation decisions made by the Chief Commissioner of State Revenue in respect of assessments and certain other decisions (concerning, for example, stamp duty, payroll tax and land tax, other than land value matters) after the taxpayer has first made an objection to the Chief Commissioner.

[9.330] Internal review Internal review occurs when a decision is re-examined by someone (not the original decision-maker) in the government department or agency. Internal review is generally a precondition to NCAT review. That is, it is usually necessary for a person to seek internal review of a decision before they are entitled to apply to NCAT. There are some exceptions.

Formal requirements Applications for internal review must be in writing and addressed to the person who made the original decision (see s 53 of the Administrative Decisions Review Act 1997). Material that supports the application for review should also be sent. Time limits The application must be made: • within 28 days of the decision being made, or • if reasons have been requested, within 28 days of reasons being provided.

Result of the review The internal reviewer may decide to: • affirm the decision • vary it, or • set it aside and substitute a new decision. Notification requirements The decision-maker must notify the applicant of: • the internal review decision

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• the reasons for it • the applicant’s right to seek review by NCAT. Time limits Internal reviews must be completed within 21 days (with some exceptions) unless the decision-maker and applicant agree to a longer period. Internal review will be regarded as being completed after this time, so that the applicant can proceed to NCAT.

[9.340] Applications to NCAT Formal requirements NCAT deals with a broad and diverse range of matters about residential tenancy and building works to guardianship and administrative review of government decisions. In most Divisions of NCAT, to start proceedings you will need to complete and lodge an application form. The relevant application form can be located at www. ncat.nsw.gov.au/ncat/ncat_common_forms. html. Time limits Applications must be lodged: • within the time period set out in the specific legislation governing the particular type of decision, or • within 28 days of the applicant becoming entitled to appeal under that specific legislation in other cases. NCAT can extend the time period if there is a reasonable explanation for the delay. Fees Fees are payable, but can be waived in cases of undue hardship; for example, if the applicant receives a pension. The fee varies depending on the type of matter. A full list of fees is listed on the NCAT website at: www.ncat.nsw.gov.au/Pages/apply_to_ ncat/fees_and_charges/fees_and_charges. aspx. There is no fee for applications made under, amongst other legislation: • the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) • the Anti-Discrimination Act 1977 (NSW).

The NCAT's rules Rules have been made which regulate some aspects of NCAT's operations. These rules are contained in the Civil and Administrative Tribunal Rules 2014 (NCAT Rules).

Procedure Once an application is filed, the government party is notified and then has 28 days to lodge with NCAT a copy of all relevant documents, including a statement of reasons for the decision as required under the tribunal practice direction issues in accordance with the Civil and Administrative Tribunal Act. Hearings The next step is a hearing, except in freedom of information matters where the parties are invited to attend a planning meeting. Hearings are usually conducted by a single judicial member of NCAT. Legal representation Many applicants are not represented at the hearing by a lawyer. Government agencies are usually legally represented.

Effect on the disputed decision An application to NCAT for review of a decision does not affect the operation of the decision or the taking of action to implement it. If a person wants to prevent any action being taken on a decision that they consider wrong, they can apply for an order suspending the operation of the decision (s 43).

What NCAT can do NCAT can review a decision on its merits. Its job is to decide what the correct and preferable decision is having regard to material then before it, including all relevant factual material and applicable law (s 62). NCAT may decide to: • affirm the decision under review • vary it, or • set it aside and either make a decision in substitution or return the matter to the decision-maker for reconsideration in accordance with any directions or recommendations of NCAT.

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Costs NCAT can only award costs if there are special circumstances warranting it (s 60). This means that usually each side pays its own costs. Reasons NCAT must give reasons, either written or oral, for its decisions. If it gives only oral reasons, any party to the proceedings can ask for written reasons, as long as they do so within 28 days of receiving a copy of the decision (s 62).

[9.350] Appeals A person dissatisfied with the first decision of NCAT may be able to appeal on a question of law to an appeal panel of NCAT (unless the particular legislation conferring

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jurisdiction on NCAT says otherwise). With the leave of the appeal panel, the appeal may extend to a review of the merits of the appealed decision (s 80). An appeal panel must consist of three members of specified status (s 27).

Fees There is a fee for appeals. See NCAT’s website for up-to-date information about fees.

[9.360] Appeal to the Supreme

Court It is possible to appeal on questions of law from the Appeal Panel of NCAT to the Supreme Court (s 83). The Supreme Court also has the power to carry out judicial review of NCAT decisions.

Judicial review by the courts of decisions by the government [9.370]

Judicial review is different from administrative appeal or a complaint to the Ombudsman. Put simply, a person seeking to obtain judicial review of a decision or action seeks an order from a court that: • a decision be set aside • a proceeding be brought to a halt, or • certain action be taken by an administrative official. The court will not normally attempt to direct the government body or official on what course of action should be followed in future. Rather, the matter is usually returned to the decision-maker to be dealt with according to the principles laid down by the court.

[9.380] How the court decides In a judicial review, the court looks at the methods a government decision-maker used in coming to a decision, and can determine: • whether those methods were consistent with natural justice or procedural fairness

• whether the factors taken into account were correct under the legislation • whether the decision-maker acted within the powers given in the legislation. The courts do not review the actual decision on its merits. All they do is decide whether or not a decision was properly made. Even if the court sets aside the action or decision on these grounds the person may not get the decision they want – the agency may follow the correct procedures to arrive at the same decision. The role of the courts The courts have traditionally seen their role as supervising the decision-making powers of government agencies and ensuring that they stay within proper boundaries. The grounds on which courts will force a government agency to stop a process or reverse a decision and look again at a matter have been developed by English and Australian courts over hundreds of years.

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[9.390] Federal or state

[9.410] Standing to sue

government

Not everyone who feels the government has behaved wrongly is entitled to bring a case. The courts require that a person has standing to sue – that is, a special interest in the subject matter of the action. It need not be a financial or property interest, but it must distinguish that person from members of the public generally. For example, a person who loses a work licence, such as for taxi driving, has standing to sue over the matter.

State government decisions Action to obtain judicial review of a state government decision must usually be taken in the Supreme Court. Some matters can be dealt with by the Land and Environment Court.

Federal government decisions Review under the Administrative Decisions (Judicial Review) Act The Federal Court, and the Federal Circuit Court with some exceptions, can review federal government decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) if they can be categorised as decisions of an administrative nature made under an enactment (ie, an Act, regulation or other instrument). This includes most decisions made by federal decision-makers. Review on common law grounds Decisions that are not reviewable under the Administrative Decisions (Judicial Review) Act may be reviewable by the Federal Court or the High Court on traditional common law grounds. Migration matters The Migration Act 1958 (Cth) has its own self-contained code for review that operates to the exclusion of the Administrative Decisions (Judicial Review) Act, but is similar to it.

[9.400] Common law

Where the situation is unclear A person denied a benefit or deprived of a licence, or who has been in some other way the direct target of government action, clearly has standing to sue. Where the action is more general, not operating specifically against an individual, judicial review is more difficult to obtain.

Action by groups Resident action groups and environment protection groups, for example, may not be able to establish a sufficiently direct interest to have the necessary standing to bring an action. Some, however, have been seen to have standing – it may be possible to establish this if, among other things, the group has been involved in the decisionmaking process, for example by making submissions or objections. Standing provisions in legislation Some environmental and other statutes have their own specific standing provisions.

principles The traditional common law principles of judicial review apply in both the NSW Supreme Court and the Federal Court. The grounds on which the Federal Court and Federal Circuit Court may order judicial review under the Administrative Decisions (Judicial Review) Act are very similar to the common law grounds, and are discussed in Judicial review in the Federal and Federal Circuit Court at [9.440].

Attorney-General's fiat The representatives of a group may ask the relevant Attorney-General to initiate proceedings on their behalf. This is called an application for a fiat. Where it is granted, the Attorney-General sues on behalf of the person making the request. Such applications are not always granted. Among other things, political considerations may come into the decision (the action objected to will have been taken by the government of which the Attorney-General is a member). If the application is granted, the organisation or individual concerned must pay for the action, but the

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Attorney-General authorises all steps in the litigation, such as signing documents or agreeing to withdraw the action. This means that the Attorney-General has ultimate control of the case, which will probably result in delays while advice is sought from departmental officers.

[9.420] Is there a basis for

review? Did the agency follow required procedures? Anyone who wishes to challenge an administrative decision should look at the Act permitting that decision and ask: • what official or agency was required to take the action? Did it take the action? For example, are there any letters or orders that should have been signed and were not? • was the agency required to give the person a hearing before reaching its conclusion? Did it do so? • was the agency required to place newspaper advertisements or give some other type of notice to, for example, the local community before taking action? Did it do so? • were any time limits built into the process; for example, a period of public notice, a period for receipt of objections, or a period for appeal against the decision before action could be taken? Were these complied with? • was the agency required to consult any outside bodies or individuals before reaching its decision? Did it do so? If there has been any irregularity in following the terms of the relevant Act, there may be a basis for obtaining judicial review of the decision. Is the mistake merely technical? The courts sometimes treat a breach of statutory requirements as merely technical and not having the effect of making the administrative act or decision invalid, though the decision-maker will sometimes be required to correct the procedure in the future (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490).

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The difficulty is in predicting whether a mistake will be regarded as merely technical or so serious as to make the act or decision invalid. This is a matter of legal judgment depending on factors such as statutory interpretation and regulatory efficiency and fairness.

Was procedural fairness denied? The courts insist on compliance with minimal requirements of procedural fairness, a term now used in preference to natural justice. There is an implied requirement that government agencies will comply with procedural fairness if a decision affects: • a right • an interest • a legitimate expectation. What is an interest? An interest may be financial, or involve a person’s livelihood, status or reputation, such as a decision to dismiss the person from an official position. What is a legitimate expectation? A legitimate expectation is an expectation based on reasonable grounds that some interest or benefit will not be denied or interfered with, or that some procedure will be followed. The expectation can be based on an explicit undertaking from the decisionmaker as to a procedure to be followed, or may arise simply from the nature of the decision being made. The courts have recently raised some doubts about the continued existence of legitimate expectations as a basis for requiring procedural fairness. It is likely, however, that any legitimate expectation would qualify as a right or expectation in any case. For example … If a person must have a licence to carry on an occupation and the relevant body grants one, the person has a legitimate expectation that the licence will not be cancelled, or renewal refused, without explanation. Before a licence is cancelled, a licensee should be advised of the case they have to meet and given a chance to make representations to the decision-maker.

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Exceptions Not all administrative decisions are subject to the requirements of procedural fairness. Decisions that are not necessarily subject to such requirements include those that: • affect a lot of people equally, such as a decision to impose rates • involve significant policy or public interest considerations, for example decisions made by Cabinet on sensitive political questions. In addition, procedural fairness is not required if the legislation specifically excludes it, or provides a procedure that must be followed. A denial of procedural fairness Kioa v Minister for Immigration and Ethnic Affairs (1985) 159 CLR 550 concerned a Tongan couple who had overstayed their temporary entry permits to Australia. Their application for a renewal of the permits was refused, and a deportation order was made. The High Court held that the deportation order should be set aside because the couple had been denied procedural fairness when the department acted on damaging allegations made about Mr Kioa without allowing him to comment or rebut them. Clearly the couple had no right to remain in Australia, but their interests, in the broadest sense, were affected by the decision to deport them and they were accordingly entitled to procedural fairness.

Was there a fair hearing? If the situation is one where procedural fairness is required, the next step is to ask what procedures should have been followed. The Act covering the decision-making agency often lays down the procedure. It may answer such questions as: • how much notice of a hearing should the decision-maker have given? • must there be an opportunity for oral representations and, if so, can the person affected be represented by a lawyer? • if the decision is to be made by a tribunal or board, who should be on it? • are the proceedings governed by strict rules about the presentation of evidence? • is the person affected entitled to question witnesses appearing against them? Ultimately, everything turns on whether a court considers a particular procedure to

have been fair in the circumstances, and whether, at the very least, the person affected had the chance to present their side of the story. There are no absolute rules in this area. A finding in favour of the complainant is most common in cases involving a failure to give: • adequate notice of a hearing • a sufficient opportunity to present their case • a sufficient opportunity to answer the case against them. Was the decision biased? Procedural fairness requires that the decision be made by an impartial and unbiased decision-maker. Usually, little is said about this in the relevant Act. The courts have adopted the strict position that a person cannot sit in judgment where their financial interests may be affected by the outcome of the case. So, for example, a member of a planning tribunal could not review a planning application from a company in which they hold shares. The financial interest aspect is clear-cut. But there are obviously other situations where a person may be biased. For example: • they may be a relative of one of the parties • they may have had a professional association with one of the parties • they may in the past have expressed hostility to views being put by one of the parties. The general standard used by the courts is to ask whether a reasonable person would suspect that the decision was not free from bias; that is, that the decision-maker did not bring an open and impartial mind to the making of the decision.

Did the decision-maker go beyond their powers? A court will intervene in an administrative decision if it can be shown that the decisionmaker went beyond their statutory power in making it. An administrative action of this kind is often called ultra vires – “beyond power” (or increasingly these days, a jurisdictional error – see below).

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There are various grounds for an ultra vires challenge. These are discussed below. Relevant and irrelevant considerations The relevant Act may list the matters that the decision-maker must take into account. If it does not, the court will determine them. If it can be shown that the decision-maker ignored relevant factors, or took irrelevant factors into account, the court can intervene. For example … In deciding whether to grant a single parenting payment, Centrelink must consider whether the applicant is a member of a couple, whether they have a dependent child and various other matters. If the child's age (a relevant matter) was ignored, or the applicant's gender (an irrelevant matter) was taken into account, and the pension denied on either basis, the decision would be overturned by the court.

Improper purposes A decision or action that is apparently proper under the law may be designed to achieve a purpose beyond the agency’s responsibilities. For example … An Act may permit a local council to close off a street for roadworks. If it was shown that the real object of a particular road closure was not repairs but to create a permanent traffic-free precinct, this would be considered an improper purpose under that legislation.

Unreasonableness A court will review and set aside a decision if it considers that it was so unreasonable that no reasonable body would have reached it. The courts must be careful in exercising this power of review. It is not their role to substitute their view of what is reasonable for that of the decision-maker (who may be a minister, a public servant or an elected local councillor). That would amount to a review on the merits, which is beyond the courts’ jurisdiction.

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Improper delegation Improper delegation occurs when a decision-maker allows another body to make decisions for it without a proper legal or procedural basis. For example … If the secretary of the Department of Community Services left a matter for which they were responsible to a social work agency to decide, and simply signed the letters containing the decision, that would be improper delegation. If the secretary had laid down guidelines and treated the agency's views as a recommendation only, there would be no grounds for judicial review.

Uncertainty A decision may be overturned because it is so vague or uncertain as to be meaningless. This ground rarely applies. Lack of evidence If there is no evidence upon which the decision could be based, it cannot stand. Divesting Divesting happens where a decision-maker simply gives away their authority in a matter. For example … If the chief executive officer of Customs was to declare that in future all determinations about prohibited imports would be made by a drug foundation, this would be an improper divesting of responsibility.

Dictation It is quite permissible (and politically sensible) for bodies to consider government policy in reaching a decision, as long as they only consider it as one factor among others in making the decision. The reverse of this is dictation, where the body responsible for making a decision allows itself to be told what to do by some other body.

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For example … If electoral commissioners carried out a function given to them in an Act by merely following a ministerial directive, this would involve improper dictation.

Inflexible application of policy A decision-making body required to consider each case on its merits must not simply apply rigid policy guidelines. This principle cannot be taken too far. Clearly, rules and policies are necessary to ensure consistency in decision-making. However, they should not interfere with a proper consideration of individual circumstances – a balance is required. Going beyond jurisdiction The authority or power of bodies like courts, tribunals and registration authorities is called their jurisdiction. Often they make decisions against a particular person; a registration body might deregister a practitioner, a tribunal might deny an application for a planning permit or a Local Court may refuse to hear a civil action. The question of whether a tribunal or other body has jurisdiction in a matter is important, because administrative tribunals usually have authority in a very narrow area. In contrast, courts usually have a large jurisdiction and generally do not have much difficulty with this question, although they must also ask it. Someone who is upset by a tribunal’s action should ask whether the tribunal had the right to look at the matter in the first place. The conditions to be satisfied will be set out in the governing legislation. If the tribunal or body did not have such a right it is called a jurisdictional error. Even if a tribunal does have jurisdiction, it may still make an error in the course of determining a matter. Some errors in the course of determining a matter involve the tribunal exceeding its jurisdiction and are also called jurisdictional errors. Courts have more scope for making errors. The grounds for arguing that a court has exceeded its jurisdiction are narrower than for tribunals.

Error of law “on the face of the record” Even if a tribunal or court has not exceeded its jurisdiction, there may be a less serious misunderstanding of the legal issues that is apparent in the record of proceedings. In this case, it is possible to strike down the decision on the basis that there is an error of law “on the face of the record”. The decision can be challenged even if the error of law is fairly insignificant.

[9.430] Remedies After it has been shown that one or more of the grounds for judicial review is satisfied, the next task is to indicate what kind of solution is preferred. The remedies available are limited in their effectiveness, since the courts are concerned (in theory at least) with the legality of the process rather than whether the decision under challenge was the correct one.

Where a remedy may not be granted All the remedies are discretionary, which means that even if the ground for review is established, the court may still decide not to grant a remedy after taking into account factors such as: • delay in seeking the remedy • the usefulness or otherwise of granting it • any hardship that granting it could cause to others.

What remedies are available? The five remedies most often sought in common law judicial review proceedings are: • declaration • injunction • mandamus • prohibition • certiorari. The first two – declaration and injunction – can be obtained in any successful judicial review. The others are the main remedies in a collection of remedies that lawyers call the prerogative writs or, in the Supreme Court, prerogative orders. Declaration A declaration (sometimes called a declaratory order or declaration of right) is a formal

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statement from the court that a decision, act or procedure is unlawful. It is often sufficient to obtain a declaration. The agency will usually: • reverse its decision • give a new hearing, or • do whatever else the court requires or suggests is lawful. Although government bodies usually comply, a declaration is not legally binding. It is not contempt of court to defy a declaration. Injunction An injunction is a court order to: • take a particular action (a mandatory injunction), or • (more often) cease an unlawful action (a prohibitory injunction). For example, a court could issue an injunction to stop someone using land for a purpose prohibited by planning laws. The courts do not often make mandatory injunctions because they involve the court in continual supervision of someone’s conduct. A court will only issue an injunction if it is satisfied that the body that has acted unlawfully may continue to do so. This particularly applies if the legislation imposes a penalty. Mandamus Mandamus is an order requiring a public body or official to perform a duty it has failed to perform – for example, to consider a licence application that it is required to consider under legislation. The body or tribunal must be shown to have failed to carry out a duty owed to the applicant; in most cases this means no more than a duty to consider the application, not a duty to grant it. Prohibition Prohibition is an order to a lower court, tribunal or similar decision-making body requiring it to cease proceedings. This order should be sought where a body has failed to exercise its jurisdiction properly or where it has failed to provide procedural fairness and its proceedings are continuing (see also Injunction above).

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Certiorari If a decision has been made but the decisionmaker failed to exercise jurisdiction properly or to provide procedural fairness, the appropriate remedy is an order for certiorari to quash the decision.

[9.440] Judicial review in the

Federal and Federal Circuit Courts Besides reviewing the decisions of federal decision-makers on the common law grounds (see Common law principles at [9.400]), the Federal Court may review certain decisions under the Administrative Decisions (Judicial Review) Act (Cth). The Federal Circuit Court may also review decisions under the Act, except matters arising under specified citizenship and immigration legislation. This court has lower fees, and deals with less complex matters. Under the Act, it is not necessary to apply for injunctions, certiorari, mandamus or prohibition. The application is simply an “application for an order of review”.

What can be reviewed Applications for review can be made for: • a decision (including a report or recommendation) (ss 3(3), 5) • conduct for the purpose of making a decision (s 6) • failure to make a decision (s 7).

Reviewable decisions To be reviewable under the Act, a decision must: • be administrative (that is, not a decision that is more appropriately classified as judicial or legislative), and • be made under a federal law.

Exempt decisions Schedule 1 sets out decisions that are exempt from review. They relate to: • the federal industrial relations system • the security intelligence system • certain aspects of the taxation assessment and appeals system • foreign investment

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• decisions under the Defence Force Discipline Act 1982 (Cth) • a number of other minor areas. The list of exemptions changes from time to time, and should be checked to ensure that a decision is reviewable under the Act. Decisions of the Governor-General Decisions of the Governor-General are not reviewable under the Administrative Decisions (Judicial Review) Act. In the criminal justice system Process decisions in the criminal justice system are exempt from review. Also, someone being prosecuted for an offence cannot get a review while the case is proceeding (s 9A). Is common law review available? If a particular decision is included in Sch 1, and therefore is not reviewable under the Act, it may be reviewable using the common law grounds outlined above (see Remedies at [9.430]).

Who can apply? Under the Act, anyone who is aggrieved by a decision – that is, anyone whose interests are adversely affected by it – can make an application to the court (s 3(4)). The person against whom the decision was made will always be aggrieved, but the court has also heard applications from other parties who were able to show that their interests were adversely affected in a real and demonstrable way.

Time limits An application must be placed with the court registrar: • within 28 days of receiving the decision, or • if a statement of reasons has been requested under the Act, within 28 days of receiving the reasons (s 11(3)). The court has the discretion to extend this time period. Obtaining reasons The procedure for obtaining reasons, where they are not given at the time of the decision, is to make a written application to

the decision-maker requiring a statement in writing setting out the reasons. As set out in s 13, the decision-maker has 28 days to furnish a statement of reasons, including the findings on material questions of fact, referring to evidence and other material on which the findings were based, and giving the reasons for the decision.

Grounds for review The grounds on which a decision may be reviewed are similar to those under common law (see [9.430]), with some qualifications. Error of law The “error of law” ground is wider than the common law ground. It does not matter that the error does not appear on the face of the record. No evidence To establish that a decision should be reviewed on the ground of “no evidence”, it is necessary to show that the person who made it either: • was required by law to reach that decision only if a particular matter was established, and there was no evidence from which they could reasonably be satisfied that it was established, or • based the decision on a particular fact, and that fact did not exist (s 5(3)). Otherwise contrary to law The “otherwise contrary to law” ground is a catch-all to allow the court to make a favourable ruling in cases not falling into the main categories. If a complaint does not fit into any of the conventional grounds, it may still fit into this one.

Review of conduct “Conduct engaged in for the purpose of making a decision” may be reviewed on grounds similar to those applicable to the decision itself under s 6 of the Act, which covers grievances with procedures either before they commence or while they are taking place.

Review of failure to make a decision If a decision-maker has a duty to make a decision and fails to do so, the failure to

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make the decision may be reviewed. Section 7 of the Act deals with two variations of this situation. Where there is no time limit Where no time limit is imposed on the decision-maker by the law, a person can seek judicial review on the ground of unreasonable delay if nothing is done after a “reasonable” time. What is unreasonable delay will, of course, be a matter of argument before the court. Where there is a time limit Where a time limit for making the decision is specified, the ground is failure to make the decision within that time.

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What orders can the court make? The Federal Court can make an order of review that: • sets aside a decision • refers the matter back to the decision-maker • directs the decision-maker to decide the matter or act in other ways • restrains the decision-maker from acting in certain ways • makes a statement declaring the parties’ rights • directs the parties to do any act or thing, or to refrain from doing act or thing, that the Court considers necessary to resolve the matter (s 16).

What it can cost The losing party's costs The basic rule is that the losing party pays both their own legal costs and those of the other side. This is a significant deterrent to anyone thinking of judicial review. The government's costs The High Court, the Federal Court and the state Supreme Court are major courts in which the government frequently briefs two barristers (a senior and a junior counsel) to argue its case – with a solicitor, the cost of the dispute can run to thousands of dollars per day, especially since the person bringing the case is likely to want to brief lawyers of the same standing as the government's counsel.

The winning party's costs Even the winner may have some costs that will not be met by an order in their favour. These costs could be as much as 20% or 30% of the overall cost of litigation. Legal aid Legal aid is available in some circumstances, depending on a means and merit test. Additional restrictions apply to legal aid for immigration cases, which make it very difficult to obtain. Is it worth it? People not eligible for legal aid may be deterred from going to court because of the cost, even if they have a strong case.

Complaints about police NSW police [9.450]

Complaints about the conduct of NSW police officers are covered by the Police Act 1990 (NSW), which defines conduct as any action or inaction.

[9.460] What may be

complained about? A police officer’s conduct may be alleged to be: • corrupt • illegal • unreasonable

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• unjust • oppressive • improperly discriminatory. Complaints may also be made about: • criminal or disciplinary offences committed by a police officer • conduct in accordance with a law or established practice that is unreasonable, improperly discriminatory, oppressive or unjust • conduct based on improper motives, or irrelevant considerations • conduct based on a mistake of law or fact • conduct for which reasons should have been given but were not.

[9.470] Where can a

complaint be made? Complaints about NSW police can be made to: • the Commissioner • any police officer • the NSW Ombudsman • the Police Integrity Commission, or • a Local Court. A complaint may also be made through a member of parliament.

Complaints made to a police officer Police officers who receive complaints must refer them to the Police Commissioner, who must forward a copy of all more serious complaints to the Ombudsman and, if they are particularly serious, to the Police Integrity Commission. The Police Commissioner may decide to have the complaint investigated, or may be directed to do so by the Ombudsman.

[9.480] Types of complaints

• • • • •

•

•

•

proceedings for termination, or reduction in rank) lack of integrity failed prosecutions where there is unreasonable conduct or serious incompetence unauthorised secondary employment in a high risk industry harassment, victimisation or unlawful discrimination detrimental action or reprisals against someone for making a protected disclosure any inappropriate conduct resulting in death, injury or significant financial loss, or involving the discharge of firearms any inappropriate conduct resulting in and/or from the search, arrest or custody of a person complaints about matters dealt with as complaints that did not need to be notified: – where there has been a complaint about the way they have been handled and the Ombudsman requires that they be dealt with as complaints, or – where the Ombudsman, following consultation with the Police Commissioner, requires that they be notified.

Non-notifiable complaints The agreement ensures that less serious complaints can be dealt with less formally and without the direct involvement of the Ombudsman. Police are still required to take appropriate action to deal with the matter. The Ombudsman does, however, audit police handling of minor complaints, which are referred to as local management issues.

Notifiable complaints

[9.490] Making a complaint

The Police Integrity Commissioner and the Ombudsman after consultation with the Com-missioner of Police have agreed that the following types of complaints must be notified to the Ombudsman: • criminal conduct • corrupt conduct • conduct that might warrant the taking of serious action against an officer (such as

Complaints should generally be in writing, setting out details of the incident and giving the names and addresses of anybody who may be able to give evidence about it, although in exceptional circumstances the Police Integrity Commissioner or the Ombudsman may agree to accept a complaint that is not in writing. Complaints can be made anonymously.

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Getting advice A person can telephone the Ombudsman’s office to discuss whether they should make a complaint and get help in putting the complaint in writing. The Police Integrity Commission The Police Integrity Commission was established following the Royal Commission into the NSW Police Service. The Commission has continued some of the work of the Royal Commission, and taken from the Independent Commission Against Corruption (ICAC) the job of investigating police corruption and serious misconduct by police. However, the vast bulk of complaints about police remain subject to the independent oversight of the NSW Ombudsman.

[9.500] The Ombudsman's role The Ombudsman is completely independent of NSW Police. Although the Ombudsman almost never investigates complaints directly, they: • decide whether the police should investigate a complaint • oversee the police investigation, and • decide whether the police have dealt with the complaint satisfactorily.

What complaints are investigated? Factors taken into account In deciding whether a complaint should be investigated the Ombudsman may consider a number of matters, including whether: • action has been, is being, or will be taken to remedy the problem anyway • the complaint is “frivolous or vexatious” • the subject matter of the complaint is trivial • the conduct occurred too long ago • there is a satisfactory alternative means of redress. For example, the Ombudsman would not usually follow up a complaint about the wrongful issue of a traffic infringement notice, because the person has a right to have the matter heard in court. Also, if the conduct complained of is not relevant to the subject officer’s role as a police officer, the Ombudsman may not require an investigation.

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Conciliation Complaints about certain types of conduct are not investigated, but are dealt with by conciliation.

[9.510] Investigations Investigations are generally conducted by police investigative staff.

Monitoring by the Ombudsman The Ombudsman may monitor the progress of the investigation if this is considered to be in the public interest; for example, if the complainants belong to a group with a traditionally difficult relationship with police, such as Aboriginal people or young people. Monitoring can involve continuously reviewing and providing advice to police on the way they are conducting their investigation, and sitting in on police investigative interviews.

The Police Commissioner's report After the investigation, the Commissioner must: • send a report to the Ombudsman • specify what action will be taken.

If the Ombudsman is not satisfied If the Ombudsman is not satisfied that the complaint was properly investigated, the Police Commissioner can be required to investigate further, or provide more information. The Ombudsman can also ask that a proposed course of action be reconsidered. Oversight by the Ombudsman The Ombudsman generally oversees the way that police handle complaints of serious police misconduct by reviewing the NSW Police report on the completed investigation. Sometimes the Ombudsman identifies deficiencies in the handling and/or investigation of a complaint.

Investigation by the Ombudsman The Ombudsman can investigate a complaint directly if this appears to be in the public interest. Generally this only applies to matters that raise very serious, or systemic issues.

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[9.520] Ombudsman's

recommendations and reports Report after a direct investigation If the Ombudsman has investigated a complaint directly, a detailed report is written and given to the Police Commissioner, the Police Integrity Commissioner and the Minister for Police.

• NSW Police has refused to accept the Ombudsman’s recommendations.

Making a complaint public The Ombudsman can make a complaint public only when: • a report is made to parliament, or • the matter is referred to in the Ombudsman’s Annual Report.

[9.530] Charges against police

Recommendations to police

officers

The Ombudsman may make recommendations to NSW Police about what action to take if: • the Ombudsman has investigated a complaint directly, or • the Ombudsman has decided that the police have not investigated a complaint properly. These recommendations are not enforceable, but are usually accepted by the police.

When NSW police or the Ombudsman find that a police officer has been involved in misconduct, appropriate management action may be taken. In serious cases, criminal charges may be laid and dealt with by the courts in the usual way.

Report to parliament The Ombudsman may make a report to parliament where: • the investigation involved a very significant matter, or

Statistics In 2014-2015, 3,635 formal complaints about police were finalised. Of these, 702 were investigated by police and oversighted by the Ombudsman. As a result, 63 police officers were charged with criminal offences, serious management action was taken against 22 officers and 8 officers were removed by the Commissioner.

Australian Federal Police [9.540]

A person can make a complaint

about: • individual federal police officers • Federal Police practices and procedures.

[9.550] Where can complaints

be made? Complaints can be made to either: • the Federal Police through an AFP appointee or direct to the Commissioner), or • directly to the Commonwealth Ombudsman – although the Ombudsman rarely investigates a complaint before the AFP has had an opportunity to do so first.

Complaints to police Complaints made to the AFP are assessed and assigned a complaint category in accordance with s 40RK of the Australian Federal Police Act 1979 and the Australian Federal Police Categories of Conduct Determination as agreed between the Ombudsman and the AFP Commissioner. The AFP Categories of Conduct provides for four categories of conduct into which a complaint can be categorised. These are: • Category 1 – Category 1 conduct involves minor management matters or customer service issues, such as discourteous behaviour or a failure by an AFP member to provide appropriate or correct advice. Category 1 issues can be handled informally through management action or be

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investigated by a Complaint Management Team (CMT) from the AFP member’s business line area • Category 2 – Category 2 conduct involves minor misconduct or inappropriate conduct, such as a failure to adequately supervise an AFP member, or a failure to meet the standards reasonably expected of an AFP member. Category 2 issues are managed by a CMT • Category 3 – Category 3 conduct involves serious misconduct which does not give rise to a corruption issue, such as excessive use of force against a person, alleged criminal conduct by an AFP member or other conduct that, if proved, would lead to consideration about the AFP member’s suitability for ongoing employment within the AFP. Category 3 issues are investigated by AFP Professional Standards. The AFP must notify the Commonwealth Ombudsman of all Category 3 conduct issue. • Conduct giving rise to a corruption issue – Where the AFP becomes aware of an allegation of corruption by an AFP member, they must notify the Australian Commission for Law Enforcement Integrity (ACLEI) of the corruption issue, including whether the matter is a significant corruption issue. In some circumstances, the ACLEI may agree for the AFP to investigate a non-significant corruption issue, in which case the matter is investigated by investigators within AFP Professional Standards. Complaints will be categorised in accordance with the relevant Australian Federal Police Categories of Conduct Determination applicable at the time. All complaints are subject to external oversight by the Commonwealth Law Enforcement Ombudsman and corruption matters are subject to oversight by the ACLEI.

Complaints to the Ombudsman The Law Enforcement (AFP Professional Standards and Related Measures) Act 2006 (Cth) commenced on 30 December 2006. This Act repealed the Complaints (Australian Federal Police) Act 1981 (Cth) (Complaints Act) and amended the Australian Federal Police Act

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1979 (Cth) (AFP Act) and the Ombudsman Act 1976 (Cth) (Ombudsman Act). Prior to these changes, the Ombudsman had an oversight role of the AFP investigations. Now, the AFP has primary responsibility for the whole process of complaint resolution. This means that the Commonwealth Ombudsman now generally only acts if the complaint is unable to be resolved through internal complaint handling methods with the AFP.

[9.560] Making a complaint The AFP’s complaints unit is called the Professional Standards. Complaints may be made orally or in writing. Phone: 02 6131 6789 Post: GPO Box 401 CANBERRA ACT 2601 Email: [email protected] Online: forms.afp.gov.au/online_forms/ feedback_form Prisoners and people in police custody If a prisoner or person in police custody wants to make a complaint to the Ombudsman only, they must be allowed to write it down and put it in a sealed envelope, which must be sent to the Ombudsman promptly and without being opened (see Chapter 33, Prisoners).

[9.570] Complaint

investigations by the Australian Federal Police The AFP manages complaints in accordance with Pt 5 of the AFP Act, the Commissioners Orders on Professional Standards and National Guidelines on complaint management. In some circumstances the AFP may allocate a complaint to the Commonwealth Ombudsman to investigate, if there is an internal conflict within the AFP. If conduct is established through an investigation the AFP will determine what sanctions to impose on the AFP member, which may range from remedial action to termination. If there is sufficient evidence to

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establish a criminal charge the matter will be referred to the Commonwealth Director of Public Prosecutions.

[9.580] Investigation by the

Ombudsman Generally, the Commonwealth Ombudsman will refer a complaint regarding the actions of a member of the AFP to the AFP for initial investigation. If the complaint has already been dealt with by the AFP then the Ombudsman will decide whether an investigation is warranted having considered the reasonableness of the action taken by the AFP in relation to the complaint. In some instances the Commonwealth Ombudsman may conduct a joint investigation with the AFP, and may, as with any

other Commonwealth agency investigate a matter using his own motion powers.

The Ombudsman's recommendations If following an investigation the Ombudsman thinks that something should be done by the Federal Police to remedy a situation, a report may be made to the Commissioner recommending action. Pt 5 oversight role As set out at [9.70] the Commonwealth Ombudsman, as the Law Enforcement Ombudsman, also has a role in oversighting the AFP’s management of complaints through its Professional Standards regime. The Law Enforcement Ombudsman reports annually to parliament in relation to these activities.

Complaints about lawyers [9.590]

If you are unable to resolve a dispute with your lawyer, or you feel that the lawyer’s conduct is seriously unethical or unprofessional, you may wish to consider making a formal complaint.

See the section on Lawyers in Chapter 4, Assistance with Legal Problems, for advice about how to deal with lawyers, and what you are entitled to expect from your lawyer.

The Legal Services Commissioner [9.600] The Commissioner's

role The Office of the Legal Services Commissioner is established by the Legal Profession Uniform Law Application Act 2014 (NSW) whereas the Legal Profession Uniform Law (LPUL) outlines the procedure for how complaints to the Commissioner are assessed, investigated, resolved and/or determined. Both these Acts came into force on 1 July 2015. The office receives all complaints about: • solicitors • barristers. The Commissioner is somewhat like an Ombudsman, with powers to resolve dis-

putes between lawyers and their clients and to investigate complaints and take action. The Commissioner can also initiate a complaint. Why is there a Legal Services Commissioner? The Office of the Legal Services Commissioner was set up as a result of consumer dissatisfaction with the investigation of complaints by the Law Society and the Bar Association, which had previously handled all complaints against solicitors and barristers. Any complaints received by the Law Society or the Bar Association must now be referred to the Commissioner in the first instance. Complaints may still, however, be referred by the Commissioner to the Law Society of Bar Association for investigation.

9 Complaints

[9.610] Making a complaint Formal requirements Complaints against lawyers must be in writing (s 267). If a person is unable to write, the Office of the Legal Services Commissioner can help to lodge the complaint.

What can be investigated The Commissioner can investigate not only serious allegations of professional misconduct, but also complaints about less serious matters, such as rudeness or poor communication. Complaints are assessed as either consumer matters or disciplinary matters.

Time limits Except for costs disputes, complaints must be made within three years of the conduct alleged (s 272(1)), unless there are good reasons for the delay. The Commissioner has a discretion to investigate older complaints where it is just and fair in the circumstances, or there are allegations of serious misconduct that should be investigated in the public interest. In respect of costs disputes, complaints must be made within 60 days after the legal costs become payable, or if an itemised bill was requested in accordance with s 187(2), 30 days after the request was complied with (s 272(3)). s 272(2) allows this time limit to be waived if the complaint is made within

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four months after the required period, it is just and fair to do so having regard to the delay and reasons for the delay, and the lawyer or law practice has not commenced legal proceedings in respect of the legal costs.

[9.620] What the

Commissioner may do The Commissioner may: • refer a complaint to the Law Society (solicitors) • refer it to the Bar Association (barristers) • resolve or investigate the complaint within the Commissioner’s office.

Mediation The Commissioner may refer consumer matters for mediation (s 288). This involves an informal meeting where the complainant and the solicitor or barrister can talk about and try to resolve the dispute with an independent mediator approved by the Commissioner. More often, however, less serious disputes are resolved through direct contact with the lawyer.

Prosecution The Legal Services Commissioner can prosecute practitioners in the NCAT after investigating a complaint about a disciplinary matter.

Where to make a complaint There are a number of bodies that deal with complaints about lawyers in NSW. Which should be used depends on the type of complaint, although all complaints about solicitors or barristers should be made initially to the Legal Services Commissioner (see below), who will refer you to other bodies if necessary. Conduct A complaint about a lawyer's conduct should be taken to the Office of the Legal Services Commissioner. You should call first to discuss your problem. If necessary, a complaint form will be posted to you. You can also contact the Legal Services Commissioner if you have problems such as: • getting your file back after you have terminated your solicitor's retainer (see Chapter 4, Assistance with Legal Problems)

• finding out about the progress of your matter. Trust account matters If you believe your legal practitioner has dishonestly handled money held in a trust account on your behalf, you can make a claim on the Fidelity Fund, which is administered by the Law Society (see If money is lost at [9.760]). Overcharging If you think you have been overcharged by your solicitor, you may wish to apply to have your bill assessed by the Costs Assessment Scheme housed in the Supreme Court (see The Costs Assessment Scheme at [9.680]). Negligence If your solicitor has been negligent in the work they did for you, you may be able to make a claim in professional

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negligence. The solicitor may refer the claim to LawCover, the solicitors' professional indemnity insurer (see LawCover at [9.700]). You will need to consult another lawyer, who will advise you about your prospects of succeeding in your claim, and will help you to do so if possible. Legal Aid lawyers If you are having problems with a lawyer who is

employed by the Legal Aid Commission or you are receiving legal aid funding, you can make a complaint to the Director of the Legal Aid Commission as well as the Office of the Legal Services Commissioner.

[9.630] What a disciplinary

Prosecution Prosecutions in the Civil and Administrative Tribunal are undertaken by: • the Office of the Legal Services Commissioner • the Professional Standards Department of the Law Society on behalf of the Law Society Council • solicitors briefed by the Professional Conduct Department of the Bar Association on behalf of the Bar Council.

investigation involves This investigation process involves: • obtaining a full account of the complaint from the complainant • giving details to the practitioner to allow them to respond, and • exploring any further issues that may arise.

[9.640] What disciplinary

action may be taken When the complaint has been fully investigated, a report is prepared and a decision made. If the complaint does not meet the test set down in the Legal Profession Uniform Law (NSW), it will be closed. If, however, it is serious enough and it is substantiated, there are several options for disciplining the practitioner (ss 299–300).

Disciplinary options Disciplinary options include: • a caution • a reprimand • a fine • imposing a practising certificate condition • prosecution in the NCAT.

The Legal Aid Commission has internal disciplinary procedures that apply in addition to the rules binding other legal practitioners.

[9.650] Review A person may request an internal review of a decision in relation to a complaint (s 313) made by the Law Society , the Bar Association or the Commissioner. The Commissioner has an absolute discretion as to whether to conduct a review.

What the Commissioner may do If the Commissioner believes that the complaint was dealt with correctly, the decision may be confirmed. However, the Commissioner may make a new decision if he: • concludes that the investigation was not carried out properly, or • does not agree with the decision that was reached.

The Costs Assessment Scheme [9.660]

A person who believes that a lawyer has overcharged can have the bill assessed by the Costs Assessment Scheme, which is administered by the Supreme Court. But the Costs Assessment Scheme and its processes are not court proceedings

in the Supreme Court, nor are Costs Assessors officers of the Supreme Court. If the solicitor did not take reasonable steps to disclose costs in writing initially, and is not covered by one of the exceptions to costs disclosure (see Chapter 4, Assistance with Legal Problems), they cannot take legal

9 Complaints

action to recover any costs from you until those costs have been assessed (Legal Profession Uniform Law, s 178). You should also consider an independent assessment if costs have significantly increased without you being fully informed by your solicitor, unless you are satisfied with their explanation of the increase. There are laws about what and how a legal practitioner can charge, and what information about costs must be given to clients. These are discussed in the section Lawyers in Chapter 4, Assistance with Legal Problems.

[9.670] Application An application to have a lawyer’s bill assessed by the scheme is made to the Costs Assessment Section located in the Supreme Court.

Fees The lodgment fee payable for an assessment of costs is the greater of the following: • $100, or • 1% of the unpaid bill, or • 1% of the total costs in dispute. This fee can be waived in cases of serious hardship. The costs assessors fees, current as at 30 August 2016, for the initial application for assessment is $192.50 per hour, payable by the party/parties as determined by the costs assessors. Mediation An alternative is to enter into mediation with your solicitor to try to resolve the matter.

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[9.680] Costs assessment The costs assessment application will be sent to an independent costs assessor, who will determine whether a valid costs agreement exists and whether the legal costs are fair and reasonable (s 199). The LPUL sets out the factors the costs assessor must take into account including whether the costs were proportionately and reasonably incurred and proportionate and reasonable in amount (ss 172 and 200). Both solicitor and client are given the opportunity to make written statements.

The cost assessor's decision When assessment is complete, the costs assessor makes a decision, gives reasons for it, and issues a certificate. Where the bill has not been paid Where the bill has not been paid, the cost assessor’s certificate can be filed in the registry of a court. It then constitutes a judgment of that court for the amount of the unpaid costs (Legal Profession Uniform Law Application Act 2014, s 70(5)). Where the bill has been paid If a bill has been paid and the costs are assessed at a lesser amount, a certificate is issued which enables the client to recover the amount as a debt in court (Legal Profession Uniform Law Application Act 2014, s 70(4)).

[9.690] Review If either the client or the solicitor is not happy with the results of the costs assessment process they can be reviewed by a panel of two costs assessors, which can either confirm the original decision or make a new decision.

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Court action for negligence [9.700] LawCover

Where to bring the action

All insurable solicitors practising in New South Wales are required to hold Professional Indemnity Insurance (PII) under the terms of the Legal Profession Uniform Law (NSW). LawCover is the approved insurer for the legal profession. For 2016/2017, the LawCover PII Policy provides practitioners and law practices with cover up to $2 million per claim, including claimant’s costs and defence costs. All solicitors have compulsory insurance with LawCover against legal actions for negligence.

Losses up to $40,000 A client who suffers a loss through a lawyer’s negligence not exceeding $40,000 may bring an action in the NCAT Consumer and Commercial Division.

Barristers Barristers cannot be sued for negligence in the conduct of a case in court, although they can be sued for negligence in other areas of their work.

Losses over $40,000 If the loss is more than $40,000, the only legal remedies are in a court action.

[9.720] What must be proved What will be regarded as negligent varies from case to case. To recover compensation it must be proved that: • there was negligence by the lawyer, and • the client suffered financial loss as a result.

[9.730] Getting help [9.710] Bringing an action A person may be able to bring an action in the courts for damages if it is considered that the lawyer has handled a case negligently, causing the client financial loss or damage. For example … Excessive delay on the part of the lawyer may have resulted in the client losing a legal right. Or the lawyer could have been negligent in handling the client's affairs by not taking the usual precautions; for example, by not making the necessary inquiries about a property in a conveyancing matter with the result that the client goes ahead with the purchase and later discovers that the land cannot be used for the purpose intended.

Getting legal advice Further legal work may be needed to determine whether a lawyer has been negligent. The Legal Services Commissioner and the Solicitor Referral Service of the Law Society can provide some preliminary information, and may make some attempt to persuade the solicitor to remedy negligent work. Ultimately, however, a person who wishes to sue may have to consult another lawyer. The Solicitor Referral Service of the Law Society can help a person find a lawyer for that purpose.

Getting Legal Aid Legal aid may be available from either the Legal Aid Commission or the Commissioner for Fair Trading, who has a discretion to grant aid for negligence claims.

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Money held in trust [9.740] Solicitors' trust funds Solicitors often hold a client’s money on trust (for example, the purchase price of a home the client is buying, or trust funds left with a solicitor to invest). Clients’ funds must be deposited in a separate trust account, kept by the solicitor and subject to extensive legal controls.

may be able to get compensation from the Fidelity Fund, a public fund administered by the Law Society. Solicitors only The Fidelity Fund covers only money or property entrusted to a solicitor in their capacity as a solicitor, not, for example, as a friend.

Breaches The Legal Profession Uniform Law defines the various breaches relating to the proper keeping of trust accounts, many of which constitute professional misconduct (Legal Profession Uniform Law, Pt 4.2).

[9.750] If problems arise A person should immediately contact the Law Society of NSW if they are having difficulty: • obtaining money held in trust, or • obtaining a financial statement relating to the trust fund. The Law Society’s trust account inspectors can investigate the situation.

[9.760] If money is lost A client who loses money because of a solicitor’s dishonest handling of trust money

Making a claim To make a claim, contact the manager of the Fidelity Fund of the Law Society of NSW at the earliest opportunity. The claim form The claim form is a statutory declaration form that must be signed before a justice of the peace or a solicitor. It is quite long, and you may need help from a solicitor or a Legal Aid Commission officer to complete it correctly. An officer of the Fidelity Fund at the Law Society can also help you complete the form. Other documents You will need to produce all documents relating to your business with the solicitor.

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Contact points [9.770]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au. Administrative Appeals Tribunal

Sydney, NSW 2001

Sydney NSW 2001

Level 7, City Centre Tower

www.icac.nsw.gov.au

www.olsc.nsw.gov.au

55 Market Street

ph: 1800 463 909 (toll free)

email: [email protected]

Sydney NSW

ph: 9377 1800

Postal:

Information and Privacy Commission NSW

GPO Box 9955

GPO Box 7011

Sydney NSW 2001

Sydney NSW 2001

www.aat.gov.au

[email protected]

ph: 1300 366 700 or 9391 2400

www.ipc.nsw.gov.au

Australian Human Rights Commission

ph: 1800 472 679

www.hreoc.gov.au ph: 9284 9600 or 1300 369 711 Australian Information Commissioner, Office of the GPO Box 5218 Sydney NSW 2001 www.oaic.gov.au email: [email protected] ph: 1300 363 992 Commonwealth government www.australia.gov.au Council for Civil Liberties, NSW www.nswccl.org.au email: [email protected] ph: 8090 2952 Federal Circuit Court (previously Federal Magistrates Court) www.federalcircuitcourt.gov.au ph: 9230 8567 Independent Commission Against Corruption (ICAC) Level 21, 133 Castlereagh Street Sydney NSW 2000 Postal: GPO Box 500

Law and Justice Foundation of NSW

New South Wales Bar Association Selborne Chambers B/174 Phillip Street Sydney NSW 2000 www.nswbar.asn.au email: [email protected] ph: 9232 4055

www.lawfoundation.net.au

NSW Civil and Administrative Tribunal (NCAT)

ph: 8227 3200

Principal Registry

LawCover

Level 9, John Maddison Tower

The Complaints Officer Level 12, 580 George Street Sydney NSW 2000 DX 11527 Sydney Downtown www.lawcover.com.au

86-90 Goulburn Street

email: [email protected] ph: 9264 8855 fax: 9264 8844 Law Society of New South Wales 170 Phillip Street Sydney 2000 email: [email protected] ph: 9926 0333 Community Referral Service www.lawsociety.com.au email: [email protected] ph: 9926 0300 Legal Services Commissioner, Office of the GPO Box 4460

Sydney NSW 2000 www.ncat.nsw.gov.au ph: 1300 006 228 NSW government www.nsw.gov.au Ombudsman, Commonwealth GPO Box 442 Canberra ACT 2601 By appointment Level 22, 580 George Street Sydney NSW 2000 www.ombudsman.gov.au email: [email protected] ph: 1300 362 072 Ombudsman, NSW Level 24, 580 George Street Sydney NSW 2000 www.ombo.nsw.gov.au

9 Complaints

email: [email protected]

www.police.nsw.gov.au

ph: 02 9286 1000

ph: 9286 4000

ph: 1800 622 571 (customer assistance unit) or 131 444 (general enquiries) Police Integrity Commission Level 3 111 Elizabeth Street Sydney NSW 2000 Postal: GPO Box 3880 Sydney NSW 2001 www.pic.nsw.gov.au

Police, NSW

ph: 1800 657 079 or 9321 6700

Publications ph: 9286 1072 Police, Australian Federal Sydney Office Coordinator OMC Locked Bag A3000 Sydney South NSW 1232 www.afp.gov.au

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Public Interest Advocacy Centre (PIAC) Level 7, 173-175 Phillip St Sydney NSW 2000 www.piac.asn.au ph: 8898 6500 Right to Information Officer GPO Box 3880 Sydney NSW 2001 email: [email protected] ph: 9321 6700

10 Consumers Rory Campbell Energy and Water Ombudsman NSW Michelle Ericoli Western Sydney Community Legal Centre - Home Building Advocacy Service (HoBAS) Philippa Lumley Legal Aid NSW Hiranya Perera Western Sydney Community Legal Centre - Home Building Advocacy Service (HoBAS) Holly Raiche University of New South Wales, Sydney

Contents [10.10] [10.20] [10.30] [10.40] [10.70] [10.180] [10.190] [10.200] [10.240] [10.290] [10.350] [10.410] [10.440] [10.460]

Consumer protection laws Legislation – The Legal Framework Protections in relation to trader conduct General protections Specific consumer protections – Illegal marketing practices Resolving consumer disputes Energy consumers Energy contracts Marketing and transfers Billing Hardship and payment difficulty Disconnection and reconnection Debt collection and credit reporting Powers of entry

[10.470] [10.490] [10.500] [10.510] [10.520] [10.540] [10.550] [10.560] [10.590] [10.640] [10.650] [10.680] [10.690] [10.700] [10.710] [10.720] [10.730] [10.760]

Interference with electricity and gas works Maintenance and upgrade of services Customer service standards Supply quality and reliability Tenants Making a complaint - energy Water consumers Offences relating to water Metropolitan customers Rural and regional consumers Tenants Making a complaint - water Home building consumers Legislation Threshold Residential building work Home Building Contracts Statutory warranties

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[10.770] [10.780] [10.790] [10.795]

What is a building dispute? Resolving a building dispute Resolving a building claim Defects

[10.800] [10.810] [10.870]

The NSW Civil and Administrative Tribunal (NCAT) Jurisdiction Telephone and the internet

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Consumer protection laws [10.10]

The Australian Consumer Law has been in place since January 2011 and replaced numerous consumer laws across the Commonwealth, states and territories. Earlier editions of this book detail the

previous consumer protection framework. The new Australian Consumer Law brings uniform consumer protection provisions across Australia.

Legislation – The Legal Framework [10.20]

The Australian Consumer Law (ACL) commenced operation on 1 January 2011. It applies to all transactions after that date. The previous Trade Practices Act 1974 (Cth) and Fair Trading Act 1987 (NSW) continue to apply to earlier dealings and readers are referred to previous editions of this book and to the Lawyers Practice Manual for a discussion of previous legislation and protections available to consumers. The ACL is contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth). The law applies in NSW by virtue of s 28 of the Fair Trading Act 1987 as a law of the State. The law has national application and is administered and regulated by both the national regulator, the Australian Competition and Consumer Commission, and the various state and territory consumer protec-

tion agencies. In NSW, the Office of Fair Trading (OFT) is the relevant state regulator. The NSW Civil and Administrative Tribunal (NCAT) and courts have the power to enforce the ACL. The Contracts Review Act 1980 (NSW) remains in force. That Act does not limit any other law providing relief against unfair contracts or unjust contract terms, nor does any other law limit the operation of that Act to the contract (see s 22). The Sale of Goods Act 1923 (NSW) also remains in force. It regulates the sale of goods only (but not services) and implies certain terms into contracts for the sale of goods. The commentary in the following paragraphs deals primarily with the consumer protections contained in the ACL.

Protections in relation to trader conduct [10.30]

The ACL has general protections and specific protections in relation to trader conduct. General protections have a broader application as they are not limited just to consumers. They apply in all aspects of trade and commerce which means that, for example, businesses, re-suppliers and wholesalers are entitled to rely on these protections. In contrast, specific protections only apply to consumers, which are defined in s 3 of the

ACL as a person who acquires goods or services for personal, domestic or household use, which have a value less than $40,000. This limit of $40,000 does not apply to motor vehicles. These protections are targeted at specific kinds of activities that are considered to be particularly detrimental to consumers such as illegal marketing practices and product safety. The specific protections also include the new consumer guarantees that are derived from the previous statutory and implied

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warranties found in the Trade Practices Act 1974. The consumer guarantees create additional obligations for businesses to comply

with when undertaking the sale of consumer goods, or the provision of a consumer service.

General protections [10.40] Unconscionable

conduct Unconscionable conduct can be a difficult concept to understand as there is no clear definition of what makes up this conduct. Unconscionable conduct has been a doctrine in equity which was ordinarily understood to be conduct that was so harsh that is goes against good conscious. It was often described as conduct which showed a high degree of moral fault. The ACL has partly adopted this doctrine but re-interpreted and extended its application to the supply or acquisition of goods and services. The Act makes it clear in its wording that unconscionable conduct is not limited to the unwritten law (meaning not limited to the previous definition in equity) allowing for the once narrow doctrine to be given a wider application in the consumer sphere. The recent Full Federal Court case of ACCC v Lux Distributors Pty Ltd [2013] FCAFC 90 has also provided some further guidance by clarifying that the test to be applied is one of the norms and standards of today, which is guided, but not limited by governing legislation. The case also clarified that it was not always necessary to show a high degree of moral fault or “moral obloquy” which had been referred to by much case law over the years. Despite this, the case fell short of saying that a finding of moral fault would no longer be required in all cases as some matters may require that level of behaviour to prove unconscionability. Under the ACL, the court may consider whether conduct is unconscionable, by reference to a series of factors set out in s 22 which include, but are not limited to:

(a) the relative strengths of the bargaining positions of the supplier and the consumer, and (b) whether, as a result of conduct engaged in by the person, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier, and (c) whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services, and (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer or a person acting on behalf of the consumer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services, and (e) the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods or services from a person other than the supplier. Other recent case law stemming from the ACCC’s enforcement proceedings provides some examples of conduct that the courts have found to be unconscionable: • using deception to enter consumers’ homes and then exerting high pressure sales techniques to get them to purchase goods (ACCC v Lux Distributors Pty Ltd [2013] FCA 47) • structuring mobile phone contracts in such a way that the consumer was extremely likely to incur high excess use charges and further imposing a $75 cooling off fee (ACCC v Excite Mobile Pty Ltd [2013] FCA 350) • failing to provide written records of contracts that Indigenous consumers living in a remote area had entered into for

10 Consumers

educational materials. These contracts included indefinite bank account deductions and other onerous conditions that were not reasonably necessary to protect legitimate business interests (ACCC v Keshow [2005] FCA 558).

[10.50] Misleading and

deceptive conduct A broad prohibition against misleading and deceptive conduct exists in the ACL mimicking the former provisions of the Trade Practices Act 1974, which are now contained in s 18 of the ACL. The ACL provides that a person must not in the field of trade or commerce engage in conduct which is misleading or deceptive, or is likely to mislead or deceive. It is unnecessary to prove that the conduct was fraudulent or even negligent. It is necessary to prove that the conduct was misleading or deceptive, and that: • the complainant relied upon that conduct, or • was induced by that conduct, and • thereby suffered loss. Misleading and deceptive conduct has a wide application to all aspects of the goods or service in question. This provision is concerned with the conduct, not just the contract. By way of example, the conduct to be considered includes, but is not limited, to: • how the product or service is marketed • on what medium the marketing occurred, ie print, television, radio • the product packaging • the use of fine print or quotations • the sales tactics used, including high pressure sale techniques • any promotions used to entice consumers, and • any specific statements made by a representative. The conduct is considered whether it occurred in the course of negotiating a contract, or whether it occurred after the contract had been entered into. Contravention of the prohibition can also include conduct that occurs by an act of omission and no intention to mislead is

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required. In the case of an omission, the court may look at whether it was reasonable to expect that information would have been disclosed as it was relevant to the consumer’s decision to purchase the goods or services. However, the case of ACCC v AGL South Australia Pty Ltd [2014] FCA 1369 suggests misleading omissions will not be caught unless there is a “reasonable expectation for disclosure”. The conduct is to be examined by the overall impression created to the consumer. As explained, all relevant circumstances surrounding the conduct will be taken into account. It will then be assessed against an ordinary member of a relevant class of people, who are likely to be affected by that conduct. For example, conduct that may be acceptable to an urban educated community will be considered differently in respect of a non-English speaking community living in a remote area.

Misleading and deceptive conduct for future matters There is an additional protection relating to misleading and deceptive conduct for future matters provided in s 4 of the ACL. This means that if is a person makes a representation about how the product will perform in the future, that does not have reasonable grounds, that representation can be considered misleading. A breach of these provisions can help to assess claims in relation to property damages and economic loss. They can also assist a court or tribunal in determining whether there has been a breach of a statutory warranty or consumer guarantee, or whether a product is defective.

[10.60] Unfair terms in

contracts The ACL covers unfair terms in standard form consumer contracts in Part 2-3. A consumer contract is one that is made for an individual for wholly or predominantly personal, domestic or household use in relation to: • a supply of goods or services, or • a sale or grant of an interest in land.

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A standard form contract is not defined in the ACL, but will usually be a contract that is not open to negotiation between the parties. This means a consumer is not given an option to change the terms of the contract when they sign up to it. If a consumer alleges that a contract is a standard form contract, then the onus is on the other party, ie the business, to prove it is not. Factors that the court will consider in deciding whether a contract is a standard form contract are outlined in s 27 of the ACL and include: • whether one party has all the bargaining power in a transaction • whether the contract was prepared before any discussion occurred between the parties • whether any opportunity was given to accept, reject or negotiate the terms of the contract • whether the contract took into account specific characteristics of the transaction or another party. A consumer can apply to a court to have a specific term of a contract declared unfair and therefore void. They can also seek a remedy for any loss that is incurred due to an unfair term in a standard form contract. If a certain clause or term in a contract is found to be unfair, this does not mean that the entire contract is void. The ACL provides that if the contract is capable of operating without the unfair term, the contract will continue to apply. It is important to note that some terms are expressly excluded under the unfair contracts terms law. These are terms that: • define the main subject matter of the contract • set an upfront price payable under the contract (if disclosed before the contract was entered into) • are required or permitted by law, or • have been negotiated between the parties. There are some specific contracts which are excluded from the unfair contracts regime which include: • insurance contracts, except those types of insurance that are not regulated by the Insurance Contracts Act 1984, eg private health insurance

• contracts of marine salvage or towage, for a charter party of a ship, or • contracts for the carriage of goods by ship. In order to determine whether a term is unfair, a consumer must prove pursuant to s 24 of the ACL that the term: (a) would cause a significant imbalance in the parties’ rights and obligations arising under the contract; (b) is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term; and (c) would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on. The ACL provides in s 25 some examples of unfair terms, which mainly involve one party unilaterally making changes to the contract to the detriment of the other party. In summary, some of the terms considered to be unfair are terms that: • allow one person to avoid or limit that performance of the contract • allow one person to terminate the contract • penalise one party for a breach or termination of the contract • allow one party to vary or renew, or not renew the contract • allow one party to vary the upfront price payable or the characteristics of the goods, services or interest in land to be sold • allow one party to unilaterally determine whether a contract has been breached • limit vicarious liability of agents or one person’s right to sue another • permit one party to detrimentally assign the contract without consent • limit the evidence that can be adduced during a dispute or imposes an evidentiary burden on the other party. In addition to consumers rights under the ACL to have unfair terms removed from a contract, the Contracts Review Act 1980 remains in force. The Act deals with the concept of unjustness in relation to all contracts, including consumer contracts. The Court will consider various factors that can be found in s 9 of the Contracts Review Act 1980 but, in brief, these factors broadly relate to the balance of power between the parties due to the specific characteristics of

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the parties and any unfair conduct used to enter into the contract.

Specific consumer protections – Illegal marketing practices [10.70] Making false or

misleading representations Part 3-1, Division 1 of the ACL is directed towards specific types of false or misleading representations. It is an offence for a business to make false and misleading representations about goods and services when supplying, offering to supply, or promoting those goods and services. Section 29 of the ACL prohibits businesses from making false or and misleading representations in relation to the following matters: • that the goods are of a particular standard, quality, value, grade, composition, style or model • that services are of a particular standard quality, value or grade • that a particular person has agreed to acquire the goods or services • that goods or services have sponsorship, approval, performance characteristics, uses or benefits • a testimonial by any person or a representation that purports to be a testimonial • with respect to the price of goods and services • the availability of facilities for the repair of goods or parts for goods • the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy or a requirement to pay for a contractual right that is wholly or partly equivalent to a guarantee, warranty or right of remedy. Whether a representation is considered to be false or misleading will depend on the circumstances of the case. In relation to testimonials, the ACL says that a representation is taken to be misleading unless there is evidence to the contrary. However, this does

not represent a reversal of the onus of proof, which remains with the claimant. There is a further offence under s 33 and s 34 which also prevents businesses from engaging in conduct which is liable to mislead the public as to the: • nature of goods or services • the manufacturing process of goods • the characteristics of services • the suitability for their purpose of goods and services, or • the quantity of any goods or services. Court proceedings taken by the ACCC in relation to false or misleading representations provides some examples of conduct that has been found to contravene the ACL, for example: • a business which supplied eggs in containers labeled as “free range” and further promoted that the hens roamed freely when the hens were mostly confined was found to have made misleading representations (ACCC v Pirovic Enterprises Pty Ltd [2014] FCA 1028) • painkillers that were marketed as targeting specific types of pain, but which actually contained exactly the same ingredients were found to be false and misleading representations (ACCC v Reckitt Benckiser Pty Ltd (No 4) [2015] FCA 1408). There are additional prohibitions in relation to false or misleading representations about sale of land (s 30), misleading conduct relating to employment (s 31) and making certain misleading representations about particular business activities, including business activities that are represented as being able to be carried out from a person’s home (s 37). The ACL also prohibits certain kinds of advertising which may be considered to fall

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within the category of conduct which misleads. It is prohibited to: • offer a rebate, gift or prize with the intention of not providing it, or not providing it as offered (s 32), or • engage in bait advertising (whereby a business advertises goods or services for a price that the business has no reasonable grounds for believing that they can sell the goods at that price). Penalty provisions for these offences can be found in Part 4-1, Division 1 of the ACL.

may have to pay compensation for those goods. This only applies if the damage occurred within what is known as the recovery period. This period is ordinarily three months, but is reduced to one month if the consumer notifies the supplier in writing, their name and address, that they do not want the goods and provides information on how to collect those goods.

[10.80] Unsolicited goods and

There are further specific protections, which are covered by Divisions 3, 4 and 5 including: • an absolute prohibition on pyramid schemes (ss 44–46). Pyramid schemes make money by recruiting businesses or additional people to participate through the payment of a fee, rather than selling a product or providing a service • provisions in relation to multiple pricing, which require that if there is more than one displayed price for goods, the sale must be made at the lowest price shown (ss 47 and 165) and an additional prohibition on component pricing, that is only stating the price that is only part of the cost (ss 48 and 166) • a prohibition on referral selling (s 49). Referral selling is where a consumer is induced to purchase goods or services by promising that after the purchase they will receive a rebate, commission or benefit for providing other potential customers names or assisting the person to supply goods or services to other consumers • a prohibition on the use of physical force, or undue harassment or coercion, in connection with the supply, or possible supply, or payment for, goods or services or an interest in land (s 50).

services Under the ACL there is specific regulation around unsolicited sales of goods and services, which can be found in Division 2 of Part 3-1. An unsolicited sale is defined in the ACL as the provision of goods or services to someone who has not requested them. Where this occurs, there are additional protections for consumers preventing businesses from: • asserting a right to payment for an unsolicited sale, which includes threatening to bring legal proceedings or placing the person on a list of defaulters or debtors, or threatening to commence collections procedure in regards to that unsolicited sale (ss 10 and 40) • asserting a right to payment for advertising or unauthorised entries (s 43), or • sending unsolicited credit or debit cards to consumers (s 39). The exception to this are limited to whether the business reasonably believes that that they have the right to assert payment, or in respect of where a card is sent to a consumer, the recipient has requested the card. If there is a dispute between a consumer and a business demanding payment, the business must prove that they have a legitimate right to have demanded that payment. These provisions mean that consumers do not have to pay for unsolicited goods or services received. They are also not liable for the loss or damage of the goods, or due to the supply of the service (ss 41 and 42). However, if the consumer willfully or unlawfully damages the goods, then they

[10.90] Other specific

protections

[10.100] Consumer guarantees Consumer guarantees are based on the previous state and territory statutory and implied warranties and can be found in Division 1 of Part 3-2 of the ACL. A consumer is a person who buys goods or services to the value of $40,000, or goods

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more than this amount, which are normally used for personal, domestic or household purposes or a vehicle which is used to drive on public roads, irrespective of cost. These guarantees cannot be excluded or limited by contract and to do so is a breach of s 64 of the ACL. The guarantees do not apply to goods purchased for resupply, meaning that they are specific to consumers and not to retailers. They are also not applicable for goods purchased by way of auction, except for guarantees in relation to the title and possession.

[10.110] Guarantees for goods A supplier and a manufacturer provide the following guarantees in relation to goods: • that the goods are of acceptable quality (s 54) • that goods supplied will correspond with the description provided (s 56) • that any express warranties will be honoured (s 59). The supplier also separately guarantees on their own that the consumer is purchasing goods which: • have a clear title, unless otherwise disclosed (s 51) • are free from undisclosed securities (s 53) • are fit for any disclosed purpose (s 55) • have a right of undisturbed possession (s 52) • correspond to a sample or demonstration model provided or disclosed (s 57). A manufacturer provides an additional guarantee as to the availability of repairs and spare parts. The guarantee as to acceptable quality is a new protection under the ACL. Previously, the Trade Practices Act 1974 referred to merchantable quality and this terminology still exists in the Sale of Goods Act 1923. However, the new provision of acceptable quality provides a broader protection for consumers. The term comes from the New Zealand consumer legislation and has been interpreted more favourably for consumers. Goods are deemed to be of acceptable quality if they are: • fit for all the purposes for which goods of that kind are commonly supplied • acceptable in appearance and finish

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• free from defects • safe, and • durable. This is then determined in relation to what a reasonable consumer fully acquainted with the goods would find acceptable taking into account: • the type and price of the goods • any statements or representations made about the goods • any label or packaging of the goods, and • any other relevant circumstances. There are exceptions to the guarantee of acceptable quality also found in s 54 of the ACL where the defects have been drawn to the consumer’s attention prior to the purchase, or a reasonable examination by that consumer would have revealed that the goods were not of acceptable quality. Additionally, if after purchase the consumer causes the goods to become unacceptable or damages the goods by abnormal use then the supplier or manufacturer is not responsible.

[10.120] Guarantees for

services There are separate and specific consumer guarantees which apply to the supplier in respect of the provision of a service: • a guarantee that services will be rendered with due care and skill (s 60) • a guarantee that the service is fit for the disclosed purpose (s 61) • a guarantee that services will be supplied within a reasonable time (s 62). These guarantees do not apply to the services of architects and engineers, for the transport and storage of goods (where the consumer is a business) or contracts of insurance.

[10.130] Remedies for failure

to comply with consumer guarantees In regards to a breach of a consumer guarantee, Part 5-4, Division 1 prescribes the remedy that applies. The remedy will vary based on whether the failure is deemed to

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be a major or minor failure. It is worth noting that the ACL does not use the terminology or have a definition of minor failure, but rather specifies whether the failure is “not a major failure”. For ease of reference this book will refer to a non-major failure as a minor failure.

Minor failure – Goods and services If the issue in relation to the goods or service supplied is minor, then a repair is the appropriate remedy (ss 259 and 267). However, if the supplier does not repair the goods within a reasonable time, or their repairs are unable to fix the problem, then the consumer has the right to: • get the repairs done elsewhere • ask for a replacement • ask for a refund, or • recover compensation for the drop in value below the price paid. The ACL regulations (reg 91) state that a repair notice must be provided by a business where the goods being repaired include user-generated data such as mobile phones, computers and other electronics and repair of the goods may result in the loss of the data.

Major failure - Goods If a trader is unable to remedy a minor failure, or a failure is a major failure a consumer may reject the goods and may at their own election ask for a refund or a replacement of the goods pursuant to s 259 of the ACL. A breach of consumer guarantees is deemed to be a major failure in relation to goods pursuant to s 260 of the ACL if: • a reasonable consumer fully acquainted with a the nature and extend of the failure would not have acquired the goods, or • the goods do not match the description, sample or demonstration if supplied by reference to that description, model or sample, or • the goods are substantially unfit for the purpose which they are commonly supplied and cannot be remedied within a reasonable time, or • the goods are unfit for a disclosed pur-

pose and cannot be remedied within a reasonable time, or • the goods are unsafe. A consumer cannot reject the goods if the rejection period has ended or the goods are lost, destroyed or disposed of or the goods were damaged after delivery. The rejection period is the period within which it would be reasonable to expect the failure would become apparent. It begins from the time of the supply (s 262). This time period must take into account the type of the goods, the use the consumer would have for the goods, the length of time it is reasonable for the goods to be used and the amount of use which is reasonable. Furthermore, if a consumer has notified a supplier of goods that they have rejected those goods the ACL also gives the consumer a right to terminate any contracts connected with the rejected goods (s 265).

Major failure - Services If the major failure relates to the supply of a service the consumer can choose between cancelling the contract and receiving a refund, or keeping the contract and receiving compensation for the difference in value due to the failure (s 267). If a consumer terminates a contract for the supply of services and goods have also been supplied in connection to those services, the consumer is taken to have rejected those goods as well (s 270). A breach of consumer guarantees is deemed to be a major failure in relation to services: • if the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure, or • the services are unfit for a purpose that services of that kind are commonly supplied for and they cannot be remedied to make them fit for that purpose, or • the services are unfit for a particular purpose disclosed and cannot be remedied within a reasonable time, or • the services are not of such a nature or quality, state or condition that they might be expected to be by the consumer and that was made known to the supplier, or

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• the supply creates an unsafe situation (s 268).

Damages In addition to the above, a consumer may recover damages for any loss or damage suffered by the consumer from both the supplier and the manufacturer (s 271). In regards to the supplier, the consumer may recover damages because of a failure to comply with a guarantee pertaining to goods, if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of the failure (s 259(4)). In relation to a manufacturer if the guarantee of acceptable quality is not complied with the consumer may claim: • any reduction in the value of the goods from the failure to comply below the lower price of the average retail prices at the time of supply or the price paid by the consumer • the cost of inspection and returning the goods • any loss or damage which was reasonably foreseeable (s 272). However, if the goods were not of acceptable quality due to an act, default or omission of another person, or due to independent human control, the consumer cannot recover damages from the manufacturer (s 272). There is also three-year time limit against the manufacturer from when the consumer became aware, or ought to have reasonably become aware, of the failure to comply with the guarantee (s 273).

Linked credit contracts A linked credit contract is a contract that a consumer enters into with a credit provider for the supply by way of sale, lease, hire or hire-purchase of goods to the consumer. By way of example, a linked credit arrangement may be where a consumer has purchased a car from a dealer and that dealer has also organised finance for the purchase. A supplier and a linked credit provider are jointly and severally liable if a consumer suffers loss or damage due to: • a misrepresentation relating to the credit provider under the linked contract • a breach of the linked credit contract or of

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a contract for related supply • a failure to comply with a consumer guarantee, or • a breach of a warranty implied by s 12ED of the ASIC Act 2001 The consumer must join both the linked credit provider and the supplier in any court proceedings. Recent case law suggests that in order for a relationship between a supplier and a credit provider to be found to be “linked credit” there must be evidence of a consensual arrangement between the credit provider which was strong and pre-existing (Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Ltd (in liq) [2013] FCAFC 5).

[10.140] Unsolicited consumer

agreements Unsolicited consumer agreements occur when an agreement is made outside of the seller’s usual place of business, or is from an uninvited call or approach. The total value of goods or services must be more than $100, or the value was not established when the agreement was made. Unsolicited consumer agreements commonly come from marketers or suppliers door knocking households, telephoning consumers, or approaching consumers in shopping centres. However, an agreement is still considered to be unsolicited if a consumer gave their contact details to a business for one purpose and the business contacts that consumer to negotiate the sale of goods or services, which is considered to be a different purpose. As a consumer has not invited the contact from the business, these agreements attract different and more stringent protections that are found in Division 2 of Part 3-2 of ACL. In a dispute it will be up to the business to prove that the consumer approached them for the agreement. A person who makes unsolicited contact with consumers in order to enter an agreement for the supply of goods or services must comply with a number of requirements. These include:

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• not contacting the consumer outside prescribed business hours (s 73) • making disclosures to the consumer about their purpose and identify both before commencing negotiations and before the agreement is made (s 74) • notifying the consumer that they may ask the seller to leave the premises and that the seller must immediately do so if requested (s 74 and 75). If this occurs the seller must not contact the consumer again for at least 30 days. A do not knock sign is considered to be a request to leave (ACCC v AGL Sales Pty Ltd [2013] FCA 1030; ACCC v AGL Sales Pty Ltd (No 2) [2013] FCA 1360) • informing the consumer that they have a cooling off period and a right to terminate the agreement within a certain time frame • giving the consumer information on how to exercise their termination right (s 76) • ensuring the agreement is in writing and that a copy with the businesses contact details is given to the consumer immediately after the agreement is made (or within five business days if the agreement is negotiated by telephone) (ss 78, 79 and 80), and • not accepting or requesting payment or making supplies during the 10-day cooling off period (s 86).

can seek compensation for a drop in the value. If the goods are not collected within 30 days after termination, the goods become the consumer’s property. A consumer may also cancel an unsolicited agreement within three or six months, if certain requirements have not been met, such as: • the seller did not provide information in relation to the consumer cooling of or termination rights • the seller did not provide a written copy of the agreement, or the agreement they did provide did not including certain required information • a supply of goods to the value of more than $500 was made to the consumer in the 10-day cooling off period • a supply of services was made to the consumer in the 10-day cooling off period • the supplier accepted or requested payment for goods or services during the cooling off period (s 82). The agreement may be terminated by the consumer giving the supplier written or oral notice of the consumer’s intention to terminate. It is unlawful under the ACL to attempt to limit the rights of consumers to terminate agreements (s 89) and a consumer cannot waive any rights under the ACL that relate to unsolicited agreements (s 90).

Terminating an unsolicited consumer agreement

[10.150] Injuries or damage

A consumer may terminate an unsolicited agreement within ten days after the agreement was made or if the agreement was negotiated by telephone, within ten days after the consumer was given a copy of the agreement. A supplier must return or refund any money paid under an agreement or related contract when a consumer exercises their right to terminate the agreement within the cooling off period. This will also terminate a related contract or agreement, such as a contract of guarantee or indemnity or credit or finance arrangements (s 83). However, if a consumer has received goods from an unsolicited contract they must return those goods or tell a supplier where to collect them. If they have not taken reasonable care of the goods, the supplier

from unsafe goods A number of actions may be open to a person who suffers injury from goods which do not meet the consumer guarantees which includes: • rights to rescind contracts and sue for the recovery of monies paid • remedies available, such as damages for breach of contract under the law of torts for negligence. The ability to seek damages has been substantially modified by the Civil Liability Act 2002 (NSW) (see Chapter 3, Accidents and Compensation). Before a person may claim damages for non-economic loss, it is necessary to show that the injuries suffered are at least in the 15th percentile of the most severe cases.

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There are additional protections for consumers in the ACL with recalls, banks, safety warning notices and mandatory reporting for businesses. These are to ensure that the public are aware of safety issues with products, particularly where there has been a serious injury or a death, and that the product can be quickly removed from the market.

If the agreement is terminated, the consumer is entitled to recover all monies paid, less any termination fee, in accordance with the terms of the agreement. There are limited circumstances in which a supplier can terminate a lay-by agreement such as a breach by the consumer of the agreement, the supplier no longer being in business, or the goods no longer being available.

[10.160] Lay-by sales

[10.170] Remedies

The provisions addressing lay-by sales are set out in the ACL at ss 188–191. Lay-by agreements are where a customer pays for good in more than three instalments and does not receive the goods until the final instalment is made. These agreements must be in writing and specify all terms and conditions, including any termination amounts (which are only payable if an agreement is terminated by the consumer). A business must ensure a lay-by agreement is transparent so there are no hidden terms and conditions.

The ACL provides a broad range of remedies to ensure that businesses comply with consumer protections. Some of these have already been addressed above. In addition, there is the general ability of a court or tribunal to order payment of compensation for loss or damage suffered because of a breach of the consumer protection provisions (s 236). An injunction may also be granted to prevent contravening behaviour, on the application of a regulator or other person (s 232).

Resolving consumer disputes [10.180]

It is often possible to resolve a consumer dispute by contacting the business who supplied the goods or services directly. It is a good idea to set out the dispute in writing to the business, so that it is clear what the issue is and the outcome you want. Depending on the problem, it may also be useful to approach the manufacturer or the Australian distributor of the goods, if they are manufactured elsewhere.

NSW Office of Fair Trading If you cannot resolve your issue with the business directly, a consumer may speak with the NSW Office of Fair Trading (OFT) who will provide free information to consumers about their rights and options to resolve the dispute. Consumers can also lodge a formal complaint against the business with the OFT. Once this occurs the OFT can contact the business directly on behalf of the consumer and attempt to negotiate a solution or settlement to the dispute.

Court or tribunal Where the dispute is not resolved, the consumer may need to commence proceedings in either a court or a tribunal. The choice is whether to take the proceedings to the New South Wales Civil and Administrative Tribunal (NCAT), or to the Local or District Court of NSW (depending on the amount of your claim). In order to make this decision it is useful to understand the differences between these forums. NCAT has a time limit of three years from the time the cause of action giving rise to the claim accrues or from 10 years from the last supply of the goods and services (Fair Trading Act 1987 (NSW), s 79L). If a claim is taken to a court the limit is six years from the date the cause of action accrues per ss 236 and 237 of the ACL. Different limitation periods apply for claims about personal injury. NCAT sees the majority of consumer claims in NSW and has a general jurisdic-

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tional limit up to the value of $40,000. There is no limit in relation to claims for a new motor vehicle that is used substantially for private purposes, within the meaning of the Motor Dealers and Repairers Act 2013 (NSW). In addition, there is no limit on claims concerning the commission payable to an agent under the Property, Stock and Business Agents Act 2002, s 36. The power of NCAT to determine consumer claims comes from Part 6A of the Fair Trading Act 1987 (NSW). Where there is a consumer claim for more than the NCAT limit, which could be the case for claims for personal injury, the proceedings must be in a court. The Local Court, which is the most common alternative forum to NCAT, has a jurisdictional limit of $100,000. The District Court’s jurisdictional limit is $750,000. There are a few advantages to taking proceedings to NCAT rather than a court, such as: • the filing fee at NCAT is less than a court • legal representation is not normally allowed unless the parties satisfy specific tests and NCAT makes an order permitting legal representation • proceedings are much less formal than a court, as the rules of evidence do not apply, although a consumer will still need to bring evidence such as photos, receipts and statements to prove their claim • NCAT are required “to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible” • NCAT will encourage the parties to undertake mediation as they must use their best endeavours to bring the parties to their own resolution of the dispute • If a party is unsuccessful they will not normally be ordered to pay the costs of the other party, unless special and unusual exceptional circumstances exist. NCAT also has obligations to ensure the parties understand the tribunal procedures, the assertions each person is making, the legal implications of those assertions, and the ultimate decision that is made. This means that they move at a pace that is more accessible to unrepresented parties and there

is commonly an explanation provided to the consumer about what is occurring. The power of NCAT to makes orders can be found in ss 79N and 79O of the Fair Trading Act 1987 (NSW) and there is a comprehensive list allowing for an order: • for the payment of money • that defective goods or services be fixed • that goods be returned • that goods be replaced • that money claimed to be owing is in fact not owing • which is a combination of the above, or • an order that the proceedings be dismissed. Generally, decisions are given orally at the hearing however a party may request a written statement of reasons within 28 days of becoming aware of the NCAT’s decision. Once a decision is made the parties may have the right to appeal the decision internally, within 28 days, to the NCAT Appeal Panel for an error of law or with permission (leave) of the Tribunal about the merits of a decision. The parties can also appeal directly to the Supreme Court of NSW, within three months, by way of judicial review in regards to questions of NCAT’s jurisdiction, or a denial of natural justice. NCAT cannot enforce its decisions as it has no enforcement powers of its own. Orders made by NCAT may be registered with the court for enforcement. Once a judgment is registered then it can be enforced for a period of up to 12 years as if it were a judgment of that court. For example, if a money order has not been paid and the order is registered with the Local Court, then that court can order that certain property be seized for sale (known as a writ for levy of property) or that money be taken out of another party’s wages or a bank account (known as a garnishee order). If an order has been made for work to be carried out, or for goods to be returned, and that order has not been complied with, the application may be renewed by the person in whose favour the order has been made. A renewal means that a person is asking NCAT to change the original orders into a money order, or in some circumstances a

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further work order. A person can file for a renewal within 12 months of the final date for compliance.

Energy consumers [10.190]

Both electricity and gas industries have undergone a process of reform since the mid-1990s (electricity) and early 2000s (gas). One recent significant reform has been the harmonisation of state-based regulations for the electricity and natural gas retail markets and distribution sectors into a single set of national rules, under the National Energy Consumer Framework (NECF). The NECF was formally adopted in NSW on 1 July 2013. Under the NECF the term “energy” covers both electricity and natural gas. Generally the main pieces of legislation/ regulations under the NECF are the National Energy Retail Law (NERL) and the National Energy Retail Rules (NERR). The NERL provides the “big picture” provisions regulating the supply and sale of energy to small retail customers, whereas the NERR provides the detailed content to these provisions. While the NECF provides a consistent set of customer protection measures, government-funded rebate and emergency assistance programs remain under state jurisdiction. Customers in NSW have a choice of which retailer supplies their energy services. Customers can choose to enter into a market retail contract with an electricity or gas retailer (see Energy contracts at [10.200]). Electricity customers in NSW normally have direct dealings with electricity suppliers from two sectors of the industry: distributors (or networks) and retailers.

• Distributors are responsible for the “poles and wires” that bring the power to a customer’s property (see Maintenance and upgrade of services at [10.490]). The NSW government owns the three distribution networks covering most of Sydney and the Hunter Valley (Ausgrid), Western Sydney and the Illawarra (Endeavour Energy); and the rest of NSW (Essential Energy). Partial privatisation of Ausgrid and Endeavour Energy is planned for 2016. • Retailers sell electricity to customers on a contractual basis (see Energy contracts at [10.200]). Likewise natural gas customers in NSW may have dealings with the distributor when there are supply problems or leaks in the street, but most of their business will be with the retailer. In NSW there are six reticulated gas distributors: • Jemena, covering the Illawarra, Sydney, Central Coast, Hunter, Southern Highlands, Blue Mountains, Riverina, Central West and Orana • ActewAGL, covering Queanbeyan, Bungendore and Nowra • Australian Gas Networks, covering Albury • Allgas Energy, covering Tweed Heads • Central Ranges Pipeline, covering Tamworth • Envestra (NSW), covering Riverina, Temora, Cooma, Bombala and Murray Valley.

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Energy contracts [10.200] Opening and closing

accounts It is important for customers to open an energy account when they move into a new property and to close the account when moving out, to avoid paying for the energy use of others. A security deposit may be charged on the opening of a new account (see Security deposits at [10.230]).

[10.210] Types of contracts When opening an account, energy customers are entitled to choose between the following types of contracts for their energy services: • a standard retail contract with standing offer tariffs which are set by the retailer, and standard terms and conditions (see Schedule 1 of the NERR) • a standard retail contract with an agreed retail price approved by the Independent Pricing and Regulatory Tribunal (IPART), and standard terms and conditions (gas only) • a market retail contract with competitive tariffs and terms and conditions that may vary from contract to contract. Retail electricity prices were deregulated in NSW from 1 July 2014 and regulated tariffs are no longer available. Retail gas prices are subject to voluntary retail pricing that are agreed to between IPART and the local area retailer (see below), and are also known as “regulated offer prices” (NERL, s 37C). All retailers must have a standing offer, which gives domestic and small retail customers the automatic right to supply (see NERL, s 22–32). Small retail customers are those who consume less than 100 megawatt hours (MWh, which is 1,000 kilowatt hours) of electricity per year or less than 1 terajoule (TJ, which is 1,000,000 megajoules) of gas per year (National Energy Retail Law (Adoption) Regulation 2013 (NSW), cl 4(1)). Where the customer is opening an account at a site without a previous connection, they

have an automatic right to supply from the local area retailer for the relevant geographical area (NERL s 2 definition of “designated retailer”). The local area retailers for electricity are: • Origin Energy for premises in Essential Energy and Endeavour Energy’s network areas • EnergyAustralia for premises in Ausgrid’s network area. The local area retailers for gas are: • Origin Energy for premises in Envestra and Central Ranges Pipeline’s network areas • AGL for premises in Jemena’s network area • ActewAGL Retail for premises in ActewAGL’s network area (National Energy Retail Law (Adoption) Regulation 2013, cl 5). The local area gas retailers must offer both standing and regulated pricing offers to customers (NERL, s 37C(9)). Where the customer is opening an account at a site where there is an existing connection, they have an automatic right to supply from the retailer who currently supplies the site (NERL, s 2 definition of “designated retailer”). Alternatively, customers may be offered a market retail contract by an energy retailer. Under a market retail contract, the quality of energy supply will not change but these contracts generally offer different terms and conditions from the standard contract and sometimes bind customers to set periods (usually two or three years) or benefits. Administrative and penalty fees may be charged in certain circumstances or if contract terms are broken, usually by early termination of the contract. Some retailers offer “dual fuel” contracts which include both electricity and natural gas. If a customer does not have a contract with a retailer and is using energy at the site, a deemed customer retail arrangement is taken to apply between the customer and

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the current retailer of the site. This can happen where they have moved into a site and failed to open an account, or their current market retail contract has expired and a new contract has not been entered into (NERL, s 54(2)). The current retailer of the site has a number of obligations to fulfill as soon as they are become aware that energy is being consumed. These include informing the customer of the terms and conditions of the deemed customer retail arrangement, the customer’s options for establishing a contract and their right to disconnect (NERR, Rule 53).

[10.220] Choosing the right

contract If considering a market retail contract, customers should consider: • the prices at which energy will be supplied, and whether prices are calculated according to levels of usage (block tariffs) or according to peak and off-peak usage times (time-of-use tariffs) • the cost of the service to property charge (Service Availability Charge SAC) • duration and expiry date of the contract • the arrangements when the contract expires • any price adjustments over the life of the contract • fees for early termination, late payment, paper bills, dishonoured payment, move in/out, special meter reading, meter test, disconnection and reconnection (see Late payment fees at [10.320]) • solar feed-in tariff rates • billing frequency (for example, monthly or quarterly) • payment options (for example, BPay, Centrepay, direct debit, post office) and associated fees • security deposit requirements. Customers have a “cooling off” period of ten days in which to cancel a market retail contract without incurring any penalty (see Changing your mind at [10.280]). Customers should note that transfers from one retailer to another may not take place immediately, as the new arrangement will

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generally be from the next scheduled meter reading (which should be no more than 90 days). For an immediate transfer, the customer can ask whether the retailer can do a special meter read. This service generally incurs a fee (see Miscellaneous charges at [10.330]).

[10.230] Security deposits Energy retailers may request a security deposit when a new account is opened. For residential customers this can only occur at the start of the contract, while for small business customers this may occur at the start of or during the term of the contract (NERR, Rule 40(1)). The retailer can only request a security deposit under any of the following circumstances: • the customer owes money to that retailer and this is not in dispute • the customer has fraudulently acquired energy within the past two years • the customer has refused to provide acceptable identification • the retailer reasonably considers that the customer has a poor credit history • the customer has refused the retailer permission to obtain a credit check • the customer has been offered a payment plan and declined it or failed to pay an instalment • the retailer reasonably considers that the customer has no history of or has a poor record of paying their account (for business customers) (NERR, Rule 40(2)). If a retailer requires the customer to pay a security deposit because they consider that the customer has a poor credit history, the retailer must tell the customer that they can dispute the decision (NERR, Rule 40(5)). The retailer cannot require the customer to provide a security deposit where they have been identified as a hardship customer by any retailer (NERR, Rule 40(3)).

Standard retail contracts If a customer has entered a standard retail contract, retailers must not require a security deposit of more than 37.5% of the customer’s estimated bills over a 12-month period. This estimation is based either on the

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customer’s billing history or the average usage of a comparable customer over a comparable 12-month period (NERR, Rule 42(1)). Retailers are required to refund the security deposit, together with accrued interest, within 10 business days after a residential customer completes one year of on-time payments. Business customers are entitled to a refund when they complete two years of on-time payments.

Customers are also refunded when they move out, transfer to another retailer or request disconnection, provided the security deposit is not required to settle the final bill (NERR, Rule 45).

Market retail contracts If a customer has entered a market retail contract, information about the collection and return of security deposits will be in the contract.

Marketing and transfers [10.240]

Energy retailers and their marketing agents may approach customers in person by door knocking or at shopping centre kiosks, by mail, online or by phone to sell market retail offers.

[10.250] Customer choice and

explicit informed consent A customer who is approached by a retailer or their marketing agent is not obliged to sign or agree to any contract. Customers who decline to take up an offer will continue to receive electricity and gas services from their existing retailer. A retailer must obtain the customer’s explicit informed consent before they enter into a market retail contract (NERL, s 38). This involves clear, full and adequate disclosure of all matters relevant to the consent of the customer (see Marketers must disclose information under [10.260]), and the customer gives their consent to the offer (NERL, s 39(1)(a)). Consent can be given: • in writing, signed by the customer • verbally, so long as the verbal consent can be verified and made the subject of a record (eg a voice recording) • by electronic communication generated by the customer (eg an email) (NERL, s 39(2)). The retailer must retain a record of the consent for two years and must provide a copy to the customer on request (NERL, s 40).

Customers who query whether explicit informed consent was provided must raise a complaint within 12 months of the transaction. Customers can ask the retailer for proof of their consent and if it is not produced within 10 business days or the retailer otherwise admits that it was not obtained, the contract is void. The retailer cannot recover any amount for any energy supplied as a result of the void transaction (NERL, s 41(a), (b) and (c)), subject to the information below. For electricity customers: The retailer should transfer the customer back to their previous retailer, however this depends on the length of time which has passed since the void transaction occurred: • if the transaction occurred less than six months prior, market procedures allow the retailer to retrospectively transfer the customer back to their previous retailer. This places the customer in the same position they were in before the transaction, and they will be billed by the previous retailer for the energy supplied as if the transaction had not occurred. Any payment made to the retailer must be transferred to the previous retailer • if the transaction occurred more than six months prior, market procedures prevent the retailer from retrospectively transferring the customer back to their previous retailer as if the transaction had not occurred. Instead, the transfer can only be backdated to six months, which means that the retailer may be financially responsible for the customer’s site for one

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or two billing periods prior to the backdate. The retailer cannot bill the customer for these periods (NERL, s 41(5), and see AEMO MSATS Procedures: CATS Procedure Principles and Obligations). For gas customers: The six month limit rule does not apply to gas customers and the transfer can go back to the date of the void transaction. The customer’s previous retailer is entitled to bill the customer as if the transaction had not occurred. Any payment made to the retailer must be transferred to the previous retailer (NERL, s 41(5)). If the void transaction did not involve the transfer of the customer from one retailer to another (eg if their existing retailer had offered the customer a different contract), the customer will be billed for the energy supplied under their existing contract (NERL, s 41(4)).

Transfers where there has been no contact with a marketer A customer (Customer A) might find that they have been transferred to another retailer without their explicit informed consent or contact by a marketer. This can happen when another customer (Customer B) has opened an account with a new retailer but an error has occurred as part of the new retailer’s administration of the transfer process. For example, the marketer may have recorded the address or meter number of Customer B incorrectly, resulting in Customer A being transferred. If the transfer occurred less than six months prior, the new retailer can organise for a retrospective transfer back to Customer A’s previous retailer. This places Customer A in the position they would have been in if the error had not occurred and the previous retailer may bill Customer A for the energy supplied during this period. If the retrospective transfer fails or, in the case of electricity customers, if more than six months has passed since Customer A’s site was taken in error, the new retailer cannot bill Customer A for any period in the absence of their explicit informed consent (NERL, s 41(3)).

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[10.260] Door-to-door and

telephone marketing Energy marketers must abide by consumer protections in the Australian Consumer Law (ACL). Customers who feel that marketers have breached the ACL should contact the energy retailer involved as a first step or the Energy and Water Ombudsman NSW (EWON) if the retailer’s response is unsatisfactory (see Making a complaint at [10.540]). Retailers must retain, for 12 months, a record of all marketing activities, including details of energy marketing visits, telemarketing calls and any activity by their marketing agents. Retailers must also ensure that their employees have immediate access to these records (NERR, Rule 68).

Permitted contact hours Marketers must not contact customers: • at any time on a Sunday or a public holiday • before 9am on any other day • after 5pm on a Saturday • after 6pm on any other day (ACL, Sch 2, s 73).

Marketers must disclose information When selling a market contract to a customer, energy retailers or their marketing agents must, either electronically, verbally or in writing, provide information about: • prices, fees and charges, concessions and rebates, security deposits, billing and payment arrangements and how any of these may be changed • the commencement date, duration of the contract and provisions regarding termination • the customer’s right to withdraw from the contract during the ten-day cooling off period • the customer’s right to complain about the marketing activity to the retailer and to EWON (NERR, Rules 63, 64). After the customer has agreed to the contract, this information must be provided to the customer in writing, accompanied by a copy of the market retail contract (NERR, Rule 64(2)).

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A marketer contacting a customer in person must also provide an Energy Price Fact Sheet for each market offer, which summarises key terms and conditions of the contract and refers the customer to the Australian Energy Regulator’s online price comparison website (www.energymadeeasy. gov.au) (AER Retail Pricing Information Guideline June 2015, see Ch 2, 3.2 and 3.3).

Marketers must not mislead or deceive Energy marketers must not engage in misleading or deceptive conduct, such as claiming the marketer is representing the government, insisting that a contract must be accepted immediately, or insisting that customers show current electricity and gas bills. Marketers also must not coerce or pressure a customer into agreeing to a contract. Door-to-door marketers must identify themselves and clearly inform the customer that they are selling a product and they are obliged to leave the premises immediately on request (ACL, Sch 2, s 74, 75).

Marketers must follow customer's contact wishes Energy marketers are restricted from contacting customers against their wishes or at certain times (see Permitted contact hours above). Marketers must leave a home immediately or end a phone call when asked. A customer may choose to be placed on a “no contact” list for door-to-door or mail marketing by notifying the energy retailer that has approached them. The register remains current for two years (NERR, Rule 65). Customers may also display a “No Marketing” “No Canvassing” or “No Advertising” sign on their premises. Marketers must abide by such signs (NERR, Rule 66). Alternatively, customers who do not wish to be contacted by any telemarketers may register on the Commonwealth Do Not Call Register (see www.donotcall.gov.au or call 1300 792 958 for more information).

Marketing to others in the household Although customers may complain about this, marketing to a non-account holder is not prohibited. A non-account holder can

cancel an existing contract and transfer to a new retailer if they acknowledge they have the authority to do so. People who manage the affairs of another person, such as advocates or carers, should be aware that marketers may set up a contract with the person in their responsibility or care if that person consents. If a customer cannot sort out a problem with an unwanted account transfer, they can contact EWON (see Making a complaint at [10.540]).

[10.270] Green energy Green energy is electricity produced from renewable sources, such as the sun, wind, water and waste, and produces substantially lower greenhouse gas emissions than energy generated from coal- or gas-fired power stations. GreenPowerTM is a national accreditation program administered by the NSW government which ensures that green energy products on offer meet strict requirements for renewable energy production (see www. greenpower.com.au for more information). Customers can nominate what percentage of their electricity consumption comes from GreenPowerTM accredited renewable sources. This percentage should be clearly displayed in the retailers’ marketing material. Generally, the higher the proportion of renewable energy in a product (for example 10%, 20%, 25%, 50%, 75% or 100% green energy), the higher the price. Customers can view and compare the range of green energy tariffs available on the Australian Energy Regulator’s price comparison website (www.energymadeeasy.gov. au).

[10.280] Changing your mind A customer who enters into a market retail contract has the right to withdraw from the contract within 10 business days without penalty (NERR, Rule 47(1)). The cooling off period starts from the date the customer receives the information that retailers are required to disclose (see section “Marketers must disclose information”).

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For door-to-door marketing, this information will be provided at the time the contract is entered into. Where a customer agrees to a contract over the phone, the written documentation will be posted to the customer and it is industry practice to assume that delivery takes place on the third business day after the contract is formed.

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To terminate a contract within the cooling off period, a customer may notify the retailer verbally or in writing (NERR, Rule 47(4)). Retailers must keep a record of the customer’s notice of termination as if it were a record of explicit informed consent (NERR, Rule 47(6)) (see Customer choice and explicit informed consent at [10.250]).

Billing [10.290]

Customers on standard retail contracts are entitled to receive a bill at least once every 100 days (NERR, Rule 24(1)). If a customer has a market retail contract, information about billing frequency will be contained in the contract. As it is current industry practice for distributors to read meters once every three months, most market retail customers are usually billed on this basis as well. Bills are divided into two distinct service and usage charges: • Service Availability Charges (SAC) are minimum rates per day charged for connection to the electricity or gas network • consumption charges are calculated on levels of usage as measured by the meter. Bills may also contain other fees and miscellaneous charges (see Late payment fees at [10.320] and Miscellaneous charges at [10. 330]). Whilst energy customers are obliged to pay their bills on time, energy retailers in NSW provide assistance programs to help people who are having difficulty paying their bills. Customers who are experiencing financial difficulties should contact their energy retailer as soon as possible to discuss their situation (see [10.350] Hardship and payment difficulty).

[10.300] Estimated usage bills Customers are obliged to provide safe and unhindered access to their meter. Energy retailers may estimate a customer’s energy usage when the distributor is unable to access the meter to perform a meter reading. Lack of access may be due to locked gates, an unrestrained dog or other obstructions,

or a faulty meter. However, best endeavours must be made as the meter must be read at least once every 12 months, with bills adjusted accordingly (NERR, Rule 20(2)). This means that where previous bills have been under- or over-estimates, a customer may be sent a “catch up” bill or have surplus amounts corrected on subsequent bills. Estimations are based on the customer’s previous usage where data is available, the customer’s self-read or the average amount of usage for a comparable customer over the corresponding period. The estimated bill must clearly state that it was based on an estimated reading (NERR, Rule 21(2), (3)). Customers with meter access issues can request a special meter read, which will attract a fee. Where there is no meter access the retailer or distributor may require a special meter read to ensure the meter is read at least once every 12 months, and the customer may be charged for this (see [10.330] Miscellaneous charges).

[10.310] Undercharging and

overcharging Where a customer’s energy account is undercharged, their account may be rebilled for the period of the undercharge. This will result in the customer receiving a backbill. There is a limit of nine months on the time a retailer can recover an amount undercharged. This means that if the retailer has been undercharging a customer for a two year period, it is only able to issue a backbill to recover charges for nine months prior to the date the customer is notified of

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the undercharging (this is usually the date the backbill is issued) (NERR, Rule 30(2)(a)). Undercharging can occur when there has been: • a meter read error • an under-estimated bill • a billing error, such as an incorrect tariff or service to property charge • a failure to issue a bill for all or part of the billing period. The nine-month limitation does not apply where the undercharge occurs as a result of the customer’s fault, unlawful act or omission, for example where the customer refuses to provide access to their meter (NERR, Rule 30(2)(a)). Customers are entitled to pay a backbill by instalment over an extended period of time. The time period allowed depends on the length of the undercharged period: • if the undercharging was for a period of less than 12 months, customers have an amount of time to pay that is equivalent to the period of the undercharging • if the undercharging was for a period of more than 12 months, customers have 12 months to pay (NERR, Rule 30(2)(d)). When a retailer becomes aware that a customer has been overcharged, they must inform the customer of this within 10 business days. Interest is not payable on overcharged amounts (NERR, Rule 31(1)). If the overcharged amount is below $50, the retailer is only required to credit the amount to the customer’s account. However if the overcharged amount is over $50, the customer can decide how the refund is to be paid. If the customer does not provide instructions, the retailer must credit the amount to their account. If the customer has closed their account, the retailer must use their best endeavours to refund the money within 10 business days (NERR, Rule 31(2)(c)).

[10.320] Late payment fees Customers under standard and market retail contracts (see Types of contracts at [10.210]) may be charged a late payment fee for failure to pay bills on time. Customers should consult their own contracts to ascertain any late payment fees they may incur,

and the dollar amount of these fees. A late payment fee cannot be charged if the customer is a hardship customer (NERR, Rule 73). Retailers must also waive the fee under these circumstances: • if the customer receives the Low Income Household Rebate or Medical Energy Rebate • if the retailer has agreed to give the customer an extension of time to pay • where the customer and retailer have entered into a payment plan • the energy retailer is aware that the customer has contacted a welfare agency or support service for assistance • payment or part payment is made by an EAPA voucher (see Energy Accounts Payment Assistance (EAPA) vouchers at [10.400]) • when the customer has made a billing related complaint to EWON (National Energy Retail Law (Adoption) Regulation 2013, cl 10).

[10.330] Miscellaneous

charges Customers may be charged a range of fees for certain additional network-related work. Network fees are set by the Australian Energy Regulator (AER) but energy retailers may add a retail component to the fee when billing customers. GST is payable on all miscellaneous fees. These include fees for: • a special meter reading • meter testing • disconnection • reconnection • paper bills • rectification of illegal connections. Before being charged, the energy company should inform the customer of the amount of the fee and the reason it will be charged. Customers should consult their own contracts to ascertain any miscellaneous fees they may incur.

[10.340] Disputing bills Customers can dispute a bill that they believe is incorrect. Customers should contact their retailer with their concerns as they

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may be able to explain how the bill has been calculated or may offer to conduct an investigation. Customers can also request an investigation. If dissatisfied with the result, EWON can investigate the accuracy of the bill. If EWON does not find any errors, they can help

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negotiate a payment plan between the customer and the retailer. While an investigation is underway, customers should pay what they would normally pay or that part of any bill not in dispute to show the retailer that they are acting in good faith.

Hardship and payment difficulty [10.350]

There are government and retail arrangements to assist customers who are experiencing short- or long-term payment difficulty.

[10.360] Payment plans All customers can negotiate with their retailer to pay their bill by instalment to help manage their budget. Customers who adhere to payment plans are protected from debt recovery proceedings (NERL, s 51) and disconnection (NERR, Rule 116(1)(d)). When offering or negotiating a payment plan, retailers are required to consider: • the customer’s capacity to pay • any arrears owing by the customer, and • the customer’s expected energy consumption needs over the next 12 months (NERR, Rule 72). Retailers must offer payment plans for hardship customers and residential customers who have identified themselves or have been identified by their retailer as having payment difficulties (NERL, s 50). However there is no obligation to offer a payment plan to customers who have had two payment plans cancelled in the previous 12 months due to non-payment (NERR, Rule 33). Retailers can also disconnect a customer who was offered two payment plans in the previous 12 months where: • the customer has not agreed to either of them • the customer has agreed to one but not the other of them, and the payment plan agreed to has been cancelled due to non-payment, or • the customer has agreed to both, but the plans have been cancelled due to non-

payment (NERR, Rule 111(2)). Notice requirements must be met before a disconnection takes place and this is covered in [10.420]. If a customer has problems negotiating a realistic payment arrangement with their retailer, they can contact EWON for help.

[10.370] Hardship program All energy retailers are required to operate a hardship program and have processes to identify customers in hardship. Customers who are in financial difficulty should notify their retailer and request a referral to the retailer’s hardship program. This ensures that they are protected from disconnection, debt recovery action and late payment fees as long as they adhere to the payment plan agreed to under this program. Hardship programs must also have: • processes for the early response by the retailer once the customer has been identified • flexible payment options (including a payment plan and Centrepay) • processes to notify customers of government concession programs and financial counselling services • processes to review the appropriateness of a hardship customer’s market retail contract, and • information or assistance to improve the customer’s energy efficiency (see NERL, s 44).

[10.380] Centrepay Customers on pensions or benefits can also set up Centrepay deductions with their retailer. Centrepay allows recipients of Centrelink payments to authorise automatic

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transfer of an amount from their pension or benefit (at a minimum of $10 per fortnight) into their energy account. At the end of a billing period, a customer using the Centrepay scheme will only be billed for the outstanding amount on their energy account. If the hardship customer is on a standard retail contract, their retailer must allow the customer to use Centrepay as a payment option. For hardship customers on a market retail contract, the use of Centrepay will depend on whether it is a payment option under that contract. If Centrepay is not available, the customer may be transferred to a more appropriate contract by their retailer, provided the customer has given their explicit informed consent (NERR, Rule 74).

[10.390] Rebates The NSW Government funds rebate programs for energy customers who are pensioners, have certain medical conditions or require the use of approved life support equipment. The available rebates are: • the Low Income Household Rebate • the Family Energy Rebate • NSW Gas Rebate • the Medical Energy Rebate • the Life Support Rebate. Information about the amount of each rebate paid, eligibility, application process and payment procedures can be found on the NSW Trade and Investment website (www. resourcesandenergy.nsw.gov.au/energyconsumers) and the Social Programs for Energy Code. With the exception of the Family Energy Rebate, eligible customers can apply for rebates by contacting their energy retailer in person, in writing or by phone. Eligible customers can apply for the Family Energy Rebate through the NSW Trade and Investment website. Customers who have a person in their household requiring life support equipment should inform their retailers of this fact, as special obligations are imposed on electricity suppliers to maintain a continuous supply of electricity (see also Disconnection and reconnection at [10.420]).

The list of approved life support equipment for the Life Support Rebate is set out in the Social Programs for Energy Code and includes: • Positive Airways Pressure (PAP) device • Enteral feeding pump • Phototherapy equipment • Home dialysis • Ventilator • Oxygen concentrators • Total Parenteral Nutrition (TPN) pump • External heart pump. This list is different from the list of approved life support equipment under the NERL, which is used to determine if the premises are protected from disconnection (see [10. 430]). When disconnection is prohibited). This means that a premises with life support equipment approved under the NERL may not necessarily qualify for the Life Support Rebate if the equipment is not also approved under the Social Programs for Energy Code. Customers who hold a Commonwealth or DVA concession card and have specific medical conditions that require heating or cooling may be eligible for the Essential Medical Equipment Payment from the Commonwealth Government. This covers a wider range of equipment than the NSW Medical Energy and Life Support Rebates. Customers have to apply via the Department of Human Services website and the rebate is paid annually. Information about rebates for residential park residents is covered in [10.530].

[10.400] Energy Accounts

Payment Assistance (EAPA) vouchers EAPA is a NSW government voucher program designed to help customers who are experiencing difficulty paying their electricity and/or gas bills because of a crisis or emergency situation. Each voucher is worth $50. Customers can make an appointment to be assessed for EAPA by contacting a community welfare organisation that administers the program. Energy companies or

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EWON can supply customers with a list of organisations in their area. These include: • St Vincent de Paul Society • The Salvation Army • Anglicare • Lifeline • some migrant resource centres • some community or neighbourhood centres • some Indigenous community services. In the assessment, the customer may be asked questions about their income and expenses. The most recent energy bill should be brought to the interview. The agency will determine the number of $50 vouchers to be given, but this will not usually be for the total amount of the bill. Customers may need to arrange a further payment plan with their retailer in respect of the outstanding amount (see Payment plans at [10.590]) or

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discuss referral to the retailer’s Hardship Program if they are in longer term financial difficulty. EAPA cannot be used on a closed or inactive account and EAPA cannot put an account into credit. Customers waiting to be assessed for EAPA cannot be disconnected from their electricity. However, if the customer has already been disconnected, they can still apply for EAPA and the vouchers issued can be used to pay consumption costs on an outstanding bill. EAPA vouchers are current for only 14 days after issue and will expire if the customer delays in paying them onto their account. More information is available at: www.resourcesandenergy.nsw.gov.au/ energy-consumers/financial-assistance/ stay-connected-through-financial-crisis.

Disconnection and reconnection [10.410] Grounds for

disconnection If a customer does not pay a bill by its due date, the retailer will issue notices prompting the customer to either pay the bill in full, or make contact to request an extension or a payment arrangement. If the customer does not respond to these notices, or is unable to pay the amount due, the retailer can proceed to disconnection. A retailer may arrange to disconnect a customer in limited circumstances: • where the customer has not paid a bill by the pay-by date • where the customer has accepted an offer to pay the bill by instalment or, having agreed to the offer, has failed to adhere to an instalment arrangement • where the customer is on a payment plan with the retailer but has not kept to the terms of the plan • where the retailer has issued all the required notices to the customer and used its best endeavours to make personal contact with the customer to discuss payment options

• where the customer has refused or failed to take any reasonable action towards settling the debt (NERR, Rule 111). A customer may also be disconnected in other circumstances: • where the customer has failed to pay any required security deposit (NERR, Rule 112) • where the customer has failed to open an account (for example, after moving into the premises) (NERR, Rule 115) • where the customer has failed to allow access to their meter for three consecutive scheduled meter readings (NERR, Rule 113) • where the customer has used energy illegally (NERR, Rule 114) • where there are health and safety reasons warranting disconnection (NERR, Rule 119(g)). If a customer has both their gas and electricity supplied by the same retailer and the retailer becomes entitled to disconnect both these fuels for non-payment, the retailer must disconnect the gas supply first and wait 15 business days before disconnecting the electricity supply (NERR, Rule 117(4)). Customers who have been disconnected

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may have to pay a disconnection and/or reconnection fee. There may also be extra fees if reconnection is scheduled after hours (after 3pm weekdays) or if the disconnection has occurred at the pole rather than the meter box (see Miscellaneous charges at [10.330]). When a customer’s supply is disconnected at the meter box, the distributor places a sticker over the main switch, with a phone number to call for assistance. It is an offence for a customer to remove that sticker and reconnect supply. If the arrears remain unpaid, the retailer may arrange for a pole-top disconnection at the customer’s expense (see Unauthorised energy usage at [10.480]). If a customer on a standard retail contract has been disconnected for 10 business days their contract terminates at the end of the 10th business day. This can mean a customer will have to apply to a retailer for a new account, which may involve the payment of a security deposit (NERR, Rule 70(1)(e)).

[10.420] Notice requirements

before disconnection Before disconnecting energy supply, energy retailers are required to provide the customer with several opportunities to make contact or to seek assistance with paying their energy bills, so that disconnection of supply is a last resort. This applies to both standard and market retail contracts. If the customer has not paid a bill by the pay-by date, or has not adhered to an agreed payment plan, their retailer may arrange for disconnection but only after the following: • the retailer has issued a reminder notice giving the customer no less than six business days to pay their bill or make an alternative payment arrangement (NERR, Rules 108, 109(1)) • the retailer has issued a disconnection warning notice, no earlier than the next business day after the end of the reminder notice period, giving the customer no less than six business days to

pay their bill or make an alternative payment arrangement (NERR, Rules 108, 110(1)) • after issuing the disconnection warning notice, the retailer must use its best endeavours to make personal contact (either in person, by phone, fax or email) and the customer acknowledges receipt of the message (NERR, Rule 111(1)(e)). Reminder notices must be dated, state the date on which the reminder notice period ends for payment of the bill, as well as the retailer’s phone number for complaints and disputes (NERR, Rule 109(2)). Disconnection warning notices must be dated, state the reason for disconnection, the date the disconnection warning period ends for payment of the bill, contact details for EWON and phone numbers of the retailer and the distributor (NERR, Rule 110(2)). A customer may be placed on a shortened collection cycle if they are late in paying and have received reminder notices for two consecutive bills. The shortened collection cycle removes the need for a reminder notice. This means that a retailer can disconnect the customer after providing a disconnection warning notice and using its best endeavours to make personal contact. The customer stays on a shortened collection cycle until they have paid three consecutive bills by the pay-by date (NERR, Rules 34, 111(3)). If a customer fails to open an electricity or gas account after moving in or does not enter into another contract after their market contract has expired, the existing retailer responsible for supply at the premises may arrange to disconnect the customer. Before doing so, the retailer must: • give the customer a notice of intention to disconnect, and • not less than five business days later, give the customer a disconnection warning notice (NERR, Rule 115).

[10.430] When disconnection

is prohibited Customers cannot be disconnected: • where the premises are registered as having life support equipment

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• where the customer has made a complaint, directly related to the reason for the proposed disconnection, to the retailer or EWON and the complaint remains unresolved • where the customer is a hardship customer or a residential customer and is adhering to a payment plan • where the retailer is aware that the customer has formally applied for a rebate or EAPA and the application is being assessed • where the customer has failed to pay an amount on a bill that relates to goods and services other than for the sale of energy • for non-payment of a bill where the amount outstanding is less than $300 and the customer has agreed to repay that amount • on a Friday, Saturday or Sunday • on a public holiday or any day before a public holiday

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• on the days between 20 December and 31 December (both inclusive) in any year • before 8am or after 3pm on any other day (NERR, Rules 108, 116). Under the NERL, life support equipment includes the following: • an oxygen concentrator • an intermittent peritoneal dialysis machine • a kidney dialysis machine • a chronic positive airways pressure respirator • Crigler-Najjar syndrome phototherapy equipment • a ventilator for life support • in relation to a particular customer – any other equipment that a registered medical practitioner certifies is required for a person residing at the customer’s premises for life support (see NERR, Rule 3, definitions).

Debt collection and credit reporting [10.440] Debt collection Energy retailers may refer a customer’s debt to a debt collector that specialises in collecting overdue accounts. Retailers may either refer the debt while retaining ownership of it, in which case the debt collector collects the debt on the retailer’s behalf, or sell the debt to a debt collector instead. If the debt is sold the retailer must notify the customer of the sale (Credit Reporting Privacy Code, cl 13.1).

[10.450] Credit reporting If the customer is overdue on their bills by more than 60 days, the energy retailer may register the debt with a credit reporting body. A default is recorded on the customer’s credit report for five years (or seven years for serious infringements). This can result in the customer being refused consumer credit, such as when they apply for a loan, credit card or mobile phone. A customer cannot be credit listed unless the following requirements are met:

• the retailer has issued an overdue notice to the customer’s last known address requesting payment of the amount overdue • 30 days later (or more), the retailer has issued a notice of intent to credit list to the customer’s last known address • the customer is at least 60 days overdue in making the payment • the overdue amount is not less than $150 • the credit listing occurs between 14 days and three months after the notice of intent to credit list is sent • the retailer is not prevented by a statute of limitations from recovering the overdue amount (ie, the retailer must not recover a debt more than six years after when it first arose) (CR Code, cl 9.3, Privacy Act 1988 (Cth), ss 6Q(1), 21D(3)(d)). If the customer pays the account after listing, the debt is notated on their credit file as “default paid”, but remains listed for the remainder of the listing period.

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Customers disputing the amount of the debt or that they owe money should contact their energy retailer in the first instance. If they are not satisfied with the retailer’s response they should make a complaint to EWON (see Making a complaint at [10.540]). If EWON finds that the retailer has made an error or that the listing is non compliant, they will try to ensure that the customer’s credit rating is restored, at no cost to the customer. There are credit fix or credit repair agencies operating in NSW which offer a service of assisting customers to remove incorrect credit listings. These agencies usually charge the customer a fee upfront when an agreement is entered into, and a further fee when a listing is removed. Customers are entitled to one free credit report a year and can approach a credit reporting body to request a copy of their credit report, which must be provided within 10 days. Customers are also entitled to a free credit report If they are declined credit, provided they request the report within 90 days of the date they were declined. At the time of publication, there are three credit reporting bodies operating in NSW:

• Veda • Dun & Bradstreet • Experian. If the credit report is incorrect or misleading, a customer may request any credit provider or credit reporting body to correct the information. The credit provider or credit reporting body must be holding credit information about the customer, but not necessarily the particular information that the customer is seeking to have corrected. The credit provider or credit reporting body must consult with other credit providers or reporting bodies as soon as practicable to resolve the correction request. If the credit provider or reporting body is satisfied that credit information is inaccurate, out of date, incomplete, irrelevant or misleading, they must take reasonable steps to correct the information within 30 days (Privacy Act 1988, ss 20T, 21V, CR Code, cl 20.2). In practice, it may be more convenient for customers to raise their concern directly with their energy retailer. If not satisfied, a complaint can be made to EWON or the Office of the Australian Information Commissioner.

Powers of entry [10.460]

Electricity and gas distributors and retailers have powers to enter private land in specific circumstances for maintenance purposes and to read meters. Except in emergencies, these powers must only be exercised in daylight hours (Electricity Supply Act 1995 (NSW) (ES Act), s 54; Gas Supply Act 1996 (NSW), s 55 (GS Act). Prior notice of the intention to enter property on a specific day must be given to the owner or occupier of a property, except: • in emergencies • where the entry is with the consent of the owner or occupier, or • where the sole purpose of the entry is to read a meter (ES Act, s 55(3); GS Act, s 56(3)).

Reasonable force may be used to enter the property, but only if specifically authorised by the distributor (ES Act, s 56; GS Act, s 57). However, authorised officers who enter the property must do so via existing openings wherever possible, such as gates or pathways, and by causing as little damage as possible (ES Act, s 58; GS Act, s 59). This also applies to work requiring the digging of holes or interfering with gardens. An owner or occupier is entitled to compensation from the distributor or retailer for damage caused as a result of entering the property (ES Act, s 60; GS Act, s 61). The exception to this is damage caused as a result of the owner’s or occupier’s failure to abide with obligations under the Act or regulations.

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Interference with electricity and gas works [10.470]

Electricity and gas distributors have powers and obligations to ensure a safe and uninterrupted energy supply. For example, an electricity distributor has the power to issue a notice requiring a property owner or occupier to trim or remove a tree where the distributor has reasonable cause to believe that the tree could damage or interfere with electricity works, become a fire hazard, or constitute a risk to public safety (ES Act, s 48). In emergencies, an electricity distributor may trim or remove the tree of their own accord the cost of which, in most cases, will be borne by the electricity distributor (ES Act, s 48(3)(c) and (4)). Similar provisions apply to structures and other things that a distributor has reason to believe are damaging or interfering with its electricity or gas works (ES Act, s 49; GS Act, s 50). However, unless removed by the distributor in an emergency, the cost of removing structural obstructions will fall on the owner of the structure. It is an offence for a person to climb on or enter a distributor’s electricity assets (such

as electricity poles and substations) without a reasonable excuse, lawful purpose or authorisation by the distributor or retailer (ES Act, s 65A).

[10.480] Unauthorised energy

usage Retailers and distributors can immediately arrange to disconnect customers who fraudulently or illegally use energy (NERR, Rule 114). Distributors also have broader powers to disconnect where there is: • interference with the supply of energy to a third party • interference with the distributor’s equipment at the premises • meter tampering (NERR, Rule 119(2)). It is an offence to consume electricity, or cause electricity to be wasted or diverted from a distribution system unless authorised to do so under an energy contract (ES Act, s 64). The same applies for gas (GS Act, s 65).

Maintenance and upgrade of services [10.490]

The distributor is responsible for ensuring the safety and reliability of electricity and gas supply to customers up to the point of connection with the customer’s installation. For electricity, this point is commonly located: • for overhead connections, at the point the service is attached to the building (or the customer’s first private pole) • for underground connections, at the meter box which is typically on the wall of the building. In some cases, the point of

supply is the point at which the service crosses the boundary of the property or at a private ground-level connection cubicle. For gas, the point of supply will be where the customer’s installation joins with the distribution main. Distributors are responsible for maintaining the wires, poles and pipes up to the point of supply; for example, fixing fallen power lines or broken gas pipes in the street. Maintenance of the meter is also the responsibility of the distributor regardless of where it is located, although the provision and

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maintenance of electricity meters will become contestable in December 2017. Gas distributors also have certain obligations with respect to pipes or other items between the boundary and the customer’s meter. However, the customer may be required to pay for any installation or upkeep of these items. Property owners are responsible for the maintenance of electricity and gas installations from their side of the point of connection. This includes maintaining the private poles, wires and pipes inside a residence.

Property owners are responsible for the costs of new connections to distribution networks. This includes the connection between the point of connection on their property to the network. New connection costs can be very expensive and customers should contact their energy retailer for more information before proceeding, particularly if purchasing a property in a rural area or in a new residential estate as this may require extending the network or increasing its capacity. For more information see the AER’s Connection Charges Guideline, which came into force in NSW on 1 July 2014.

Customer service standards [10.500]

Energy distributors in NSW must adhere to a minimum level of customer service. The distribution service standards in the NERR require distributors to: • maintain a 24 hour fault reporting hotline service (Rule 85) • provide information about the customer’s usage or the distributor’s charges to either the customer or their retailer (Rule 86) • refer a residential customer to an interpreter service where appropriate (Rule 87). A further five NSW-specific standards are listed under the Electricity Supply (General) Regulation 2011 (NSW) (cl 9):

• post-disconnection notice – the distributor must leave behind a notice after disconnection, with information about the reason for disconnecting, the retailer and EWON’s telephone numbers, and what the customer is required to do for reconnection including any related costs payable (cl 10) • repair of faulty street lights - if a customer reports a faulty street light abutting their premises and the distributor responsible for that light fails to repair it within the agreed timeframe, they must pay the customer at least $15 (cl 11).

Supply quality and reliability [10.510]

Energy distributors have a right to interrupt the supply of energy at any time to carry out planned maintenance or development works, or as a result of an unplanned interruption (NERR, Rule 89). Where a supply interruption is planned, distributors must notify the affected customer by any appropriate means at least four business days before the date of the interruption, unless the distributor and customer have agreed to a shorter notice period

in writing (Rule 90A, inserted by the National Energy Retail Law (Adoption) Regulation 2013 (NSW), cl 11). The notification must: • specify the expected date, time and duration of the interruption • include a 24 hour telephone number for enquiries, and • refer any enquiries to the distributor (NERR, Rule 90(2)). The standard requirement to give at least four business days’ notice applies to

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premises with life support equipment approved under the NERL, but this must be in written form (NERR, Rule 125(2)(d)). Unplanned interruptions may occur where there is a need to carry out unanticipated maintenance or repairs due to a threat to safety, reliability or security of supply (NERR, Rule 88). Faults on the network may also occur due to a natural event such as a lightning strike, or third party action such as a vehicle hitting a power pole. Distributors must use their best endeavours to restore supply as soon as possible. Within 30 minutes (or otherwise as soon as practicable) of being informed of the unplanned interruption, distributors must make available a 24 hour telephone service to provide information on: • the nature of the interruption, and • an estimate of the time when supply will be restored or when reliable information on restoration of supply will be available (NERR. Rule 91). When a customer registers their premises with a distributor as having life support equipment, the distributor must advise the customer that an unplanned interruption may occur at any time and provide information to help the customer prepare a plan of action in case an interruption occurs. (NERR, Rule 125(2)(c)).

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The quality of energy supply is regulated by legislation and industry standards, including voltage standards, voltage variations and gas pressure. Customers may be entitled to compensation for any damage or loss resulting from supply incidents, such as frequent or lengthy interruptions to supply, voltage or mains pressure fluctuations, or lack of notifications for planned interruptions. Claims of compensation can include damage to property or household appliances and food spoilage. However, there is generally no compensation given for loss of trade or business, or losses incurred where a supply incident was caused by a natural event such as a lightning strike, fire or flood. Customers who wish to make a claim for compensation should contact their distributor and may need to provide: • a description of the damage to property or any losses incurred • a repairer’s report about the damage and quotes/receipts for any repairs necessary • the exact date and time the problem was discovered • an outline of what was observed during the event.

Tenants [10.520] Public and private

housing tenants Public and private housing tenants are generally responsible for energy bills and should open an account when moving into a new property. If electricity and gas are included in the rent, this will be written in the lease and the landlord will be responsible for paying the bills. If a landlord fails to pay an account on time and the tenant is facing disconnection, the tenant should contact NSW Fair Trading or the Tenants Union for more information (see Making a complaint at [10.540]). With the exception of boarding houses, a landlord

cannot charge a tenant for the supply of electricity unless there is a separate meter which complies with the regulations for the electricity supplied, and the sum charged does not exceed the maximum allowable amount under the AER Retail Exempt Selling Guideline March 2016. Landlords of boarding houses can charge for utilities as a separate charge on top of the room rate, provided: • they have notified the resident of the utility charge before entering into the occupancy agreement, and • the amount charged is based on the cost of providing the utility and a reasonable

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measure or estimate of the resident’s usage (Boarding Houses Act 2012 (NSW), Sch 1, cl 7). Residents of boarding houses with complaints can make a complaint to NCAT or the Tenants Advice and Advocacy Service (visit www.tenants.org.au). Tenants in share houses should be aware that the people whose names appear on an energy account are responsible for bills. Tenants should ensure the names on the account are up-to-date and that an agreement is in place between residents for paying the bills. For more information on share housing, contact the Tenants Union or visit www.tenants.org.au (see also Chapter 27, Housing).

[10.530] Tenants in residential

communities Tenants in residential communities or parks may be supplied electricity directly from an energy retailer or from the park owner. Residential park tenants who have a direct supply contract with an energy retailer have all the rights and responsibilities that other customers would have under the NECF, outlined above. Permanent residents of residential parks who are supplied electricity through the park’s internal network and are metered separately have a more limited range of rights and responsibilities prescribed by the Residential (Land Lease) Communities Act 2013 (NSW) (RC Act), the AER Retail Exempt Selling Guideline March 2016 (ES Guideline) and the Residential (Land Lease) Communities Regulation 2015 (RC Regulation). A permanent resident is defined as a person occupying a site or dwelling in a residential park under a residential tenancy agreement or residential site agreement as the person’s principal place of address. If the customer owns a cabin, van or a mobile home in a park, but their primary residence is elsewhere, they are referred to as a holiday park customer and different regulations apply.

Metering and billing Tenants in residential communities whose sites are metered separately cannot be charged more than the standing offer price or service availability charge that would be charged by the local area retailer (ES Guideline, Class R4, Condition 7(1); RC Act, s 77(3); RC Regulation, cl 11). When calculating the service availability charge (see Billing at [10.290]), park owners must set a rate relative to the supply quality. Where the supply is less than 60 amps, the park owner must charge a reduced service availability charge (see Figure 1 below) (RC Regulation, cl 12). Maximum Service Availability Charge (SAC) Level of Supply to Site Less than 20 amps 20-29 amps 30-59 amps 60 amps or more

Maximum Level of SAC 20% of local standard retail supplier’s SAC 50% of local standard retail supplier’s SAC 70% of local standard retail supplier’s SAC 100% of local standard retail supplier’s SAC

At the commencement of the tenancy or on the request of the tenant, the owner of the residential park must provide: • information about the payment arrangement for electricity, including payment plans • information on government rebate schemes • information about dispute resolution procedures, including EWON (ES Guideline, Class R4, Condition 9, 12 &15)). Tenants can be charged late fees for accounts which are not paid or not paid in full by the due date but no more than would be charged under the standing offer of the local area retailer (RC Act, s 78(1)). The residential park owner must keep records of account details, such as meter readings, charges applied and security deposits withheld. Receipts for any amount paid for electricity must be issued to the tenant (RC Act, s 84).

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Tenants should be aware that being in default of energy bills can mean the tenant is in breach of their residential tenancy or site agreement, which may lead to termination notices or may constitute grounds for eviction. Permanent residents of residential communities are eligible for the Low Income Household, Gas, Family, Life Support and Medical Energy rebates (see Rebates at [10.390]), but are not eligible for EAPA assistance (see Energy Accounts Payment Assistance (EAPA) vouchers at [10.400]).

Payment difficulties and disconnection The ES Guideline provides the same level of protection as those covered by the NECF for permanent residents of residential parks. This includes protections around payment plans, security deposits and disconnection (ES Guideline, Class R4, Conditions 9-11; see [10.410] Disconnection and reconnection), [10.360] Payment plans and [10.230] Security deposits). Residents on life support are protected from disconnection if they provide the park owner with confirmation from a registered medical practitioner that a person at their premises requires life support equipment. Where the resident is supplied energy by an authorised retailer and distributor, the park owner must inform them that life support equipment is used at the premises. The park

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owner must also maintain records of any residents who have life support equipment (ES Guideline, Class R4, Condition 16).

Technical and safety standards Owners of residential parks are responsible for maintaining the park’s electrical installation, including metering, other than the electrical installation within the premises occupied by the tenant. The owner must comply with all appropriate legislation and standards on technical and safety matters, including: • Australian Standards 3000-2007 - Wiring Rules for Electrical Installations • Electricity (Consumer Safety) Act 2004 and Electricity (Consumer Safety) Regulation 2006 • Service and Installation Rules of NSW • AER Electricity Network Provider Registration Exemption Guideline. Tenants are responsible for notifying the park owner of any electrical defects of which the tenant becomes aware, including any damage or tampering with metering equipment.

Rights to dispute resolution Owners of residential parks must provide residents with information about their rights to complain to EWON. Residents can also take disputes to NCAT.

Making a complaint - energy [10.540]

Customers with complaints about energy services can make a complaint to the Energy & Water Ombudsman NSW (EWON). This can include complaints relating to: • energy contracts, marketing and transfers • payment difficulty, disconnection of supply • billing • customer service issues • debt collection and credit default listing • supply quality, such as damage or loss to property from interruptions of supply • other network issues

• any rights or obligations conferred on energy suppliers by law. EWON generally expects customers to contact their energy provider in the first instance. If the provider cannot resolve the problem customers are advised to speak to someone in a more senior position. Customers are advised to keep records of any correspondence or discussion with their provider (for example date, time, details of correspondence). If the problem is not resolved by the provider or not dealt with in a reasonable time, call EWON on 1800 246 545.

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Complaints can be lodged by phone, letter, fax, email, in person or online (www.ewon. com.au). EWON’s service is free for customers. EWON can investigate customer complaints by: • seeking further information from the provider and/or customer • seeking independent expert advice (for example, from an engineer). In most cases EWON is able to negotiate a resolution between the customer and their

provider. Where a resolution cannot be reached, the Ombudsman can make a determination to settle the matter. If the customer chooses to accept the determination, it will be binding on the provider. EWON is not able to review disputes relating to tariff or price increases, government policy, private contractors or landlords, or matters that have been dealt with in another forum.

Water consumers [10.550]

Water services are provided to customers in NSW through suppliers that largely exercise a monopoly over the supply of water, sewerage and stormwater drainage services across their geographic areas.

Metropolitan areas The largest water services supplier in NSW is Sydney Water Corporation, a state-owned corporation operating under the Sydney Water Act 1994 (NSW) (SW Act). It provides water services to the Sydney, Blue Mountains and Illawarra regions. Sydney Water treats and supplies water bought from Water NSW, which operates under the Water NSW Act 2014 (NSW) (WNSW Act). Hunter Water Corporation, a state-owned corporation operating under the Hunter Water Act 1991 (NSW) (HW Act), provides services to the lower Hunter region of NSW, including Newcastle, Lake Macquarie, Maitland, Cessnock and Port Stephens. Hunter Water treats and supplies water from its catchment facilities. Central Coast Council (an amalgamation of Gosford City Council and Wyong Shire Council), operating under the Local Government Act 1993 (NSW) (LG Act), provide water to residents on the NSW Central Coast.

Rural and regional areas At present, over 100 separate local authorities supply water, sewerage and drainage services in rural and regional NSW. These

water suppliers are chiefly regulated under the Local Government Act. An exception to this is Essential Energy which has authority under the Water Management (General) Regulation 2011, cl 108 to provide water and sewerage services to the residents and businesses of Broken Hill, Menindee, and Sunset Strip along with defined special areas. Essential Energy has the functions of a water supply authority in those areas, and water and sewerage bills for these customers are issued under the letterhead of “Essential Water”. Maximum service prices are determined by each of the local government water utilities having regard to the Best Practice Management of Water Supply and Sewerage Guidelines (August 2007).

Water Industry Competition Act Reforms under the Water Industry Competition Act 2006 (NSW) have allowed for the introduction of a licensing regime, to encourage competition in water and wastewater services. The licensing regime allows private water utilities to provide these services, pursuant to obligations which impose minimum standards for the protection of public health, the environment and customer interests. Some companies now compete in constructing or maintaining water infrastructure and in the supply of water or sewerage services, for example in commercial sites or residential developments.

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Offences relating to water [10.560] Stealing or diverting

[10.580] Discharging

water

prohibited substances and polluting water supply

It is an offence to steal or divert water, or to tamper with a meter to prevent its accurate recording of water usage and penalties apply (SW Act, s 48; HW Act, s 30; WNSW Act, s 93; LG Act, s 636).

[10.570] Water restrictions The Minister for Water may impose restrictions on the use of water on public interest grounds. It is an offence to contravene water restrictions and penalties may apply. Customers should contact their water supplier for details about current restrictions.

It is an offence to discharge any substance into a system owned or controlled by a water supplier without written agreement from that supplier or to cause pollution of a public water supply (SW Act, s 49; HW Act, s 31; WNSW Act, s 94; LG Act, s 638). Customers should contact their water supplier if they are unsure of how to dispose of unusual or potentially dangerous substances, such as trade waste.

Metropolitan customers [10.590] Billing The most common customer issues related to billing concern payment difficulties, disputed high bills or restriction or disconnection of water supply. In general, customers should contact their water retailer in the first instance to discuss billing issues. If they are not satisfied with the retailer’s response, Sydney Water and Hunter Water customers should contact the Energy & Water Ombudsman NSW (EWON). Gosford and Wyong Councils have merged into the Central Coast Council. Prior to this merger, Gosford Council was a voluntary member of EWON while Wyong Council was not. This meant that Gosford Council customers could make a complaint to EWON and Wyong Council customers could contact the NSW Ombudsman. Since the merger, Central Coast Council has decided to leave EWON as of August 2017. Before this date, customers of the old Gosford Council should continue to contact EWON, after that date they should contact the NSW Ombudsman. The arrangements for former customers of Wyong Council will remain unchanged. For more

information about making a complaint, see Making a complaint at [10.540].

Accounts The property owner is the account holder on water accounts. Responsibility for the water account is transferred to the new owner of the property upon purchase, and charges are then apportioned based on the date of settlement. This is organised by the person who conducts the property settlement, usually the conveyancer or solicitor. If the account has not been transferred, the new owner should contact the person who conducted the settlement. Otherwise, the new owner will be liable for any unpaid water charges on the property.

Types of charges Most customers will incur two types of charges for water services: • service charges are set charges for connecting to water, sewerage and stormwater drainage networks • usage charges are calculated on the levels

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of water used or sewerage discharged over a period. The Independent Pricing and Regulatory Tribunal of NSW (IPART) sets maximum prices for the provision of water, sewerage and stormwater services provided by Sydney Water, Hunter Water, and Central Coast Council. Sydney Water, Hunter Water, and Central Coast Council may also charge a range of ancillary fees at maximum amounts set by IPART. These include charges for: • water reconnection during and outside business hours • special meter readings (for example, where the water supplier has been unable to access the meter) • meter testing • building plan approvals • dishonoured or declined payments • technical services. For Sydney Water and Hunter Water customers: Under respective operating licences, Sydney Water and Hunter Water are obliged to provide information on their charging policies and current charges free of charge upon request by a customer, and in other specified circumstances such as when charges change. For Central Coast Council (formerly Gosford Council and Wyong Council) customers: Central Coast Council provide some information about charges on their websites.

Meter Customers are responsible for ensuring reasonable access to their meter. For Sydney Water and Hunter Water customers: Sydney Water and Hunter Water will attempt to check the meter at least once a year. If they are unable to access the meter, Sydney Water or Hunter Water may bill the customer based on an estimation of water usage and costs. If Sydney Water or Hunter Water are unable to access the meter on two or more occasions, they may: • relocate the meter • seek access to the meter at another suitable time (this may incur an additional fee to the customer) • make other arrangements with the customer, such as allowing the customer to self-report meter readings.

If no solution can be reached, Sydney Water or Hunter Water may treat the customer’s property as “unmetered” and charge an unmetered service charge. For Central Coast Council (formerly Gosford Council and Wyong Council customers: Central Coast Council may also give directions to a property owner to re-position a meter if it is not accessible. Other information relating to the frequency of meter readings is available on each council’s website or by contacting the relevant council directly.

Hardship and concessions schemes Customers are required to pay their bills on time, or they may face debt recovery actions by their retailer, including the restriction of their water supply.

Payment plans If a customer is having difficulty paying their bill, they should contact their water retailer as soon as possible. Retailers such as Sydney Water, Hunter Water, and Central Coast Council provide payment plans, where the customer makes regular instalments of an agreed amount. For Sydney Water and Hunter Water customers only: Under the Operating Licences for Sydney Water and Hunter Water, customers will not face disconnection or restriction of their water supply if they enter into a payment plan and make regular payments. If a customer has problems negotiating a realistic payment arrangement with their supplier, they can contact EWON for help.

Centrepay For Sydney Water and Hunter Water customers only: Customers who receive a government pension or benefit can set up Centrepay as a payment option. Centrepay transfers a nominated amount (a minimum of $10 per fortnight) directly into a customer’s water account. Centrepay may be set up by contacting Centrelink or their water retailer.

Pensioner rebate Pensioners who are customers of Sydney Water, Hunter Water, and Central Coast Council are eligible for a NSW governmentfunded pensioner rebate. The following cards are recognised:

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• Pensioner Concession Card • Department of Veterans’ Affairs Gold Card, embossed with TPI/TTI or Widow/ Widower or Extreme Disablement Adjustment (EDA). Sydney Water also provides a concession to customers who receive a Department of Veterans’ Affairs intermediate rate pension. Customers should contact Sydney Water, Hunter Water, or Central Coast Council directly to claim the pensioner rebate.

Payment Assistance Scheme For Sydney Water and Hunter Water customers only: Sydney Water and Hunter Water customers who experience financial difficulty can apply for the Payment Assistance Scheme (PAS). PAS vouchers can be used to pay water usage charges only (see Types of charges at [10.590]). Hunter Water uses a voucher system and applications for PAS vouchers can be made by contacting Hunter Water, or a local community organisation, such as St Vincent de Paul or the Salvation Army. Sydney Water no longer provides vouchers and instead applies a PAS credit directly to the customer’s account. This is done over the phone, on the recommendation of community workers to Sydney Water. Other water suppliers may have other assistance available and customers should contact their water supplier for more information.

[10.600] Disconnection or

restrictions of supply It is more common for water supply to be restricted rather than disconnected. Restriction of supply involves installing a flow restriction washer at the meter, which allows enough water to fill a jug but insufficient water for a shower and it may take several minutes to refill a toilet cistern. Water services are usually not disconnected due to the impact on public health. However, if disconnected, customers may be charged a fee for reconnection (see Types of charges at [10.590]).

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Customers who require water supply to operate a life support machine or to meet other special health needs should notify their water supplier.

Grounds for restriction or disconnection For Sydney Water and Hunter Water customers: Under their respective operating licences, Sydney Water and Hunter Water can restrict or disconnect water supply when a customer: • fails to pay any due amount • fails to ensure access to the meter • has a private installation that is defective or does not comply with set standards • breaches a relevant law, the terms of the customer contract or any other agreement between the supplier and customer, concerning the use or taking of water or the discharge of wastewater • discharges unauthorised trade wastewater • discharges chemicals that pose a health risk • fails to install a backflow prevention device when required • uses recycled water improperly. For Central Coast Council (formerly Gosford Council and Wyong Council) customers: Under cl 207 of the Water Management (General) Regulation 2011, Central Coast Council’s Water Supply Authority can restrict or disconnect water supply on similar grounds.

Notice requirements before restriction or disconnection for non-payment For Sydney Water and Hunter Water customers only: If restriction or disconnection is the result of a failure to pay a bill on time or a default on an agreed payment plan, Sydney Water and Hunter Water will provide customers with: • a reminder notice advising of the amount overdue, contact details for the retailer and an explanation of alternative payment options, and inform the customer of their right to contact EWON. (Note: Hunter Water will only issue a reminder notice if the customer has a good payment history over the last 12 months. If the customer has a poor

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payment history, Hunter Water will proceed directly with a final notice) • a final or disconnection notice advising the customer that their account is significantly overdue and action may be taken to restrict or disconnect the customer’s water supply or initiate debt recovery processes if their account is not paid. The notice must also provide the retailer’s contact details and inform the customer of their right to contact EWON • attempt personal contact, either by phone or mail, or in person (see Sydney Water and Hunter Water’s Customer Contract). Sydney Water and Hunter Water will advise the customer of when the disconnection or restriction will take place. For Central Coast Council (formerly Gosford Council and Wyong Council) customers: If restriction or disconnection is the result of a failure to pay a bill, notice must be served: • personally • by leaving it at the premises, with someone who appears to work or live at the premises and is at least 16 years of age • by mailing it to the owner or occupier’s last known address, or • by affixing it to a conspicuous part of the land or building (WM Reg, cl 208(3)).

Limitations on disconnection or restriction For Sydney Water and Hunter Water customers: Sydney Water and Hunter Water will not restrict or disconnect a customer’s water supply where: • the customer has failed to pay due amounts on time and notice requirements have not been met (see Notice requirements before restriction or disconnection above) • the retailer has not provided the customer with reasonable opportunity to pay the account • water supply is required for a life support machine or other special needs • the retailer has not advised the tenant that they may be able to pay the outstanding charges and deduct the amount from the rent payable to the owner of the premises

• there is a complaint being considered by Sydney Water, Hunter Water or EWON • the customer is experiencing financial difficulty and has entered into (and is complying with) a payment plan (see Hardship and concessions schemes at [10.590]) • the customer has notified the retailer that they have sought assistance under the PAS scheme and that assistance is imminent (see Hardship and concessions schemes at [10.590]) • it is a Friday, weekend, public holiday or the day before, or after 3pm on a weekday (2pm for Hunter Water). Sydney Water or Hunter Water customers who have complaints related to restriction or disconnection should contact their water retailer in the first instance or EWON if they are not satisfied with their retailer’s response (see Making a complaint at [10.540]). For Central Coast Council (formerly Gosford Council and Wyong Council) customers: Information about disconnection or restriction is available via the councils’ websites or by contacting the councils directly. Tenants and property owners living within the Central Coast Local Government Area who have complaints related to restriction or disconnection should contact their water supplier in the first instance. Until August 2017, Gosford Council customers can contact EWON if they are not satisfied with their supplier’s response, and Wyong Council customers can contact the NSW Ombudsman. In August 2017, Central Coast Council will leave EWON and customers of both former councils can contact the NSW Ombudsman (see Making a complaint at [10.540]).

[10.610] Powers of entry Sydney Water and Hunter Water Sydney Water and Hunter Water are authorised to enter private land in specific circumstances for: • maintaining water and sewer systems • ascertaining whether a customer contract is being breached • restricting or disconnecting water supply if amounts on the account are unpaid (see

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Disconnection or restrictions of supply at [10.600]) • carrying out work required by the operating licence, such as work to maintain water quality • reading meters • making a valuation or assessment of the usage of the land or of any building on the land • rectifying defective or improper work that has not been rectified under a notice served by the supplier • finding the source of pollution of water supplied by the distributor (SW Act, s 38; HW Act, s 20). Entry must be made in daylight hours except in cases of emergency. Authorised persons should carry identification with them that must be produced at the request of the occupier of the property. They must use no more force than is reasonably necessary to gain entry (SW Act, s 40(2); HW Act, s 21(2)). Notice of entry must be provided in writing to the owner or occupier, unless the entry is with the consent of the owner or occupier, in an emergency situation, or to read a meter (SW Act, s 40(1); HW Act, s 21(1)). In exercising powers of entry, Sydney Water and Hunter Water are obliged to do as little damage as practicable and remove all rubbish and equipment brought onto the property. Customers who suffer damage in the exercise of entry powers are entitled to compensation (SW Act, s 41; HW Act, s 22). Customers who believe their rights have been breached should complain to Sydney Water or Hunter Water in the first instance, or to EWON if their supplier’s response is unsatisfactory (see Making a complaint at [10.540]).

Water NSW Customers who reside in catchment areas under the authority of Water NSW should note that Water NSW is authorised to enter and occupy land for: • read any of its metering equipment • operating, maintaining and improving current or extending new facilities • ascertaining whether an offence has been

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committed, such as the pollution of water supply • finding and removing a source of pollution in a catchment area (WNSW Act, s 32(1)). These powers must only be exercised in daylight hours and prior written notice of the intention to enter property on a specified day(s) must be given to the owner or occupier, except when it authorises the entry after forming the opinion that the giving of the notice would cause undue delay (WNSW Act, s 32). In exercising powers of entry, Water NSW is obliged to do as little damage as practicable (WNSW Act, s 37(1)) and may remove any material excavated from the land (WNSW Act, s 32(3)). Customers who suffer damage as a result of the exercise of entry powers are entitled to compensation (WNSW Act, s 37).

Central Coast Councils' Water Authority In addition to general powers of entry given to Gosford Council and Wyong Council under the Local Government Act 1993 (ss 191–201) and now held by the Central Coast Council, the Council’s Water Authority is authorised to enter private land in specific circumstances for: • maintaining water and sewer systems • carrying out authorised work • reading meters (WM Act, s 296). These powers must generally be exercised in daylight hours. In exercising powers of entry, the Councils’ Water Authority is obliged to do as little damage as practicable. Customers who suffer damage in the exercise of entry powers are entitled to compensation (WM Act, s 296(5)(b)). Customers who believe their rights have been breached should complain to the Central Coast Council in the first instance. Central Coast Council customers can contact EWON if they are not satisfied with their supplier’s response (see Making a complaint at [10.540]).

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[10.620] Interference with

water or sewerage works Obstruction or interference with works For Sydney Water and Hunter Water customers: Owners and occupiers of property must not undertake any building, landscaping or construction work which interferes with, obstructs or damages a water or sewer system owned by Sydney Water or Hunter Water (SW Act, s 44; HW Act, s 25). If any structure obstructs or interferes with water or sewer works, Sydney Water and Hunter Water can give notice to the person who placed it to remove the structure and compensate Sydney Water or Hunter Water for any loss or damage suffered as a result (SW Act, s 44(5); HW Act, s 25(5)). If the structure is not removed, Sydney Water or Hunter Water may remove the structure and recover the cost of the removal (and any loss or damage suffered as a result of the structure) from the person who placed the structure (SW Act, s 44(5), (6); HW Act, s 25(5), (6)). Sydney Water and Hunter Water can also recover compensation for any damage or interference suffered to their water or sewerage systems, from any activity, if the person carrying out the activity (or their agent or assistant) should have known that damage or interference would result (SW Act, s 45; HW Act, s 26). For Gosford Council and Wyong Council customers: Similar provisions apply to structures and things that obstruct works owned by Gosford/Wyong Councils’ Water Authority. The councils are authorised to demolish or remove the obstruction, repair their works and recover the costs from the person who placed the obstruction (WM Act, s 300).

Interference by trees For Sydney Water and Hunter Water customers only: Except for trees protected by heritage listings, Sydney Water and Hunter Water may give 14 days’ written notice to a property owner to remove a tree that is damaging or interfering with water or sewerage works. Upon receiving notice, the owner can take steps at their own expense

to minimise the obstruction without removing the tree. If the land owner does not comply with the notice within the specified period, Sydney Water and Hunter Water may remove the tree (SW Act, s 46; HW Act, s 27; see also their respective operating licences). Sydney Water and Hunter Water will generally reimburse the land owner for the reasonable costs of the removal of the tree unless: • the landowner would have reasonably known that the planting of the tree would result in damage or interference, or • an easement existed in favour of works owned by Sydney Water or Hunter Water when the tree was planted (SW Act, s 46(2); HW Act, s 27(2)).

[10.630] Service and

maintenance obligations This section contains information for Sydney Water and Hunter Water customers. Customers who reside in the Central Coast Council area should contact their relevant council for policies relating to service and maintenance obligations.

Responsibility for maintenance Customers have responsibility for the maintenance of all pipes and fittings up to the point that they connect to the water and sewerage mains owned by Sydney Water or Hunter Water (the “customer’s system”). The water supplier is responsible for any blockages or spills caused by problems on their water or sewer network (the “supplier’s system”). Customers have an obligation to notify Sydney Water or Hunter Water of any failures of which they become aware, such as interruptions to supply or leaks in the supplier’s system. If the failure is located in the customer’s system between the water meter and the water main, both Sydney Water and Hunter Water will repair the customer’s system up to one metre from the main, as a customer service (see Sydney Water and Hunter Water customer contracts).

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Meter Unless a person has caused damage to the meter either negligently or on purpose, Sydney Water and Hunter Water have responsibility over the maintenance (and costs of maintenance) of meters regardless of where they are placed. Customers may also ask for their meter to be tested. If the meter is working accurately, the customer will be required to pay for the cost of testing (see Types of charges at [10.590]). However, if the meter is overrecording by more than 3% of the actual amount of water passing through it, Sydney Water will: • repair or replace the meter • refund any meter testing charges, and • adjust the customer’s account on a basis that is representative of the customer’s consumption pattern. The same applies to Hunter Water where the meter is over-recording by more than 4%.

Sewer blockage Customers are responsible for maintaining their private sewer pipes up to the junction where they connect with Sydney Water or Hunter Water’s sewer main. If the blockage is in the customer’s system, the customer is responsible for arranging for a licensed plumber to clear the blockage. Sydney Water and Hunter Water will clear any blockages in their sewer main at their own cost, upon the notification of a blockage by a customer. However, a customer may be liable for the cost of clearing the blockage to the extent that they caused it.

Sewage overflow Sydney Water and Hunter Water are responsible for cleaning up any damage and minimising health risks to the public if there is a sewage spill on a customer’s property caused by a failure of the supplier’s system, such as a blockage. For Sydney Water customers: In the event of a sewer overflow, customers usually call their private plumber. If the plumber identifies the blockage as being in Sydney Water’s sewer main, they will need to notify Sydney Water as they are not authorised to perform work on Sydney Water’s mains. Sydney

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Water will investigate and if they accept responsibility, Sydney Water will fix the problem. The customer can claim for the plumber’s reasonable costs under Sydney Water’s sewer choke policy. For Hunter Water customers: If a customer reports a sewage overflow and Hunter Water confirms that it is a one-off dryweather overflow due to a failure in their system, Hunter Water provides customers with a rebate of 30kL of water that is applied to their next bill. If a customer experiences three or more dry weather sewage overflows in a financial year due to a failure in Hunter Water’s system, the customer is entitled to have a rebate of 120kL of water applied to their next bill.

Service interruptions It may be necessary for Sydney Water or Hunter Water to interrupt a customer’s water supply or sewerage service for maintenance purposes. In the event of a planned service interruption, Sydney Water and Hunter Water will provide customers with two days’ written notice (seven days for non-residential customers) outlining the expected time and length of the interruption. Sydney Water and Hunter Water will attempt to ensure that any planned interruptions are no longer than five hours. If customers experience an unplanned interruption to their water supply or sewerage service, Sydney Water and Hunter Water will attempt to restore the service as soon as possible and provide information on a 24-hour emergency phone service. The suppliers may provide emergency supplies of water in specific circumstances. For Sydney Water customers: • if a planned interruption is longer than five hours, customers are entitled to an automatic rebate of 10% of their quarterly water and/or sewerage service charge (subject to a minimum payment of $35) • if an unplanned interruption is longer than five hours, customers are entitled to a rebate of 10% of their quarterly water and/or sewerage service charge (subject to a minimum payment of $35). For Hunter Water customers: • if a customer experiences three or more

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planned interruptions in a financial year, each exceeding five hours in duration, the customer is entitled to a rebate of 15kL to be applied to their next bill • if a customer experiences an unplanned interruption for over five hours between 5am and 11pm, the customer is entitled to a rebate of 15kL to be applied to their next bill. The same entitlement applies where a customer experiences three or more unplanned interruptions between 5am and 11pm in a financial year, each lasting more than one hour in duration.

Water pressure Sydney Water supplies water at a minimum pressure of 15 metres head at the point of connection with the customer’s system (see Responsibility for maintenance at [10.630] above). Hunter Water supplies water at a minimum pressure of 20 metres head. For Sydney Water customers: If water is supplied at less than 15 metres head at the point of connection for a continuous period of 15 minutes, customers are entitled to a rebate of 10% of their quarterly water service charge (subject to a minimum payment of $35). For Hunter Water customers: If water is supplied at less than 15 metres head at the point of connection on more than five occasions within a financial year due to a failure of Hunter Water’s system, customers are entitled to a rebate of 15kL to be applied to their next bill.

Water quality Drinking water must comply with the Australian Drinking Water Guidelines developed

by the National Health and Medical Research Council (NHMRC).

Dirty water If customers are not supplied clean water suitable for normal domestic purposes, they may be eligible for rebates or compensation. Customers should contact Sydney Water or Hunter Water to investigate. For Sydney Water customers: If the cause of dirty water is the fault of Sydney Water, customers may be eligible to a rebate of $35 for each occasion clean water is not provided. For Hunter Water customers: If the cause of dirty water is the fault of Hunter Water, customers may be eligible to compensation for damage caused by the dirty water or a refund of the costs associated with flushing the customer’s water system.

Contaminated water If NSW Health issues a “boil water” alert due to a contamination of drinking water caused by Sydney Water or Hunter Water, Sydney Water customers are entitled to a rebate of $35 and Hunter Water customers are entitled to a rebate of 15kL to be applied to their next bill.

Recycled water Sydney Water and Hunter Water may supply recycled water to a customer under a separate agreement. Both suppliers will give information on the appropriate use of recycled water.

Rural and regional consumers [10.640]

The majority of local councils in rural and regional NSW exercise water supply functions under Chapter 6, Part 3, Division 2 of the Local Government Act 1993. Rural and regional customers should contact their water supplier for policies concerning:

• billing, including concerns about payment difficulties or disputed high bills • the disconnection and restriction of water supply, including under what circumstances customers will be given notice • hardship and concession schemes, including pensioner rebates, payment plans

10 Consumers

• • •

•

•

(including Centrepay for Centrelink customers) and other rebates and hardship schemes meter reading and testing arrangements powers of entry onto customers’ property service and maintenance obligations, including the division of responsibilities between the water supplier and the customer for the maintenance of water and sewerage systems precautions that should be taken to avoid damaging the supplier’s water or sewer system, particularly before commencing building or landscaping work or planting trees the performance of the water supplier with regard to measures of water supply,

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pressure, and quality and rates of compliance with the Best-Practice Management of Water Supply and Sewerage Guidelines • any special health needs that require specific water supply arrangements. Rural and regional customers who have complaints relating to water or sewerage services provided by local government authorities should be directed to the relevant council in the first instance, or the NSW Ombudsman if they are not satisfied with the council’s response. However, Essential Energy customers (in the Broken Hill region) can make a complaint to EWON if they are not satisfied with Essential Energy’s response.

Tenants [10.650] Private housing

tenants Water accounts are always in the name of the property owner. Private tenants are not responsible for paying the service charges on the water bills issued to the owner of their rental premises but may be responsible for the water usage charges if the owner chooses to pass them on. Before a tenant is responsible, the premises must be separately metered, they must contain water efficiency measures, and the charge may not exceed the charge made to the landlord. A tenant must receive the benefit of any rebate paid to the landlord. A landlord who pays the charge may seek to recover the payment made, within time limits (Residential Tenancies Act 2010 (NSW), s 39). Where an account is overdue, Sydney Water and Hunter Water are required to issue notices warning of an impending restriction or disconnection (see Notice requirements before restriction or disconnection for non-payment under [10.420]). Sydney Water and Hunter Water will issue reminder notices to the property owner, and final or disconnection warning notices to both the tenant and property owner. If a landlord fails to pay an account on time and

the tenant is facing disconnection or restriction of their water supply, the tenant should immediately contact their landlord or estate agent to discuss the matter. If this proves unsuccessful, the tenant can contact NSW Fair Trading or the Tenants’ Union for more information. If the tenant is at immediate risk of having their water supply restricted or disconnected, or if this has already occurred, they can contact the Energy & Water Ombudsman NSW (EWON) for assistance. The tenant is allowed under law to pay the unpaid water bills of the property owner and to deduct this from their rent (HW Act, s 41; SW Act, s 62). Sometimes a lease may require tenants to pay the water usage charges, however the property owner is still responsible for service charges.

[10.660] Public housing

tenants Generally, public housing tenants are charged for their water usage in addition to their rent (Residential Tenancies Act 2010 (NSW), s 139). Tenants do not pay for connection, sewerage and other charges not related to water usage. Tenants are required to pay in accordance with the Community

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Housing Water Charging Guidelines (July 2012). The Guidelines provide instructions on the calculation of water usage charges, adjustments to tenants’ water charging accounts, allowances and exemptions to water charging. A small number of properties are exempt from water charges. If a tenant is unsure about whether water charges apply to them, they should contact Housing NSW.

Percentage water charges The percentage water charge is set as a percentage of the rent a tenant pays (adjusted to a maximum amount). If a whole household is absent from the property in excess of six weeks with the approval of Housing NSW, the tenant will not be liable for percentage water charges. The Department of Family and Community Services reviews the percentage water charge to take into account the specific usage needs of residents and the costs involved with the specific circumstance of the property, such as common grass areas.

Actual water charges Homes that are metered separately are charged for water based on the actual water usage at the premises. Tenants who are charged actual water charges may be eligible for an allowance where there is: • a resident who uses a kidney dialysis machine • a resident who can demonstrate a health issue or disability which necessitates the use of significantly higher amounts of water • a large household with six or more persons.

Payment difficulties Tenants who face payment difficulties should notify Housing NSW immediately. Housing NSW will work with the tenant to resolve the difficulty.

Getting help Tenants should speak to their client service officer if they have concerns over: • perceived errors in the application or calculation of water charges • the rectification of water leaks on the property • meter readings • eligibility for exemptions from water charges. If the problem is not resolved, the tenant may appeal to Housing NSW. See Complaints and appeals in Chapter 27, Housing.

[10.670] Residential

communities tenants Residential communities or park tenants may be required to pay water availability charges. However, park tenants cannot be charged for water usage unless the home or site has its own water meter. A park owner cannot charge tenants for the installation costs of water meters. Park residents who pay for their water consumption separately from their rent are able to apply to the NSW Civil and Administrative Tribunal for a rent deduction. Park owners cannot charge these residents above water consumption charges charged by the local water authority (Residential Parks Act 1998, s 39(2)) and the water availability charges must be no more than $50 per year (Residential Parks Regulation 2006, cl 18). They must give park tenants regular accounts setting out the meter readings, water usage and the charge per unit of water. For more information, park residents should contact NSW Fair Trading. See also Tenants in residential communities in Chapter 27, Housing.

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Making a complaint - water [10.680]

Customers should approach their supplier directly in the first instance to make a complaint. If the initial point of contact with the water supplier cannot resolve the problem, customers can ask to speak to someone in a more senior position. Customers are advised to keep records of any correspondence or discussion with their supplier (for example, date, time, who they spoke to). If a customer is not satisfied with the response, they may consider making a further complaint to the relevant authority listed below.

Sydney Water, Hunter Water, Essential Energy and Water NSW customers For customers of Sydney Water, Hunter Water, Essential Energy or Water NSW, if the problem is not resolved by the relevant supplier or is not dealt with in a reasonable time, contact EWON on 1800 246 545. Customers of the old Gosford Council, recently merged with Wyong Council into Central Coast Council, may continue to contact EWON up until August 2017 when Central Coast Council will leave EWON. After August 2017, customers of both former councils can contact the NSW Ombudsman. EWON also has jurisdiction over the following water providers: • AquaNet • Flow Systems • Shoalhaven Water • Sydney Desalination Plant • Veolia Water Technologies. Complaints can be lodged by phone, letter, fax, email, in person or online (www.ewon. com.au). EWON’s service is free for customers.

Complaints to EWON can relate to: • billing, credit and debt management • disconnection or restriction of supply • service and maintenance obligations, including supply quality • damage or loss to property resulting from such events as interruptions to supply, burst water mains and sewer chokes • any rights or obligations conferred on the water supplier by law or under their operating licences. EWON’s investigation may include: • seeking further information from the supplier and/or customer • independent expert advice. In most cases EWON is able to negotiate a resolution with the customer and their supplier. Where a resolution cannot be reached, the Ombudsman can make a determination to settle the matter. If the customer chooses to accept the determination, it will be binding on the provider. EWON is not able to review disputes relating to price increases, government policy, private contractors or landlords.

Local authority customers For water customers of local authorities, if the problem is not resolved by the council responsible or not dealt with in a reasonable time, they can contact the NSW Ombudsman. For information on making a complaint to the Ombudsman, see The Ombudsman in Chapter 9, Complaints.

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Home building consumers [10.690]

This section will concentrate on the most recent amendments to the Home Building Act 1989 (NSW) (HBA) and the Home Building Regulation 2014 (NSW) (HBR). The regimes that will be discussed are between: • 1 March 2015 to current • 1 February 2012 to 1 March 2015

• pre-1 February 2012. Builders, contractors, traders and tradespeople who are required to hold a relevant licence to conduct residential building work, will be referred to as the contractor in this chapter, while the homeowner or a successor in title will be referred to as the consumer.

Legislation [10.700]

The HBA and the HBR are the two pieces of legislation governing residential building work in NSW. There have been numerous changes to the Home Building Act and Regulation. The HBA and HBR regulate the building industry and set out responsibilities and licensing requirements for builders, contractors, traders, tradespeople and also impose penalties for breaches of the Act. It

also introduces consumer protection mechanisms such as insurance requirements. The Civil and Administrative Act 2013 (NSW) (NCAT Act), the Civil and Administrative Regulation 2013 (NSW) (NCAT Reg) and Civil and Administrative Tribunal Rules 2014 (NCAT Rules), cover the jurisdiction of NCAT, the practice and procedure of resolving home building claims and the enforcement of orders and appeals.

Threshold [10.710]

Building works are not considered “residential building work” under the Act unless the value exceeds $5,000 from 1 March 2015. Prior to 1 March this threshold was $1,000 (HBA, Sch 1, cl 2(3)(a) and HBR, cl 12). Any residential building work under these thresholds (other than specialist

work) is considered a consumer contract under Australian Consumer Law. All specialist work such as plumbing, gas-fitting, electrical work, refrigeration or air-conditioning of any value is considered residential building work (HBA, Sch 1, cl 1(1)).

Residential building work [10.720]

In addition to the above specialist work, residential building work of a dwelling includes (HBA, Sch 1, cl 2(1)): • construction • making of alterations or additions • repairing, renovation, decoration

• protective treatment of such dwelling. Dwelling means a building or a portion of a building used for a residence such as a detached or semi-detached house, transportable house, terrace or town house, duplex, villa-home, strata or company title home unit or residential flat (HBA, Sch 1, cl 3(1)).

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Other structures that are used in conjunction with a dwelling are also included. Common property in a strata scheme where the consumer would be the Owners Corporation, is governed by the Strata Schemes Management Act 1996 (NSW) and the HBA, and will not be discussed in this chapter. Before entering into a home building contract – consumers • conduct a licence check on the NSW Fair Trading website and ensure the contractor is licensed to do

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the scope of work under the contract. (www.fairtrading.nsw.gov.au/default.html) • read the consumer guide attached to the contract. Before purchasing a home – for successors in title If the purchase of a new home is within seven years of completion or any building work is done within seven years prior to transfer of title: • find out the name of the contractor • if the value of the work is more than $20,000, obtain a copy of the certificate of Home Building Compensation Fund (HBCF) at the time of signing the contract (see below for HBCF).

Home Building Contracts [10.730]

Home building contracts (contract) fall into two categories:

Small jobs contracts The threshold for small jobs contracts is (HBA, s 7AAA): • $1,000, for contracts entered into before 1 March 2015 • $5,000 for contracts entered into on or after 1 March 2015 (HBR, cl 5).

Contracts for large jobs The threshold for large job contract requirements is (HBA, s 7(1A)): • $5,000 for contracts entered into before 1 March 2015 • $20,000 for contracts entered into on or after 1 March 2015 (HBR, cl 5).

All building contracts A contract must be in writing, dated and signed by or on behalf of each party. A contract must contain: (a) the names of the parties, including the name of the contractor as shown on the contractor licence (b) the contractor’s licence number (c) a description of the work (d) any plans and specifications for the work and quality of construction, as set out in Part 1 of Schedule 2 (HBA, s 7E) (e) the contract price if known.

The contractor must give a signed copy of the contract to the other party no later than five clear business days after entering into a contract (HBA, s 7B).

Contracts for large jobs In addition to the requirements given under “all building contracts” above, contracts for large jobs should contain (HBA, s 7): • a statement as to the statutory warranties • a conspicuous statement setting out the cooling-off period that applies to the contract • any progress payments payable under the contract • a statement that the contract may be terminated in the certain circumstances (general law or otherwise determined) • a check list to be included (HBR, cl 8) (a) for contracts entered into before 1 March 2015, refer to Schedule 1, and (b) for contracts entered into on or after 1 March 2015, refer to Schedule 2. • a contractor must provide the consumer with a certificate of insurance under the Home Building Compensation Fund (HBCF) before the contractor commences work and request or receive payment (HBA, s 92(1) and HBR, reg 8). However, if the residence is a multi-storey building which has 4 or more storeys, the contractor is exempt from giving the consumer an HBCF insurance (HBR reg 56). • Cl 9 of HBR contains conditions to be

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included in certain 1 March 2015.

contracts

before

[10.740] Types of contracts

should provide the consumer with a written description of any plans and specifications or extra cost and time required to do the additional work.

Fixed price contracts

Progress payments on contracts

A fixed price contract is intended to be for a “fixed price” or specified amount. A fixed price contract will state a price for the entire project and will usually specify when payments are to be made. These types of contracts usually remain fixed throughout the entire build unless there are variations (see below for variations).

Cost plus contracts A cost plus contract is used in limited circumstances, where the price cannot be determined upfront. The contractor is reimbursed for the direct and indirect costs of the work plus a contractor’s percentage or fee. It is essential that the costs are monitored closely, otherwise the final amount may end up being significantly higher than intended.

[10.750] Clauses in contracts Deposits for contracts The maximum deposit a contractor can request for contracts entered into after 1 March 2015 (regardless of the contract price) is 10% (HBA, s 8). The maximum deposit for contracts prior to 1 March 2015 is 5% for contracts under $20,000 and 10% if the contract price is over $20,000.

Variations Variations are changes (additions or deletions) that are made to a signed contract, plan, or specifications, which can be requested by the contractor or the consumer. All variations must be in writing and signed by both parties prior to the commencement of the variation work (HBA, Sch 2(1), (2)). Variation of price – If the contract price is not known or may be varied under the contract, the contract must contain a warning and an explanation of the provision allowing variation of the price. (HBA, s 7(5)). Variation of work – Before work commences on the variation, the contractor

A progress payment clause has to be included in contracts for values over $20,000 (HBA, s 8A(1) and HBR, cl 11). As per HBA, s 8A(2), progress payments will be payable only: • after completion of a specified stage of work • for a cost plus contract (labour and material cost) – for work already performed which needs to be supported by invoices, receipt and other documents • if it is authorised by the regulations.

Delay of works The consumer should always attempt to negotiate a liquidated damages clause in the contract based on a genuine pre-estimate of the cost. This will entitle the consumer to damages for each day of delay, should the contractor not complete the building work on time without a valid legal reason. The contractor can request an extension of time due to bad weather conditions, delays in the supply of materials and labour, or other circumstances outside of the contractor’s control. The contract should also contain a commencement and completion date for building work. If there is no delay clause in the contract, the consumer can rely on HBA, s 18B(1)(d). The contractor is under an implied statutory warranty that the work will be done with due diligence and within the time stipulated in the contract, or if no time is stipulated, within a reasonable time. The onus is on the consumer to provide a genuine estimate of the extent of the loss and to show a sufficient nexus between the delay and the loss incurred.

Termination of a contract Most contracts have a termination clause, which outlines the circumstances that permit parties to terminate their contract, as well as the process, procedure and any penalties for termination.

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Terminating a contract can have serious legal and economic consequences and a consumer should seek legal advice before

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terminating the contract. Terminating a contract without sufficient reason will be a serious breach of the contract.

Statutory warranties [10.760]

Section 18B of the HBA sets out warranties which the contractor and consumer must comply with in relation to all residential building work. Recent amendments to the Act require that these warranties are set out in the building contracts for large jobs.

Warranties imposed on the contractor, which protect the consumer, are that: • the work will be performed with due care and skill and in accordance with plans and specifications set out in the contract • all materials supplied will be suitable for the purpose • materials will be new, unless otherwise specified • the work will be done in accordance to, and will comply with, the HBA or any other law • the work will be done with due diligence and within the time stated in the contract, or otherwise in a reasonable time • the work will result in a dwelling that is reasonably fit for occupation as a dwelling

• the work is fit for purpose and enables the consumer to rely on the contractor's skill and judgement. Warranties imposed on the consumer: HBA, s 18BA states that the consumer must: • mitigate their losses in relation to the defects • notify the contractor in writing within six months of becoming aware of a defect • allow reasonable access to the contractor to fix such defects

Breach of statutory warranties Defective work Defective work is any breach or deviation from: • the HBA referred to above under statutory warranties (HBA s 18B), or • any contract terms in relation to scope or quality of work, plans and specifications set out in a contract, or any applicable building laws or standards.

What is a building dispute? [10.770]

A building dispute may arise as a result of a breach of contract or breach of a statutory warranty.

Resolving a building dispute [10.780]

It is important that the consumer tries to resolve the dispute with the contractor first and gives the contractor an opportunity to rectify any defective work, or to complete any incomplete work. If the dispute is not resolved, consumers should contact NSW Fair Trading and lodge a formal complaint (www.fairtrading.nsw.gov. au).

The dispute resolution process at NSW Fair Trading NSW Fair Trading deals with building disputes in relation to breach of statutory warranties such as defective and incomplete work and damage caused by contractors as a result of carrying out residential building work or specialist work (HBA, ss 48C and 48E). NSW Fair Trading will attempt to

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negotiate a suitable outcome between a consumer and the contractor. If the consumer does not achieve an outcome to their satisfaction with NSW Fair Trading Dispute Resolution, they may be directed to seek telephone advice from Western Sydney Community Legal Centre’s (Previously Macquarie Legal Centre) Home

Building Advocacy Service (HoBAS) about lodging a building claim at NCAT to resolve their building dispute. In most cases of incomplete and defective work, NCAT requires the consumer to first undertake NSW Fair Trading Dispute Resolution, unless there is an imminent limitation date.

Resolving a building claim [10.790] A building claim A building claim is a claim for (HBA, s 48A): • a money order – which is the payment of a specified sum of money, or a request for non-payment of money

• a work order – which may be the supply of services, or delivery to return of goods, or • other orders • a combination of the above.

Defects [10.795]

A defect is a building problem that results from: • defective design, or • defective or poor quality of work, or • defective materials, or • a failure to comply with the performance requirements of the National Construction Code.

Major defects and other defects Section 18E of the HBA defines major defect. A major defect means a defect in a major element of the building, attributable to a failure of the kind of defect noted above and that causes or is likely to cause: • an inability to inhabit or use the building (or a part of the building) for its intended purpose, or • the destruction of the building (or a part of the building), or • the threat of collapse of the building (or a part of the building). The HBR may also prescribe what is a major defect. There are currently no categories so prescribed.

A major element of the building means: • an internal or external load-bearing component of a building that is essential to the stability of the building, or any part of it (including but not limited to foundations and footings, floors, walls, roofs, columns and beams), or • a fire safety system, or • waterproofing, or • any other element that is prescribed by the regulations as a major element of a building.

Limitation periods for major defects and other defects The limitation period for a breach of statutory warranty resulting in a major defect is six years from the date of completion of the work. The limitation period for a breach of statutory warranty that does not amount to a major defect is two years from the date of completion of the work.

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The NSW Civil and Administrative Tribunal (NCAT) [10.800]

Home Building claims are heard under the Home Building List in the Consumer and Commercial Division of NCAT. NCAT is the preferred jurisdiction for home building claims under $500,000 as it is less formal as well as time and

cost-effective. Earlier in this chapter at [10. 180] Resolving consumer disputes, the general process and procedure is discussed. Below is content that deviates from the general processes and which pertain to home building consumers particularly.

Jurisdiction [10.810]

NCAT has the jurisdiction to hear and determine building claims less than $500,000 (HBA, s 48K). The District Court or the Supreme court may have jurisdiction to hear a claim over $500,000.

[10.820] Limitation dates Breach of contract • within three years of signing the contract or day of last supply of goods and services under the contract.

Breach of statutory warranties Proceedings for breach of statutory warranty are set out under HBA, s 18E: • for contracts entered into after 1 March 2015 a consumer must lodge a claim at NCAT (preferred option) or a court for major defects (refer HBA, s 18E(4)) within six years from completion date and for other works, within two years • for contracts entered into after 1 February 2012 but before 1 March 2015 a consumer must lodge a claim at NCAT for structural defects (HBR 2004, cl 71) within six years from completion date, or two years for other defects. • for contracts entered into before 1 February 2012 a consumer must lodge a claim at NCAT within seven years from the completion date for structural or nonstructural work.

“Completion date” of building work means (HBA, s 3B): • as defined by the contract • if the contract is silent, upon “practical completion” (HBA, s 3B). Practical completion is defined (HBA, s 3B(3)) as the event that occurs earliest of: • handing over possession of work to the consumer • when contractor was last on site to carry out the building work • date of the occupation certificate • in the case of owner builder works, 18 months after the issue of the owner builder permit for the work. If the work is incomplete, the warranty period starts on (HBA, s 18E(d)): • the date the contract is terminated • if the contract is not terminated, the date on which the work ceased • if the contract is not terminated and work had not commenced, the date of the contract. The NCAT website has factsheets on most aspects of NCAT procedures including procedural directions. Some important factsheets for home building consumers are: • acceptance of building claims • practice and procedure of NCAT on home building disputes • preparation of expert reports, and • engaging an expert witness.

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See www.ncat.nsw.gov.au/Pages/cc/ Divisions/Home_building/Home_building. page.aspx.

[10.830] Procedure of

Lodging an application

NCAT has two home building lists: claims over $30,000 and claims under $30,000.

Consumers can obtain a home building application form from the NCAT website, or NSW Fair Trading. Particular attention should be paid to the explanatory notes at the back to complete the form. Note that there is a filing fee. The preferred outcome to be included in a building claim of defective and incomplete work by the contractor is a work order (HBA, s 48MA). However, the consumer may request a money order after providing supporting evidence if the contractor is unlicensed, or after having given the contractor an opportunity to rectify the work, it is still defective, or the relationship between the parties have broken down to such an extent that the contractor cannot be asked to come back on site.

Transfers of proceedings NCAT is the jurisdiction that is chiefly responsible for resolving building claims (HBA, s 48L; HBR, cl 30). If a consumer receives a Statement of Claim from the contractor from a NSW court on a home building matter, where the contractor has made a money claim against the consumer, urgent legal advice should be obtained and a response to the Statement of Claim needs to be lodged within 28 days to prevent a default judgement being made. There is the preferred option of applying to have the matter transferred to NCAT (see Local Court website for forms and fees at www.localcourt.justice.nsw.gov.au/Pages/ forms_fees/forms.aspx).

Cross claim application A cross application may be lodged at NCAT when the respondent to a building claim has a counter claim. A cross application may be lodged after lodging a claim at NCAT or after transferring proceedings from a court to NCAT. A cross application has to be lodged no later than the first directions/group hearing. Generally, the application and the cross application are heard and decided together.

resolving claims Claims under $30,000 The initial notice of hearing/group listing is generally fixed within 28 days of hearing. Consumers are encouraged to focus on the issues to be resolved, the claims against the contractor and what outcome they are seeking. Consumers are encouraged to conciliate a negotiated outcome (see below under conciliated group hearing). If the claim is not settled, NCAT will make procedural directions for the exchange of evidence and the matter will be adjourned for final hearing. Parties are generally self-represented.

Claims over $30,000 A party to the proceeding may be legally represented only with the leave of NCAT (NCAT Act, s 45(1)(b); NCAT Rules, rr 31–33 and NCAT guidelines on representation). The first directions hearing/conciliation hearing is usually fixed within six weeks of application, where parties are encouraged to enter into a conciliated settlement (see below under conciliated group hearing). Subsequent direction hearings may be set unless the matter has been listed for final hearing. This is to confirm that the parties are ready for the formal hearing or to make further orders for the parties to make further preparations such as expert reports, further documents or to canvass settlement options. Either party may request for a further directions hearing in writing.

[10.840] Hearings and

conclaves Conciliation/ group hearing / First directions hearing The first hearing is generally a directions hearing and/or a conciliation hearing. The parties will be encouraged to conciliate and enter into a negotiated settlement. If an agreement is reached, the consumer and the contractor will write up the points of

10 Consumers

agreement and have it formalised by the member who would pass consent orders, which are binding on both parties. Procedural Directions If the conciliation is not successful, procedural directions will be given as to when evidence needs to be lodged. They are typed up by the tribunal member and include information for the parties as to due dates and what their evidence should include (see below for evidence required by NCAT).

Joint Expert Reports and Conclaves A conclave is a joint meeting between experts engaged by the applicant and the respondent. The conclave is usually held on site and is run by the member. Generally, only the member and experts attend the conclave. The results of the conclave are either signed off by the experts at the conclave or combined into a final joint report (refer to Procedural Directions – expert witnesses on NCAT website).

Final hearing At a final hearing, the member listens to both sides of the case, considers the evidence presented by both parties and witness testimonials and then makes a legally binding order. The final hearing is less formal than that of a traditional court hearing.

[10.850] Evidence required Evidence and preparation of other documents required by NCAT Documents and supporting evidence to NCAT in support of a home building claim include (but are not limited to): • the contract, quotation, variations or correspondence on scope of work. If it was a verbal contract, a statutory declaration explaining how the parties agreed for the building work to be done • certificates of Insurance under the Home Building Compensation Fund (HBCF) (previously known as Home Warranty Insurance) • any types of records of payments (bills, invoices, receipts, accounts, bank statements etc)

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• written quotes for rectification of defective work or completion of incomplete work • an expert building report, if the claim refers to incomplete or defective work • a Scott Schedule (see below under expert report) completed by the expert • statutory declarations, if there is no evidence or supporting documents to support any part of the claim • colour photographs, with a description and dates • three quotations if the claim is about defective or incomplete work. The consumer must submit the evidence as per the procedural directions issued by the member. Evidence submitted after the date specified is rarely accepted, although an extension of time may be sought.

Expert building reports An “expert” is any professional who has specialised knowledge, skills or qualifications and the ability to provide an expert opinion. An expert is not an advocate for the party who employs them. The expert has a duty to NCAT to remain neutral and provide independent evidence for NCAT via their report and by giving oral evidence at NCAT, if he/she is named as a witness. An expert report should include an opinion about why the work is defective or incomplete with supporting evidence, the need for repair and the method and cost of repair. Before engaging an expert, consumers should enquire about their experience and ability to prepare a Scott Schedule as part of the expert report to ensure the report is admissible as evidence and is given strong weight. Expert building reports can be expensive. An expert report can vary from $500-$5000 depending on the circumstances. Consumers should note that NCAT is classified as a “no costs jurisdiction”. Recovery of costs from the other party, in the instance of winning, only applies in special circumstances (NCAT Act, s 60(2)(3)). The expert report should contain the work experience of the expert or resume and a

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statement that the expert will abide by the NCAT Code of Conduct of Expert Witnesses. The expert usually needs to complete a Scott Schedule, which is a summarised table of the main issues whereby, the expert: • notes the building standards or requirements as per plans and specifications • provides an itemised list of defective or incomplete work • provides recommendations for rectification of defective or incomplete work • specifies a cost for the recommendations.

Documents to be prepared • chronology of events – a concise sequence of relevant events, giving dates and a description of what happened from the time of entering into the building contract until the claim was lodged. The evidence referred to above should be referenced as annexures in the chronology in support of each assertion. If there is a gap in the evidence, the chronology may be prepared as a statutory declaration • points of claim/Points of defence - If the consumer is the applicant of the claim, “points of claim” needs to be prepared. However, if the consumer is responding to a payment claim made by the contractor, “points of defence” will need to be prepared, making reference to supporting evidence. Points of Claim should include the following: • orders sought: briefly sets out the issues and the remedy that the consumer is seeking such as repair of defective work or payment of money etc • the claim: sets out the law and discusses the breaches making reference to the HBA • particulars of the claim: the application of facts to the law. It should provide details and particulars of the claim under the law • summary of claim: The value of money order or work order sought. It should provide a detailed break up of claim. The above documents and supporting evidence must be indexed and presented in a bound folder. The documents should be typed, in numbered paragraphs and num-

bered pages and divided by tabs or file dividers as appropriate. Vary or set aside an order In limited circumstances, an NCAT decision may be set aside or varied as an alternative to an appeal. An order to vary or set aside may be requested when: • the parties agree that the decision should be set aside or varied, or • a party was unable to attend the hearing and that party believes the case was not adequately put to NCAT. This application must be made within seven days of the decision being made, unless NCAT extends that time. This application may be determined on the papers, without an oral hearing.

Renewal of proceedings The consumer can apply to renew proceedings if a work order is not complied with within the period specified by the NCAT order. The renewal application form must be lodged within the time specified in the original order. If no time was specified, the renewal application must be lodged within 12 months after the work was to be completed. A money order may be requested at this time and needs to be supported by further evidence including a quotation.

NCAT appeals Generally, a party has the right to appeal a decision of NCAT. The appellant has 30 days to lodge an appeal after notice of the decision, determination or order is served (HBA, s 86(1)(a)). Internal appeals are required to be heard by the NCAT Appeal Panel. Parties need to seek leave of NCAT unless the appeal is based on a question of law. If leave needs to be sought, the applicant (appellant) must prove to NCATs Appeal Panel that they have suffered a substantial miscarriage of justice because: (a) the decision was not fair and equitable (b) the decision was against the weight of evidence, or (c) significant new evidence has arisen (that was not reasonably available at the time of the original hearing).

10 Consumers

There is no simple test as to whether the issue to be appealed is “a question of law”. It is recommended that legal advice be sought in this regard. Consumers should read the “NCAT Guideline 1: Internal Appeals” factsheet on the NCAT website for further information (www.ncat.nsw.gov.au/ Documents/ncat_guideline_internal_ appeals.pdf). External appeals to the District Court or Supreme Court (in limited circumstances) are also available for NCAT decisions. External appeals are costly and complicated and it is recommended that legal advice be sought before commencing proceedings.

[10.860] Enforcing NCAT

orders If a money order of NCAT has not been complied with, the consumer can claim on the HBCF insurance or in the absence of an HBCF insurance, pursue debt recovery action in court. Insurance under the Home Building Compensation Fund (HBCF) Consumer protection provided by the HBA is known as Insurance under the “Home Building Compensation Fund” (previously known as Home Warranty Insurance). HBCF provides compensation to consumers for defective and incomplete work by a licensed contractor. A claim on the HBCF can be made: • as a result of insolvency, death or disappearance. (HBA, s 99(1)), or • where the consumer had actively pursued the contractor at NCAT and a money order is not complied and NSW Fair Trading has suspended the contractor's licence (HBA ss 42A, 101). The consumer must ensure that all details of the Insurance are correct and match the contract. Consumers need to be aware that contractors sometimes sign more than one contract so that each contract is not over $20,000, thus depriving the consumer of the protection provided by law for any defective and incomplete work in the event of a trigger event referred to above.

Notifying insurer The consumer must notify their HBCF provider of a potential claim within six months

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of becoming aware of any defective or incomplete work. This notification must be in writing, where a completed “loss notification form” is sent to the insurance provider within the insurance period. From 1 February 2012, HBCF policies must provide a minimum cover of $340,000. Cover for loss arising from defective work is provided for a period of: • six years from the date of completion of major works, or • two years for loss arising from works other than major works Cover is also provided for loss arising from non-completion of work for a period of 12 months after the failure to commence, or cessation of work. An additional six-month cover applies in cases where the loss becomes apparent in the final six months of the period of insurance. A Public Register of insurance certificates is available of the HBCF website at www. hbcf.nsw.gov.au/portal/server.pt/ community/icare_builders_warranty/347. The register helps consumers check if a HBCF insurance exists and is genuine.

Claim on the insurance If there is a trigger event within the insurance period, the consumer can make a claim on the insurance, supported by a certified copy of the NCAT order. An insurance claim may be lodged with the insurance provider outside the insurance period if the consumer had notified the insurer in writing during the insurance period and has proof of the insurer being put on notice.

Debt recovery action in the local court A consumer has a period of 12 years from the date of NCAT money order to enforce it in the Local or District court depending on the value of the claim (refer to the Local Court website at www.lawaccess.nsw.gov. au/Pages/representing/lawassist_debt_ small_claims_home/lawassist_debt_small_ claims_home.aspx). -

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Telephone and the internet [10.870] Introduction Communications systems – the telegraph, the telephone and more recently, access to the internet – are nationally regulated. For most of the twentieth century, inter-personal communications – the post, the telegraph and later the phone – were provided by the Postmaster General’s (PMG) Office – a Federal Department. In 1989, telecommunications were liberalised, with the provision of infrastructure and services fully open to competition by 1997. However, the former PMG, later Telecom and now Telstra, still retains the lion’s share of the telecommunications markets.

[10.880] The regulatory

framework The Telecommunications Act 1997 (Cth) (TA) and the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) (T(CPSS)A) are the two pieces of legislation that provide industry specific consumer protections. General consumer protections are provided by the Australian Consumer Law, in Schedule 2 of the Competition and Consumer Act 2010 and the Privacy Act 1988 (Cth). Some of the consumer protections discussed below are provided by either the TA or the T(CPSS)A. However, most of the consumer protections are provided by industry codes, particularly the Telecommunications Consumer Protection Code (TCP Code). All codes are available on the ACMA’s Register of Codes available at: www.acma. gov.au/theACMA/Library/Corporatelibrary/Forms-and-registers/register-ofcodes. Part 6 of the Telecommunications Act 1997, sets out the process to be followed in the development of “registered” codes. While codes are developed by what the legislation calls “a section of the industry”, at least one consumer organisation, the ACCC and, in

codes that impact on privacy, the OAIC, must be consulted in their development. Once the communications regulator, the Australian Communications and Media Authority (ACMA) is satisfied that the legislative requirements for the development of the code have been met, it “registers” the code. Once a code is registered, the ACMA then has the power to issue a “formal warning” to a service provider(s) for non-compliance with provision(s) of the code, followed if necessary by a direction to comply, which can be enforced in the Federal Court. Codes discussed in this chapter are all registered codes. The ACMA can also request industry to develop a code to address issues that provide “appropriate community safeguards” or otherwise, the performance of participants in the industry (TA, s 118). The ACMA can also then develop a mandatory industry standard either if industry fails to respond to the ACMA’s formal request for a code, or a registered code is, in some way deficient (TA, s 123, 125). Some definitions: • customer in this chapter refers to customers who acquire a service(s) primarily for domestic purposes, or a business or non-profit organisation that acquires the service(s) under a standard contract, with a maximum annual spend estimated on reasonable grounds to be less than $20,000 and does not acquire the service(s) for resale • carriage service providers (CSPs) means the retail providers of telecommunications services to the public • fixed line service is a telecommunications service (phone and/or Internet access) that is provided through a telephone socket in the premises. The communications system (phone and/or Internet) is provided by a device(s) plugged into the socket and connected to the communications device (telephone handset, Internet modem, etc) • internet is a transmission system that lets the customer(s) access a range of communications services (emails, the web, a Voice over IP – VoIP – service such as Skype, apps etc) using specific transmission protocols • wireless service is a communications service

10 Consumers

provided by radio communications technology and the communications device(s) not “plugged into” a wall socket in the premises.

[10.890] Getting a service Most companies offer a “bundle” of services that can include a standard telephone service (fixed line or wireless) to the premises, a mobile phone service, an Internet access service and/or a pay TV service. The “bundle” may also offer communications equipment such as a handset and/or a modem as part of the package. Generally, the cost to consumers of the “bundled” package will be cheaper than if the customer had acquired each service and/or piece of equipment individually. However, such “bundles” are more commonly available under a contract for a minimum period, with penalties for early termination of the contract. Before signing up to a telecommunications contract, customers should be advised to carefully consider what communications services they use and how much of each service is used on a regular basis. Looking over past accounts will help customers determine what their specific communications needs are. CSPs are required to provide a “critical information summary” that allows customers to compare products and services offered by various providers. Each summary must include a description of the service(s) provided (including whether it is offered as part of a “bundle”), the minimum term applicable and any exclusions or limitations on the offer. Under pricing information, the summary must include minimum monthly charges as well as any minimum spend over the life of the contract, any termination charges, and any limitations on the offer. CSPs must also provide a range of information on pricing, including standard charges that allows customers to compare the offer with service offers from other CSPs (TCP Code, cl 4.1.2).

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[10.900] National Broadband

Network (NBN) Both major parties are committed to upgrading the telecommunications network to provide fast (or faster) broadband speeds to customers’ homes or business premises. For those in the cities and major urban areas, this will be by installing fibre optic cable to or closer to the premises. For those outside the urban areas, faster broadband speeds will be provided through fixed wireless services infrastructure or satellites. The roll out of infrastructure will be done by the government owned National Broadband Network Company (NBN Co). The infrastructure rollout will take place over a period of years. As NBN Co’s roll out approaches an area, all those affected (residents, strata managers, or business owners) are being notified and asked whether they want to be connected to the NBN. Those notified will have 18 months to switch over to the NBN. If people want to continue to use fixed line services, they must switch over to the NBN. All standard connections are free. People can check the NBN Co website to see when NBN Co is coming to their area. In the process of switching over to NBN infrastructure, customers will deal with their choice of retail service provider (Telstra, Optus, TPG for example). The NBN Co website has a range of information available on their network, including how to make complaints about the installation. The TIO will also deal with those complaints if they are not resolved by NBNCo. For all other issues with their telecommunications services, customers will continue to deal with their retail service provider.

[10.910] Additional

information Customers living outside of city areas should also ask about mobile phone coverage if that service is included in the package. CSPs are also required to tell customers with a disability about any features of telecommunications equipment they provide that has features that will assist the customer to use the equipment (TCP Code, cl 3.3.2). If customers

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travel, they should also ask about any roaming charges for use of a phone or internet service overseas. Customers with particular privacy needs should also ask about any charges to have a silent or unlisted number.

[10.920] Credit assessment Before providing post-paid services to a customer, CSPs must undertake a credit assessment of the customer and advise them of the financial implications of the service(s). If, as a consequence of the credit assessment, the CSP will provide restrictions on their service, the CSP must provide reasons for that decision, the nature of the restrictions and the circumstances under which restrictions will be removed (TCP Code, s 6).

Connection type In-place connection No in-place connection (close to available infrastructure)

Where there is no infrastructure or spare capacity

[10.930] Managing

expenditure on telecommunications All CSPs must provide their customers with information about the “spend management tools” they offer. Those tools help customers to take timely action to manage and/or limit their expenditure on a telecommunications product. Such tools can include usage notifications, barring of access to particular types of services, or, for Internet services, reducing download speeds.

[10.940] Connection The timeframes that CSPs should meet for the connection of fixed line service are as follows:

Community location All

Community size (no. of people) All

Connection time (after receipt of customer’s application) Within two working days

Urban

Equal to or more than 10,000 people

Within five working days

Major rural

Between 2,500 and 10,000 people

Within 10 working days

Minor rural and remote All

Up to 2,500 people

Within 15 working days

All

Within 20 working days (equivalent to 1 month after request)

There are also requirements for CSPs to make, and keep, appointments for the connection of standard phone services. If a CSP makes an appointment with a customer for

connecting a service, the appointment period must be no longer than five hours (ie, either for the morning or afternoon of an agreed date). The company must keep this

10 Consumers

appointment unless it gives the customer reasonable notice. The timelines do not apply where a customer has agreed to accept an alternative or interim service or where there are situations beyond the CSP’s control, such as natural disasters. Under T(CPSS)A, s 115, the Minister directed the ACMA to set service standards on connections, fault repair and appointment times. They were set by the ACMA in the Telecommunications (Customer Service Guarantee) Standard 2011. However, the government is currently considering repeal of legislation on this topic.

[10.950] During the life of a

service(s) Billing Itemised charges CSPs must provide itemised bills for all charges relating to the provision of a “standard telephone service”. The obligation does not include itemisation of all local (untimed) calls unless requested by the customer (TA, Sch 2 Pt 5). The bill Customers who are not using a prepaid service must be offered a choice of whether to receive a paper bill through the mail, by email or online. Customers can, instead, agree to having their account paid through direct debit, but unless the amount debited Community Urban Rural Remote

Community size (no. of people) Equal to or more than 10,000 people Between 200 and 10,000 people Up to 200 people

[10.980] Making a complaint The first point of call if a customer has a complaint is their CSP. All CSPs must have a process to handle complaints that is easy to use and accessible. The CSP must provide a phone number on which complaints can be made that is either free or at low cost, and the actual complaint handling process, free. The exception is when the complaint relates

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is the same charge each billing period, or within 10% of an agreed fixed charge, customers must receive a bill in the agreed format. In most cases, CSPs cannot bill a customer for charges older than 160 days from the date that the charge was incurred. CSPs must ensure that customers have access to itemised details of all charges included including all timed call charges, unless advised by the customer otherwise (TCP Code, s 5).

[10.960] Financial hardship CSPs must have a financial hardship policy to assist customers experiencing difficulties in meeting their financial obligations. The policy must be easily accessible and information about it made available in any reminder notices. If a customer is assessed as eligible for the policy, options will include flexible repayment options to meet customer needs. Any credit management action must be suspended while discussions about the application of a financial hardship policy are under way (TCP Code, cl 6.11, 6.12).

[10.970] Repairs CSPs must repair a service within timelines, as set out below unless, again, the CSP has agreed to provide an interim or alternative service. CSPs must also keep agreed appointments, as set out above for service connection times (TCP Code, cl 3.3.2). Repair time End of next working day after report End of second working day after report* End of third working day after report*

to matters over two years old or involves extensive processing or copying of material, in which case the customer must be informed of the potential costs and provided with information on external dispute resolution mechanisms. The CSP must try to resolve urgent complaints within two days and within three weeks for non-urgent matters. If the customer is happy with a solution to the

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customer’s problem, the CSP must carry out what they have undertaken to do within 10 working days.

[10.990] Telecommunications

Industry Ombudsman (TIO) The TIO handles complaints made by residential and small business customers. Complaints can be made online, by phone using a toll free number, by mail or in person and are at no cost to the customer (www.tio. com.au has details for all the ways in which customers can make a complaint). Before handling a complaint, the TIO will ask that the customer try to resolve the complaint with their CSP if they have not already done so. The customer will referred back to the CSP, but generally to a more senior level within the CSP organisation. Most complaints are resolved at this stage. If the customer is disputing a bill and has taken the matter to the TIO, any debt collection action by the CSP must be put on hold while the matter is being resolved. If the complaint is still not resolved to the customer’s satisfaction, the TIO will investigate the complaint, seeking first to conciliate the matter. If still unresolved, the complaint may be fully investigated and/or the matter arbitrated. On completion of an investigation into a complaint, the TIO can make binding decisions on its members to do (or refrain from doing) actions and pay compensation of up to $50,000. It can make further recommendations for payment of up to $100,000. For information on TIO processes and powers, see the TIO website, including the TIO Constitution, Annexure A, Clause 6. The T(CPSS)A requires all carriers and CSPs that provide a standard telephone service, a mobile service or an Internet access service to be members of the TIO scheme and, additionally, they are required to comply with the scheme (T(CPSS)A, Pt 6).

[10.1000] Privacy There are several aspects to privacy in the

context of telecommunications. The general data retention protections are provided in the Australian Privacy Principles of the Privacy Act 1988 (Cth). They cover the traditional issues of collection, use and secure storage of personal information, as well as specific provisions relating to the use of personal information for marketing purposes and an individual’s access to their own personal information. Part 13 of the TA also contains provisions protecting the collection and use of personal information by carriers, CSPs and their employees and contractors. This includes not only the personal information necessary for the installation, service, billing, etc of services but other personal information gained in the performance of the carrier/ CSP’s employees’ duties – potentially the content of communications. The TA also provides for the establishment of what is called the integrated number database (IPND). Each CSP must provide the IPND manager with the name, service address, billing address, and public numbers (fixed line, mobiles etc) for all their customers (TA, Sch 2, Pt 9). The use of IPND data is restricted to emergency services, and under certain circumstances, law enforcement agencies and listed government regulators. IPND data, with the exception of unlisted numbers, may also be used by directory producers and for research purposes (TA, ss 277–78, 285). The final relevant piece of legislation providing privacy protection in communications is the Telecommunications (Interception and Access) Act 1979 (Cth) (TIAA). The TIAA prohibits the interception of a communications passing over a telecommunications system. The exceptions to the prohibition include any interception carried out in the course of the installation, maintenance and repair of the communications system, for emergency purposes or when lawful under a warrant (TIAA, s 7). The other offence is accessing (or authorising access) stored communications without the knowledge of either the recipient or sender (TIAA, s 108).

10 Consumers

Stored communication is defined in s 5 to mean a communication that is not passing over a telecommunications system, is held on equipment operated by and in the possession of a carrier and cannot be accessed by a person who is not a party to the communication without the assistance of the carrier. Two examples would be emails or SMS messages. The other important privacy protection is contained in the industry code on calling number display that requires providers of a standard telephone service to ensure their customers have the option of blocking calling number display on both a permanent and call by call basis (ACIF C522:2007 Calling Number Display, s 3).

[10.1010] Changing providers If customers want to change their CSP, the new CSP must ensure that the customer is informed of timelines for the transfer, possible interruption of service, possible incompatibility of equipment for that service, as well as full details of the terms, conditions and pricing of the new service (TCP Code, Chapter 7).

[10.1020] Special tips about

the Internet

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with an “Australian link” through, for example, emails or text messages. See ss 5–7 for definitions of commercial electronic communications, and Australian link, and Sch 2 to determine if the message was unsolicited, or the customer’s consent was expressly given or can be inferred. The Act also requires that commercial electronic messages must contain an “unsubscribe facility” that consumers can use to stop receiving any further commercial electronic messages from that sender (Spam Act 2003, s 18).

Security – Stay safe online The ACMA website provides a range of information on cyber safety, safe passwords, Internet security, information particularly for children and security, and a facility for handling Internet complaints.

Compromised computers The Internet Industry Association developed a voluntary code, the “icode” on how Internet service providers can detect and deal with compromised computers. It also contains information on steps customers should take when informed that their computer may be compromised.

Spam The Spam Act 2003 (Cth) prohibits sending unsolicited commercial electronic messages The National Broadband Network (NBN) The National Broadband Network Company (NBN Co) was established by Government to provide fast broadband to all Australians, using a mixture of transmission technologies including fibre, existing copper wires and/or hybrid fibre/co-axial cable (the cable used to deliver PayTV services). For approximately 93% of the population in urban areas, the technology will be largely fibre; largely fixed wireless and satellite services will be used for the rest of Australia. The roll out of the broadband

network has begun and will continue for a few more years. Under Government policy, NBN Co is the provider of the underlying transmission network; customers deal with “retail service providers” (such as Telstra, Optus or TPG) for their telephone and internet services. For information on the transmission technologies, or information on whether the nbn is in the area, consumers should check NBN Co’s website nbnco.com.au

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Contact points [10.1030]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au. Australasian Legal Information Institute (AustLII)

Translating and Interpreting Service: 131 450

Financial Rights Legal Centre

http://www.austlii.edu.au

Australian Retailers’ Association (ARA)

Credit and debt hotline: 1800 007 007

http://www.retail.org.au

Insurance Law Service: 1300 663 464 Telephone interpreting service: 131 450

Australian Communications and Consumer Action Network (ACCAN) http://www.accan.org.au ph: 9288 4000

ph: 1300 368 041 Australian Securities and Investments Commission

Australian Communications and Media Authority (ACMA)

http://www.asic.gov.au

http://www.acma.gov.au

infoline: 1300 300 630

ph: 1300 850 115 or email: [email protected]

Communications, Department of

Sydney office

ph: 9911 2000

http://www.communications. gov.au

ph: 9334 7700 or email: info@acma. gov.au

ph: 1800 254 649

Australian Competition and Consumer Commission

http://www.commsalliance.com.au

http://www.accc.gov.au ph: 9230 9133 Infocentre: 1300 302 502 Australian Consumer Law

Communications Alliance ph: 9959 9111 Do Not Call Register (Cth) http://www.donotcall.gov.au ph: 1300 792 958

http://www.financialrights.org.au

Administration: 9212 4216 GreenPower http://www.greenpower.gov.au ph: 9338 6600 Home Building Advocacy Service (HoBAS) – Macquarie Legal Centre http://www.macquarielegal.org. au/HoBAS.html ph: 8833 0911 Housing NSW (Family and Community Services) http://www.housing.nsw.gov.au ph: 1800 422 322 (24 hours, 7 days) Justice, Department of (NSW)

http://www.consumerlaw.gov.au

Energy & Water Ombudsman NSW (EWON)

ph: 13 32 20

http://www.ewon.com.au

ph: (02) 8688 7777

Australian Consumers Association (Choice)

ph: 1800 246 545

http://www.choice.com.au

National Relay Service: 133 677

Law and Justice Foundation of NSW http://www.lawfoundation.net.au

ph: 1800 069 552

Environment and Heritage, Office of (NSW)

Australian Direct Marketing Association (ADMA)

Interpreter services: 131 450

http://www.justice.nsw.gov.au

Law Society Solicitor Referral Service http://www.lawsociety.com.au/ community/findingalawyer/ solicitorreferralservice

http://www.adma.com.au

http://www.environment.nsw. gov.au

ph: 9277 5400

ph:131 555 or 9995 5000

Australian Information Commissioner, Office of the (Cth)

Financial Ombudsman Service

ph: 9926 0300 or 1800 422 713 (regional areas)

http://www.fos.org.au

Legal Aid NSW

http://www.oaic.gov.au

ph: 1800 367 287

http://www.legalaid.nsw.gov.au

ph: 1300 363 992

ph: 1300 888 529

10 Consumers

NSW Civil and Administrative Tribunal (NCAT) http://www.ncat.nsw.gov.au ph: 1300 006 228 NSW Fair Trading http://www.fairtrading.nsw.gov.au ph: 133 220 Aboriginal Enquiry Officer: 1800 500 330 (Freecall) Language Assistance: 131 450 NSW Public Guardian http://www.publicguardian.justice. nsw.gov.au ph: 8688 6070 or regional NSW 1800 451 510

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NSW Trade and Investment (Resources and Energy) http://www.resourcesandenergy. nsw.gov.au

ph: 1800 035 822 or 9237 6000

ph: 1300 736 122 or (02) 8289 3968

http://www.environment.gov.au

Parliamentary Counsel’s Office

ph: 6274 1111 Telecommunications Industry Ombudsman http://www.tio.com.au

http://www.pco.nsw.gov.au ph: 9321 3333 Public Interest Advocacy Centre http://www.piac.asn.au ph: 8898 6500 Roads and Maritime Services (formerly Roads and Traffic Authority (RTA)) http://www.rta.nsw.gov.au

Sustainability, Environment, Water, Population and Communities (Cth)

ph: 1800 062 058 Interpreter service: 131 450 Tenants’ Union of NSW http://www.tenants.org.au ph: (02) 8117 3700

Standards Australia

Water, Office of (Department of Primary Industries, NSW) http://www.water.nsw.gov.au

http://www.standards.org.au

General enquiries: 1800 353 104

ph: 132 213

11 Contracts Michael Quilter

Faculty of Business and Economics, Macquarie University

Contents [11.20]

The development of contract law

[11.50]

Essentials of a valid contract

[11.140]

The terms of a contract

[11.200]

Ending a contract

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[11.10]

The basic principles of contract law are discussed in this chapter. These apply to purely commercial transactions (such as between a manufacturing business and its supplier), as well as transactions where one of the parties is a consumer (a consumer is a person who acquires goods or

services for personal or household use). Contract law provides a framework to help resolve disputes and enforce rights and obligations. It supports economic growth by giving individuals and businesses the predictability and confidence to trade, associate and invest.

The development of contract law [11.20] Contracts under

common law Contract law is largely a product of the common law – it has been developed by the courts rather than by parliament passing laws. A basic common law principle is the assumption that a contract is a bargain made freely between equal parties (freedom of contract). Because of this, courts have been unwilling to set aside or alter contracts except in limited circumstances. In the common law, even where there has been unfairness or sharp practice, the principle of sanctity of contract has generally prevailed, and contracts have been upheld.

[11.30] Modern consumer

issues These days the assumption that contracts are freely made by equal parties no longer applies in the consumer context and here parliament has intervened to protect consumers.

Unequal bargaining power In the modern marketplace most consumer goods and services are manufactured, marketed and sold by large businesses with access to expertise and resources far greater than those available to the ordinary consumer. There is usually a marked inequality of bargaining power between the parties, not the equality that contract law has traditionally assumed.

Limited bargaining opportunity In practice there is usually little opportunity for bargaining – goods and services are typically offered to the consumer on a “take it or leave it” basis, under a standard form contract (where the contract is in writing).

[11.40] Consumer legislation To some extent, the common law of contract has evolved to take account of these marketplace developments. The major force for change, however, has come not from the courts but from state and federal parliaments. Particularly since the 1970s, parliaments have introduced a wide range of laws designed to protect consumers and enhance the rights and remedies available to them. The most important general consumer protection laws, such as the Australian Consumer Law, as well as more specific consumer protection legislation (such as the Motor Dealers and Repairers Act 2013 (NSW)), are discussed in Chapter 10, Consumers.

The careful consumer Avoiding problems is better than trying to fix them. Problems in contracts can often be avoided by taking a few practical steps: • thinking about what you want the product to do, or if you are entering a contract for the provision of a service, the outcome you expect at completion of the work • seeking advice or having an expert check the product, or with the provision of a service, getting a second opinion • shopping around for the best deal, comparing quality and price

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• inspecting goods carefully, or with the provision of a service checking references or viewing previous jobs. A good source of information is CHOICE, an information body for Australian consumers (www.choice.com.au). Read before you sign Consumers should also be careful about signing documents (whether described as

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contracts, offer forms, order forms, authorisations or whatever) without reading them and, if in doubt, get advice about them. Although consumer protection laws can assist unfairly treated consumers in certain circumstances (see Chapter 10, Consumers), in many cases once a contract is signed it is very difficult to avoid its consequences.

Essentials of a valid contract [11.50]

A contract is a legally binding agreement – that is, the law will enforce it. For a contract to be valid (and thus enforceable), a number of requirements must be satisfied: • there must be a concluded agreement between the parties; this usually involves the acceptance of an offer • the parties must have the intention that their agreement be legally binding • some benefit or value (consideration) must be given by each party in exchange for the other party’s promise to do, or not do, whatever the agreement requires • the terms of the agreement must be certain, so that it is possible to work out what the parties intended their words to mean • the parties must have the legal capacity to enter into the contract • some types of contracts must meet certain formal requirements; for example, a contract for the sale of land must be in writing • each party’s consent to the agreement must be genuine. The contract’s validity may be affected by one or more factors that the courts regard as vitiating (removing any real consent between the parties) • the person seeking to enforce the contract must be a party to it (there must be privity of contract between the parties) • to the extent that the objects or purposes of the contract are contrary to law, the court will not enforce it (legality of contract).

These elements are considered in detail below.

[11.60] Agreement between

the parties Offer and acceptance There is a concluded agreement between parties when one party has made an offer to do (or not do) something and the other party has: • unconditionally accepted that offer, and • communicated acceptance to the first party. Most consumer contracts are formed in this way. The agreement does not have to be in writing, or even stated; the parties can satisfy the conditions by their actions. For example, when a person buys goods from a shop, handing over money constitutes the offer by the consumer to buy particular goods, while taking the money constitutes acceptance of the offer by the shop.

Offer and counter-offer If A makes an offer and B, instead of accepting it, responds with a counter-offer, there is no agreement as yet. If A accepts B’s counter-offer, there is an agreement. Consumer contracts are often formed in this way. For example, when someone buys a car, the price (and possibly other terms) is usually agreed after a number of counteroffers have gone back and forth between the parties.

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Revoking an offer

Unilateral contracts

Before an offer is accepted there is no legal obligation on either party, and each is free to decide not to go ahead with the deal. Therefore, an offer can be withdrawn (revoked) at any time before it is accepted, as long as the withdrawal is communicated to the other party. The offer, if it is in writing, often specifies how the withdrawal must be communicated; for example, that the offer may only be revoked by notice in writing (communicating withdrawal of an offer in writing is sensible anyway).

Generally, contracts are bilateral; each party promises to do or not do something. However, there is also a class of contracts under which only one party promises to do something. These are known as unilateral contracts.

Rejecting an offer An offer may be rejected by words or actions. Once rejected, it terminates automatically, and the person who made it is under no obligation to go ahead if the other party changes their mind and decides to accept. A counter-offer acts as a rejection. How offers are made and accepted There are a number of technical rules about offer and acceptance but, generally, an offer is made if the person making it is prepared to be bound without further negotiation on terms. A person to whom an offer is made accepts it if, in response to the offer, they unconditionally promise to do what the terms of the offer require, and communicate this acceptance to the person who made the offer.

Offering a reward The reward situation demonstrates a unilateral contract. For example, if A offers a reward for the return of a lost dog, B is unlikely to promise to find and return the dog. However if, in response to the offer, and before the offer is revoked, B does find and return the dog, the contract is now complete. B has accepted the offer by performing the very act which A requested, and A is now bound to pay the reward. Are advertisements offers? The general rule about things such as advertisements, catalogues and shop displays is that they are not offers by the seller but “invitations to treat” - an indication that the seller is willing to consider offers to purchase the goods at the advertised price. The contract is formed not when the consumer offers the advertised price, but when the seller accepts the money. This means that the seller can refuse the buyer's money without being in breach of contract if, for example: • the price has gone up since the advertisement • the goods are no longer in stock

Conditional contracts The parties may reach an agreement but make it subject to a certain event occurring, and until it does there is no contract and no obligation on the parties. If the event does not occur, the parties do not have to go ahead with the contract. A common example of a conditional contract is an agreement to purchase goods “subject to finance”. If the buyer cannot obtain finance, they do not have to purchase the goods. Note, however, that conditional contracts often contain terms requiring one or both parties to take reasonable steps to do what is required to allow the contract to be completed (for example, take reasonable steps to obtain finance).

• the price was wrongly stated • the seller simply no longer wants to sell the goods. Although the consumer has no remedy against the advertiser in contract law, there may be other remedies available under consumer protection laws. See Chapter 10, Consumers.

[11.70] Intention to be legally

bound The second element necessary for a valid and enforceable agreement is that the parties intend that the agreement should be legally binding. This intention is rarely stated, but can be inferred from the circumstances. The intention is present in commercial transactions and in ordinary consumer transactions.

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Agreements between relatives or friends The law does not generally assume that relatives or friends intend their agreements to be contracts. For example, if A agrees to lend her car to her niece for a week in exchange for the niece helping her paint her house, then changes her mind, it is unlikely that the court would find that the parties intended their agreement to be legally binding and enforceable by the court. However, if it can be established that they did intend their agreement to be legally enforceable, the law will treat it as such. In some circumstances the court may be convinced that even related parties did intend to create legal relations; for example, where an agreement is made between a divorcing husband and wife, or between a father and daughter who do business with one another. Instances where a person has forgone a financial opportunity, or incurred expense as the result of an offer by a relative or friend, may also result in a court finding the requisite commercial intention.

[11.80] Consideration Generally, the law of contract does not enforce promises made without the expectation of any return. Unless the contract is a contract under seal or deed (see Contracts under seal or deed below), to be enforced it requires that B gives consideration – something of value – in exchange for A’s promise to perform the contract. For an ordinary consumer transaction, the consideration is simply the price the purchaser agrees to pay for the product or service.

Who must receive the consideration? While the agreed consideration must be given by the person receiving the benefit of the promise, it need not necessarily be given to the promise-maker. For instance, an agreement whereby A promises to pay B a sum of money if B renovates C’s house will be regarded as being supported by consideration and will be enforceable by both A and B (assuming the other elements of a valid contract are present), but not by C.

What is valid consideration? As long as the agreed consideration is given for A’s promise, it does not matter whether it reflects the usual or market value of what A has promised to do, or not do; even a

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token or “peppercorn” consideration, if that is what has been agreed, is enough.

What is not valid consideration There is no valid consideration where the “consideration” is: • so vague as to be meaningless • merely the performance of an existing legal duty – something A is legally obliged to do anyway, or • a promise to compensate for something already done without expectation of payment - a promise made after the performance of an act (past consideration). Contracts under seal or deed If there is no consideration (that is, one party agrees to give something but receives nothing in return), the agreement can still be made legally binding if it is in the form of a contract under seal or deed. In most cases (not all) a deed is enforceable like an ordinary contract.

[11.90] Legal capacity to

enter contracts Some people’s capacity to enter into valid, enforceable contracts is limited by law.

Intellectual disability or mental illness A person with an intellectual disability or mental illness is legally capable of entering into a binding contractual arrangement. However, the person can have the contract set aside if they can show: • that they were incapable of understanding the nature of what they were agreeing to when the contract was made, and • that the other party knew or ought to have known of their disability or condition. The required level of understanding varies according to the nature and complexity of the contract. For example, a person may have the capacity to understand a contract to buy goods from a supermarket, but not to understand a mortgage. The ability to have a contract set aside on the basis of disability or mental illness may be lost if, at a time when the person has recovered their mental capacity, they show

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by words or conduct that they intend to continue with the contract. Requirement to pay for necessaries Even where the contract is set aside, the person is still liable to pay a reasonable price for any goods or services provided if they can fairly be regarded as “necessaries” (both at common law and under s 7 of the Sale of Goods Act 1923 (NSW)). Goods are necessaries if they are suitable to the “condition in life” of the person ordering them and to the person’s actual requirements at the time of sale and delivery. Intoxication Considerations similar to those applying to a person with intellectual disability or mental illness apply to a person who was intoxicated by alcohol or drugs at the time of entering into the contract.

Minors In NSW, a person has full capacity to enter into a contract when they reach 18 (the age of majority). People under 18 are minors. Contracts entered into by minors are covered by the Minors (Property and Contracts) Act 1970 (NSW). In general, a contract made by a minor will be binding from the outset if: • it was for the minor’s benefit when it was entered into (s 19), and • the minor knew they were making a legally binding agreement (s 18). If these two conditions are met, the minor will not be able to get out of the contract simply because they were under 18 when it was made. Repudiating a contract Repudiation is also covered by the Minors (Property and Contracts) Act. If the contract was not for the minor’s benefit when it was entered into, or the minor did not understand what was done, the minor can end the contract (repudiate it) by serving a signed written notice on the other party (s 33), if: • the contract is not for the minor’s benefit at the time of repudiation (s 31) • the minor did not affirm the contract after turning 18 (that is, show by words or

actions that they wish to continue with it) (s 30), and • the repudiation occurs before the minor turns 19 (s 31). The critical period is the year after the minor’s 18th birthday. The right to repudiate is lost once: • the contract is affirmed, or • the person turns 19. Settling disputes If there is a dispute about the effectiveness of the repudiation, or about money paid or goods or services received before repudiation, either party can apply to the court (the Local, District or Supreme Court, depending on the amount in dispute – see Chapter 1, About the Legal System and Chapter 14, Criminal Law). The court can: • confirm the contract (decide that the repudiation has no effect), or • order each party to compensate the other for goods or services received so that, as far as possible, they are in the same position as they were before the contract was made (Minors (Property and Contracts) Act, s 37). A party will rarely be entitled to the return of property previously transferred under the contract.

Bankrupts The Bankruptcy Act 1966 (Cth) restricts bankrupt persons obtaining credit or entering into contracts for goods or services involving an obligation to pay more than a certain amount (ss 269, 304A) without informing the other party of the bankruptcy. However, the person’s general capacity to enter contracts is not lost because of bankruptcy.

[11.100] Formal requirements There is no general requirement that a contract be in writing, and oral agreements, that meet the requirements for a valid contract, will be enforced by the courts (although where the terms of a contract are in writing they will be more easily identified and provable). However, some contracts are not legally binding unless they meet certain

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formal requirements. For example, some must be in writing, including: • agreements for the sale and purchase of land (see Buying a home in Chapter 27, Housing) • credit contracts (see Chapter 13, Credit).

[11.110] Genuine consent Sometimes a contract will not be upheld because there was a lack of genuine consent on the part of one (or more) of the parties. Mistake Generally, a person must fulfil their obligations under a contract even if they made a mistake (about, perhaps, the quality of goods bought under the contract). However, if the person makes a mistake of fact of a particular kind, the contract may be void (in effect, there is no contract), or voidable. The types of mistake that have this effect are discussed below. Common mistake In the common mistake situation, both parties are under the same misapprehension (for example, A sells goods to B which have been destroyed, but neither A nor B is aware of this). Mutual mistake In the mutual mistake situation, the parties are at cross-purposes about the subject matter of the transaction (for example, A thinks he is buying a particular table while B thinks she is selling him a quite different table). Unilateral mistake In the unilateral mistake situation, one party is mistaken about the terms of the contract or the identity of the other party and the other party knows this, or ought to know it. Non est factum In the non est factum (“it is not my deed”) situation, a person signs a document fundamentally different in character from what they thought they were signing (for example, A signs a document giving B an option to buy A’s property, under the impression that it is an authority to enter and inspect the property).

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This defence is only available where: • the person had no ability to understand what they were doing, and • allowing the defence would not be unjust to the other party. Successful non est factum claims are very rare. Rectification of a written contract Rectification of a written contract is allowed where an obvious mistake or “slip” has been made when a previously complete agreement is put into writing.

Misrepresentation The common law doctrine of misrepresentation applies to statements that induce a person to enter into a contract (in contrast to statements forming part of the contract itself). Common law misrepresentation is established where the statement: • relates to a matter of fact (not law, future intention or opinion), and • is false, and • is made with the intention of persuading the other party to act on it, and • is one of the circumstances inducing the other party to enter into the contract. If misrepresentation is established, the person may be able to rescind (get out of) the contract. They may also have a right to claim damages (financial compensation) for any loss suffered as a result, but only if the other party acted either fraudulently or negligently. Fraudulent misrepresentation The conduct of the person making the statement may have been fraudulent if: • they knew it was false when it was made, or • they didn’t care whether it was true or not (it was made “with reckless indifference”). Fraudulent misrepresentation requires a high degree of proof, and is difficult to establish without strong evidence. Negligent misrepresentation If the person making the statement was in a special relationship with the other party which meant that they had a duty to ensure

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that the statement was true, their conduct may have been negligent. Such a duty arises when: • the person making the statement could reasonably be expected to foresee that the other party would rely on it, and • it was reasonable for the other party to rely on it in the circumstances. Innocent misrepresentation The misrepresentation is innocent, and no damages can be claimed, if the person making the statement: • did not know it was false • was not careless about its truth, and • was under no duty to ensure its truth. Consumer protection legislation The common law doctrine of misrepresentation has been largely replaced as far as consumer contracts are concerned by consumer protection legislation (the Australian Consumer Law) in both federal and NSW jurisdictions (see Chapter 10, Consumers). The common law doctrine is still relevant however, but only where the legislation does not apply to the particular transaction in question.

Undue influence The doctrine of undue influence is relevant if someone enters into an agreement, but their decision to enter into that agreement was not a free and independent decision due to the undue influence of another person. This doctrine can generally be relied on only when someone has entered into an agreement that is clearly not in their interests. Onus of proof In certain relationships (such as parent and dependent child, trustee and trust beneficiary, solicitor and client, religious adviser and follower, doctor and patient) the onus of proof rests with the dominant party to show that the transaction was not the result of undue influence. In other relationships (such as husband and wife) the onus of proving the claim rests with the party claiming to have been unduly influenced.

Duress Undue influence applies where a person’s will is overcome. Duress applies in the more extreme situation where someone enters a contract against their will in response to such things as actual or threatened violence or unlawful imprisonment. The threats or violence may be directed against the person signing, a family member or someone else with whom they are closely connected. In some cases duress may take the form of illegitimate economic pressure upon a person in business to enter a contract against their wishes. Duress is hardly ever relevant to consumer transactions. It is often appropriate to refer a situation involving duress to the police.

Unconscionable dealing According to case law in this area, the unconscionable dealing doctrine applies where: • one party is at a “special disadvantage” or under a “special disability”, and • the stronger party knew about it, or ought to have known about it, and • the stronger party takes advantage of the weaker party’s special disadvantage in a way which is not consistent with good conscience. Special disadvantage or special disability A person may be at a special disadvantage or special disability because of age, illness, inexperience, ignorance, impaired faculties, drunkenness, illiteracy, or other circumstances or combination of circumstances. The disadvantage must be special, not just the disadvantage of unequal bargaining power. It must seriously affect the person’s ability to look after their own interests. Evidence of unconscionable dealing The focus is on whether the circumstances of the negotiations were unconscionable (procedural unconscionability), rather than whether the terms of the contract are unconscionable (substantive unconscionability). Harsh or unreasonable terms (from the weaker party’s point of view) may, however, suggest that unconscionable dealing has occurred.

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Consumer protection legislation The doctrine has been extended, in the case of consumer contracts, by legislation prohibiting unjust contracts and unconscionable conduct (see Chapter 10, Consumers).

[11.120] Privity of contract Only a party to a contract can enforce it or have it enforced against them. This is called the doctrine of privity. A person who did not directly participate in dealings leading to a contract may still be a party to it if the person who negotiated it acted on their behalf as an agent or through a power of attorney.

[11.130] Illegal contracts As a matter of public policy, the courts will not enforce contracts that are illegal. Examples are: • contracts to commit: – a crime – a civil wrong

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– a fraud on a third person • contracts to fraudulently avoid paying government taxes and charges • contracts harmful to: – public safety – the administration of justice – public life generally • contracts for a sexually immoral purpose. The courts will also refuse to enforce a contract to do anything prohibited by statute. The effect of entering a contract A contract is formed when an offer is accepted (when the essentials of a valid contract exist - see Essentials of a valid contract at [11.50]), and from that moment the parties are legally bound to perform their obligations. The terms of the contract can be changed only if all parties agree to the changes. If a party fails to carry out their obligations, they will be “in breach of contract”, and the other party may be entitled to end the contract and/or be compensated for the breach.

The terms of a contract [11.140]

A contract basically consists of various promises made by the parties; for example, A promises to deliver certain goods to B and B promises to pay A a certain sum of money. These promises are known as the terms of the contract.

[11.150] Express and implied

terms The terms of a contract may have been expressly agreed to by the parties, or they may be implied. Express terms If the contract is oral then the express terms will be those actually used by the parties at the time of formation of the contract. If the contract is in writing the express terms will be those set out in the written document.

Implied terms Apart from the express terms in a contract certain other terms may be implied or included into the contract by: • a court (such as the need to imply terms that make sense of or give effect to the parties intentions — “business efficacy”) • custom or trade usage • legislation. Terms implied by legislation The most important implied terms for consumers are those in consumer protection legislation, which may imply conditions about quality, fitness for purpose, and the exercise of due care and skill into various types of consumer contracts (see Chapter 10, Consumers).

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[11.160] Written and oral

terms The terms of a contract may be in a document (signed or unsigned), or in oral statements, or may be partly written and partly oral.

Documents that are not signed When the terms of a contract are in writing but not signed (for example, the terms on the back of a ticket or on a sign in a store), they are considered to be part of the contract if the party wishing to enforce them can show that either: • the other person knew they were there, or • reasonable steps were taken to draw the terms to the person’s attention before the contract was made.

[11.170] Conditions and

warranties At common law a term of a contract may be either: • a condition, or • a warranty. A condition is a term without which there would be no contract. It goes to the heart of the contract. A warranty is a term dealing with a less important aspect of the contract.

Why it matters Whether a term is a condition or a warranty can be important if there is a breach of contract. The breach of a condition entitles the party not at fault to terminate the contract, whereas a breach of warranty only gives a right to sue for loss or damages (see Ending a contract by breach at [11.250]).

[11.180] Exclusion clauses It is quite common for traders to put an exclusion (or exemption) clause in a contract that excludes or limits their liability for defects in goods or for damage done to the consumer or their property by, or as the result of the use of, the goods. These clauses are almost always contained in a written document, which may or may not be signed.

In a signed document If a document containing an exclusion clause is signed, the clause becomes part of the contract.

In an unsigned document If there is no signed document the person seeking to rely on the exclusion (in consumer transactions this will be the trader) must show that the other party was aware of the clause, or that steps were taken to draw the exclusion clause to the other party’s attention before the contract was made – that is, before the offer was accepted (see Written and oral terms at [11.160]). A common exclusion clause A person drives into a parking station and takes a ticket from a machine. There is a contract; an offer has been made by the parking company and accepted by the driver. If there is a clause on the ticket excluding any responsibility for damage to the car while it is parked however, it will probably only be effective if the company took reasonable steps to draw attention to it before the driver completed the contract by taking the ticket (for example, by a sign at the entrance).

What cannot be in an exclusion clause The Australian Consumer Law implies a number of “guarantees” - such as fitness for purpose and acceptable quality - into all consumer contracts. Terms in consumer contracts which purport to exclude these guarantees are void. However, terms may “limit” liability for breach of such guarantees, so long as the limits are fair and reasonable (Australian Consumer Law, s 64A).

[11.190] Cooling-off periods A cooling-off period is a time after a contract is made in which a party can decide not to go ahead with the contract, without penalty or with a minimal penalty only.

Right to a cooling-off period There is no general legal right to a coolingoff period, and only a few areas where the right is conferred by statute.

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Statutory cooling-off periods Statutes that provide for cooling-off periods include the: • Conveyancing Act 1919 (NSW) (a five business day cooling-off period in contracts for land purchase (s 66S), which can be excluded if the parties agree and the purchaser has received legal advice (s 66W)) • Motor Dealers and Repairers Act 2013 (NSW) (a one-day cooling-off period for car purchases where a dealer has provided or arranged credit (s 80), which

A cooling-off period as a term in a contract

can be excluded, or extended, if the parties agree. A decision to terminate must be in writing, and the purchaser must pay $250 or 2% of the price (s 85) • Corporations Act 2001 (Cth) (a 14-day cooling-off period in relation to “financial products” (defined in s 763A), including investment and insurance (s 1019B)).

period as a term of the contract. In standard consumer transactions this is very rare.

The parties can agree to include a cooling-off

Ending a contract [11.200]

A contract may be discharged or terminated in a number of ways.

[11.210] By performance The contract ends automatically when the parties have carried out all their obligations.

[11.220] By agreement Termination specified in the contract The contract itself can specify that it will end: • at a particular time (for example, a contract to rent a fridge for six months), or • because of the occurrence (or otherwise) of a specified event (for example, an agreement to buy a car may include a provision that the contract terminates if the buyer cannot obtain finance).

New contract of termination The parties can agree to end the contract at any time after it has been made. This agreement is also a contract, and all the elements listed in Essentials of a valid contract at [11.50] must be present, including consideration.

Consideration in the new contract Where both parties still have obligations under the old contract, the new contract will consist of promises by each party not to enforce the promises made under the old contract, so each receives something of value. If one party has already performed their obligations but the other has not, there may not be enough “consideration” to make the agreement legally binding. The other party must give something of value; or alternatively the agreement could be documented as a deed (see Chapter 1, About the Legal System).

[11.230] By frustration Sometimes, after the parties have entered into the contract, an unforeseen event occurs that results in a situation fundamentally different from that which the parties had in mind when the contract was made; for example, the contract is for a personal service and the person who was to perform it dies. In such cases the law regards the agreement between the parties as having been frustrated, and at an end. In NSW, such agreements come under the Frustrated Contracts Act 1978 (NSW).

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In some cases a party might be able to claim compensation for an obligation that was supposed to be performed before the contract was frustrated but was not performed (s 7). Where one party has fulfilled their part of the contract and has not received any benefit from the other – for example, by paying for something that was then destroyed – the other party may be required to return the money (ss 10, 11).

[11.240] By repudiation Where one party by word or act indicates, either before or during performance of their obligations under the contract, that they are not willing to perform or continue performing those obligations, that party is said to repudiate the contract. Repudiation by one party gives the other the right to terminate the contract and sue for damages. For example, if A agrees to sell a car to B, then sells it to C who has made a better offer, A has repudiated the agreement with B who can immediately terminate the contract and sue A for any loss suffered as a result of the repudiation.

[11.250] By breach The contract may come to an end if one party commits a serious breach of contract. A party who fails to carry out an obligation under a contract is in breach of contract. This may happen in various ways (for example, when a retailer supplies defective goods or a borrower makes a late payment). The consequences depend on the seriousness of the breach and the terms of the contract. Certain breaches give the innocent party the right to terminate the contract immediately, and to sue for damages suffered as a result of the breach. In other cases, the innocent party has no right to terminate, but can claim damages.

Right to terminate the contract If one party breaches a contract, the other party does not automatically have a right to terminate it. This right is only available if: • it is provided for in the contract, or • the breach is sufficiently serious.

Where the right is contained in the contract Some contracts contain a term giving one party the right to terminate following a particular kind of breach (or any breach) by the other party. Any clear provision to this effect is decisive. Where the breach is serious Where the contract has no term giving a party the right to terminate the contract following a breach, only a serious breach will give the other party a right to terminate. A serious breach is: • a breach of a condition or fundamental term (a term is fundamental if the other party would not have entered the contract unless they believed it would be fulfilled) • a breach that substantially deprives the other party of what they intended to obtain under the contract. A party who decides to terminate a contract for breach should notify the other party immediately. The right to terminate can be lost by delay, leaving the innocent party with only a right to damages. Effect of the termination Termination of the contract means that both parties are released from their future obligations, but any rights which either party already had (such as the right to be paid compensation for the breach) remain.

Has a breach occurred? It can sometimes be hard to decide whether a breach has occurred and whether it gives rise to a right to terminate (either at law or under the contract). A person should not attempt to terminate a contract unless they are certain that: • the other party has committed a breach, and • this breach gives them the right to terminate. Termination without legal entitlement Someone who attempts to terminate a contract when they are not legally entitled to do so commits a serious breach, and could be liable to pay damages to the other party.

Damages The innocent party is generally entitled to compensation for losses suffered due to a

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breach of contract. However, not every loss caused by a breach will be compensated. If it can be shown that the party in breach should have realised when they entered the contract that the sort of loss suffered (if not its extent) was reasonably likely to result from the breach, compensation will be payable. Unusual losses will only be compensated if it was clear at the time of contracting that a special loss might occur in the circumstances of the case. Damages are awarded for breach of contract with the general aim of putting the innocent party in the position they would have been in if the contract had been properly performed.

Damages clauses in the contract The contract may indicate the damages to be paid, or how damages should be calculated, if there is a breach. Pre-estimates of loss An agreed amount of damages for a breach must be a genuine pre-estimate of the likely loss that would result from the breach. This is then the amount to be paid if there is a breach, regardless of the actual loss. Where the agreed damages are not really a preestimate of loss, and are in fact a penalty for breaching the contract, the amount of damages is limited to the actual loss suffered rather than the agreed amount. Where payment is by an initial deposit, followed later by the balance, the contract may provide that the damages will amount to the loss of the deposit.

Where there is no provision for damages If there is nothing in the contract about the amount to be paid, the party claiming

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damages must show the actual amount of the loss caused by the breach.

The duty to mitigate When there is a breach of contract, the innocent party has a duty to take all reasonable steps to minimise their losses (mitigation). If the party in breach can show that the innocent party suffered a loss that they could reasonably have avoided, the loss will not be compensated. For example … A homeowner employs a plumber to fix a pipe, but the next day the pipe springs a major leak. The homeowner tries to contact the plumber without success for three days. By the time the plumber is informed of the problem, major water damage has occurred. The plumber will be able to argue that the homeowner should have employed another plumber to fix the pipe in the meantime, which would have greatly reduced the damage caused by the leak. If this argument succeeds, the homeowner will only be entitled to compensation for the initial damage, not for the damage occurring as a result of the delay in having the work repaired.

Compelling performance Under general contract law, it is rare for a court to make an order requiring the party in breach to perform the contract, as damages are usually considered adequate compensation. Contracts for the sale of land are an exception. In such contracts, the court may order the party in breach to carry out the contract and complete the sale. In contrast to the position under the general law, specific performance type remedies are available under various statutory consumer protection laws (see Chapter 10, Consumers).

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Contact points [11.260]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au. Australasian Legal Information Institute (AustLII) www.austlii.edu.au Australian Competition and Consumer Commission (ACCC) www.accc.gov.au ph: 9230 9133 Infoline: 1300 302 502 Association for Data-Driven Marketing and Advertising (ADMA)

ph: 9577 3399 or 1800 069 552 Department of Justice (NSW)

NSW Civil and Administrative Tribunal (NCAT)

www.justice.nsw.gov.au/

www.ncat.nsw.gov.au

Financial Rights Legal Centre

ph: 1300 006 228

www.financialrights.org.au

NSW Fair Trading

Formerly the Consumer Credit Legal Centre. It offers advice and advocacy for consumers in financial stress.

www.fairtrading.nsw.gov.au ph: 13 32 20 or 9895 0111 Financial Ombudsman Service Australia

ph: 9212 4216

www.fos.org.au

Credit & Debt hotline: 1800 007 007

ph: 1800 367 287

Australian Retailers’ Association

Law and Justice Foundation of NSW

www.piac.asn.au

www.retail.org.au

www.lawfoundation.net.au

ph: 1300 368 041 Australian Securities and Investments Commission (ASIC) www.asic.gov.au

Legal Aid NSW

www.adma.com.au ph: 9277 5400

ph: 1300 300 630 CHOICE www.choice.com.au

www.legalaid.nsw.gov.au Legislative and Governance Forum on Consumer Affairs (CAF) (formerly the Ministerial Council on Consumer Affairs) www.consumerlaw.gov.au

Public Interest Advocacy Centre ph: 8898 6500 Standards Australia www.standards.org.au ph: 9237 6000 Telecommunications Industry Ombudsman (TIO) www.tio.com.au ph: 1800 062 058

12 Copyright Julie Robb

Solicitor

Contents [12.10]

What is copyright?

[12.140]

Duration of copyright

[12.30]

Requirements for copyright protection

[12.160]

Dealings with copyright

[12.70]

Who owns copyright?

[12.190]

Infringement of copyright

[12.130]

Rights of copyright owners

[12.230]

Technological measures for copyright protection

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What is copyright? [12.10]

Copyright is a bundle of rights that enable their owner to control, and be paid for, uses made of the material in which the copyright subsists. Cultural material such as literature, visual art, music and film are copyright protected – but so are some commercial products, such as computer programs and broadcasts. Like other property, copyright can be assigned (ie, transferred or sold), licensed or bequeathed in a will. In Australia, copyright is governed by the Copyright Act 1968 (Cth), and Australian copyright owners have rights internationally by virtue of treaties to which Australia is a signatory, in particular the Berne Convention for the Protection of Literary and Artistic Works. These laws seek to balance the public interests in both rewarding creators and encouraging them to continue to produce copyright material on the one hand; and in giving society access to such material on the other. Copyright law is complex. Specialist advice should be sought on any copyrightrelated matter. The Australian Copyright Council, whose contact details appear at the end of this chapter, provides detailed information, including answers to frequently asked questions, about copyright law.

[12.20] What material is

protected? Copyright protects the expression of ideas in material form – there is no copyright in ideas. These material forms are set out in the Copyright Act – works (which are literary, dramatic, artistic or musical) and other subject matter (sound recordings, films, broadcasts and published editions of works). Neither the internet nor any other digital format (Facebook, Instagram, YouTube, Twitter) is regulated by specific provisions in the Copyright Act. The same legal ap-

proach is taken to these, and constantly emerging, platforms as is taken to analogue formats.

Literary works This category includes poems, books (fiction and non-fiction), articles, short stories, lyrics, written interviews, letters, emails, the rules of games, instructions, compilations of words, numbers or symbols such as anthologies and tables, computer programs (which probably – the question is yet to be tested in an Australian case – include e-books and websites). Short bits of text such as titles, taglines and slogans are unlikely to be protected as literary works. For example, there is no copyright in newspaper headlines: Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd (2010) 189 FCR 109. However, this material may be protectable in certain circumstances as trade marks or by laws that protect commercial reputation – passing off and the Australian Consumer Law.

Dramatic works This category includes plays, film scripts, scenarios and choreography that have been reduced to writing.

Musical works This category embraces written or recorded music of all kinds, from hip hop to symphonies. An unrecorded performance of improvised, folk or traditional music (that is, music that has not been reduced to writing or some other material form) would not likely qualify as a musical work.

Artistic works These are paintings, sculptures, drawings (including sketches, architectural drawings, cartoons, dress patterns, maps, technical drawings), engravings, photographs, buildings, models of buildings and works of artistic craftsmanship (such as ceramics and tapestries). Only in the case of works of artistic craftsmanship does the Copyright Act impose

12 Copyright

any requirement of artistic merit in order to qualify as material that is protected. The concept of artistic craftsmanship is not defined in the Act. When a court is asked to determine the question – which does not happen often, given the prohibitive cost of litigation for most practitioners – it focuses on two issues: that there has been “real or substantial effort” in creating the object in question, and that that effort is directed more to its artistic, rather than functional, elements. The court must be satisfied that there is a craftsman whose input is fundamental to the resulting artistic work: Burge v Swarbick (2007) 232 CLR 336. Designs may be protected as artistic works under the Copyright Act if they fall into one of the categories of artistic works. The protection of designs for functional articles is also dealt with under separate legislation – the Designs Act 2003 (Cth). To be protected (for up to 10 years) under the Designs Act, designs must be registered with IP Australia before they are shown to anyone: the opportunity for design registration is lost if there is a prior disclosure. Copyright and design protection may exist at the same time, but copyright protection may be lost for products that are or could be protected by design registration. This area of the law, known as the “copyright/design overlap”, is very complex. Anyone who intends to manufacture products based on an artistic work should get legal advice about the implications under copyright and designs law before doing so.

Cinematograph films This category covers the moving images and soundtrack in all films – documentaries, feature films, home movies, animations, TV programs, DVDs and video – as well as computer games.

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Choreography may also be protected this way. Cinematography/film copyright is separate from the copyright in each of the screenplay, music and other works recorded in a film that may be separately protected, and are often referred to as underlying works.

Sound recordings This category includes vinyl records and CDs, audio tapes and cassettes, as well as digital files of music. The sound recording copyright relates only to the recording as such. Material fixed on a recording, such as music and lyrics, are separately protected as musical and literary works.

Published editions of works This category protects the typographical design and layout of publications such as books, magazines and printed music published in volume (hard copy) format. The copyright in the edition is separate from any copyright in the content of the publication (such as photographs, articles, music, video, sound recordings).

Broadcasts This category covers radio and television broadcasts, and protects the cost and skill involved in assembling, preparing and transmitting material to be broadcast. An internet simulcast of a radio broadcast is not a broadcast: PPCA v Commercial Radio (2013) 209 FCR 331. Neither is live streaming: WIN Corporation v Live Network Australia [2016] NSWSC 523 (28 April 2016). Again, the broadcast is protected separately from any copyright in the material that is broadcast.

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Requirements for copyright protection [12.30] Protection is

automatic Copyright protection does not depend on any formalities, and there is no system of registration of copyright in Australia. So long as certain conditions are met, material is protected from the moment it is made or put into a material form (for example, filmed or otherwise recorded, written down or saved in a digital file).

[12.40] Conditions for works The conditions that must be met for copyright protection in works are that: • the author was a qualified person – ie, a citizen or resident of Australia or a country belonging to an international copyright convention to which Australia is party – at the time of creating the work, or • the work was first published in Australia or a country belonging to an international copyright convention to which Australia is party, and • the work must be original. In the case of copyright in buildings, the building must also be in Australia.

Author The only definition of author in the Copyright Act clarifies that the author of a photograph is the person who took the photograph. In all other respects the concept of authorship is linked to originality – see below.

Originality As a general statement, to be original in a copyright sense means that the subject matter should be the product of the author’s skill or labour – ie, “originating” with the author. Compilations of data without evidence of clear independent intellectual effort may not satisfy this test, as was the case for electronic guides to the scheduling of television programmes: Nine Network Australia Pty Ltd v

Ice TV Pty Ltd (2009) 239 CLR 458 and telephone directories: Telstra Corporation Ltd v Phone Directory Company Pty Ltd (2010) 194 FCR 142. There must be sufficient “skill, judgment or labour” of “authorship” (as distinct from research) to satisfy the requirement that the compilation “originates” with a human author: Tonnex International Pty Ltd v Dynamic Supplies Pty Ltd (2012) 99 IPR 31.

[12.50] Conditions for subject

matter other than works The conditions for copyright protection of other subject matter are that: • for sound recordings and cinematograph films: – the maker was a qualified person (ie, a citizen or resident of, or body corporate incorporated in Australia or a country belonging to an international copyright convention to which Australia is party) at the time the recording or film was made, or – the recording or film was made in Australia, or – the recording or film was first published in Australia. • for broadcasts – they are made from a place in Australia by authority of a licence under the Broadcasting Services Act 1992 (Cth) or by the ABC or SBS. • for published editions – the first publication took place in Australia or the publisher was a qualified person at the date of first publication.

[12.60] Protection in other

countries As a result of international treaties to which Australia is party, in particular the Berne Convention, Australian copyright owners are protected in most other countries under the laws of those countries (including the US, the UK, Europe, China, Japan, India and Korea), and vice versa.

12 Copyright

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Who owns copyright? [12.70] The general rules

[12.80] Commissioned works

Copyright ownership other than government ownership of copyright can always be decided by agreement. If there is no agreement, the rules set out in the Copyright Act apply. The general rules are relatively straightforward, but there are several exceptions to them, as set out in this section. Except in the case of commissioned material (as to which see [12.80] below), material made in the course of employment (as to which, see [12.90] below) or for the government (as to which, see [12.100] below), or as varied by agreement, the owner of the copyright in a: • work is the creator. Where there is more than one creator and each person’s contribution cannot be separated from the contributions of the others, the work is considered to be a work of joint authorship and copyright is owned by all authors jointly. This has implications for how the work can be exploited: see [12.160] below • film – ie, in the footage and the sound recording that constitutes the soundtrack – is the maker (usually the producer). Since amendments made to the Copyright Act in 2005, directors of films made after 19 December 2005 are also considered to be a maker of the film in respect of the right of retransmission of a free-to-air broadcast of the film. This right is administered collectively by Screenrights: see [12.170] below • sound recording is the maker. The copyright in a sound recording of a live performance made since 2005 is owned by the maker together with the owner of the recording medium and any performers whose performances are recorded in it • broadcast is the broadcaster • published edition is the publisher.

and other subject matter Again, the provisions in the Copyright Act relating to ownership of copyright in commissioned works – as set out below – may be varied by agreement.

Photographs Ownership of copyright in photographs is determined by when the photographs were taken. If taken on or after 30 July 1998 the copyright owner in photographs for private or domestic purposes (such as weddings) is the client; for all other purposes (such as commercial shots) it is the photographer. For photographs taken between 1 May 1969 and 30 July 1998 the client is the copyright owner, although the photographer has the right to stop them from being used for a purpose other than their original purpose, if the purpose for which they were commissioned was known at the time – this is the photographer’s right of restraint. It is a weak right, which is very difficult to enforce in practice. For photographs taken before 1 May 1969, the client owns the copyright.

Portraits, engravings, recordings and films A person who commissions and pays for a portrait, an engraving, a sound recording or a film owns the copyright in it. Note, however, in the case of a sound recording or film, that the person only owns copyright in that particular recording or film, not in underlying materials such as music or the screenplay.

Other commissioned works In all other cases where copyright material is commissioned, the creator of the material is the first owner of copyright; any right the commissioning party may have to use the material will be by way of licence from the creator.

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[12.90] Employee creations Generally, if a creator is an employee (ie, not a freelance worker, independent contractor or volunteer) and the work is created in the course of their employment, the employer owns the copyright – subject to the exceptions that follow and if not varied by agreement.

Newspaper and magazine employees For works created before 1 May 1969, the employer owns all of the copyright but the employee has the right to stop their work being used other than in the newspaper, magazine or periodical for which they were employed to create the copyright material. For works created between 1 May 1969 and 30 July 1998, the employer owns the rights for newspaper and magazine publication and for broadcasting; the employee owns all other rights (for example, book publication rights). Since 31 July 1998, the position is that the employee owns book publication and photocopying rights, the employer owns the rest.

Film directors If a director makes a film as part of their employment by another person, the employer is a maker of the film for the purpose of retransmission of a free-to-air broadcast of the film, and neither the director nor their employer has any other copyright interest in the film.

[12.100] Material created for

government If copyright material is created or first published under the direction or control of a government agency, the government is the copyright owner. The expression direction or control is not defined in the Copyright Act, but it does apply both to government employees and also to contractors and freelancers working for the government. For copyright purposes, government means the executive government and includes State, Territory and Commonwealth government departments and their dependent bodies.

Local councils are not covered. They are in the same position as other organisations, such as companies. It is often unclear whether other bodies such as statutory authorities are government for these purposes. Legal advice on the question should be sought. Unless there is a written agreement that states otherwise, it is advisable to assume that any copyright in material that is created for a government is owned by the government.

[12.110] Material containing

multiple copyrights As set out above, many products contain separate underlying copyright materials. Each may have a different owner. For example: • a book contains copyright in the writer’s literary work, in the illustrator’s artistic work (if any) and in the publisher’s published edition • an anthology of illustrated short stories or poems will contain separate copyright in each literary and artistic work, the compilation (ie, the group of short stories or poems the editor selects) and the published edition • a website contains separate copyright in the literary works (text, tables) and artistic works (photographs, drawings, cartoons, graphs), film, musical work and sound recording embedded in the website; the underlying computer programs (source code and computer files) and probably, the layout as a published edition • a CD played on the radio will likely involve copyright in the recorded music, the recorded lyrics, the sound recording and the broadcaster’s programming.

[12.120] Proving copyright

ownership Disputes about copyright ownership are rare. However, if you own copyright because you created material in which copyright subsists, you could prove it by calling

12 Copyright

witnesses who know you created it, and by producing your original drafts, manuscripts and working notes. The Copyright Act also contains certain presumptions that make ownership easier to prove in certain circumstances. These include registering copyright in a country that has a system of copyright registration (such as the United States) or – and this is much more straightforward – using the copyright

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notice, ie: the symbol © (or the word copyright), the author’s name, and the year of creation or first publication; for example, © Matilda Rose 2016. It is a good idea to use the copyright notice to alert people to the fact that the material is protected by copyright, and to let them know who claims to own the rights. For sound recordings, use the ℗ symbol instead of ©.

Rights of copyright owners [12.130] Copyright is a bundle

of rights Copyright owners have certain exclusive rights to exploit their material. These rights vary according to the nature of the material in which their copyright subsists. All of the rights involve copying of some kind.

Artistic works Copyright in artistic works comprises the following rights. Reproduction in a material form covers all copying, including by hand, photocopier, recording, film, print out, scanning or storage in a computer retrieval system. Publication means making the work publicly known in Australia for the first time, in any form. The concept of “publicly” means, essentially, not private, rather than the public at large. Communication includes emailing, texting and broadcasting material, and uploading it to digital formats including websites, blogs, apps and other platforms. It is intended to be a technologically neutral term, so that new ways of disseminating copyright materials always come within the statutory regime. In the case of paintings, perhaps the most common commercial exploitation – their public display – is not a right comprised in the bundle of rights that forms copyright, as no copy is made. The owner of a painting (who usually is not the owner of the copyright in it) is entitled to display it in public without the copyright owner’s

permission. However, they would require the copyright owner’s permission to reproduce the painting or communicate it to the public, unless one of the exceptions to infringement applies: see [12.200] below.

Literary, dramatic and musical works Owners of copyright in these works enjoy the same rights as owners of copyright in artistic works, and the following additional rights. Performance in public covers both live and recorded performances, and includes band performances, concerts, recitals and playing records and CDs in public places, including by way of background music. Public in this context means non-domestic situations including workplaces and shops, restaurants, halls, pubs and clubs. Adaptation includes: • for literary works, a translation or dramatised version • for dramatic works, a translation or novelised version • for musical works, a transcription or arrangement. The owners of copyright in computer programs and works contained on sound recordings and computer programs (eg music) also own the legal right to exploit and control their commercial rental.

Other subject matter Owners of copyright in films, sound recordings and broadcasts have exclusive rights over: • copying (such as off-air taping and direct duplication)

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• screening in public (this does not apply to broadcasts) • communication to the public (as described above). Owners of copyright in sound recordings also own the legal right to exploit and control their commercial rental.

The owner of copyright in published editions enjoys relatively limited rights: the exclusive right to make facsimile copies of the edition (such as by offset printing or photocopying).

Duration of copyright [12.140] Works Until 1 January 2005, the general rule was that copyright in works lasted for the life of the author plus 50 years. As a result of Australia’s obligations under the AustraliaUnited States Free Trade Agreement, this was increased to life of the author plus 70 years. However, copyright can last longer. For example, if a literary work (apart from a computer program) or a dramatic or musical work is not published during the author’s lifetime, copyright subsists for 70 years from the date of first publication, or from when records of the work are first offered for sale, whichever occurs first.

In the case of works of joint authorship, copyright subsists for 70 years after the death of the longest living author.

[12.150] Other subject matter Copyright in sound recordings and film subsists for 70 years from the end of the calendar year in which they were first published. Copyright in broadcasts subsists for 50 years from the end of the calendar year in which they were first made. Copyright in published editions subsists for 25 years from the end of the calendar year in which they were first published.

Dealings with copyright [12.160] Commercialisation Copyright is an essentially commercial right that may be sold or licensed, like any other property right. Because it comprises a bundle of rights, copyright may be exploited by reference to territory, term and specific use. Because it is an exclusive right, the owner may enforce their rights against any infringing use made of them: see [12.190] below. Where copyright is owned jointly, all owners must agree to the exploitation of the material. Therefore, it is in the interests of both owners and users of copyright that agreements to exploit copyright material are negotiated, and written.

Assignments The Copyright Act provides that an assignment of copyright must be in writing and signed by or on behalf of the copyright owner. However, apart from these two elements, no other formality is required. Assignments may be of the entire copyright, or they may be limited, for example, to: • particular rights (for example, publication only) • particular territories (for example, the UK) • a specified time (for example, two years). Assignments may also be retrospective – ie, effective from the date the copyright material was created, no matter when the assignment is recorded in writing signed by or on behalf of the copyright owner.

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Licences A copyright licence is a grant of permission to use copyright material in one of the ways reserved to the copyright owner without changing its ownership. It is the most common means of exploitation of copyright. Licences may be exclusive or non-exclusive and non-exclusive licences may be express (ie, written or agreed by discussion) or implied by the circumstances. By granting an exclusive licence the copyright owner gives the licensee the sole use of the right or rights involved. To be effective, an exclusive licence must be in writing and signed by the copyright owner – the requirements are exactly the same as for assignments. Also as applies to assignments, an exclusive licence of copyright can be limited by reference to rights, territories and duration. For example, an author who grants a publisher exclusive magazine publication rights in Australia for 15 years cannot give those rights to anyone else in Australia within that term, but could license the same rights to another party for the United Kingdom for any length of time in which copyright subsists, to someone else in Australia at the end of the term, and communication rights to anyone, anywhere for any length of time in which copyright subsists in the work. Non-exclusive licences do not have to be in writing, but for practical reasons they should be. Granting a non-exclusive licence enables the copyright owner to license the same rights to more than one person at the same time. For example, if an author grants a magazine publisher a non-exclusive licence to publish an article in a magazine, they can offer a licence of the same article to another magazine publisher in the same (or a different) territory for the same (or a different) term. Non-exclusive licences can be implied by the circumstances, even if the copyright owner has not expressly granted the rights. The test for implying terms is a tough one – essentially, that it “goes without saying” that such a term would be implied into the agreement in question.

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Disputes about the scope of a copyright licence arise quite commonly so it is strongly recommended that the licence be put in writing at the outset. For example, a person who commissions a graphic designer to create a logo for their business stationery will have the right to use the logo for that purpose, even if there is no written agreement and the designer has not granted permission in so many words. But if the client wants to use the logo for other purposes (such as on their website or in a television advertisement), further permission might be needed, and the designer is entitled to refuse permission, or to charge a premium for granting a licence for the additional use.

[12.170] Collective

administration of copyright Because copyright material is so widely, and variously, used, individual licensing of copyright is often impractical. To ensure that copyright is exploited lawfully in situations where significant amounts and types of copyright material are used, copyright collecting societies represent copyright owners rights collectively. In particular, collecting societies administer the statutory licences contained in the Copyright Act that allow governments and educational institutions to copy within certain limits in return for a fee, and enter into voluntary agreements, such as for radio broadcast, public performance and the digital licensing of music from online music and movie stores, including Spotify, iTunes, Pandora and Google Music. Each collecting society represents owners of copyright in specific categories of work or other subject matter and has affiliations with similar organisations around the world to enable the collection of royalties for exploitation of Australian copyright internationally, and of international copyright in Australia.

APRA AMCOS APRA (Australasian Performing Right Association) administers the rights to public performance and communication to the public (including radio and television

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broadcasting, online and in live performance) of musical and associated literary works. On becoming a member of APRA, copyright owners (usually composers, songwriters or music publishers) assign these rights to APRA. A person or organisation wanting to use their music must obtain a licence from the association, which distributes the fees it collects to its copyright owner members. AMCOS (Australasian Mechanical Copyright Owners Society) is the collecting society responsible for administration of the reproduction right in musical and associated literary works – that is, copying of works to sell on CD, DVD, online, and for use as production music and in radio and television programmes. APRA and AMCOS have been a single organisation since 1997.

Copyright Agency Copyright Agency represents owners of copyright in literary, dramatic, musical and artistic works such as authors, songwriters, illustrators and publishers. It administers the schemes in the Copyright Act for the use of these types of material by educational institutions, and institutions assisting people who have a print or intellectual disability. Copyright Agency also offers voluntary copying licences to commercial entities. Under the educational statutory licence schools, universities and colleges can make multiple copies of works for educational purposes without having to obtain permission from every copyright owner whose work is copied. They can, for example, make works available online, and in course packs to their students and staff. In many cases, there are limits on the amount of commercially available material that can be copied, and procedures that must be followed. The institution pays a licence fee to Copyright Agency, which then distributes the money to the relevant copyright owners. Copyright Agency also administers a significant proportion of copying by government and offers voluntary licences to other organisations such as companies, non-profit

organisations, copying services and media monitoring companies.

Viscopy Copyright Agency manages Viscopy, the collecting society for visual artists. Viscopy offers licences of the copyright in artistic works to, for example, advertising agencies, film production companies and book publishers. Viscopy represents over 10,000 Australian and New Zealand artists and over 40,000 international artists through collecting societies in other countries. Copyright Agency also administers the resale royalty scheme for visual artists, which came into effect on 9 June 2010. The royalty is payable, under the Resale Royalty Right for Visual Artists Act 2009 (Cth), on certain resales of original works of art.

PPCA PPCA (Phonographic Performance Company of Australia) performs a similar function to APRA, for copyright owners in sound recordings. A licence from both APRA and PPCA is usually needed before recorded music (records, tapes, CDs, digital music files) can be played in, or communicated to, the public.

Screenrights Screenrights (the Audio-Visual Collecting Society) administers the statutory licences under which educational institutions in Australia and New Zealand, and Federal and State government departments, are entitled to copy from radio and television. The collected fees are distributed to the copyright owners. See the end of this chapter for the contact details of these organisations.

[12.180] Bequests Being a property right, copyright forms part of a person’s estate, and is dealt with in the same way as other personal property. If there is no will, copyright is inherited according to intestacy laws – laws that apply when someone dies without leaving a will. Therefore, where copyright will form an important part of an estate, consideration

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should be given to appointing someone such as a literary executor. For more information, see Chapter 40 ([40.10] Wills, Estates and Funerals) or con-

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tact the Arts Law Centre of Australia, which offers a will writing service to indigenous artists.

Infringement of copyright [12.190] What is

infringement? Unless an exception or defence applies, anyone who uses, or authorises someone else to do any act that is comprised in the copyright in a work or other subject matter, without the permission of its owner infringes copyright. It is also an infringement of copyright to: • deal commercially with pirated (ie, infringing) material • import certain copyright material (including books, sheet music, art prints and films) for commercial purposes • permit a performance or screening to take place in a public place or venue if permission has not been obtained from all relevant copyright owners. There is no exception or defence on the ground that the copyright owner is difficult to locate. However, because collective licensing is common in the copyright industries, as set out at [12.170] above, getting permission is often easier than it might seem. See the Australian Copyright Council’s information sheet Permission: How to Get It.

Authorisation A person who has the power or capacity to prevent copyright infringement and fails to take reasonable steps to do so authorises the infringement and thereby also infringes copyright. In Cooper v Universal Music Australia Pty Ltd (2006) 156 FCR 380, the Full Court of the Federal Court held that providing links from the website mp3s4free.net was sufficient to establish copyright infringement by authorising the copying and communication of copyright-protected songs against the website’s owner and operator, the ISPs and the director of the ISPs who hosted the website.

The mp3s4free.net website did not contain any music files, but it was structured to allow users to access copyright-protected music files that were directly transmitted from a remote server via hyperlinks. The court also found that legal disclaimers on the site were ineffectual, as it was clear that the purpose of the links was to assist users to download the infringing music files. On the other hand, in Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42 the full bench of the High Court upheld the decision of the majority of the Full Court of the Federal Court, which had affirmed the finding at first instance that, even though an ISP had the power to suspend the accounts of its subscribers, it would impose a heavy economic burden on the ISP and would shut down legitimate non-infringing uses to do so, and therefore was not a “reasonable” step that the respondent was required to take.

Substantial part Infringement of copyright is not limited to exact copying. Attempts to avoid claims of infringement by making changes to a work are rarely successful. The test for infringement is whether a substantial part of the whole of the work or other subject matter has been reproduced. The test is an objective one of “impression and degree”, with both qualitative and quantitative elements. So a very small amount of something that is highly distinctive may infringe copyright – for example, two bars of music from “Kookaburra sits in the Old Gum Tree” reproduced in the Men at Work song “Down Under”: EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 191 FCR 444.

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On the other hand, where the copyright material has a functional purpose, or is “a means to an end” – such as architect’s plans, which are protected as artistic works – the court will scrutinise whether the part taken represents a substantial part of the skill and labour that determines the originality that is a necessary condition of copyright protection in the first place: Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378. In making this determination courts focus on the similarities rather than the differences between the material in question.

[12.200] What is not

infringement Fair dealing There are some specific situations in which what would otherwise constitute an infringement of copyright of a work or adaptation is considered to be a fair dealing. These situations are: • research or study • criticism or review • reporting the news • advice given by a legal practitioner, registered patent attorney or registered trade marks attorney • parody or satire. The use has to fall within one of these categories and also be fair. The concept of fairness includes considerations such as: • the purpose and character of the dealing • the nature of the work or adaptation • the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price • the effect of the dealing on the potential market for, or value of the work or adaptation • where only part of the work is reproduced – the amount and substantiality of the part copied in relation to the whole. The fair dealing provisions in the Copyright Act are complex and detailed and the very little case law that has considered them does not provide a clear enunciation of their application: for example, in TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (2002) 118

FCR 417 (the Panel case) whilst the three judges agreed in principle, each applied the fair dealing defences of “criticism or review” and “reporting the news” differently. The fair dealing exceptions should not be relied on in the absence of specialist legal advice.

Personal use The following copying of copyright material solely for private and domestic use without the permission of the copyright owner is permitted under the Copyright Act: • recording from radio to listen to, and television to watch at a later time (“time shifting”) • copying books, newspapers, periodicals, photos and videos that you own into a different format (“format shifting”) • copying sound recordings into any format so you can listen to the recording in different places – for example, copying a CD so you can have a copy to listen to in your car and another on your computer at home. A private use copy can be used inside or outside domestic premises, but only if the copy is made from a noninfringing copy of the music that is not a podcast of a broadcast or program, for use on a device that the person making the copy owns. There is no “private copying” for computer games.

Special purposes Libraries, archives, educational institutions and people with disabilities are subject to their own provisions in the Copyright Act.

Importation Certain articles can be imported without permission, provided that making them did not infringe copyright in the country in which they were made (ie, they are not pirate versions). These are: • non-infringing sound recordings (such as CDs) • items containing non-infringing computer programs (including computer games) • non-infringing e-books and notated music in electronic form

12 Copyright

• items whose packaging or instruction manuals include copyright material. Non-infringing books that are not available in Australia can also be imported without permission.

Other miscellaneous exceptions There are several other exceptions to infringement of copyright scattered throughout the Copyright Act – for example, filming or photographing sculptures and buildings on permanent public display, making backups of computer programs and the public performance of a work by way of television, radio or record player to hotel guests. See the Australian Copyright Council’s information sheet Exceptions to Copyright.

[12.210] Enforcement of

copyright Copyright is enforced by bringing an action in a court. However, most copyright-related disputes are resolved without court action.

Copyright proceedings Where the parties cannot resolve a dispute by agreement, an owner or exclusive licensee of copyright may bring proceedings in a State Supreme Court, but will much more commonly do so in the Federal Court of Australia or the Federal Circuit Court of Australia. In urgent matters, a court may grant interlocutory relief – orders made before the final hearing – usually, an injunction that preserves the status quo and prohibits further infringement pending the outcome of the trial. Final orders a court can make include: • compensation for loss to the copyright owner (damages) and orders for additional payment in appropriate circumstances, where the infringement is flagrant (additional damages), or • at the election of the copyright owner, payment of the profits made by the infringer due to the infringing activity, and • orders to prohibit further infringement.

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Criminal proceedings Some acts of infringement – generally those with a significant commercial element, such as making or importing pirate copies for distribution or sale, or commercial dealings in devices or services designed to circumvent technological protection measures (TPM), see [12.230] below – are also criminal offences, prosecutable by the police and, in the case of suspected infringing goods being imported into Australia, subject to seizure by the Australian Customs Service. There are also statutory offences for other acts which prejudice the economic rights of the copyright owner, such as unauthorised access to encoded broadcasts, abuse of electronic rights management information and circumventing TPMs. There are three levels of offences: indictable offences for serious crimes, summary offences for less serious crimes and strict liability for lower level offences. On-the-spot fines are available for certain strict liability offences such as those committed by street stall operators and first-time offenders. Criminal prosecutions can be brought in the Federal Court or any other court of competent jurisdiction. However, the Federal Court cannot hear prosecutions for indictable offences. For more information see the Australian Copyright Council’s information sheet Infringement: Actions, Remedies, Offences, Penalties.

[12.220] Setting equitable

remuneration Statutory licence fees and voluntary blanket licence schemes under the Copyright Act are the subject of negotiation between copyright collecting societies and licensees. If these negotiations break down, either party can approach the Copyright Tribunal. The Tribunal is not a court, so its role is not one of enforcement. It is an independent body whose processes are governed by the Copyright Act. Its jurisdiction is to set the rates and terms of equitable remuneration for statutory licences, and reasonable charges and conditions of voluntary licence schemes.

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Technological measures for copyright protection [12.230] Mechanisms In addition to bringing infringement proceedings in a court, there are several (cheaper) ways of protecting copyright in online content by the use of TPMs, including: • using electronic rights management information, which involves the insertion of information identifying the copyright owner and specifying the terms of use of the work • incorporating a digital watermark into the work • restricting access to protected material such as by software lock or password protection • making protected material accessible only on payment of a fee or acceptance of contractual terms of use • encrypting protected content. The circumvention of TPMs may be unlawful, as set out in ss 116AK–116D of the Copyright Act.

[12.240] Performers' rights Since 1989, performers including dancers, street buskers and circus acts, have had rights to control direct and indirect unauthorised recording, filming and communication to the public (such as broadcast and internet transmissions) of their live performances. Depending on the medium, the protection period starts on the date of the performance and lasts for either 50 years (in the case of an unauthorised sound recording of a live performance) or 20 years (for an unauthorised film of a live performance). Certain performances are exempt, for example, reading the news, playing sport and participation as a member of an audience. Also, certain uses are exempt, for example, a performer cannot rely on these provisions to prevent recording or filming for solely private and domestic uses.

Performers’ rights to their live performances are separate from any copyright in the film or sound recording made of the performance, or of any other work which might be associated with the performance, for example, the song that is performed. For more detailed information on the rights of performers see the Australian Copyright Council’s information sheet Performers’ Rights.

[12.250] Moral rights Moral rights are personal rights that belong to creators in relation to their work. Unlike copyright, these rights are non-economic – they cannot be assigned, licensed or bequeathed as copyright rights can be.

Outline of the rights The protection of moral rights in Australia was established through amendments to the Copyright Act made in 2000 and fall into two broad categories: • rights of attribution – the creator’s right to be named on their work and to object to certain false attributions • the right of integrity – the creator’s right to object to alterations, modifications and other treatment of their work that may be damaging to their honour or reputation.

Works Moral rights apply to all copyright works existing on and after 21 December 2000, and last for the term of the copyright in the work.

Films Each of the principal director, producer and screenwriter has moral rights in films made after 21 December 2000. The screenwriter will also have separate moral rights in the screenplay.

12 Copyright

Performers Performers who make sounds as part of a live performance that is recorded in a sound recording and is communicated to the public have moral rights in performances given or recorded on or after 26 July 2007. Performers do not enjoy moral rights in performances that are filmed.

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Performers’ moral rights last, in the case of: • rights of attribution, until the end of the term of the copyright • the right of integrity, for the performer’s lifetime.

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Contact points [12.260]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au. Arts Law Centre of Australia

Australian Copyright Council

IP Australia

www.artslaw.com.au

www.copyright.org.au

www.ipaustralia.gov.au

ph: 1800 221 457 or 9356 2566

ph: 9101 2377

ph: 1300 651 010 or 6283 2999

[email protected]

[email protected]

Ministry for the Arts

Australasian Legal Information Institute (AustLII)

Australian Society of Authors (ASA)

www.arts.gov.au

www.austlii.edu.au

www.asauthors.org

Australasian Performing Right Association (APRA)

ph: 1800 257 121 or 9211 1004

Phonographic Performance Company of Australia (PPCA)

www.apraamcos.com.au music creators: ph: 1800 642 634 or 9935 7900 [email protected] music customers:

queries relating to publishing, contracts, copyright and legal matters: [email protected] general enquires: [email protected]

ph: 1300 852 388

Copyright Agency

[email protected]

www.copyright.com.au

general enquiries:

ph: 1800 066 844 or 9394 7600

ph: 9935 7900

[email protected]

[email protected]

ph: 6271 1000

www.ppca.com.au ph: 8569 1100 [email protected] Screenrights www.screenrights.org ph: 9904 0133 Viscopy www.viscopy.net.au ph: 1800 066 844 or 9394 7600 [email protected]

13 Credit Dana Beiglari Solicitor, Legal Aid NSW Rebekah Doran Solicitor, Legal Aid NSW Jemima McCaughan Solicitor, Legal Aid NSW Stephanie Otorepec Adviser, Office of the Australian Information Commissioner

Contents [13.10]

Consumer credit and the protections available

[13.10] [13.30] [13.40] [13.120] [13.160] [13.170]

Consumer credit protections Licensing requirements Disclosure obligations Responsible lending Fees and interest During the contract: protections

[13.220]

Various other protections

[13.270]

Protections under the credit law for related guarantees, mortgages and insurance contracts

[13.300]

Protections where a consumer defaults

[13.340] [13.380] [13.460] [13.590]

Disputes Pawnbrokers Credit reporting Debt collection (including by credit providers)

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Consumer credit and the protections available Consumer credit protections [13.10] Overview of the

national credit law Since 1 July 2010 Australia has had national regulation of consumer credit. The national regime is found in the National Consumer Credit Protection Act 2009 (NCCP Act) and the National Credit Code (NCC), Schedule 1 of the NCCP Act. Together they are referred to as “the credit law”. The Australian Securities and Investments Commission (ASIC) is the sole regulator of this law. The credit law adds to the existing protections for consumers accessing financial products available under the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act), remedies for unjust contracts found in the Contracts Review Act 1980 (NSW), standards set out in industry Codes of Practice and the terms of reference for ASIC approved external resolution schemes. If you have a dispute 1. For specific information about what you can do if you have a dispute about credit, see the section entitled Disputes at [13.340]. If a default notice or Statement of Claim has been served you need to act urgently. 2. Always consider using an external dispute resolution (EDR) scheme. All those involved in the business of credit under the credit law must be a member of an EDR scheme. There are only two such schemes – the Financial Ombudsman Service (FOS) and the Credit and Investments Ombudsman CIO). For more information on EDR see Disputes at [13.340] and Contacts points at [13.670]. All collections and enforcement action must stop once a complaint is made to an EDR scheme.

Types of contracts covered by the National Consumer Credit Protection Act 2009 The credit law applies to a wide range of consumer credit products. Primarily, it applies to credit contracts (where a debt from one person to another is deferred, or a person incurs a deferred debt) if: • the debtor is a natural person or strata corporation, and • the credit is provided or intended to be provided wholly or predominantly for personal, domestic or household purposes; or to purchase, renovate or improve residential investment property after 1 July 2010, and • a charge is made for providing credit, and • the credit is provided in the ordinary course of a credit provider’s business (NCC, s 5). The definition of contract includes a series or combination of contracts or arrangements (s 204). The credit law also applies to guarantees (see [13.280]) and mortgages (see [13.270]) that secure obligations under a credit contract (see ss 7–12 for definitions). Consumer leases are the other type of contract regulated by the credit law. Consumer leases are contracts for the hire of goods by a natural person or strata corporation where the person or corporation does not have a right or obligation to own the goods. Consumer leases are regulated by the credit law if: • the goods are hired primarily for a personal, domestic or household purpose, and • a charge is made for the hire that exceeds

13 Credit

the cash price of the goods, and • the lessor who hires out the goods does so in the course of a business of hiring goods, or incidental to any other business carried on by the lessor (NCC, s 170). These credit contracts, consumer leases, mortgages and guarantees are referred to collectively as “regulated contracts”. The credit law is presumed to apply to a contract (s 13). This means that if a party asserts that the credit law does not apply, the burden is on that party to prove their assertion. As the NCCP Act came into operation on 1 July 2010 it applies to contracts signed on or after that date. Contracts entered into in NSW prior to 1 July 2010 were regulated by the more limited state-based Uniform Consumer Credit Code which can be enforced via the credit law through complex transitional arrangements. Legal advice may be required for disputes relating to these contracts.

Types of credit not covered by credit law Despite its wide application, the national credit law does not apply to the following types of credit: • business loans • investment loans for investments other than residential real property (eg shares, commercial property) • short-term credit of less than 62 days, but only where maximum fees and charges do not exceed 5% of the loan amount and the interest rate does not exceed 24% per annum (NCC, s 6(1)) • credit provided without prior arrangement (for example an overdrawn cheque account where there is no agreed overdraft facility) (s 6(4)) • credit for which only the account charge is payable (s 6(5)) • joint credit and debit facilities (s 6(6)) • insurance premiums paid by instalments (s 6(8)) • pawnbrokers (except for the unjust transaction provisions of the NCCP Act) (s 6(9)) • trustees of estates, where the trustee advances money to a beneficiary or pro-

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spective beneficiary (except for the unjust transaction provisions) (s 6(10)) • employee loans, unless the employer provides credit as part of its business, and the loan to the employee is not on more favourable terms than the employer’s ordinary terms to non-employees (s 6(11)) • margin loans (s 6(12)) • consumer leases that are for less than four months or an indefinite period (s 171(1)) • consumer leases that are employment related such as car loans as a fringe benefit (s 171(2)). Further, the National Consumer Credit Protection Regulations 2010 (Cth) (NCCP Regulations) to the NCCP Act may exclude the provision of certain other types of credit from the NCC (s 6(13)). Other protections may still be available even if the credit law doesn’t apply.

Banned credit Since 1 March 2013 short term credit contracts have been prohibited (NCCP Act, s 133CA). Short term credit contracts are contracts where the credit provider under the contract is not an authorised deposittaking institution (ADI), the credit limit of the contract is $2,000 (or such other amount as is prescribed by the NCCP Regulations) or less, the term of the contract is 15 days or less, the contract is not a continuing credit contract and meets any other requirements prescribed by the NCCP Regulations.

[13.20] Overview of other

consumer credit protections ASIC Act 2001 In addition to the credit law, the key piece of legislation regulating financial products and services is the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) (see ss 12BAA and 12BAB of the Australian Securities and Investments Commission Act 2001 for the formal definitions of financial product and service). The ASIC Act is less restrictive than the credit law in terms of the type of credit that is regulated. This means that if a contract entered by the consumer is not regulated by the credit law, the

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consumer is still likely to be protected by the ASIC Act. Key protections in the ASIC Act are that, when engaging in trade or commerce in relation to financial services, a person must not: • engage in unconscionable conduct (Australian Securities and Investments Commission Act 2001, s 12CA) • engage in conduct that is misleading or deceptive or is likely to mislead or deceive (s 12DA) • engage in conduct that is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quality of any financial services (s 12DF) • make false or misleading representations (ss 12DB and 12DC), including representations: – that services are of a particular standard, quality, value or grade – about the need for a particular services – about the price of any particular services. The ASIC Act also provides protection against unfair terms in standard form contracts entered on or after 1 July 2010 where the consumer is a natural person and the financial services are wholly or predominantly for domestic, personal or household use (ASIC Act, s 12BF). A term of these contracts will be void if it is found to be unfair. A term will be unfair if: • it would cause a significant imbalance in the parties’ rights and obligations arising under the contract, and • it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term, and • it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on (Australian Securities and Investments Commission Act 2001, s 12BG(1)).

Contracts Review Act 1980 The state-based Contracts Review Act 1980 (NSW) (CRA) also provides an avenue for a consumer to apply for compensation or to have their contract varied or set aside if the contract is unjust – meaning that it is harsh,

oppressive or unconscionable. A consumer cannot apply for relief under the CRA if the contract was entered for the purpose of a trade, business or profession carried on, or proposed to be carried on by the person unless it is a NSW farming undertaking. More detail about unjust contracts at [13.260].

Industry Codes of Practice and EDR Terms of Reference or Guidelines Many credit providers have agreed to be bound by industry Codes of Practice. These can provide additional rights for consumers in addition to the operation of the credit law. The Codes of Practice include: • Code of Banking Practice (for banks) • Customer Owned Banking Code of Practice (for credit unions and building societies) • Mortgage & Finance Association of Australia Code of Practice (mortgage managers, non-bank lenders and finance brokers). The Codes of Practice outline the commitments of industry in relation to a range of matters including the provision of documents, dealing with vulnerable consumers and the operation of direct debts and chargebacks. You can obtain a copy from the industry association websites (see Contact points at [13.670]). EDR schemes take the Codes of Practice into consideration when determining whether a credit provider has complied in good industry practice. EDR schemes also have their own Terms of Reference and Guidelines with which they expect their members to comply as a condition of their membership.

Common law The common law of contract also applies to activity regulated under the credit law. For example, a consumer may have a right to claim damages or rescind a contract where misrepresentations have been made in relation to it, where there is fraud or mistake, or where there was some unfair conduct or undue influence when the contract was entered into.

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Licensing requirements [13.30]

A person who engages in credit activity must hold an Australian Credit Licence (ACL) issued by ASIC. A person engages in a “credit activity” if, among other things, they are a credit provider, lessor or broker of a contract that is regulated by the credit law (see NCCP Act, s 6 for the formal definitions). This means that credit providers, brokers (known as credit assistance providers), household rental companies and their intermediaries must all be licensed with ASIC or have been appointed as “authorised credit representatives” (NCCP Act, s 64) by a licensee. It is an offence to engage in credit activity without a credit licence (NCCP Act, s 29) and criminal penalties can be imposed. Credit representatives are people who are authorised to engage in specified credit activities on behalf of the licensee. This appointment must be in writing and registered with ASIC. There are certain limitations on these appointments (National Consumer Credit Protection Act 2009, ss 64 and 65). Credit representatives are not required to hold their own ACL. You can search online registers on ASIC’s website for companies that hold an ACL or are a registered credit representative of an ACL holder.

Credit assistance Traditionally finance brokers have helped consumers who are trying to arrange credit. The credit law does not refer to “finance brokers” or “finance broking”; instead it uses the terms “credit assistance providers” and “intermediaries”. Credit assistance is where a person suggests that the consumer apply for a credit contract or consumer lease, increase their credit limit on a credit contract and/or assists the consumer to do this, including suggesting that they remain in a particular credit contract or consumer lease. Those engaging in credit assistance are also required to hold an ACL.

Credit assistance or authorised credit representative? A credit assistance provider is someone who arranges credit or suggests a certain product, which is ultimately approved and accepted by a credit provider, whereas an authorised credit representative acts on behalf of a credit provider such that they can be authorised to enter into contracts on their behalf. The scope of work for a credit assistance provider or authorised representative can make them look very similar. Search ASIC’s online registers for licensees and credit representatives if you want to find out. The search will outline the limits of their licence as a “credit provider” or “other than a credit provider”.

Exemptions from holding an Australian Credit Licence There are a number of exemptions to the requirement to hold an Australian Credit Licence (ACL) in Pt 2.4 of the NCCP Regulations. One important exemption is for certain “point of sale” credit assistance providers (see NCCP Regulations, regs 23 and 23A). An example is where a store clerk provides a customer with information about a loan on behalf of the credit provider for the purpose of purchasing goods in the store. In point of sale settings, the credit provider is still bound by the NCCP Act, including requirements regarding disclosure and responsible lending, however the retailer and store clerk will not be required to be a credit representative or credit assistance provider. Financial counsellors, who provide counselling and advocacy services predominantly for the purpose of assisting individuals who are in financial difficulty to resolve their problems, are also exempt from the requirement to hold an ACL (NCCP Regulations, reg 20).

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Conditions that must be followed under an Australian Credit Licence Credit licensees must follow the licensing requirements set out in s 47 of the NCCP Act. Significantly for consumers, licensees must among other things: • have internal dispute resolution procedures that comply with conditions made or approved by ASIC • be a member of an ASIC approved external dispute resolution scheme (see [13.350])

• comply with the credit laws and any conditions of their ACL, and • act in a way that is efficient, honest and fair. The internal dispute resolution procedures created by ASIC are set out in the ASIC Regulatory Guide 165. This includes details of the systems a licensee must have in place and how quickly an internal dispute resolution complaint should be handled.

Disclosure obligations [13.40]

This section deals with the precontractual disclosure requirements under the credit law for credit contracts and consumer leases. It also deals with what must be in the contract itself. For disclosure requirements for mortgages and guarantees see [13.270] and [13.280]. Prior to entering a credit contract the consumer must be provided with: • a Credit Guide • an information statement as required by the NCCP Regulations about the debtor’s statutory rights and obligations (NCC, s 16(1)) • a pre-contractual statement setting out the matters required to be included in a contract under s 17 of the NCC. This pre-contractual statement may be the proposed contract document (NCC, s 16(1)) • a quote for credit assistance, where a credit assistance provider is involved (NCCP Act, s 137) • for credit cards, and in certain circumstances standard home loans, a Key Facts Sheet must also be provided. Consumers can seek compensation for a loss suffered as a result of the failure of the credit provider or credit assistance provider to comply with its key disclosure requirements. In some cases, ASIC or the consumer can also seek civil or criminal penalties through the courts.

[13.50] Credit Guide Credit contracts and consumer leases As soon as it becomes apparent to a credit provider that it is likely to enter a credit contract with a consumer it must as soon as practicable provide a Credit Guide to that consumer (NCCP Act, s 126(1)). This Credit Guide must be in writing, specify the licensee’s name and contact details, their Australian Credit Licence number, certain information about the credit provider’s internal and external dispute resolution procedures, and their responsible lending obligations to advise the consumer in writing of the prohibition on the credit provider entering into, or increasing the credit limit of, unsuitable credit contracts and about their obligation to provide a copy of their assessment if requested (s 126(2)). Consumer lease providers must provide a Credit Guide in similar terms as soon as practicable after it becomes apparent that the consumer lease provider is likely to enter a lease with the consumer (NCC, s 149).

Credit assistance providers Credit assistance providers must also provide consumers with a Credit Guide as soon as it becomes apparent that it is likely they will provide credit assistance to a consumer in relation to a credit contract (NCCP Act, s 113(1)). Like a credit provider, it must be in writing, specify the licensee’s name and

13 Credit

contact details, and their Australian Credit Licence number. It must also set out information about any fees, commissions or charges payable by the consumer and the method by which they are worked out. It must also contain the names of the six credit providers that they conduct the most business with (or if fewer than six, then just those names), and information about the credit assistance provider’s internal and external dispute resolution procedures. Like a credit provider, it must advise the consumer about the prohibition on suggesting or assisting with unsuitable credit contracts and secondly about its obligation to provide a copy of its preliminary assessment if requested (s 113(2)).

[13.60] Information statement Before signing a credit contract, or before the consumer offers to enter into a contract, whichever occurs first, the credit provider, must give the consumer a statement informing the borrower of their statutory rights and obligations in accordance with the NCCP Regulations (NCC, s 16). The statement appears as the Prescribed Form No. 5 in Schedule 1 of the NCCP Regulations. A particular form applies for reverse mortgages (NCCP Regulations, reg 5A) (refer to [13.250] for the definition of reverse mortgages). A similar statement must be provided in relation to consumer leases, however the provider has 14 days from the date the contract was entered to provide the statement to the consumer (NCC, s 175(1)). The statement appears as the Prescribed Form 17 in Schedule 1 of the NCCP Regulations.

[13.70] Pre-contractual

statement for credit contracts A pre-contractual statement must also be provided before the contract is signed or before the consumer offers to enter into a contract, whichever occurs first (NCC, s 16). The statement must disclose at least the information required by the NCC, s 17 (see [13.110] below).

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The consequence of failing to disclose information will vary depending upon what is not disclosed. Some of the required disclosures are called key requirements. In all cases the consumer can claim any loss caused by the lack of disclosure, but a civil penalty can only be imposed if there is a failure to disclose a key requirement. The maximum penalty that can be imposed for breach of a key requirement is usually all interest charges under the contract and any other loss (NCC, s 114). For credit contracts, key requirements are those set out in ss 17(3)–17(6), 17(8) (though under s 17(8) only for retained credit fees and charges and not for failing to disclose the total amount of fees and charges payable), ss 17(9), 17(11), 17(15)(a) and (b), and also a breach of s 23(1) which prohibits certain fees and charges (all references are to the NCC); see above for descriptions of these subsections. For continuing credit contracts, key requirements are those set out in the following NCC sections: ss 17(3)(b), 17(4), 17(5), 17(8) (again for s 17(8) only for retained credit fees and charges and not for failing to disclose the total amount of fees and charges payable), ss 17(9), 23(1) which prohibits certain fees and charges, s 34(6) which requires statements of account to include certain interest charge information and s 35 which requires that the opening balance must not exceed the closing balance of the previous statement. There are different key requirements for consumer leases (see [13.50]).

[13.80] Quote for credit

assistance providers Where a credit assistance provider is involved, they must first provide a quote before providing credit assistance (NCCP Act, s 114(1)). The quote must be in writing, specify the services that it covers, the maximum amount that will be payable including the maximum amount of fees and charges payable to others, state what will be payable if the credit contract is not entered or the credit limit not increased, must be signed and

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dated or otherwise there must be some indication of the consumer’s acceptance of it and the date of the consumer’s acceptance of it which is allowable under the credit law. Finally, the consumer has to be given a copy of the accepted quote.

[13.90] Key Facts Sheet A Key Facts Sheet must be provided in certain circumstances for standard home loans (see NCCP Act, ss 133AA–133AF). Standard home loans are most home loans used to purchase residential property, or to refinance a loan that was wholly or predominantly to purchase residential property. The Key Facts Sheet must be provided either where the consumer requests one or where the credit provider has a website that can be used by the consumer to apply for, or make an enquiry about, a standard home loan; the website must inform the consumer both about the existence of the Key Facts Sheet and how to generate it. A model Key Facts Sheet is in Schedule 5 of the NCCP Regulations. It is a single-sheet document and summarises the key facts about the home loan, which will usually include the interest rate, a personalised comparison rate, the total cost of the home loan and particular product features and fees. From 1 July 2012, credit providers have also been required to provide a Key Facts Sheet as part of the application for a credit card. The relevant provisions for Key Facts Sheets for credit cards are set out at ss 133BB–BD. Model Key Facts Sheets are found at Schedule 6 of the NCCP Regulations.

[13.100] Mandatory warning

for small amount credit contracts In the case of small amount credit contracts, traditionally known as payday loans, there are additional requirements and protections. A small amount credit contract is defined in s 5(1) of the NCCP Act as a credit contract where:

• the credit is not continuing (eg, a credit card) • the credit provider is not an authorised deposit-taking institution (eg, a bank) • the credit provided is $2,000 or less • the term of the contract is between 16 days and one year • the loan is unsecured. Licensees who offer these contracts must display a warning “Do you really need a loan today?” in the form prescribed at regs 7–9 of the NCCP Regulations. It applies to lending in store, over the phone and online. The warning includes mandatory text which advises borrowers to consider other borrowing options, including asking utility providers about payment plans, getting a loan from Centrelink or seeking financial counselling services.

[13.110] What must be in the

contract itself Credit contracts The contract must be in writing, signed by the credit provider and either signed by the debtor or shown to be accepted through some specified conduct such as withdrawing the money (NCC, s 14). The contract must also contain all the matters in the NCC, s 17 listed below. The consequence of failing to disclose information will vary depending upon what is not disclosed. Again, in all cases the consumer can claim any loss caused by the lack of disclosure. And again, a civil penalty is imposed if there is a failure to disclose a key requirement where the maximum penalty is usually all interest charges under the contract plus any other loss (NCC, s 114). Key disclosure requirements include the following matters in the NCC, s 17: • the credit provider’s name (s 17(2)) • the amount of credit (s 17(3)) • the annual percentage rate or rates of interest (s 17(4)) • the method of calculation of interest (s 17(5)) • the total amount of interest charges payable (s 17(6)) • repayments such as instalment details (s 17(7))

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• credit fees and charges (s 17(8)) • changes affecting interest and credit fees and charges (s 17(9)) • how often statements of account are to be provided to the debtor (s 17(10)) • how and when any default interest is to be applied (s 17(11)) • a statement that enforcement expenses may become payable in the event of a breach (s 17(12)) • if a mortgage or guarantee is to be or has been taken, a statement to that effect, and in the case of a mortgage, a description of the property (s 17(13)) • certain details about commissions (s 17(14)) • certain details of credit related insurance if that is being financed under the credit contract (s 17(15)). There are further key requirements for a continuing credit contract. The NCC recognises that electronic banking may lead to changes in the way that contracts are made and authorises such other methods (NCC, s 187).

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Consumer leases A consumer lease must also be in writing and contain all the matters outlined in s 174 of the NCC including: • a description of the goods hired • the amount of any other charges not included in the rental payable under the lease, and a description of those charges • the amount of each rental payment • the date on which the first rental payment is due and the frequency • the number of rental payments to be made and the total amount of rental payable • the amount to be paid prior to delivery • the amount of stamp duty or other charge payable • a statement of the conditions on which the lessee may terminate and any liability for doing so. Within 14 days of entering into a lease, a copy of the lease must be provided to the lessee unless this has been previously provided together with the required information statement explaining the consumer’s rights and obligations (NCC, s 175). See Form 17, Sch 1 of the NCCP Regulations.

Responsible lending [13.120]

Responsible lending requirements in the NCCP Act became fully operational on 1 January 2011 with some limited application between 1 July 2010 and 31 December 2010, which is outlined below. The responsible lending protections are designed to better inform consumers and prevent credit providers from offering unsuitable credit contracts and consumer leases (eg, unaffordable loans). These assessment requirements apply to all credit providers from 1 January 2011; for some credit providers, which can essentially be described as not being banks, building societies, credit unions or registered finance companies, this requirement commenced on 1 July 2010.

[13.130] What credit providers

and consumer lessors must do Before providing credit or increasing a credit limit, a credit provider must firstly make necessary enquiries and verifications about the consumer (NCCP Act, s 130) and then assess whether that credit is unsuitable (NCCP Act, s 129). In order to assess unsuitability, s 130 requires the credit provider to: • make reasonable enquiries about the consumer’s requirements and objectives for obtaining credit • make reasonable enquiries about the consumer’s financial situation • take reasonable steps to verify the consumer’s financial situation.

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A loan must be found to be unsuitable if the reasons set out in s 131 of the NCCP Act are likely. These include where the credit does not meet the consumer’s requirements and objectives, or if it can only be paid with substantial hardship. Having to sell your home to meet payments is regarded as substantial hardship, unless the contrary is proved (NCCP Act, ss 118(3) and 119(3)). The assessment must be done within the 90-day period before the credit is provided. Where the loan is for the purchase of a residential investment property the period is 120 days (NCCP Regulations, reg 28J). On request the credit provider must give the consumer a copy of the assessment, either before entering the credit contract or otherwise within seven years of the credit being provided. If the credit is not provided there is no obligation to supply the assessment. There are also slightly different requirements for credit representatives (see NCCP Act, ss 158–164). A civil penalty applies if the credit provider fails to do any of the above. This can only be imposed through ASIC or through the courts. Consumers can also seek compensation if they suffer a loss. The same protections apply to consumer leases. These requirements are set out in the NCCP Act, ss 134–156. ASIC, the Financial Ombudsman Service and the Credit and Investments Ombudsman have all provided additional and more detailed guidance on what compliance with responsible lending looks like. The Federal Court has also provided guidance in the decision of ASIC v The Cash Store Pty Ltd (in liq) [2014] FCA 926.

[13.140] Special provisions for

small amount credit contracts and reverse mortgages Small amount credit contracts There is a presumption that the loan is unsuitable in the 90 day period prior to the loan application, the consumer has already had two other small amount credit contracts

(NCCP Act, s 123(3A)(b)), unless the credit provider can prove that the contract is not unsuitable in the circumstances. The loan will also be presumed to be unsuitable if the consumer is already in default on another small amount credit contract at the time of the loan application (s 123(3A)(a)). If more than 50% of the consumer’s income is from Centrelink, the credit provider is prohibited from entering into a small amount credit contract if the repayments under the contract (and all other small amount credit contracts) will exceed 20% of the consumer’s gross income (NCCP Act, s 133CC) entered into during the period. The credit provider must obtain bank account statements from the consumer for the 90 day period preceding the loan when verifying the consumer’s financial situation (NCCP Act, ss 117(1A) and 130(1A)).

Reverse mortgages A reverse mortgage (see [13.250]) is presumed to be unsuitable if the loan to value ratio meets certain requirements (NCCP Regulations, reg 28LC). Different ratios apply depending on the age of the borrowers.

[13.150] What credit

assistance providers must do Where a credit assistance provider is involved in the transaction, they too are required to comply with responsible lending provisions. In these circumstances, they must make a preliminary assessment as to whether the credit sought, including whether to remain in a contract, is unsuitable (NCCP Act, s 116). The same factors are to be taken into account and are set out in the NCCP Act, ss 116–120. Again a civil penalty applies if the credit assistance provider fails to do any of the above, and again it can only be imposed through ASIC or through the courts. Consumers can also seek compensation or other orders if they suffer a loss. A wide range of orders are available. Essentially it will be about trying to put the consumer back in the

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position that they would have been in if they had not been provided with unsuitable credit.

Fees and interest [13.160]

There is no fixed limit on the amount of fees and charges that can be applied generally to credit contracts and consumer leases. However, there are some specific fees for specific contracts that are regulated which are dealt with below. It is also possible to argue that a fee is unconscionable under the NCC, s 78 or an unfair term under ASIC Act, s 12BF.

Fees for early termination of home loans Credit providers cannot charge consumers early termination fees in relation to secured home loans entered into after 1 July 2011 (NCCP, reg 79A). However, not all “exit” fees are prohibited. Regulation 79A(2) makes it clear that credit providers can charge: • a break fee in relation to a fixed rate loan; and • a discharge fee that reimburses the credit provider for the reasonable administrative cost of terminating the credit contract.

Changes to fees and charges A credit provider must give a consumer no less than 20 days’ written notice of changes to credit fees and charges including the imposition of new fees and charges unless the changes reduce the liability of the consumer (NCC, s 66).

Maximum interest rates From 1 July 2010, a maximum annual percentage rate of 48% per annum inclusive of all ascertainable credit fees and charges, applies to credit contracts governed by the NCCP Act. The credit law sets out the method of calculating interest charged by a credit provider (NCC, ss 27–29). It does not apply to consumer leases as interest is not charged on these contracts. The maximum annual percentage rate is essentially an adoption of the maximum

annual percentage rate that applied in NSW before 1 July 2010 by virtue of Sch 3 of the Credit (Commonwealth Powers) Act 2010 (NSW). Any provision in a credit contract that imposes a higher rate of interest is void to the extent that it does so, and the borrower is entitled to recover as a debt any money they have paid under the contract above the maximum rate. It is also an offence for a credit provider to enter into such a contract. Default interest rates can only be imposed where payments are overdue under the credit contract and then may only be imposed in respect of the amount in default, not the whole of the debt (NCC, s 30).

Changes to interest rates A credit provider must give notice no later than the day that an increased rate or rates of interest is to take effect, unless the change to the interest rate or referable interest rate is otherwise ascertainable from the contract, or where a new reference rate of interest is to be applied to the credit contract (NCC, s 64(1)). The section is effectively satisfied by the credit provider publishing changes to the relevant reference rate or rates of interest in a newspaper that circulates throughout each state and territory (s 64(2)). A credit provider must give a consumer no less than 20 days’ notice of a change to the manner in which interest is calculated or applied where that would increase the liability of the consumer (ss 64(4) and 64(5)).

Unconscionable interest and other fees in credit contracts Even where a charge is not specifically prohibited, it could be found to be unconscionable under the NCC, s 78. This may apply to charges on credit contracts such as: • an establishment fee • a fee payable on early termination of a credit contract

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• a fee for a prepayment of an amount under a credit contract • a change to an annual percentage interest rate. If the charge is found to be unconscionable, a court or an EDR scheme may make orders to annul, reduce or otherwise change the fee (s 78(1)). An application can be made by a debtor or guarantor. When determining whether an establishment fee is unconscionable, the court has to look at the credit provider’s reasonable costs for determining the application for credit and providing the credit and also their average reasonable costs for doing this in these types of contracts (s 78(3)). With a fee payable either on early termination of a credit contract or for a prepayment of an amount under a credit contract, the court can only find the fee or charge unconscionable if it is more than the reasonably estimated loss that the credit provider would incur where there was early termination or prepayment respectively. This estimated loss includes the credit provider’s reasonable administrative costs (s 78(4)). With a change in interest rates the court can only find this unconscionable if either: • the change is unreasonable bearing in mind particularly what was advertised or represented before or at the time the contract was entered, and how much time has gone by or • where the change discriminates against the consumer unjustifiably when compared to other consumers with similar contracts (s 78(2)).

Special provisions for small and medium amount credit contracts There are specific limits on the amount that can be charged on small and medium amount credit contracts. A definition of a small amount credit contract is provided at [13.140]. The only charges that can be applied to a small amount credit contract are as follows: • a maximum establishment fee of 20% of the amount of credit a borrower receives in the hand • a maximum monthly fee of 4% of the amount of credit a borrower receives in the hand • default fees or charges • reasonable enforcement costs, and • any government fee, charge or duty payable. This means that interest cannot be charged. The maximum that can be recovered when a small amount credit contract is in default is twice the amount the consumer received in the hand. In relation to a medium amount credit contract the maximum that can be charged is 48% interest per annum plus an establishment fee of 20%. A medium amount credit contract is like a small amount credit contract, however the loan amount is between $2,001 and $5,000, for a term of 16 days to two years and the obligations can be secured.

During the contract: protections [13.170] Early payments or

termination Consumers have the right to terminate a credit contract where no credit has been obtained or where the credit facility (such as a credit card) has not been used. There is also a provision for early termination relat-

ing to supply of goods under a linked contract (NCC, s 134) (see Linked credit at [13.240]). A consumer has the right to have early payments credited to their account unless it is expressly prohibited under the credit contract. Early payments must be credited to the consumer’s account as soon as practicable (NCC, s 26). A consumer or guarantor also has the right to pay out a credit contract at any time (NCC, s 82).

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A consumer can terminate a consumer lease at any time before the end of the term if they return the goods and pay the amount outstanding under the lease (NCC, s 179).

[13.180] Right to statement of

account Credit contracts The credit law places strict obligations on credit providers to give consumers periodic statements of account. The period between statements must be set out in the credit contract. The opening balance on a statement of account must not exceed the closing balance on the previous statement (NCC, s 35). Account statements must include the following information: • the date range the statement relates to • the opening and closing balances on the opening and closing dates • particulars of the credit provided • identifying information about the goods or credit charged to the debtor during the period of the statement • the amount of interest charged to the consumer during the statement period, the annual rate of interest charged and whether the interest rate has changed since the previous statement of account and correction of any errors contained in the previous statement of account • amounts paid by or credited to the consumer • if there is a minimum amount payable the amount and the due date (s 34). There are some exceptions to the requirement that credit providers give periodic statements of account, eg where the interest rate is fixed for the whole period of the contract; where the balance is nil; where the consumer is in default and legal proceedings have commenced or where the consumer has died and the executor/trustee has not requested account statements (s 33). Credit card statements must also include a warning to the borrower of only making minimum monthly repayments on the account. The form of the warning is prescribed in the NCCP Regulations, reg 79B. It is not required if the balance is $50 or less or

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a payment arrangement is in place which replaces the minimum monthly payments. A credit provider must give the consumer (including any joint debtor) their account information on request within 14 days if the information sought relates to a period less than one year previous, or within 30 days if it relates to a period greater than one year but less than seven years. The account information required includes the balance; the credits and debits to the account during the requested period; any overdue amounts and if so, the date payable (NCC, s 36).

Consumer leases The lessor must provide to the lessee statements of account no less than every 12 months outlining the matters prescribed in reg 105B (NCC, s 174C). The information that must be included is: • the dates on which the statement period begins and ends • particulars of any amounts paid by the lessee to the lessor during the statement period • particulars of any amounts credited to the lessee’s account during the statement period • particulars of payments debited from the lessee’s account and paid to a third party during the statement period • any corrections to information contained in a previous statement of account. Lessees are also entitled to an end of lease statement under NCC, s 175H(1) to be provided not less than 90 days before the end of the term of the lease outlining: • the date the consumer lease ends • that the goods must be returned and the date they are to be returned • the total amount to be paid by the lessee • the details of the collection or return of the goods • the amount to be paid by the consumer if the goods are not returned • whether the consumer lease provider is willing to negotiate for the sale of the goods, and if so the estimated cost and contact details of the lessor.

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[13.190] Disputed accounts Where a dispute arises over a liability referred to in an account statement, the consumer can give written notice to the credit provider that the liability is in dispute and the credit provider must give the consumer a reasonably detailed written explanation of the liability (NCC, s 38(1)). This is not required where the consumer and credit provider reach agreement about the disputed account (s 38(2)). A consumer should give the credit provider written notice of the disputed liability within a certain timeframe. In the case of a continuing credit contract, notice of the dispute should be provided to the credit provider before the due date (s 38(3)) otherwise within 30 days of the consumer receiving the disputed account and if there are no account statements, within three months (s 38(4)–(5)). A credit provider cannot commence enforcement proceedings against a consumer with respect to the disputed liability until 30 days have elapsed since providing a “reasonably detailed” explanation to the consumer about the liability (s 38(6)). A credit provider who has commenced such proceedings within the 30 days can only proceed to enforcement with the permission of the court (s 38(8)). A consumer or a credit provider can apply to a court for orders with respect to the disputed liability (s 38(7)). Similar provisions exist at NCC, s 175G in relation to consumer leases.

[13.200] Changes the lender

or lessor can make unilaterally There are restrictions on the unilateral changes that credit providers can make to credit contracts.

Credit contracts These notice obligations cannot be ousted by the terms of the credit contract. The strict notice requirements for unilateral changes are set out at the NCC, ss 63–70. A credit provider must give a consumer no less than 20 days’ written notice of any change or changes to repayments unless the changes reduce the liability of the consumer (s 65). Credit limit increases must be at the request of or with the written consent of the consumer (s 67(4)). Written notice of a decision by a credit provider to reduce or refuse further credit to a consumer (where there is no default) must be given “as soon as practicable” after the decision has been made by the credit provider (s 67). A credit provider must give a consumer not less than 20 days’ written notice of a change to a credit contract that is open to them under the contract. The notice requirement does not apply if the effect is to reduce the liability of the consumer (s 68). It is prohibited for a credit provider to make unilateral changes to a credit contract where the annual rate is otherwise fixed for a period and the effect of the change is to increase fees and charges applicable on early termination or prepayment under the contract (s 70).

Consumer leases Under the NCC, s 174A, alteration of (including an addition to) a consumer lease document by the lessor after it is signed by the lessee is ineffective unless the lessee has agreed in writing to the alteration. Section 174 of the NCC does not apply where an alteration has the effect of reducing the lessee’s liabilities under the consumer lease. If the consumer does agree to a change the lessee must advise the consumer in writing of the matters in the NCCP Regulations, reg 105F.

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[13.210] Right to hardship

variations It is generally better to obtain a hardship variation from the credit provider or lessor before going into default and enforcement steps have been taken. It is important to keep a record of any dealings with the credit provider and any response/s received with respect to requests or applications for hardship. Financial counselling can assist with requests/applications for hardship variations and negotiating financial hardship. (Use the following contact details to locate a financial counselor at Financial Counselling Australia: www. financialcounsellingaustralia.org.au: 1800 007 007).

Credit contracts not regulated by the credit law There is a presumption that the NCCP Act applies to all credit contracts and consumer leases and that the onus is on the credit provider to prove otherwise. However even a credit contract that is not regulated under the NCCP Act (or where the loan amount is over the relevant hardship threshold – see below for information about the threshold) can usually still be varied where there is financial hardship. Credit providers have an obligation to treat consumers fairly which necessarily involves considerations of hardship (eg under the provisions of the Code of Banking Practice at clause 25.2). Non-bank lenders also subscribe to Codes of Practice that include similar provisions. The disadvantage of not being regulated by the credit law in a financial hardship matter is that the decision might not be reviewable by a court. However, they are still usually reviewable by an EDR scheme (see below for more information, although EDR dispute thresholds may have a bearing on this).

Credit contracts regulated by the credit law Basis for hardship variation A hardship application to vary a credit contract can be requested orally or in writing if the consumer considers that they will be unable to meet their obligations under a

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credit contract (National Credit Code, s 72(1)). There must be a reasonable cause for the consumer’s hardship, such as illness or unemployment. Types of variation The NCC does not prescribe the kind of hardship variation that can be proposed by a consumer. The intent of the NCC hardship provisions is that the financial hardship would be ameliorated and the credit contract salvaged if the proposed variation was granted. Therefore, there must be an expectation that the consumer will be able to return to making normal repayments, or otherwise meet the loan obligations, if the hardship variation was granted. Some examples of hardship variations include: • extending the term of the contract and so reducing payments (without a change to the annual percentage rate/s) • postponing payments for a specified period (without a change to the annual percentage rate/s) • extending the term of the contract and postponing payments for a specified period (without a change to the annual percentage rate/s) • combining any of these with a timetable to sell mortgaged property, obtain a compensation payment or other lump sum. Hardship process The credit provider must consider an application for hardship and give their response within 21 days. Within this timeframe, the credit provider may ask the consumer orally or in writing for more information regarding the consumer’s inability to pay the loan (NCC, s 72(2)). The consumer must provide this further information if requested within 21 days (s 72(3)). Otherwise, the credit provider may decide the hardship application on the basis of the information available. If the credit provider has all the relevant information, it must give a response to the consumer’s hardship application according to the applicable time limit prescribed in s 72(5) of the NCC. If the credit provider agrees to the hardship variation, the credit provider must give the consumer and any guarantor notice of

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the change within 30 days after the date of the agreement. The notice must set out the particulars of the change in the terms of the credit contract and any information required by the NCCP Regulations (s 73(1)). If the credit provider does not agree to the hardship variation, the credit provider must respond to the consumer providing reasons for their decision, the name and contact details of their EDR scheme and notice to the consumer of their review rights at EDR (s 72(4)). There are two EDR schemes: the Financial Ombudsman Service (FOS) and the Credit and Investments Ombudsman (CIO). Equivalent provisions exist for consumer leases at the NCC, ss 177B–177E. A credit provider must respond to an outstanding application for hardship before it can commence enforcement proceedings and the credit provider must wait 14 days after giving this response before commencing proceedings (s 89A).

Challenging the hardship decision Where there is a refusal or the consumer is otherwise dissatisfied with the credit provider or lessor’s response, the consumer can complain to the appropriate EDR scheme (NCC, s 72(4) for credit contracts and s 177B(4) for consumer leases). In some limited circumstances, it may be best to apply for a hardship variation directly to the EDR scheme (eg, where the Statement of Claim (court papers) have already been served). See [13.350] for information about time limits, jurisdictional limits of EDR and other matters. A refusal by a credit provider to grant a hardship variation can also be reviewed by a court (NCC, s 74 for credit contracts and s 177D for consumer leases). The court has the power to grant a stay of enforcement proceedings and to make orders varying the credit contract.

Hardship thresholds The Consumer Credit Legislation Amendment (Enhancements) Act 2012 (Cth) removed the hardship threshold altogether for loans entered into from 1 March 2013. However, under older contracts a consumer's right to seek a hardship variation in a court may be restricted by a threshold based on the amount of the loan. For contracts entered into or refinanced from 1 July 2010 to 1 March 2013, the relevant threshold is $500,000. A floating hardship threshold applies to loans that were entered into between 1 December 2004 and 30 June 2010 and regulated by the Uniform Consumer Credit Code. The relevant hardship threshold figure was calculated quar-

terly using Australian Bureau of Statistics (ABS) data. The floating threshold figure can be accessed via the ASIC “Money Smart” website at www.moneysmart.gov.au. For contracts entered into during the period between 1 November 1996 and 30 November 2004, the threshold is only $125,000. Whether or not a hardship threshold applies, it does not affect a consumer's right to seek a hardship variation through a credit provider’s internal dispute resolution procedure or by making a complaint through EDR (see [13.350]).

Various other protections [13.220] Advertising,

misrepresentations and credit hawking The credit law prohibits a person from: • making false or misleading representations material to entry to a credit contract/consumer lease or in an attempt to induce another person to enter into a

credit contract/consumer lease or related transaction (NCC, ss 154, 179U) • harassing someone to get them to apply for credit, or enter into a credit contract or a related transaction (s 155) or to apply for or enter into a consumer lease (s 179V) • credit canvassing – visiting someone at their home or place of business without

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prior arrangement to induce them to apply for or obtain credit (s 156) • advertising credit where the provider is not licensed (NCCP Act, s 31) • holding out that they hold a licence or are otherwise authorised under a licence or exemption when that is not the case (NCCP Act, s 30). It is also an offence under s 39 of the Australian Consumer Law (Sch 2 of the Competition and Consumer Act 2010 (Cth)) and s 12DL of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) to send a credit or debit card to someone except in response to a request in writing from that person, or in replacement of, or substitution for, a previously requested card. These can all attract civil and criminal penalties. Consumers can also seek compensation for loss suffered as a result of a misleading representation from anyone involved in the representation.

[13.230] Additional rules for

credit cards From 1 July 2012 credit providers must not send unsolicited credit limit increase invitations to consumers unless they have obtained the consumer’s consent. The new rules also ban over-the-limit fees on credit cards, unless the fees are expressly requested by the consumer (NCCP Act, s 133BI). Unless the consumer agrees otherwise, payments on a credit card must first be allocated to the part of the closing balance shown in the last account statement to which the highest rate of interest applies (s 133BQ). If payments are not applied in accordance with these and other requirements in Div 6 of Pt 3.2B the credit provider has committed a strict liability offence and must refund or reverse the transaction (s 133B).

[13.240] Linked credit Linked credit describes transactions where goods or services are purchased by either getting a loan at the place where the goods

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are purchased or else when there is a certain connection between the supplier and the credit provider. The most common examples are buying a motor vehicle, and buying larger household items (like furniture or white goods) where the loan is arranged at the retailer’s premises. Part 7 of the NCC (ss 125–139) deals with Related Sale Contracts (linked credit) and offers additional protection to consumers. The main protection offered by the linked credit provisions is that the credit provider can be liable for (ss 128 and 129): • misrepresentations by the supplier • failure of the supplier to provide the goods and/or services • other breaches of contract by the supplier. The consumer can request that the credit provider reduce or annul the credit contract depending on the loss caused by the misrepresentation. If there is a misrepresentation by a supplier, the consumer can take legal action against both the supplier and the credit provider in a court that can hear both complaints. Taking action in EDR is also possible, however it can be complicated as the supplier is unlikely to be a member of an EDR scheme. A way around this is where there is an argument that the supplier is the agent of the credit provider. Where a consumer makes it known to a supplier of goods that they require credit in order to enter a linked contract to obtain goods and where, after making reasonable efforts, no credit could be obtained, the consumer can terminate the contract to acquire the goods (s 134(1)). The section applies even if goods and services have already been supplied pursuant to the related contract (s 134(2)). The consumer must return the goods, although this can give rise to a claim for compensation on the part of the provider for any damage to goods provided or for the value of services already rendered (s 134(3)). If a consumer experiences a fault or problem with the goods or services, the consumer may have remedies under the Australian Consumer Law (see Chapter 10, Consumers). Under the NCC, if a sale

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contract is rescinded or discharged the consumer is entitled to terminate the linked credit contract (s 135). The ASIC Act also gives a consumer the right to claim compensation or have their credit contract varied or rescinded if the credit provider (or its agent) has engaged in misleading or deceptive conduct, or if the consumer contract is in a standard form and contains an unfair term (ASIC Act, ss 12DA and 12BF).

[13.250] Reverse mortgages A “reverse mortgage” is a type of credit contract which allows the consumer to borrow money using the equity in their home as security. The consumer can borrow money as a lump sum, a regular income stream, a line of credit or a combination of these options. Interest is charged on the loan amount, however the consumer does not have to make any repayments while they continue to live in their home. The consumer must repay the loan amount in full, including interest and any fees, upon passing away, selling their home or moving to aged care. The credit provider’s decision to enter a reverse mortgage is not dependent upon the consumer’s income, however, credit providers are still required to comply with the responsible lending requirements in the NCCP Act. A reverse mortgage is presumed to be unsuitable if: • at the time the credit contract is entered into, the youngest borrower under the reverse mortgage is 55 or younger and the loan to value ratio of the reverse mortgage is higher than 15% (NCCP Regulations, reg 28LC(6)(b)(c)); or • at the time the credit contract is entered into, the youngest borrower under the reverse mortgage is older than 55 and the loan to value ratio of the mortgage is the sum of 15% and 1% for each year that the borrower is older than 55 (reg 28LC(7)(b)(c)). The loan to value ratio is the amount of credit owed under the credit contract for the reverse mortgage multiplied by 100, divided

by the value of the reverse mortgaged property (reg 28LC(8)). The credit provider must make reasonable inquiries about the consumer’s requirements and objectives in meeting possible future needs, such aged care and whether the consumer would prefer to leave the equity in their home to their estate (reg 28HA(2)). Break fees for reverse mortgages can be substantial so a consumer should be aware of the consequences of terminating a reverse mortgage early before entering into the credit contract. Under the NCC and the ASIC Act, particularly the unfair contract term provisions in Subdiv BA of Div 2 of Pt 2 of the ASIC Act, the consumer can challenge the validity of a break fee if they think it is unconscionable or unfair (see Fees and interest at [13.160]).

Negative equity protection The “negative equity protection” was introduced by Subdiv B of the Consumer Credit Legislation Amendment (Enhancements) Act 2012 (Cth) for all new reverse mortgage contracts entered into on or after 18 September 2012. When the reverse mortgage contract ends and the consumer’s home is sold, the consumer cannot be held liable for any debt in excess of the sale price (except in certain circumstances, such as fraud or misrepresentation). If the consumer’s home sells for more than the amount owed to the credit provider, the consumer or the consumer’s estate will receive the surplus funds. If the consumer entered into a reverse mortgage before 18 September 2012, the consumer should check their credit contract to see if there is a protection in circumstances where the loan balance exceeds the value of the home. The consumer should also check if their credit provider is a member of the Senior Australians Equity Release Association of Lenders (SEQUAL). The SEQUAL Code of Conduct sets out a minimum standard of ethics and consumer protection, including that a member will only offer reverse mortgages that protect the consumer from negative equity. Legal advice may be required in relation to these loans.

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[13.260] Unjust contracts The NCC contains similar provisions in relation to unjust contracts as the Contracts Review Act 1980 (NSW). These provisions at the NCC, s 76 apply to credit contracts, guarantees and mortgages. If a contract is unjust a court or EDR scheme can find that it should be set aside or varied to remedy the unjustness. The application must be brought whilst the contract is still on foot or otherwise within two years of it coming to an end (eg, by paying it off). Unjust is defined to include unconscionable, harsh or oppressive (NCC, s 76(8)). A contract can be unjust because the actual terms of the contract are unjust or it can be because the circumstances in which the contract were entered into make it unjust (which is more often the case) or it can be due to a combination of the terms and the circumstances. The circumstances taken into account will not be circumstances which arose after the contract was entered into unless they were reasonably foreseeable at that time (s 76(4)). However, the court can take into account the conduct of the parties after the contract was entered (s 76(5)). The NCC sets out at s 76(2) a long list of factors that the court may have regard to when considering whether or not a contract is unjust. It must have regard to the public interest and also may have regard to: • the consequences of compliance or noncompliance with the contract • the relative bargaining power of the parties • whether the contract was the subject of negotiation • whether it was reasonably practicable to be able to reject or alter the contract provisions • whether any of the provisions of the contract are unreasonably difficult to comply with or are reasonably necessary

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for the protection of the legitimate interests of a party to the contract • whether or not the consumer was reasonably able to protect their interests because of their age or physical or mental condition • the form of the contract and how it is expressed • whether the consumer had independent legal or other expert advice • whether the contract was accurately explained to the consumer and whether they understood the contract and its consequences • whether any unfair pressure, undue influence or unfair tactics were used and their nature and extent • what steps were taken to ensure that the consumer understood the transaction and the adequacy of those steps • whether the consumer could not pay without suffering substantial hardship and that the credit provider either knew this or could have ascertained it by reasonable enquiry • whether the terms of the transaction or the conduct of the credit provider is justified in the light of the risks undertaken by the credit provider • for a mortgage – whether it is void under s 50 of the NCC • how it compares with other comparable contracts and particularly if excessive interest is unjust by way of comparison • any other relevant factor. If a court or EDR scheme decides that the contract is unjust, it can make various orders under the NCC, s 77 including: • setting aside the contract completely or in part • ordering that the consumer owes nothing under the contract or a lesser amount • ordering a mortgage be discharged • otherwise revising or altering the contract. Similar orders can be made under the NCC, s 177G in relation to consumer leases.

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Protections under the credit law for related guarantees, mortgages and insurance contracts [13.270] Mortgages Mortgages that secure obligations under a credit contract regulated by the credit law will themselves usually be regulated by the NCCP Act. To be valid under the credit law a mortgage must: • with limited exceptions, be in writing and signed by the mortgagor (NCC, s 42) • specify the goods or land to be mortgaged (s 44) • need not be in a separate document but if it is a copy must be given to the mortgagor within 14 days (s 43). The credit law prohibits: • a blanket mortgage over all property and assets (National Credit Code, s 44(1)) • a mortgage over property to be acquired in the future unless the property is specified or to be bought with credit provided under the loan contract, or is instead of, or in addition to, goods already subject to the mortgage (s 45) • a mortgage seeking to secure credit that may be provided under a future contract unless the credit provider has given the mortgagor a copy of any future contract to be secured by the existing mortgage, and also subsequently obtains the mortgagor’s acceptance, usually written, of the extension of the mortgage (s 47) • a third party mortgage ie. the consumer giving the mortgage must also owe the debt or at least be a guarantor (s 48) • a mortgage securing an amount exceeding the debtor’s total liabilities under the credit contract together with reasonable enforcement expenses (s 49) • a mortgage created over an employee’s remuneration, employment benefits or benefits under a superannuation scheme (s 50(1))

• for mortgages created on or after 1 July 2010, a mortgage over essential property. Generally, essential property is defined as the property which is protected under the Bankruptcy Act 1966 (Cth), eg household furniture such as beds, basic kitchen items, televisions – see regulations made under s 116(2)(b)(i) of the Bankruptcy Act 1966 (NCC, s 50). There are some exceptions to this prohibition (s 50(2)). It is a criminal offence to include provisions in the credit contract or mortgage in contravention of these requirements. The provisions themselves are void and unenforceable, and in some circumstances, this will mean the whole mortgage cannot be enforced.

Assignment or sale A mortgagor cannot assign or sell property subject to a mortgage without the credit provider’s consent; a mortgagor who breaches this provision can be fined. However, the credit provider cannot unreasonably withhold, or attach unreasonable conditions to, its consent to sell or assign the property (NCC, s 51). The mortgagor may ask for orders to allow them to sell the goods if the credit provider fails to give its consent within a reasonable time, unreasonably withholds its consent, or attaches unreasonable conditions to its consent (NCC, s 51(3)).

[13.280] Guarantees Similar to mortgages, contracts of guarantee will be regulated by the NCCP Act where these guarantees secure obligations under an NCCP Act regulated credit contract, so long as the guarantor is a natural person or

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strata title corporation. If so there will be a number of protections available including those set out below. Note for potential guarantors Agreeing to be a guarantor means taking on a legal liability. It should not be done lightly and you should always get independent legal advice. It is not “just a formality”. It does not mean the guarantor is just witnessing the borrower's signature. Nor does it just mean the guarantor believes the borrower is good for the money. What it does mean is that the guarantor is agreeing to repay the amount lent to the borrower plus the interest and enforcement costs if the borrower fails to do so. So, a guarantor should be fully informed about the terms of both the guarantee and the borrower's contract. Some conditions can be very difficult for a guarantor to meet – for example, if the borrower fails to meet payments, the lender may be able to demand that the guarantor pay the whole amount in a single lump sum, rather than in instalments as the borrower did. A potential guarantor should ask the lender for all the information they have about the risks they see in the transaction. If the lender is not willing to give convincing reasons for requiring a guarantor, or the borrower is not willing to disclose information about their financial situation or the loan, it may well be that the risk of the guarantee being called upon is very real.

To be enforceable the following requirements must be met: • prior to the guarantee being signed, the guarantor must be given a copy of the credit contract (NCC, s 56) • the guarantee must be in writing and signed by the guarantor. It is sufficient if the guarantee is contained in a mortgage and signed by the guarantor (s 55) The credit provider must also: • provide the guarantor with an Information Statement prescribed by the NCCP Regulations setting out the guarantor’s rights and obligations • within 14 days of signing the guarantor must be given a copy of both the signed guarantee and the credit contract or signed credit contract (s 57). The guarantor may withdraw by giving the credit provider written notice before the credit has been provided (s 58(1)). There are limits on the guarantor’s liability as follows: • the maximum liability cannot exceed the

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debt under the credit contract plus reasonable enforcement expenses (s 60(1)) • the guarantor can withdraw by giving written notice where the credit contract is different in some material respect to the proposed credit contract given to the guarantor before the guarantee was signed (s 58(2)) • the guarantor’s liability is usually not increased where the liability under the credit contract is increased unless the guarantor agrees to this and usually this agreement will need to be in writing (s 61(1)) • the guarantor’s agreed liability for future credit contracts will not be enforceable unless there is a subsequent, usually written, acceptance of this by the guarantor and after the guarantor has already been provided with a copy of the future credit contract (s 59) • where the debtor is under 18 the guarantee will not be enforceable unless it contains a prominent statement to the effect that the guarantor may not be entitled to an indemnity against the debtor (s 60(3)) • similarly a guarantee will not be enforceable to the extent that it limits the guarantor’s right to indemnity or the right to enforce that indemnity (s 60(5)). Again it is a criminal offence for the credit provider to contravene these requirements in guarantees. The provisions themselves are void or unenforceable if they do so (s 62). The guarantor is entitled to request and receive the same information the debtor is entitled to during the term of the contract. Guarantors also have certain rights in relation to hardship variations (see Rights to hardship variation at [13.210]). The guarantor can also make an application to the court in their own right about the unjustness of a credit contract, change to a credit contract or a guarantee. The matters to be taken into account are the same as those for a consumer (s 76). The guarantor also has the same right as a debtor to pay out a credit contract at any time (s 82).

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A credit provider cannot enforce a judgment against the guarantor unless either: • the credit provider has obtained judgment against the debtor, has then made a written demand for payment and at least 30 days have elapsed without the debt being paid or • the court has ruled this is not necessary because it is satisfied that the credit provider has made reasonable but unsuccessful attempts to locate the debtor or that recovery from the debtor is unlikely (s 90). The Codes of Practice also set out the expectations of business entering guarantees if they are to comply with best industry practice.

[13.290] Insurance The NCCP Act applies to credit-related insurance. The relevant provisions are contained in ss 142–149 of the NCC. Credit-related insurance is insurance connected with a credit contract where it involves either insurance over mortgaged property, consumer credit insurance or other insurance if that type of insurance is specified in the credit law (s 142(1)). However, the protections under the national credit laws will only apply in relation to insurance over mortgaged property so far as the mortgage secures obligations under the credit contract and will also not apply to insurance for an extended period of warranty (s 142(2)). Similarly with consumer credit insurance, the protections under the national credit laws will only apply where that consumer credit insurance insures obligations under the credit contract (s 142(3)). A credit contract must contain certain information about credit-related insurance. Specifically, the contract must state (National Credit Code, s 17(15)): • the name of the insurer • the premium payable or if not known the method of calculation of premium payable • the type of insurance (eg income protection) • the disclosure of any commissions payable to the credit-provider • the amount of any such commission or if

not known, the proportion of the premium payable that is a commission. Such commissions are capped at 20% of the premium (NCC, s 145). Credit-related insurance costs must also be disclosed in account statements. Periodic account statements must disclose the name of the insurer, the amount of premium and the type of insurance (s 34(10)). Credit providers are prohibited from requiring or representing to consumers that they are required to obtain credit related insurance except where the insurance is otherwise compulsory, eg insurance over a mortgaged property. The NCC also prohibits credit providers from requiring a consumer to obtain insurance cover through a particular insurer (unless there is no other insurer offering the particular kind of insurance) or otherwise obtain linked insurance on unreasonable terms (s 143). There are some exceptions to this (s 143(2)). Credit providers are also prohibited from knowingly providing credit for or financing a consumer’s insurance premiums for mortgaged property for periods exceeding 12 months (s 144(1)). Credit providers are also prohibited from deducting insurance premiums from consumers’ accounts more than 30 days before the premiums are due (s 144(2)). Consumers are entitled to a refund of premiums paid in breach of this section (s 144(3)). The insurer must provide the consumer with a copy of the policy within 14 days of accepting the insurance proposal (s 146(1)). If the consumer has a beneficial interest in property insured by the credit provider, the credit provider must provide a copy of the insurance policy to the consumer within 14 days of the consumer acquiring the beneficial interest (s 146(2)). Where the credit provider is going to finance the amount payable by the consumer for a credit-related insurance contract notice must be given to both the consumer and the credit provider if the consumer’s insurance proposal is refused (s 147(1)). It is the credit provider’s duty to ensure that any premiums paid by the consumer in relation to the refused insurance proposal are

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refunded unless they are applied to alternative insurance premiums (s 147(2)). When a credit contract is terminated, any insurance contract financed under the credit contract is also terminated (s 148(1)). The credit provider is then required to rebate the consumer the proportionate amount of insurance premiums (s 148(2)).

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Where the credit contract over mortgaged property is terminated and there is insurance cover financed through the credit contract, the consumer can give written notice to the insurer to terminate the insurance contract and seek a rebate on any paid insurance premiums from the insurer (s 149(1)).

Protections where a consumer defaults [13.300] Default notices A credit provider must serve a default notice on a consumer (and, where relevant, a guarantor) that sets out specific information about the default and how to remedy the default, otherwise known as a “section 88” notice (NCC, s 88). The prescribed form of the notice is at Schedule 1 of the NCCP Regulations. A credit provider must not commence legal proceedings against a consumer unless a section 88 notice has been served. Some of the information that must be contained in a section 88 notice is: • the amount of the default • what action is necessary to rectify the default • how long the consumer has to take action to rectify the default • in the case of mortgages, advice to the consumer about how much time before repossession activity could commence if the default is not rectified • notice to the consumer that sale of mortgaged goods may not discharge all the debt • notice to the consumer about the availability of the NCC, s 72 hardship variation applications (see [13.210]), also about the availability of s 94 to negotiate a postponement and to apply to the Court about both the hardship variation under s 74 and the postponement under s 96 • notice that if there is a further default by the consumer during the notice period, enforcement action can still commence without a further notice • the name of the credit provider’s EDR

scheme and the consumer’s right to take their dispute there. There are some exceptions to the requirement that credit providers must serve section 88 default notices (s 88(5)). If a section 88 notice is served, urgent legal advice should be sought as the credit provider may commence court proceedings without further notice to the consumer if the default is not remedied or if an arrangement is not reached with the credit provider, for example by a hardship variation (see [13.210]). An equivalent notice must be served under the NCC, s 179D before a lessor can take enforcement action against a consumer in relation to a consumer lease.

[13.310] Repossession of

mortgaged land If a default has not been remedied within the 30 day period set out in a section 88 notice, or if an arrangement is not reached between the consumer and credit provider (eg by a hardship variation) and there is no outstanding hardship application made by the consumer, the credit provider can commence enforcement proceedings without further notice to the consumer. Where the loan is secured by a mortgage, legal proceedings for possession of the mortgaged land are commenced by the credit provider filing a statement of claim in the Supreme Court of NSW. After the statement of claim has been served on the consumer (defendant), the consumer has 28 days in which to act, by filing a defence and/or cross claim, before the credit

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provider can take further action. Consumers should get legal advice before filing a defence or cross-claim. If a consumer has been served with a default notice or statement of claim to repossess land they should seek advice by phoning Financial Counselling on 1800 007 007. It is very important to remember that court proceedings must be stayed if the consumer lodges a complaint with an EDR scheme at any time before judgment, unless too many steps have been taken in the court proceedings by the consumer.

If no defence, cross claim or EDR complaint staying the proceedings (see Disputes at [13.340]) has been lodged within 28 days of service of the statement of claim, a credit provider can apply for default judgment. Default judgment can be for possession of land and an amount of money owing under a credit contract but can be just for possession of the land. The time this court process takes to obtain default judgment varies depending on court delays and other factors and often there will be little delay. After judgment has been obtained, the credit provider can apply for a Writ of Possession which is enforced by the Sheriff’s Office of NSW. The sheriff will serve a Notice to Vacate the property that sets out a date and time for eviction. If a Notice to Vacate has been served, a consumer can do any of the following: • leave the property in accordance with the Notice to Vacate • negotiate with the lender for more time to make other arrangements • negotiate with the lender to stay and keep paying • apply to the Supreme Court of NSW for a stay of the writ • apply to the Supreme Court of NSW to set aside judgment and enter a defence and/or cross claim • be removed by the sheriff in accordance with the Notice to Vacate. Where a Notice to Vacate has been served but more time is needed to take necessary steps, then a “stay” should be sought from the court. A stay is obtained from the Supreme Court of NSW. Note that the Sheriff has no discretion so where the credit provider won’t agree to allowing more time,

then a stay of the execution of the Writ of Possession must be obtained. To obtain a stay, a Notice of Motion form and an Affidavit in support must be filed with the court. These forms are available from the Supreme Court of NSW website or from the Supreme Court Registry itself. There is no filing fee. In some circumstances, the duty registrar can grant short stays on an ex parte basis; usually for periods of no more than seven days. Otherwise, the credit provider will have to be served with a copy of the stay application and the matter will be listed before a registrar or judge. There are a number of grounds for seeking a stay. These include the chance to have more time to refinance, or to sell the property or to challenge the judgment or on compassionate grounds where more time is needed to find alternative accommodation. There is no automatic right to a stay, so it is generally better to take appropriate steps (eg hardship variation, selling the property, refinancing, moving) earlier in the repossession process where possible. A mortgagee exercising a power of sale in respect of mortgaged land must take reasonable care to ensure that the land is sold (Conveyancing Act 1919 (NSW), s 111A): • for not less than its market value, if the land has an ascertainable market value when it is sold, or • in any other case, the best price that may reasonably be obtained in the circumstances.

[13.320] Repossession of

goods mortgaged under a credit contract Prior to repossession A credit provider can require a consumer to advise it within seven days of the location of goods mortgaged under a credit contract. It is an offence for a mortgagor not to comply with such a request (NCC, s 98).

Repossession itself A credit provider cannot enter residential premises to repossess mortgaged goods without the written consent of the occupier

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or permission of a court. A credit provider in breach of this section commits an offence (NCC, s 99). A credit provider is prohibited from taking possession of mortgaged goods without the permission of the court unless the amount owing under the default is at least 25% of the amount of credit available under the contract or $10,000, whichever is the lesser amount (s 91(1)). There are exceptions to this, eg where the credit provider believes, on reasonable grounds that the goods have been, or are about to be, disposed of without the credit provider’s permission, or the situation otherwise requires urgent action to protect the goods (s 91(2)(b)) or where it is a continuing credit contract (s 91(2)(a)). Where there is a legal dispute about whether a credit provider has breached this section, the onus will be on the credit provider to establish its compliance (s 91(4)). A court may also make orders that a person who has possession of mortgaged goods surrender them to the credit provider and a contravention of such an order is an offence (s 101).

After repossession The credit law imposes a compulsory procedure for dealing with repossessed mortgaged goods (NCC, ss 102–105). That procedure involves the following: • the credit provider must, within 14 days of taking possession of mortgaged goods, provide the mortgagor with a written notice setting out the estimated value of the mortgaged goods, the enforcement expenses associated with the repossession and a statement of the mortgagor’s rights (s 102(1)) • a credit provider cannot sell the repossessed goods for 21 days from the date of the written notice referred to above unless authorised by the court to do so (s 102(2)) • the credit provider must return the mortgaged goods if the arrears (not including any accelerated amount) and enforcement costs are paid or the contact is paid out during the 21-day notice period (s 102(2)) • a mortgagor can nominate a purchaser who can buy the mortgaged goods at the

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estimated value (as per the credit provider’s written notice above). The credit provider must sell the goods to the mortgagor’s nominee unless there is a written offer to purchase the mortgaged goods at a higher amount (s 103) • where there is no nominee, the credit provider must make arrangements to sell the goods for the best price reasonably obtainable and credit the proceeds of sale to the mortgagor’s account, less any deductions they are entitled to (see below). The credit provider must provide a mortgagor with a written notice that sets out the gross amount of the sale, the amount required to pay out the credit contract (or due under a guarantee) and any further recovery action intended with respect to any shortfall (s 104) • the credit contractor can claim the following: the amount required to discharge the contract; amount or amounts required to discharge any prior mortgage/s, and reasonable enforcement costs (s 105) • a mortgagor has the right to bring court action against a credit provider for orders to adjust credits following sale of mortgaged goods if not satisfied that the credit provider sold the goods as soon as reasonably practicable and for the best price obtainable. A mortgagor can also seek compensation from a credit provider for any loss they suffer with respect to prior mortgages as a result of a breach of this procedure by the credit provider (s 106).

[13.330] Repossession of

goods provided under a consumer lease If a consumer misses a lease payment the lessor must usually give the consumer at least 30 days’ written notice of its intention to take the possession of the leased goods (NCC, s 178(1)). That notice is not required where: • the term of the lease is over • the lessor reasonably believes that, contrary to the terms of the lease, the goods have either been disposed of, or the lessee

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intends to dispose of them • the lessor has made reasonable attempts to locate the lessee without success • the lessee is insolvent • the court authorises it (s 178(2)).

The goods cannot be repossessed from private residential property without the consumer’s written consent or a court order (s 99).

Disputes [13.340] Compensation and

other remedies for breach of the credit law Get advice! If you are in dispute with a creditor provider, there are a number of services that provide free legal advice and financial counselling. These are listed in Contact points at [13.670]. A good reason to get advice is that the lender must usually do more than simply meet the contractual obligations. They must also act in accordance with the law and their respective Codes of Practice.

A consumer can seek compensation from a court or EDR scheme for loss or damage suffered as a result of a breach of the credit law (NCCP Act, s 178). Other remedies such as injunctions and declarations that can be ordered by a court are outlined in the NCCP Act, Pt 4.2. Specific remedies in relation to certain breaches, such as varying an unjust contract or refunding an unconscionable fee, have been dealt with above. In some instances civil or criminal penalties may also apply. There are more than 50 specific criminal offences created under the national credit law. These apply to more serious breaches of the credit law (such as failure to have an Australian Credit Licence) and need to be prosecuted by ASIC. Civil penalties can also be sought by ASIC in relation to some breaches of the NCCP Act. The consumer can instigate their own civil penalty claim in respect of breaches of some sections of the NCC. This largely relates to breaches of key disclosure requirements at [13.110]. Either ASIC or the debtor/guarantor/ lessor needs to apply to the court for a civil penalty to be imposed. There is a six-year

time limit for bringing such applications from the date of the contravention (NCC, s 123(1)). The amount of the civil penalty will vary depending on who makes the application. Where the application is made by ASIC, the maximum penalty that may be imposed is $500,000 for each key requirement that is breached (s 116). If the application is made by a debtor or guarantor and is successful, the court is to order a penalty of at least the amount of the loss suffered by the debtor or guarantor (s 114(2)). This can be all interest charges payable under the credit contract (s 114(1)). It may be set off by the debtor or guarantor against any amount due to the credit provider under the contract (s 115). More tailored remedies can be sought through internal and external dispute resolution (see below at [13.350]).

[13.350] Where to take

disputes: whether the credit law applies or not Negotiation and internal dispute resolution Most disputes should be first raised with the creditor provider to give them an opportunity to explain or respond. Credit providers have obligations under the relevant Codes of Practice to participate in negotiation with the consumer. Nearly all unresolved disputes will first be referred to the credit provider’s own internal dispute resolution (IDR) process. If there is no satisfactory resolution at IDR then the consumer can take the matter to external dispute resolution (EDR). Most EDR schemes require the debtor to make a formal written complaint to the lender

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before lodging a complaint with EDR (though it is not a formal requirement) (see Contact points at [13.670]).

External dispute resolution EDR is the preferred model for resolving disputes between consumers and credit providers and consumer lease providers. As of 1 July 2010 all those involved in credit activity must be members of an EDR scheme (see Licensing requirements at [13.30]). There are two EDR schemes in Australia: • Financial Ombudsman Service (FOS) • Credit and Investments Ombudsman (CIO). EDR schemes can deal with a broad range of disputes between consumers and credit providers. The jurisdictions of both FOS and CIO are detailed in their respective Terms of Reference and Guidelines which are available on their websites. Both EDR schemes have streamlined procedures for dealing with financial hardship disputes and they are given high priority. There are a number of benefits of EDR: • it is free for the consumer • it is usually quicker than court • it gives an independent decision that is binding on the credit provider • on the other hand the consumer does not have to accept the decision of EDR if they don’t like it and can still proceed to a court (as long as the relevant court time limits have not expired) • disputes can be lodged before and, in most circumstances, after court proceedings have commenced (but if your matter is in FOS not after judgment has been entered; if your matter is at CIO it is possible to lodge a dispute after a default judgment in limited circumstances). Once lodged with EDR the credit provider cannot take other enforcement action including court proceedings until the EDR process is completed. Disputes can be lodged either online, by mail, by phone or by facsimile. There are some limitations on the matters that EDR will hear; most notably with the amounts involved and with time limits. FOS and CIO cannot award more than $280,000 in compensation. Disputes for amounts more

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than this (up to $500,000) can still be lodged with EDR but the consumer must agree to seek no more compensation than the above limits. Time limits The FOS Terms of Reference provide for the following time limits: • within two years of the date when the credit contract is rescinded, discharged or otherwise comes to an end, or • where, prior to lodging the dispute with FOS, the applicant received an IDR response in relation to the dispute from the financial services provider - within two years of the date of that IDR response. In all other situations, FOS will not consider a dispute unless the dispute is lodged with FOS before the earlier of the following: • within six years of the date when the applicant first became aware (or should reasonably have become aware) that they suffered the loss, and • where, prior to lodging the dispute with FOS, the applicant received an IDR response in relation to the dispute from the financial services provider - within two years of the date of that IDR response. (6.2 FOS Terms of Reference 1 January 2010, amended 1 January 2015). The CIO time limits are very similar and are as follows: • for those aspects of the complaint that relate to financial hardship applications, unjust transactions or unconscionable interest and other charges under the NCC, the later of either: – two years from when the credit contract is rescinded, discharged or otherwise comes to an end (or in the case of a consumer lease entered into on or after 1 March 2013, two years from when the lease is terminated, discharged or otherwise comes to an end), or – two years from when a final response is given by the financial services provider at IDR, and • for all other complaints or disputes, the earlier of either: – six years from the date that the complainant first became aware (or should

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reasonably have become aware) that they suffered the loss, or – two years from when a final response is given at IDR (6.3 Guidelines to the Rules of the CIO, 5th Edition as at 23 February 2016). EDR schemes cannot take evidence under oath. Most proceedings are conducted by telephone conferences and exchange of documents.

[13.360] Courts The preferred model for dealing with credit disputes is EDR. However, all state courts, the Federal Circuit Court and the Federal Court are vested with jurisdiction to hear credit disputes. With state courts, the Local Court, District Court, and the Supreme Courts in NSW all have jurisdiction to hear matters up to their jurisdictional limit. The Local Court has jurisdiction up to $100,000 (or $120,000 by agreement of the parties); the District Court has a jurisdictional limit up to $750,000 whilst the Supreme Court has jurisdiction to hear claims over $750,000. If the dispute involves a dispute over land, eg a mortgage, then only the Supreme Court has jurisdiction to hear that dispute. There is an “opt in” small claims procedure under s 119 of the NCCP Act. This applies to the Local Court and the Federal Circuit Court. The types of matters that can be heard are limited and can include: • applications for financial hardship • applications for compensation or a breach of the responsible lending obligations where the amount in dispute is under $40,000 • unjust applications where the contract value (loan amount) is under $40,000. The benefit of the small claims procedure is that it is not bound by the rules of evidence and legal costs are limited. Legal costs can only be ordered if the court is satisfied that the proceedings were brought vexatiously or incurred as a result of a party’s unreasonable act or omission.

Some types of remedies a court can provide are: • granting of an injunction to restrain a person from doing something • granting an order declaring the whole or any part of the credit contract void • granting an order varying a contract • granting an order directing the credit provider to refund money or return property • ordering compensation. The losing party in a court action is usually required to pay the legal cost of the successful party. Legal costs (outside the small claims provisions above) can be considerable and for this reason it is recommended that legal advice be obtained before commencing court proceedings. In general, a court action must be commenced within six years of the contravention, however time limits can be complex issues and legal advice should also be sought on this. For further information about court debt recovery processes see Chapter 15, Debt.

[13.370] Australian Securities

and Investments Commission The Australian Securities and Investments Commission (ASIC) is the regulator of consumer credit in Australia. It has power to investigate breaches of the law and prosecute those involved in credit activity. While ASIC very rarely involves itself in resolving individual disputes, complaints about illegal or unfair behaviour should be reported to ASIC, particularly where the party involved in credit activity is not licensed or where the complaint is otherwise serious, such as a systemic issue (ie where it affects more than the individual complainant). Complaints to ASIC can be made online, in writing or by phone.

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Pawnbrokers [13.380]

A pawnbroker is a person who lends money and holds items owned by the borrower until the money is repaid. Pawnbrokers are regulated by the Pawnbrokers and Second-hand Dealers Act 1996 (NSW). The definition of a pawnbroker does not include people licensed under another act to hold securities for loans (for example, in the course of commercial and banking business).

[13.390] Licences A pawnbroker operating in NSW must apply to the NSW Government Licence Service for a licence. Certain criteria apply before a licence will be granted or renewed (and a person may have their licence revoked in some circumstances). The main criteria for holding a licence are that the applicant: • has not had a conviction in the previous 10 years for an offence involving dishonesty, and • is not an undischarged bankrupt.

[13.400] Records that must be

kept by a pawnbroker The pawnbroker must keep a numbered record for each article pawned, which must contain: • a description of the goods pawned (including all serial numbers or other identifying characteristics) • the total amount lent, together with the rate of interest charged per week, month or other period (as the case may be) and any other charges • the annual interest rate • the name and address of the owner of the goods • the date the goods were pawned. A pawnbroker must display a notice in their business premises setting out the rates of interest charged and specifying any other applicable fees or charges.

[13.410] Pawn tickets The record is signed by the borrower, who is then given a copy signed by the pawnbroker (the pawn ticket) (s 28(5)). The pawn ticket must contain, or be accompanied by, a notice in the form prescribed by Sch 1 to the Pawnbrokers and Second-hand Dealers Regulation 2015 (NSW) setting out the rights and obligations of the borrower, and include details of: • any fees and charges associated with the loan, including the total amount if this can be ascertained • the method or methods by which the goods may be sold if they are not redeemed • the intervals at which interest charges may be debited from the loan and, if interest is to be debited at intervals greater than one month, a statement that the borrower may choose to pay interest at monthly intervals • the address where the goods will be kept • the last day on which the goods may be reclaimed (the end of the redemption period).

[13.420] The redemption

period Unless a longer period is agreed, and stated on the record, the borrower has three months in which to reclaim the goods. After that period, the borrower may claim the goods at any time before they have been consigned for sale (s 29(2)). A pawnbroker may agree to extend the redemption period (s 29A(2)). If they do so they must give the borrower certain information, including the new redemption period and any new rates, fees or charges that may be payable. If a pawn agreement provides that interest is to be paid at the end of the redemption period, or at intervals greater than one month, the agreement must provide the borrower with an option to pay interest on a

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monthly basis (s 32A). The agreement must set out the amount of interest that would be payable for each month or if the actual amount is not known, a method of calculating this amount. A pawn agreement must not contain a provision that charges a borrower interest after the redemption period. Nor can an agreement provide for an increase in charges for storing and safekeeping of pawned goods after the redemption period expires (s 32B).

[13.430] Redeeming the goods A person who presents the ticket, repays the loan and reproduces the signature on the pawn ticket must normally be given the article (Pawnbrokers and Second-hand Dealers Regulation 2015, cl 29(1)). If a borrower loses the pawn ticket, the pawnbroker must demand sufficient identification before allowing the goods to be redeemed (cl 29(2)). The borrower should produce identification with a photograph, a signature and a current address issued by an Australian (state, territory or federal) government authority. Identification must: • contain the required information • be issued by entities other than the borrower • not appear to have been forged or tampered with. There are various other documents and combinations of documents that may be acceptable (cl 29(2)).

[13.440] Articles not

reclaimed Any articles not reclaimed by the end of the redemption period are forfeited to the pawnbroker and must be sold as soon as practicable after the redemption period has expired (s 30(1)). The pawnbroker may not purchase the pawned goods (s 32). If the article is sold for at least $100 more than the amount owing (including the cost of the sale and any other charges), the pawnbroker must notify the person who pawned the goods of the surplus within 21 days of the sale (Pawnbrokers and Secondhand Dealers Act 1996, s 31A, Pawnbrokers and

Second-hand Dealers Regulation 2015, cl 31). This notice should specify that the person may claim this amount within 12 months (s 31). The pawnbroker must keep records of all goods sold (s 16).

[13.450] Stolen goods A person who believes that a pawnbroker holds stolen goods belonging to them should contact the police for assistance. The police may in certain circumstances give the pawnbroker a restoration notice directing the return of the goods to the claimant within 28 days, during which the pawnbroker must not dispose of or alter the goods (s 32F). Before such a direction can be made the person claiming the goods must give the police: • a written statement to the effect that: – the goods belong to them and were stolen and pawned without their permission – they have previously reported the theft to police • evidence of their claim to the goods (such as a statutory declaration that the goods belong to them or photographs of the goods while in their possession). It is a criminal offence to falsely claim ownership of pawned goods or make a false statement under the provisions of the Act relating to the return of stolen goods (s 32K). If the pawnbroker disputes that the goods have been stolen, they may apply to the NSW Civil and Administrative Tribunal (the Tribunal) within the 28 days prescribed in the restoration notice for an order allowing them to keep the goods (or a range of other orders) (s 32G). The pawnbroker commits an office if they do not return the goods or apply to the Tribunal. In these circumstances, the claimant should complain to NSW Fair Trading and can apply to the Local Court for return of the goods. If the police successfully prosecute a person in relation to the stolen goods, the court may direct the pawnbroker to return the goods to the rightful owner (s 43 of the Criminal Procedure Act 1986 (NSW)), otherwise the goods must be handed to the police (s 32M). The person claiming the goods can

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then ask the police to return the goods, or otherwise may apply to the Local Court (s 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)).

Credit reporting [13.460] The purpose of credit

reporting The purpose of the consumer credit reporting system is to balance the protection of a person’s personal information with the need for credit providers to have enough information to help them decide whether or not to give that person credit. To achieve this, the credit reporting laws set out the specific types of personal information that a credit reporting body can include in a person’s consumer credit report.

[13.470] The credit reporting

laws The laws regulating the handling of personal information for consumer credit reporting in Australia are contained in the Privacy Act 1988 (Cth) (principally in Pt IIIA), the Privacy (Credit Reporting) Code 2014 (Version 1.2) (referred to as the “CR code”) and the Privacy Regulation 2013 (Cth) (the Privacy Regulation).

[13.480] More comprehensive

credit reporting On 12 March 2014, the credit reporting laws in Australia changed. The changes allowed for “more comprehensive” credit reporting. This means that a limited amount of information about a person’s current credit accounts and repayment history is now permitted to be included in a person’s consumer credit report. Before 12 March 2014, only “negative” information about a person’s credit activities was permitted to be included in their consumer credit report (such as, information about a default).

The shift to more comprehensive credit reporting is intended to help credit providers make sure that they do not give a person credit that is unsuitable for the person (for more information about credit providers’ responsible lending obligations and the requirement to have an Australian Credit Licence, see Responsible Lending at [13. 120]). Importantly, more comprehensive credit reporting is balanced by enhanced privacy protections, relating to notification, data quality, access and correction, and complaints.

[13.490] Credit reporting

bodies Credit reporting bodies collect personal information about a person’s consumer credit history from credit providers (and other sources) for the purpose of including that information in the person’s consumer credit report. Credit reporting bodies may also use that information to make an assessment about the person’s creditworthiness, for example, by producing a credit score. Making an assessment about a person’s creditworthiness includes making an assessment of the person’s: • eligibility to be provided with consumer credit, • history in relation to consumer credit, and • capacity to repay an amount of credit that relates to consumer credit (Privacy Act, s 6(1)). Credit reporting bodies can then provide that report and assessment to credit providers for certain purposes, including to help a provider decide whether to give a person credit (s 20F).

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[13.500] Information that can

be included in a consumer credit report The following types of personal information can be included in a person’s consumer credit report (s 6N): • certain information necessary to identify the person (ss 6N(a) and 6(1)) • the names of any current and former credit providers that have provided the person with consumer credit, and certain other information about that credit, including the day the credit was made available and the credit limit (ss 6N(b) and 6(1)) • repayment history information (ss 6N(c) and 6V) • a statement that a credit provider has requested access to information held in the person’s consumer credit report in connection with an application that the person has made to that credit provider for consumer or commercial credit (sometimes called a “credit enquiry”) (ss 6N(d) and 6R) • the type and amount of consumer or commercial credit that the person sought in that application (s 6N(e)) • that the person has defaulted on a consumer credit payment of $150 or more (a default occurs if the person is at least 60 days overdue in making a payment) (ss 6N(f) and 6Q) • a statement that the person has since paid an amount that was recorded as a default in their consumer credit report (ss 6N(g) and 6T) • a statement that, as a result of a default, the person has agreed to a variation in the terms and conditions of the consumer credit, or is provided with new consumer credit (ss 6N(h) and 6S) • any court judgments made against the person that relate to credit that they have been provided, or applied for (ss 6N(i) and 6(1)) • certain information about a person that is recorded on the National Personal Insolvency Index, including information that relates to bankruptcy and debt agree-

ments (ss 6N(j) and 6U) • certain publicly available information that relates to the person’s activities in Australia and their creditworthiness (however, a credit reporting body can only collect this information from a Commonwealth Government agency or a state or territory authority) (s 6N(k), and CR code, para 11.1)) • the opinion of a credit provider that the person has committed a serious credit infringement (ss 6N(l) and 6(1)).

Repayment history information Information about a person’s repayment history (sometimes called “repayment history information”) is information about whether the person has met their consumer credit payment obligations in a particular month (s 6V). A person will be recorded as having not met their consumer credit obligations for a particular month if they miss even one payment that is due to be paid in that month. It does not matter if they made all of the other payments that were due to be paid that month, or if they paid part (but not all) of the amount owing (Privacy Regulation 2013, s 12). A person can only be considered to have missed a consumer credit payment if they make the payment more than 14 days after the day it was due to be paid (CR code, para 8.1). Importantly, only a credit provider that holds an Australian Credit Licence issued by ASIC, or is prescribed by the Regulations, can disclose repayment history information to a credit reporting body or access repayment history information contained in a person’s credit report (ss 21D(3) and 20E(4)). Generally, that means credit providers who provide: • mortgage credit • personal loans, or • credit cards. Importantly, the following credit providers are not able to view or receive information from a credit reporting body about a person’s repayment history: • electricity, gas and water utilities • telecommunications carriers

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• toll road and public transport operators, and • retail companies that permit payment for goods or services to be deferred. This also means that a person’s credit report will not include information about whether they have made or missed a payment to those credit providers. For example, a person’s credit report will not include information about missed payments for electricity, water, gas, mobile phone or internet bills. Repayment history information cannot be included in a person’s consumer credit report for more than two years after the payment was due (s 20W).

Defaults A default is different to information about a person’s repayment history. A default is information about a payment of $150 or more that has been overdue for at least 60 days (s 6Q). A credit provider must give the person two specific notices before information about a default can be included in their consumer credit report (for more information about defaults, see Requirements for listing a default at [13.510]).

Serious credit infringements A serious credit infringement is where a person: • uses fraud (or attempts to use fraud) to obtain credit or evade their credit obligations, or • acts in a way that indicates an intention not to comply with their credit obligations and the credit provider has been unable to contact the person for a period of at least six months (s 6(1)).

Information about commercial credit A person’s consumer credit report may contain two types of information about any commercial credit that they have applied for: • a statement that a credit provider has requested access to information held in the person’s consumer credit report in connection with an application that the person has made to that credit provider for commercial credit (sometimes called a “commercial credit enquiry”), and

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• the type and amount of commercial credit that the person sought in that application (s 6N). The credit reporting laws do not apply to the handling of any other personal information about a person’s commercial credit activities. Instead, where a credit reporting body or credit provider is also an APP entity (defined in s 6(1)) the Australian Privacy Principles contained in the Privacy Act will apply to the handling of that information (s 15). However, the credit reporting laws set out when a credit provider can handle a person’s consumer credit report for a purpose connected with an application the person has made for commercial credit (s 20F).

[13.510] Requirements for

listing a default A default occurs when a person is at least 60 days overdue in making a consumer credit payment of $150 or more. Importantly, a default cannot be included in a person’s consumer credit report if it relates to an overdue payment that: • is less than $150, or • is statute barred (meaning that the credit provider is prevented by a statute of limitations from enforcing the debt) (s 6Q).

Notice requirements Before a credit provider can give a credit reporting body information about a default for inclusion in a person’s consumer credit report, the credit provider must send the person two separate notices. Those notices are: • Notice 1: a written notice informing the person about the overdue payment and requesting that they pay the amount outstanding (s 6Q) • Notice 2: a written notice informing the person that if they do not pay the overdue amount the credit provider intends to give information about the default to a credit reporting body (s 21D(3)). The first notice can be sent as soon as the payment becomes overdue. However, a credit provider must wait 30 days after

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sending the first notice before it sends the second notice. Each of these notices may be included with notices required by other legislation as long as this 30 days’ separation is maintained (CR code, para 9.3).

Time restrictions for listing a default A credit provider must wait at least 14 days after issuing the second notice before listing the default (s 21D(3)). However, a credit provider cannot wait more than three months after issuing a person with the second notice to list the default (CR code, para 9.3). If the credit provider does not disclose the default to a credit reporting body within that three-month period, it must send the person a new Notice 2 informing them of the provider’s intention to list the default. The credit provider must then wait at least another 14 days before disclosing the default to a credit reporting body, for inclusion in the person’s consumer credit report (s 21D(3)).

Multiple defaults Once an overdue payment is included in a person’s consumer credit report as a default, the amount of the default cannot be changed to reflect any subsequent payments or further missed payments (CR code, para 9.4). This means that if the person subsequently misses another payment in relation to the same credit account, the later missed payment must be listed as a separate default. This ensures that information about a default only remains on the person’s credit report for five years (the retention period for a default), from the date that the information was first included on that report (s 20W). If the person pays the whole overdue amount that has been listed as a default, the credit provider must inform the credit reporting body (s 21E). The credit reporting body will then include a statement on their consumer credit report next to the default, indicating that the overdue amount was paid. However, the default will not be removed from the person’s consumer credit report until the retention period has expired.

[13.520] Credit scores A credit reporting body may use personal information included in a person’s consumer credit report to create a credit score. A credit score is a number that indicates the body’s assessment of the person’s level of consumer creditworthiness. Importantly, a credit reporting body cannot use personal information that is not permitted to be included in a consumer credit report (ie, information other that than those types listed at [13.500]) to produce a credit score (or otherwise assess the person’s consumer creditworthiness) (CR code, para 5.1). A credit provider may also create its own credit score about a person, using information in the person’s consumer credit report (that has been disclosed to the provider by a credit reporting body) and other personal information it holds. However, a credit provider cannot give this score to a credit reporting body.

[13.530] Information that

cannot be included in a consumer credit report Credit reporting bodies are not permitted to collect any other information about a person’s consumer credit activities (that is, information other than those types listed at [13.500]) for the purpose of including that information in the person’s consumer credit report (CR code, para 5.1). This includes, for example, information about a person’s assets and income.

[13.540] Credit refusals If a credit provider decides to refuse a person’s application for credit and the refusal is based wholly or partly on information in the person’s consumer credit report, the credit provider must give the person written notice of that decision and certain other matters, including reasons for that decision and how they can get a copy of their consumer credit report for free (s 21P and CR code, para 16.3).

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[13.550] Automatic deletion of

information in a consumer credit report Personal information about a person’s consumer credit activities can only be included in their credit report for between two and seven years (referred to as the “retention period”), depending on the type of information (s 20W). A credit reporting body must remove the information from the person’s credit report within one month of the end of the relevant retention period (s 20V).

[13.560] Access to

information in a consumer credit report The credit reporting laws restrict who can access the personal information contained in a person’s consumer credit report.

Businesses that can access information in a credit report The following businesses are able to request access to information contained in a consumer credit report from a credit reporting body: • other Australian credit reporting bodies • credit providers, including banks, building societies, credit unions, retail companies that issue credit cards, small amounts lenders (including payday lenders), businesses that provide goods or services on credit and which allow payment to be deferred for seven days or more (including energy and water utility companies, telecommunications carriers and toll road and public transport operators) (s 6G) • mortgage insurers, and • trade insurers. However, a credit reporting body will only be permitted to give a copy of a person’s consumer credit report to those businesses for certain purposes (s 20E).

Businesses that cannot access information in a credit report The following businesses are not credit providers and are, therefore, not permitted

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to access information contained in a person’s consumer credit report directly from a credit reporting body: • real estate agents • landlords • employers, and • insurance companies other than mortgage insurers and trade insurers (s 6G(5) and Privacy Regulation 2013, s 10). In addition, foreign credit providers or foreign credit reporting bodies are not permitted to access information held by Australian credit reporting bodies.

When a person can get a free copy of their consumer credit report A person can get a copy of their credit report for free from each credit reporting body in all of the following circumstances: • if the person has applied for, and been refused credit, within the past 90 days • where the person’s request for access relates to a decision by a credit reporting body or a credit provider to correct information included in their consumer credit report, and • once a year (not counting the above circumstances) (s 20R(5) and CR code, para 19.3). Following a request for access, a credit reporting body will provide the person with: • a copy of all the personal information contained in their consumer credit report, and • a summary and explanation of the information to help the person understand the impact that their consumer credit report has on their ability to access credit (s 20R(4) and CR code, para 19.4). A credit reporting body must provide this information within a maximum of 10 days from the date of the request for access (s 20R(3)).

[13.570] Seeking correction of

information in a consumer credit report If a person believes that the personal information included in their consumer credit report is incorrect, they can approach any

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credit reporting body or credit provider and request to have the information corrected for free (ss 20T and 21V). Information may be “incorrect” because it is inaccurate, out-of-date, incomplete, irrelevant, or misleading, having regard to the purpose for which it was collected. A credit reporting body or credit provider will usually make a decision about the correction request within 30 days of the person making the request (s 20T). After making the decision, the body or provider then has five days to notify the person about the outcome (CR code, para 20.7).

[13.580] Complaints A person can make a complaint where they believe that a credit reporting body, credit provider or other recipient of their consumer credit report has handled that report (or the personal information contained in that report) in a way that is inconsistent with the credit reporting laws. An individual’s complaint will generally follow a three stage process. • Step 1: A person should first complain to the relevant credit reporting body, credit provider or other recipient (unless the person’s complaint is about a decision not to correct, or not to grant access to, information contained in their consumer credit report, in which case they can go straight to Step 2) • Step 2: If a person is not satisfied with the outcome of Step 1, they may complain to an external dispute resolution (EDR) scheme of which the credit reporting body, credit provider or other recipient is a member • Step 3: If the person is not satisfied with the outcome of the EDR process or if they would rather complain directly to the regulator, they may complain to the Office of the Australian Information Commissioner (OAIC).

Step 1: Complaints to credit reporting bodies and credit providers A person should first complain directly to the credit reporting body or credit provider if they believe that the body or provider has breached the credit reporting laws (s 23A). Complaints to credit reporting bodies and credit providers are free, and the provider or body must respond in writing within seven days. That notice must set out how the body or provider will deal with the complaint (s 23B). Generally, a credit reporting body or credit provider must make a decision, about a person’s complaint within 30 days of receiving the complaint. The body or provider must then notify the person in writing of the decision and explain who the person can complain to if they are not satisfied with that decision (s 23B).

Step 2: Complaints to recognised external dispute resolution schemes All credit providers that provide information to credit reporting bodies are required to be a member of an external dispute resolution (EDR) scheme recognised by the Information Commissioner (ss 21D(2) and 35A). If a person is not satisfied with the response that they receive from a credit reporting body or a credit provider about their complaint (or if a person wants to complain about a decision by a body or provider not to correct, or not to provide access to, information in their consumer credit report), they can make a complaint to a recognised EDR scheme that the body or provider is a member of.

Step 3: Complaints to the Australian Information Commissioner Under the Privacy Act, an act or practice that breaches a provision of the credit reporting laws is an interference with the privacy of an individual (s 13(2)). A person can complain to the Information Commissioner about any act or practice that may be an interference with their privacy (s 36). The Information Commissioner has the power to investigate possible interferences

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with privacy, either following a complaint or on their own initiative (ss 40(1) and 40(2)). The Privacy Act does not prevent individuals from lodging a complaint directly with the Information Commissioner, where they have not first complained to the relevant credit reporting body, credit provider, or EDR scheme. However, the Information Commissioner can decline to investigate a complaint on a number of grounds, including that the complainant has not already complained to the relevant credit reporting body or credit provider, or the complaint is already being dealt with by an EDR scheme, or that the complaint would be more effectively or appropriately dealt with by an EDR scheme (s 41). The Information Commissioner will generally attempt to resolve a complaint by conciliating an outcome between the parties

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(s 40A). If conciliation does not resolve the matter and it is not finalised on some other basis under the Privacy Act, the Information Commissioner may consider whether to make a determination, which may include a declaration that the person is entitled to compensation for any loss or damage suffered, including for humiliation or injury to feelings (s 52). In some circumstances the Information Commissioner may also accept an undertaking from the credit reporting body or credit provider to do, or stop doing, a specific thing so that they do not breach the Privacy Act (s 33E). If the body or provider fails to meet the undertaking, the Commissioner can ask for it to be enforced by a court (s 33F).

Debt collection (including by credit providers) [13.590]

Debt collectors must be licensed as a Commercial and Private Enquiries Agent with the NSW police. If they are collecting debts regulated by the NCCP Act the agent must also have an Australian Credit Licence with ASIC. The joint Australian Securities and Investments Commission (ASIC) and Australian Competition and Consumer Commission (ACCC) Regulatory Guideline 96 Debt Collection Guideline: for Collectors and Creditors February 2016 (the Debt Collection Guideline) also sets out the expectations of debt collectors. A breach of these guidelines can form the basis of an internal or external dispute resolution complaint.

[13.600] Agent or assignee? A debt collector is either an agent or assignee of a debt. There is an important distinction because it effects who has the legal responsibility for the debt.

Agent: If a debt collector is an agent of a credit provider, ie they are collecting a debt on behalf of a credit provider, they are exempt from being licensed. The credit provider retains legal responsibility for the debt and must comply with credit laws including being a member of an EDR scheme (FOS or CIO). Assignee: If a debt collector buys a regulated credit contract entered into from 1 July 2010, they become the credit provider and must be licensed and be a member of an EDR scheme.

[13.610] Rules about debt

collection practices The Debt Collection Guideline provides that contact to a debtor must be made at reasonable hours, taking into account the debtor’s circumstances and reasonable wishes. Reasonable hours are defined as: Contact by telephone Monday to Friday: 7.30am to 9pm.

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Weekends: 9am to 9pm. National public holidays: No contact recommended. Face-to-face contact Monday to Friday and weekends: 9am to 9pm. Workplace contact Debtor’s normal working hours if known, or 9am to 5pm on weekdays. There may be reasons why contact during the above times is unreasonable, or contact outside these times is reasonable. For instance, a debtor may ask that contact be made at other times due to various reasons, for example, because the debtor: • is a shift worker • is responsible for children, or caring for a family member, and contact at certain times is inconvenient • does not wish to be contacted when other family members are present. The guidelines also state that a debt collection must not try to pressure a debtor by misleading, harassing, threatening or putting pressure on a debtor’s spouse or partner, a member of a debtor’s family (especially a child) or other third parties such as authorised representatives (clause 18).

[13.630] Offences by debt

[13.620] Harassment and

debts

coercion

Under the Limitation Act 1969 (NSW), a credit provider or debt collector has six years to pursue a debt from the date of the last payment or acknowledgement of the debt in writing. If a court judgment is made in regards to the debt, the credit provider or debt collector has 12 years to pursue the debt from the date of the judgment. There are exceptions to this, including mortgages. Seek legal advice regarding this.

Undue harassment and coercion is prohibited in relation to the supply of goods and services (Australian Consumer Law, s 60) and the supply of financial services (ASIC Act, s 12DJ). Generally, undue harassment occurs when a credit provider or debt collector repeatedly approaches a person about an alleged debt in a manner that is unreasonable and is designed to intimidate, annoy or wear down the person. Coercion generally occurs where a debtor is subject to force or a threat that unfairly pressures them to comply with the demands of a person enforcing a debt. It is unlikely that a threat of debt recovery proceedings would be considered to be coercion for the purposes of these provisions.

collectors Debtors should be aware that a debt collector cannot disclose certain private information in the course of seeking to recover a debt (see Chapter 15, Debt). If this information is disclosed the debt collector’s conduct should be reported to the Australian Information Commissioner (see Contact points at [13.670]). A debt collection agency operating in NSW must be licensed under the Commercial Agents and Private Inquiry Agents Act 2004 (NSW) (the Act). Under s 25 of the Act, it is an offence for a commercial agent to: • unduly harass a debtor by leaving material at or outside the debtor’s home or workplace indicating they were there to collect a debt • tell, or threaten to tell a person’s employer that the person is a debtor • make unreasonably frequent telephone calls. The Debt Collection Guideline notes that a debtor should not be contacted more than three times a week or 10 times a month.

[13.640] Collection of old

[13.650] Mistaken identity or

fraud Debt collectors sometimes contact a person about a debt that is not theirs, as a result of mistaken identity or fraud. It is recommended to write to the debt collector and/or credit provider requesting copies of all relevant documents relating to the alleged

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debt from the date of the judgment. Follow the complaint handling procedure listed below.

[13.660] Advice and

complaints Where to get advice Either ASIC or the ACCC can provide assistance and should be contacted if harassment occurs. Consumers can also seek legal advice (see Contact points at [13.670]).

Where to take complaints The recommended steps depend on whether the debt collector is an agent or an assignee of the debt (see [13.600]). Many debt collectors are members of EDR schemes such as CIO or FOS. Complaints about debtor harassment can be made to

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EDR schemes, as can other types of disputes, such as problems in making a repayment arrangement. Complaints under the Commercial Agents and Private Inquiry Agents Act 2004 can be made to the police or the agent’s place of business, with relevant documents and witness details. Options include: • write to the debt collector and/or the credit provider • lodge a dispute with the internal dispute resolution department of the debt collector and/or the credit provider • lodge a dispute with the EDR scheme/s that the debt collector and/or credit provider are a member of • lodge a complaint with ASIC.

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Contact points [13.670]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au.

Financial counselling and legal help

External Dispute Resolution Schemes

A large number of organisations offer financial counselling and legal help. To find someone near you, contact one of the organisations below.

Credit and Investments Ombudsman www.cio.org.au

www.financialrights.org.au

ph: 1800 138 422 Financial Ombudsman Service Australia www.fos.org.au

Credit and debt hotline

ph: 1800 367 287

Financial Rights Legal Centre

ph: 1800 007 007 The Financial Rights Legal Centre (formerly the Consumer Credit Legal Centre) deals with matters concerning credit, debt, bankruptcy, banking and insurance issues. It does not deal with other general consumer issues. Legal Aid NSW To find an office near you or obtain legal information contact LawAccess NSW www.lawaccess.nsw.gov.au ph: 1300 888 529 or go to www.legalaid.nsw.gov.au Financial Counsellors’ Association of NSW For referral to a financial counsellor www.fcan.com.au ph: 1300 914 408

Government bodies Australian Competition and Consumer Commission (ACCC) www.accc.gov.au ph: 1300 302 502 Australian Information Commissioner, Office of the (Federal) www.oaic.gov.au ph: 1300 363 992 Australian Securities and Investments Commission (ASIC) www.asic.gov.au ph: 1300 300 630 Information and Privacy Commission NSW (IPC) www.ipc.nsw.gov.au ph: 1800 472 679 MoneySmart (ASIC) www.moneysmart.gov.au

ph: 1300 300 630

Industry Associations and Codes of Practice Australian Collection and Debt Buyers Association (ACDBA) www.acdba.com Code of Banking Practice (for banks) - www.bankers.asn.au Customer Owned Banking Code of Practice (COBCOP) (previously Mutual Banking Code of Practice) (for credit unions and building societies) www.customerownedbanking. asn.au Mortgage & Finance Association of Australia Code of Practice (MFAA) (mortgage managers, non-bank lenders and finance brokers) www.mfaa.com.au www.mfaa.com.au Senior Australians Equity Release Association of Lenders (SEQUAL) www.sequal.com.au Sequal is the peak industry body for the Australian equity release market, eg an example of an equity release product is a reverse mortgage.

14 Criminal Law Penny Crofts

Associate Professor, Faculty of Law, University of Technology Sydney Andrew Haesler

Judge, District Court NSW

Contents [14.10]

Part 1— Crime

[14.20]

Types of crime

[14.60]

[14.340]

Detention at the police station

Basic principles of criminal law

[14.450] [14.530]

Bail Part 3 — Court

[14.110]

Examples of crimes

[14.530]

Criminal Court process

[14.190]

Sex work

[14.540]

[14.230]

Part 2 — Arrest, interrogation and bail

Offences heard in the Local Court

[14.620]

Police powers Arrest

Offences tried by a judge and jury

[14.700]

Effect of conviction

[14.240] [14.290]

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Part 1 — Crime [14.10]

The words crime and criminal are easily applied to violence and theft. But crime also includes victimless crimes such as possession of marijuana, parking violations and minor traffic offences. In its widest sense, the term criminal law includes any law which declares that certain conduct is an offence and lays down a penalty for it. In practice, however, parking violations and minor traffic offences are not generally

regarded as crimes. They are separately recorded by Roads and Maritime Services and, unlike serious offences, generally do not need to be disclosed in job applications. Drug offences are discussed in Chapter 21, Drug Offences. Sexual offences are discussed in Chapter 35, Sexual Offences. Domestic violence crimes are dealt with in Chapter 19, Domestic Violence. Traffic offences are dealt with in Chapter 20, Driving and Traffic Law.

The difference between crimes and civil wrongs It can be quite difficult to define the difference between crimes and civil wrongs. Who is wronged? One way of looking at it is to say that a crime is a wrong against the community, which attracts community condemnation and punishment, while a civil wrong is a wrong against an individual, which requires compensation or repayment to the person wronged. For example, if a person takes money from someone's bag without their permission, they are committing a criminal offence for which they can be punished by the state. If they carelessly damage someone's bag, the owner may take them to a civil court and they may be ordered to pay compensation, this is quite separate from the punishment process. On the other hand, a person who fails to pay back a loan is not committing a crime. Although a civil case can be taken against them to get the money back, the person cannot be prosecuted for a criminal offence. Of course, a crime is often (not always) also a wrong against an individual.

Types of crime [14.20]

Crimes may be tried by a magistrate, or by a judge and jury. Usually this depends on the seriousness of the crime.

Who takes action? Crimes are normally prosecuted by the state or Commonwealth, whereas it is generally up to an individual to take court action against a person who has committed a civil wrong. It is possible for someone to commence criminal proceedings against a person who has committed a crime against them, such as assault, but it is rarely done. Actions that are both crimes and civil wrongs Many acts, such as assault, can constitute a crime and a civil wrong at the same time. The police may be reluctant to commence criminal charges for minor assaults unless there are witnesses or noticeable injuries, and they will leave it up to the person assaulted to take action. In this case the person may have to choose between starting criminal proceedings and starting civil proceedings. If the police bring criminal proceedings, the person can still bring a civil action.

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[14.30] Crimes tried by a

magistrate Crimes tried by a magistrate in a Local Court are called summary offences. They are less serious than those tried by a judge and jury (indictable offences), and the penalties are less. Examples of summary offences are driving with the prescribed concentration of alcohol, smoking marijuana and offensive behaviour.

Can the person have a jury? A person charged with a summary offence cannot insist on having a jury to decide their innocence or guilt. Because of the expense and delay involved in a trial by jury, most new offences created by parliament are tried by a magistrate.

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Time limits There is no time limit for a charge to be laid for an indictable offence.

The committal hearing Before people charged with indictable offences are tried there is usually a committal hearing (a preliminary hearing in a Local Court). At the committal hearing, evidence is presented to determine whether there is a reasonable prospect that a jury would convict the person charged of an indictable offence (Criminal Procedure Act, s 65). The court hierarchy is discussed in Chapter 1, About the Legal System. Court proceedings are discussed later in the chapter at ([14.530]).

Time limits

[14.50] Crimes tried by either

Proceedings for a summary offence must be started within six months of the date of the alleged offence (Criminal Procedure Act 1986 (NSW), s 179(1)).

a magistrate or a judge and jury

Children and summary offences When a person under 18 is charged with a criminal offence, the case is heard, at least initially, in the Children's Court, and special provisions apply (see Chapter 7, Children and Young People).

Many less serious types of indictable offences, such as stealing and breaking and entering, may (or must) be dealt with by a magistrate in the Local Court under some circumstances. There are special procedures for dealing with these cases.

Time limits

[14.40] Crimes tried by a

judge and jury Crimes tried by a judge and jury are generally more serious (indictable offences). In jury trials, the judge rules on questions of law, and the jury rules on questions of fact.

In the Supreme Court Only extremely serious charges – generally murder, terrorism and major corporate frauds – are heard in the Supreme Court.

In the District Court Cases arising from other indictable offences such as robbery, malicious wounding and dangerous driving causing death are heard in the District Court.

There is no time limit for the prosecution to lay a charge for indictable offences that can be dealt with summarily, even though they are heard in the Local Court.

Indictable offences dealt with summarily Legislation divides indictable offences into those which may: • not be tried summarily; • be tried summarily unless the prosecuting authority or the accused elects to have the offences dealt with on indictment (Table 1); and • be dealt with summarily unless the prosecuting authority elects to have them dealt with on indictment. This means that a large number of indictable offences are likely to be tried summarily.

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The tables, which are found at the end of the Criminal Procedure Act, should be checked, as they are changed regularly.

Choosing a District Court trial An accused can choose between a Local Court hearing and a District Court jury trial if property involved is valued at more than $5000 or, in the case of an assault, the assault is serious. Is a jury trial desirable? Because a magistrate in a Local Court may view the facts very differently from a jury of 12 citizens hearing the case in the District Court, deciding whether a jury trial is desirable is an important decision.

What about penalties? Once a matter goes to the District Court, that in itself, may result in the matter being viewed more seriously. Maximum penalties available to judges are significantly greater than those available to magistrates, who are restricted to a maximum of 100 penalty units, two years’ imprisonment for one offence and five years for multiple offences (Criminal Procedure Act 1986 (NSW), ss 267, 268; Crimes (Sentencing Procedure) Act 1999 (NSW), s 58). Section 267(4) of the Criminal Procedure Act specifies certain offences with a different maximum penalty. See penalties below at [14.670]

Basic principles of criminal law [14.60]

Historically four basic principles of our criminal law were that: • a person is innocent until proven guilty • guilt must be proved by the prosecution beyond reasonable doubt • silence cannot be used to infer guilt • a person who has been acquitted cannot be tried again for the same offence. This section shows the recent watering down of the latter two of these fundamental principles.

[14.70] Innocent until proven

guilty The basis of our system of criminal justice is that a person charged with an offence is innocent until proven guilty.

[14.80] Proof beyond

reasonable doubt What the prosecution must prove In accordance with the principle that a person is innocent until proven guilty is the rule that the prosecution must prove guilt.

It is not up to the person charged to establish their innocence, although sometimes the accused has to show that there is sufficient evidence to raise an issue as a defence. The prosecution must satisfy the magistrate, judge or jury that the accused person is guilty beyond reasonable doubt. If there is any reasonable doubt about their guilt, they should be acquitted (ie, found to be not guilty of the offence). The prosecution must not only prove that the accused did the prohibited act with the necessary criminal intent, but also disprove any defences raised by the accused.

What the defendant may have to prove In some cases the defendant merely has to raise a defence, that is, suggest it is a reasonable possibility, and the prosecution will then have to disprove it beyond a reasonable doubt. In other cases the burden of proving a particular defence, such as insanity, may be on the accused person. However, unlike the prosecution, the defence only has to be proved to the lesser standard of on the balance of probabilities.

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[14.90] The right to remain

silent There is no general right in the Australian Constitution, or anywhere else in Australia, that says a person is entitled to remain silent when questioned by police. However, a person is not required to answer questions put by a police officer, except in certain limited situations (see Part 3 of this chapter at [14.230], Arrest, interrogation and bail).

Is silence evidence of guilt? Until 2013, the fact that a person chose to remain silent could not be used as evidence of their supposed guilt. However, in 2013 the NSW Parliament introduced new rules with regards to the right to silence following reforms in England (Evidence Act 1995 (NSW), s 89A). Now a suspect will be cautioned that although they have the right to remain silent, “it may harm their defence if they fail to mention something now that they later rely on at trial”. The special caution only applies if the suspect has received legal advice at the time.

[14.100] Double jeopardy The principle of double jeopardy requires that no-one should be punished more than once for the same offence, and that no-one should be twice placed in jeopardy of being convicted for the one offence. This means generally that if a person has been tried and

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acquitted of an offence, they cannot be tried again on the same charge. This principle emphasises the finality of verdicts in the resolution of disputes and ensures that prosecutions are not used as an instrument of tyranny or harassment. In 2006, the NSW Parliament passed legislation abolishing the rule against double jeopardy in cases where: • an acquittal of a “life sentence offence” (murder, manslaughter, gang rape, large commercial supply or production of illegal drugs) is debunked by “fresh and compelling evidence of guilt”; or • an acquittal of a “15 years or more sentence offence” was tainted by perjury, bribery or perversion of the course of justice (Crimes (Appeal and Review) Act 2001 (NSW), ss 99–112). Where to find the criminal law Most crimes in NSW are covered by statutes passed by parliament. The main Act is the Crimes Act 1900 (NSW), but specific areas are covered by other Acts such as the Drug Misuse and Trafficking Act 1985 (NSW) and the Summary Offences Act 1988 (NSW). Crimes affecting federal powers or property are generally regulated by Commonwealth Acts such as the Crimes Act 1914 (Cth) and the Criminal Code Act 1995 (Cth). Some crimes only exist at common law as a result of the rulings of courts over the years (for example, attempts to commit some crimes and conspiracies). References to the Crimes Act in the following sections are to the NSW Act, unless otherwise specified.

Examples of crimes [14.110] Assault What is assault? There are two types of assault covered by s 61 of the Crimes Act. 1. Battery assault Battery assault is intentional or reckless application of unlawful force, for example, hitting someone.

What if the person consented? The application of force is unlawful unless the victim has consented (eg boxing). A person cannot consent to actual bodily harm or more, unless the defendant’s actions were within lawfully recognised exceptions such as surgery, boxing, contact sports, lawful corrections and manly pastimes (R v Brown [1994] 1 AC 212). In England it was held that victims could not consent to sado-masochistic activities,

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and thus the accused was guilty of assault. However, in Australia, the defendants would not be charged due to the Human Rights (Sexual Conduct) Act 1994 (Cth). Assaults, except where bodily harm is caused or excessive force is used (R v Raabe (1985) 14 A Crim R 381), require evidence that the victim did not consent. Mere touching can amount to an assault Touching and spitting can amount to an assault, provided it is intentional or reckless unlawful contact. 2. Psychic assault Psychic assault is intentionally or recklessly creating the fear of imminent unlawful contact in the victim. For example, “give me your money or I’ll shoot” is an assault (and robbery). What about threats? A threat of immediate physical violence is enough, so long as it is a real rather than a fanciful or impossible threat. The accused does not need to have the ability or the intention to carry out the threat (eg, threatening with a plastic gun). The essence of psychic assault is that the victim felt fear.

Types of assault The Crimes Act distinguishes between different types of assault, and each offence carries its own penalty. Common assaults have a maximum penalty of two years’ imprisonment (s 61). Assaults can also be aggravated by additional elements: • assault occasioning actual bodily harm (maximum penalty five years (s 59)) • intentionally wounding or inflicting grievous bodily harm (“really serious bodily injury”) (maximum penalty 25 years (s 33)) • recklessly wounding or inflicting grievous bodily harm (maximum penalty 14 years (s 35)) • assaults on victims with special status. For example, assaults on police carry higher penalties, regardless of whether the accused knew the victim was a police officer (s 58).

The law about weapons Guns In 1996 there was a concerted effort by parliaments across the country to reassess laws relating to firearms. The Firearms Act 1996 was a result of this national approach. Firearm possession is confirmed by the Act as being a privilege, not a right, conditional on the overriding need to ensure public safety. The key provisions of the Act are: • the prohibition in most circumstances of the possession and use of automatic and self-loading rifles and shotguns • a national licensing and registration scheme • strict requirements for the licensing, sale and acquisition of firearms • requirements for the safe keeping of firearms. Other weapons The Weapons Prohibition Act 1998 (NSW) regulates the possession, sale, manufacturing, safe-keeping and licensing of such weapons as extendable batons, machine guns, taser guns, knuckle dusters, studded gloves, explosives, crossbows, flick knives and star knives, missile launchers and flame throwers. This Act similarly confirms that firearm possession is a privilege, not a right, and requires that each person who possesses or uses a prohibited weapon under the authority of a permit has a genuine reason for possessing or using the weapon. See also Offences involving knives at [14.150].

[14.120] Homicide What is homicide? Homicide is the killing of a human being. To be charged with a homicide offence, a person must have caused the death of a human being.

Murder For the charge of murder, the prosecution must prove that at the time of causing death, the accused had the mens rea or mental state of either an intention to kill or to cause grievous bodily harm (ie, really serious bodily harm), or the recognition of the probability of death. Alternatively, a person can be found guilty of murder if they caused the death of the victim during or immediately after a 25-year offence. An example of this is where a person has broken into a house and inflicted grievous bodily harm (Crimes Act, s 18).

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Voluntary manslaughter If a person is charged with murder they can argue complete defences such as self-defence which, if successful, will lead to acquittal. An accused can also argue a partial defence which, if successful, will reduce the charge of murder to (voluntary) manslaughter. An accused might argue that the killing was in response to extreme provocation by the deceased (s 23), or they suffered a substantial impairment of the mind (s 23A), and/or they had acted in self-defence but had used excessive force (s 421). The defence of extreme provocation has replaced the earlier defence of provocation and can only be argued in very limited circumstances, particularly with the new requirement that the accused’s response was due to the victim committing an indictable offence.

Involuntary manslaughter If an accused caused the death of the victim, but lacked the necessary mens rea for murder, they may still be charged with (involuntary) manslaughter. An accused may be charged with unlawful and dangerous act manslaughter, which requires the prosecution to prove that the accused caused the death of the victim during an unlawful and dangerous act (Wilson v The Queen (1992) 174 CLR 313). An example of this may be during a bar brawl where an accused hit the victim (assault), causing the victim to fall back and hit their head, resulting in death. Alternatively, an accused may be charged with manslaughter by criminal negligence. This arises where the accused’s gross negligence has caused the death of a victim. This may be charged where the accused has failed to act, where they had a legal duty to act. For example, legal duties have been found in parent/child relationships and voluntary assumption of care for helpless persons: Taktak v The Queen (1988) 14 NSWLR 226.

Assault causing death Where a person assaults another by intentionally hitting them which causes their death the person can be charged with assault causing death. This particular offence has a maximum penalty of 20 years. If

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the person carrying out the assault is over 18 and intoxicated the maximum penalty is 25 years. Importantly the minimum sentence and non-parole period the court can impose is eight years, regardless of any matters raised in mitigation of penalty (ss 25A, 25B).

[14.130] Stealing What is stealing? If a person takes and carries away another person’s personal property with the intention of permanently depriving the owner of the property without their consent, that person can be guilty of larceny – ie, stealing (Crimes Act, s 117). Intention to permanently deprive The intention to permanently deprive can include not just keeping another person’s property, but acting in a way that the owner would not see the property again. This would include discarding it, selling it, giving it away or altering it. Claim of right made in good faith If a person honestly believes that they are legally entitled to property, then they cannot be guilty of larceny if they take the property or the value of the property: R v Fuge (2001) 123 A Crim R 310; R v Lopatta (1983) 35 SASR 101. If a person finds something and keeps it Someone who finds property and keeps it for themselves can be guilty of stealing, unless they honestly and reasonably believe that there was no likelihood the owner could be found. For example, if you find a $20 note on the road, it would be reasonable to believe that the owner would not be found, so you could not be charged with theft if you decided to keep the money. However, if you found a wallet with identification, then you would be expected to make some effort in finding the owner (eg, calling them, giving the wallet to the police). “Borrowing” money without consent A person who took money intending to use it, for example, to bet on the races, and later return it, could also be guilty of stealing (s 118).

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Fraud There is a basic offence of fraud where a person dishonestly obtains property or financial advantage by deception (s 192E). Deception can include words or conduct and covers situations where a person causes a computer to make a response the person is not authorised to cause it to make. Eating a meal at a restaurant and then running out without paying would be fraud,

as by sitting down at the restaurant you are dishonestly indicating that you will pay for the meal.

Other stealing offences The Crimes Act also prohibits receiving stolen property.

Shoplifting Summary stealing offences include shoplifting, perhaps the most common form of stealing or larceny. Because shoplifting is such a prevalent offence, innocent shoppers can be wrongly accused. The simple explanation “I forgot to pay” is very often met with disbelief. Medical evidence, character evidence and the like, can be called to show that there was no intention to steal; ie, to take property without paying for it. Can the person be searched or detained? If a police officer suspects on reasonable grounds that a person has under his or her control anything stolen, the police officer may stop, search and detain the person (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 21).

Summary or indictable? Stealing offences can be indictable or summary offences. Summary offences are dealt with in the Local Court by a magistrate. The maximum penalty for a stealing offence dealt with by a magistrate is two years’ jail and/or a fine of $11,000.

A person suspected of theft in a store can be detained by store staff until the police arrive, provided that there are reasonable grounds for the suspicion. Penalties Most shoplifting offences lead to a fine, but for repeat offences jail is likely. Counselling services Some counselling is available for people who have been charged and are pleading guilty to shoplifting offences. Court parole officers may do the counselling, or refer people who plead guilty to an approved program.

Offences where the property is valued at over $5000 can be dealt with by a judge and jury with the consent of the prosecution or the accused.

Car stealing Car stealing is a form of larceny (see What is stealing above). Anyone who steals a car is liable to a maximum penalty, often years' jail (Crimes Act, ss 154C, 154F). Anyone who assaults another person with intent to take a car and steals that car and drives it, or intends to drive it, is liable to a maximum penalty of 10 years' jail (s 154C(1)(a)). Where there are circumstances of aggravation, the maximum penalty increases to 14 years' jail.

Driving or being a passenger in a stolen car Joyriding is the unauthorised borrowing of a car with the intention of returning or abandoning it. The prosecution only needs to prove taking without consent. Section 154A(1) makes it a criminal offence to drive or allow yourself to be a passenger in a car, knowing that the car has been taken without the owner's consent. The maximum penalty before a judge is five years' jail.

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[14.140] Burglary The Crimes Act seeks to cover all aspects of the range of activities involved in burglary.

Entering Section 109 specifies that “entering with intent to commit a serious indictable offence” (such as stealing), or entering and actually committing a serious crime, are both offences where the person then breaks out, carrying a maximum penalty of 14 years’ imprisonment. Where a person enters a dwelling house with intent to commit a serious indictable offence, but does not break out, they will be liable for up to 10 years’ imprisonment. Aggravated entry If the offence is aggravated by violence, the use of a weapon (offensive weapon under s 109(2); dangerous weapon under s 109(3)), company or deprivation of liberty, heavier penalties, up to a maximum of 25 years, apply (s 109). Standard mandatory minimum sentences also apply. (See Sentencing at [14.670]).

Breaking out Section 109 also covers situations where entry was not by force (such as through an open door), but exit was obtained by breaking out. Breaking In the context of burglary, breaking need not involve smashing anything; it can be as little as opening a screen or internal door or an unlocked window.

Breaking in Breaking into a dwelling, school, shop, warehouse, garage, factory or some such place and committing a crime, or intending

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to commit a crime, such as assault or property damage is also an offence (ss 112–113).

Proving the intention to steal A theft does not have to be completed for an offence to be committed (if theft is intended). For example A person who is disturbed inside a house before grabbing the loot and who runs into the arms of a waiting off-duty police officer has committed the offence of breaking and entering with intent to commit a serious indictable offence (s 113). The prosecution must prove from the circumstances (and/or any admission by the accused) that there was an intention to commit a particular crime. It might, for example, prove that the accused was dressed in dark clothes, broke a lock, entered the house and then fled. There might be evidence that drawers were disturbed. This evidence, together with any admissions made by the accused, would probably be enough to prove that the accused intended to steal while in the house.

Offences involving intent Section 114 specifies a number of offences involving intent, which means that a burglar can be apprehended before actually breaking, entering or stealing. This section covers anyone who: • is armed with a weapon or instrument with intent to commit an indictable offence • has with them implements for housebreaking or safebreaking, or implements that could be used to enter and/or drive a vehicle • has their face blackened or disguised (or who has the materials to disguise themselves) with the intention of committing an offence. The maximum penalty is seven years’ jail. Where a person previously found guilty of any indictable offence is found guilty under s 114, that person is liable for up to 10 years’ jail (s 115).

What are housebreaking and safebreaking implements? Housebreaking and safebreaking implements need not be marked “Acme Burglary Tools”. Ordinary household items like screwdrivers, pliers, knives and chisels can be

used as evidence. The prosecution must prove that the items were in the possession of the accused for an illegal rather than an innocent purpose.

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If the police arrest a disguised man in someone's backyard at 3 am with a chisel and screwdriver in hand, he will have some explaining to do. If he was, in fact, on his way home from a fancy dress party and he got lost, he might have a lawful excuse. It is quite clear from decisions by the Court of Criminal Appeal (for example, R v Harris (2007) 171 A Crim R 267;

R v Ponfield (1999) 48 NSWLR 327) that the courts take a hard line when sentencing offenders of this sort. Jail is frequently seen as the appropriate punishment. Those with records of such offences, or committing multiple offences, can expect long jail terms.

[14.150] Offences in public

To establish the offence, it is not necessary that a member of the public has actually been offended by the language. Further, it is not necessary that a member of the public be present when the language is used (Jolly v The Queen (2009) 9 DCLR (NSW) 225).

places Thousands of people are charged each year with so-called public order offences under the Summary Offences Act 1988 (NSW). Most are fined or given bonds, but some are directed to perform community service work or imprisoned. Police powers with regard to public order offences are specified under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). Public order legislation is extensively used against young people, vandals and demonstrators. Many of the offences involved are fairly trivial, victimless crimes, but the impact on the lives of the people convicted may not be trivial. These matters are noted in police records and count as convictions, which are often required to be disclosed on employment applications. As summary offences, these offences are dealt with by a magistrate in the Local Court. Questions of law are rarely raised in relation to street offences. Most cases depend on the facts and circumstances.

Offensive conduct or language Under s 4(1) and 4A of the Summary Offences Act, a person must not conduct themselves in an offensive manner near or within view or hearing of a public place or school, or use offensive language in or near or within hearing of such a place. What must be proved? The prosecution must prove, beyond reasonable doubt (the standard of proof required in all criminal cases), that: • the conduct occurred near or within view of a public place or school, and • the conduct was offensive.

Offences in private places Some conduct that is an offence in a public place will be an offence even if it occurs in a private place; for example, certain prostitution offences (see Sex work at [14.190]), and the offence of public disorder.

The defence of reasonable excuse Even if the formal elements of an offence are proved beyond reasonable doubt, the accused can still be acquitted if they can show, on the balance of probabilities, that they had a reasonable excuse for the conduct. What constitutes a reasonable excuse is not entirely clear, but it may extend to a mistake of fact or law based on reasonable grounds (see for example, He Kaw Teh v The Queen (1985) 157 CLR 523). Penalty The penalty for offensive conduct is a fine of up to six penalty units or three months’ imprisonment. The penalty for offensive language is a fine of up to six penalty units. The value of six penalty units is currently $660. What it means What is a public place? Public place means a place (land, water or building) to which the public (even a limited section) has access (Summary Offences Act, s 3). It does not matter whether entry is free or not, or whether the place is usually open to the public or not. Schools are not included in this definition. They are defined separately.

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What is offensive? The NSW Court of Appeal, using the Oxford Dictionary, noted in R v Smith [1974] 2 NSWLR 586 that offensive means displeasing, annoying or insulting, though none of those words is a precise alternative to “offensive”, which has its own meaning drawn from the context. The word “fucking” has been held by some Supreme Court judges to be of itself offensive, although some magistrates have taken a more realistic view. What is conduct? Conduct has not been specifically defined, but is usually taken to mean behaviour.

Other summary offences Other summary offences include obscene exposure and being in possession of a knife (see Offences involving knives below) and annoying or harassing behaviour. Police can move people on and give them directions if they see them in public engaging in such behaviour (LEPRA, s 198). Under s 9 of the Summary Offences Act it is an offence where a move on order is given for being drunk or disorderly and within six hours the same person is drunk and disorderly in another place. Some summary offences (such as possession of an offensive implement) carry penalties of up to 50 penalty units or two years’ imprisonment (s 11B). Defacing property using a spray can could put serious and persistent culprits in jail for up to 12 months: Graffiti Control Act 2008 (NSW), s 4. Lesser summary offences Lesser offences under the Summary Offences Act include: • obstructing traffic (maximum penalty – four penalty units) • damaging fountains, shrines, monuments and statues (maximum penalty for wilfully damaging or defacing any protected place – 40 penalty units; maximum penalty for committing nuisance or offensive/indecent act in or on any war memorial – 20 penalty units). Offences involving knives It is an offence to be in possession of a knife in public without reasonable excuse: Summary Offences Act, s 11C. Police have the power to search for knives if they

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suspect on reasonable grounds that the person has a dangerous implement on them (LEPRA, s 26). A police officer may request a person who is in a public place or a school to submit to a frisk search if the police officer suspects on reasonable grounds that the person has a dangerous implement in their custody. The fact that a person is in a location with a high incidence of violence may be taken into account in determining whether there are reasonable grounds to suspect the person has a dangerous implement. The Summary Offences Act gives police the power to search anyone they reasonably suspect of having a knife in a public place or school (s 11C). Maximum penalties for knife-related offences are: • in the case of possession of an offensive implement in a public place or school, 50 penalty units or two years' imprisonment; • in the case of custody of a knife in a public place or school, 20 penalty units or two years' imprisonment, or both; • in the case of a parent who knowingly authorised or permitted their child to commit an offence under s 11C, five penalty units; • in the case of sales of knives to children under 16 years of age, 50 penalty units.

Public assemblies The Summary Offences Act requires that the Police Commissioner be notified of an intention to hold a public assembly. There is a form for the purpose in Sch 1 of the Summary Offences Regulation 2010. Information required The form asks for details such as: • the date, time, place and purpose of the assembly (or route for a procession) • the number of people expected to attend • the name and address of a person willing to take responsibility for organising the assembly (Summary Offences Act, s 23). What the Police Commissioner may do Where the commissioner is notified (at least seven days in advance), they may either: • authorise the assembly, or • apply to the District Court or Supreme Court for an order prohibiting it (s 25). Before the commissioner applies to the court Before applying to the court, the commissioner must invite the organisers to: • confer with a specified police

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representative, at a specified time and place, or • make written representations within a fixed time: s 25(2). Application for court orders by the organiser If notification prohibiting the assembly is received less than seven days before it is to be held, the organiser can apply to the District Court or Supreme Court for an order to authorise it (s 26). The court’s decision is final and not subject to appeal. Participation Taking part in an authorised public assembly is not an offence, and the offence of obstructing traffic does not apply (s 24). Unauthorised assemblies An unauthorised public assembly may take place, but participants do not have any immunity from prosecution for obstructing traffic or unlawful assembly (Crimes Act, s 545C).

Additional powers for demonstrations that obstruct traffic In 2015, police powers to give directions in relation to demonstrations, protests, processions and organised assemblies were increased. Police officers can give directions if they believe on reasonable grounds that it is necessary to deal with a serious risk to the safety to people. The powers can be exercised even if: (a) that activity is not an authorised public assembly or is not being held substantially in accordance with any such authorisation, and (b) the police officer in charge at the scene has authorised the giving of directions, and (c) the direction is limited to the persons who are obstructing traffic (see Law Enforcement (Powers and Responsibilities) Act 2002, s 200.

Violent disorder Section 11A of the Summary Offences Act deals with violent disorder. This offence occurs when: • there are three or more people “present together”, and • any of them intentionally uses or threatens violence, or carries on so that a

hypothetical “person of reasonable firmness” (there need not be any person present at the scene) would be afraid for their personal safety. All members of the group will be guilty of the offence, which carries a maximum penalty of 10 penalty units or six months’ imprisonment. This offence can be committed in private as well as in public. What is violence? Violence is defined to include threats to property as well as people, and can include acts which are intended to be harmful but do not in fact result in any harm.

[14.160] Criminal trespass Entering or remaining on “enclosed lands” It is an offence, without lawful excuse, to: • enter enclosed lands without the consent of the owner, occupier or person apparently in charge • remain on enclosed lands after being requested to leave by that person (Inclosed Lands Protection Act 1901 (NSW), s 4). What are enclosed lands? Enclosed lands means any land, either public or private, surrounded by a fence or wall, or by a fence or wall and a canal or some natural feature such as a river or cliff that provides recognisable boundaries. It includes any part of a building or structure and any land occupied or used in connection with a building or structure (s 3). Prescribed premises Some premises including schools, childcare centres, hospitals and nursing homes are specially prescribed, and unlawful entry to them carries a double penalty.

The defence of lawful excuse The accused is required to establish that they had a lawful excuse for being on the land. It is not necessary to show a legal right to be there, and an accused can rely on a mistaken and genuine belief that, if true, would justify their being there; for example, they were invited to visit a friend and

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mistakenly entered the wrong house (Darcy v Preterm Foundation [1983] 2 NSWLR 49; Minkley v Munro (unreported, Supreme Court of NSW, August 1986, per Grove J)). The maximum penalty is 10 penalty units in the case of prescribed premises and five penalty units in any other case.

Failing to leave and behaving offensively A person is guilty of a further offence if they: • commit an offence by failing to leave when asked by an appropriate person (the owner, occupier or person apparently in charge), and • behave in an offensive manner (s 4A). The maximum penalty is 10 penalty units, or 20 penalty units for prescribed premises. Powers of the owner, occupier or person apparently in charge Section 6 of the Inclosed Lands Protection Act 1901 gives powers of arrest to the owner, occupier or person in charge, and it is an offence for the trespasser to give them a false name or address.

Aggravated Offences If an offence of entry or remain on enclosed lands is committed and the person also: • interferes with, or attempts or intends to interfere with, the conduct of the business or undertaking, or • .does anything that gives rise to a serious risk to the safety of the person or any other person on those lands The maximum penalty is 50 penalty units (s 4B).

Prosecution under both Acts Section 4 of the Summary Offences Act applies to offensive conduct in a private place or school. For example, a squatter or demonstrator involved in a sit-in who uses offensive language may well be convicted of both trespass and offensive behaviour. The likelihood of conviction for offensive language is, of course, subject to the court’s attitude to the words used.

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[14.170] Drunkenness An intoxicated person may be guilty of offensive conduct, but public drunkenness is not an offence.

Power to detain an intoxicated person There are significant powers of detention under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). A person who is intoxicated in a public place may be detained by a police officer if they are found to be: • behaving in a disorderly manner • behaving in a manner likely to cause injury to themselves or someone else, or damage to property • in need of physical protection because of their intoxication (s 206(1)). The power extends to juveniles. The person must be released if they cease to be intoxicated (s 207(2)(f)). Who is an intoxicated person? A person is considered to be intoxicated if they are seriously affected by alcohol and/or another drug. This leaves a wide area for police discretion.

Police protection from liability Police and other people authorised to detain intoxicated persons are protected from liability for legal action (such as an action for false imprisonment), provided they act in good faith (s 210).

Release into the care of a responsible person The person must be released if: • a responsible person is willing to undertake their immediate care, and • there is no sufficient reason for not releasing them into that person’s care (s 206). A person who is detained has the right to be informed about this, and given a reasonable opportunity to contact a friend or relative who can look after them.

Police search powers Police and authorised people have the power to search intoxicated people in detention

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(s 208), but anything taken under this power must be returned when the person is released.

Offences committed while intoxicated Where an intoxicated person commits a criminal offence the provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 do not apply (s 206(2)), and the person is dealt with in the same way as any other arrested person. Is the intoxicated person a prisoner? A person detained under this Law Enforcement (Powers and Responsibilities) Act 2002 is not a prisoner. Only someone arrested for a criminal offence, whether intoxicated or not, is a prisoner.

Resisting police Resisting or hindering police in the execution of their duty or inciting someone else to resist, hinder or assault police is a summary offence under the Crimes Act (s 546C). The maximum penalty is 10 penalty units and/or 12 months’ imprisonment. Police powers in relation to vessels and vehicle searches There are a number of sections relating to the powers of police officers to board vessels, stop and detain vessels, and stop and search people and vehicles: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 36, 36A, 42).

Other offences The Inebriates Act The Inebriates Act 1912 (NSW) deals with persons who habitually use intoxicating or narcotic drugs to excess. People falling within this definition may be subject to special court orders, including detention in hospitals or other institutions. Prohibition of alcohol consumption Some local councils have ordinances prohibiting the consumption of alcohol in certain areas, with fines for transgressors.

[14.180] Summary offences in

Other summary offences under the Crimes Act include: • being habitually with someone known to have been convicted of an indictable offence (s 546A) • being found in or near a public place with intent to commit an indictable offence, having already been convicted of an indictable offence (s 546B) • “peeping or prying” on another person without reasonable cause (s 547C). Maximum penalties for these offences range from two to four penalty units or three to six months’ imprisonment.

the Crimes Act A number of summary offences can be found in the Crimes Act, in the part which deals with offences to be tried summarily.

Sex work [14.190]

Sex work in NSW is predominantly decriminalised. It is not illegal to work as a sex worker in NSW if you are over 18 (Crimes Act, s 91C).

It is not an offence to operate or live off the earnings of a brothel in NSW (Restricted Premises Act 1943 (NSW)), and brothels are regulated by local councils (Environmental Planning and Assessment Act 1979 (NSW)).

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What is a sexual service?

Children and sex work

A sexual service is sexual intercourse – the introduction into the vagina, anus or mouth of a person any part of another person's body or an object controlled by them – or masturbation for payment (defined in the Crimes Act, s 61H). The courts have extended the definition to include any act of offering the body that involves physical contact with another person for sexual gratification in exchange for money, regardless of whether or not sexual intercourse is provided (Summary Offences Act, s 3).

It is illegal to involve children (people under 18) in prostitution (Crimes Act), and children can be seen to be at risk if they are on premises that are used for prostitution (Children and Young Persons (Care and Protection) Act 1998 (NSW)). Premises used for live adult entertainment, where there is no legal prohibition on minors entering the premises, may be deemed by the minister (upon application by a senior police officer) to be sex clubs in which minors are prohibited (Summary Offences Act, ss 21B, 21C).

[14.200] Offences

[14.210] Sex industry

Inducement to an act of prostitution

workplaces

Section 15A of the Summary Offences Act and the federal Criminal Code Act 1995 make it an offence to induce someone to commit an act of prostitution. A person can be charged with an offence if they put pressure on someone or offer money or any other inducement to influence them to commit an act of prostitution with someone else.

Keeping a person in sexual servitude Under the NSW Crimes Act (s 80D) and the federal Criminal Code Act 1995 it is an offence to keep someone in sexual servitude, where the person is not free to: • stop sex work due to force or threat to themselves or others, or • leave premises where sexual services are provided.

Recruiting a sex worker by deception It is an offence to recruit a sex worker by the deception that sexual services will not be expected of them.

Advertising for sex workers Under ss 18 and 18A of the Summary Offences Act it is an offence to advertise a sex industry business or to advertise for sex workers.

Living off the earnings of a sex worker Living off the earnings of a sex worker is not a crime unless the worker is a street sex worker (s 15).

There are a number of workplaces in the sex industry: • sex services premises, including brothels and home occupation sex service premises • street-based sex work. What is a brothel? The Restricted Premises Act 1943, s 2 defines brothels as places used habitually for the purposes of prostitution and premises that have been and are likely to be used for prostitution, or that have been advertised or represented as being used for prostitution and that are likely to be used for the purposes of prostitution. Premises may constitute a brothel even though they are used by only one sex worker for the purposes of prostitution. The definition of brothel in s 4(1) of the Environmental Planning and Assessment Act 1979, differs in that it excludes premises used by only one sex worker from the definition.

Brothels In NSW, brothels are able to operate as legitimate businesses. Brothels are regulated by councils as legal land uses requiring development consent, with provisions regulating their location, design and operation. If a brothel operates without, or contrary to, their development consent or with adverse impact on the community, the council may fine the operators (Environmental Planning and Assessment Act 1979). Brothel closure orders against the operator or staff of unlawful brothels and related sex service premises can be made (s 121ZR(1)). If a brothel closure order is not complied with,

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the court can make a Utilities Order directing a provider of water, electricity or gas to cease providing those services (s 121ZS). A Utilities Order cannot be made for premises used for residential purposes. Councils can seek an order to stop the owner or occupier of premises from using or allowing the use of premises as a brothel (Restricted Premises Act 1943, s 17(2A)) due to a complaint(s) against premises with “two or more prostitutes” because of the adverse impacts caused by the location and operation of the premises on people who live or work, or who use, or whose children use, facilities in the vicinity of the brothel. It is an offence for businesses to provide sexual services in premises that pretend to be for massage, sauna/steam baths, photo/ health studios or services of a like nature (Summary Offences Act. s 16). Workers, clients (s 16) and management (s 17) all commit offences in such circumstances. Private workers Home occupation sex service premises, where a person provides sexual services from their residence, are defined as brothels by some local councils and by NSW legislation (Restricted Premises Act 1943). Council planning policies may restrict or prohibit home occupation sex service premises from operating in specific zones or building types, constrain the maximum number of sex workers in a complying use, or require the operator to seek consent as a brothel. Home occupation sex service premises operating in strata title apartment buildings may require the consent of the owners’ corporation and those in public or community housing may require the consent of the letting agency. Premises with a residential tenancy agreement must comply with the requirements of the agreement.

Street-based sex workers Soliciting in the public domain is legal in NSW. It is, however, an offence for street workers to solicit near or within view from a

dwelling, school, church, hospital or public place, or in a school, church or hospital. A worker who harasses someone while soliciting near or within view from a dwelling, school, church, hospital or public place is committing an offence (Summary Offences Act, s 19). A client (kerb crawler) on or near a road which is near or within view from a dwelling, school, church or hospital who solicits someone for prostitution is committing an offence (s 19A). Anyone involved in an act of prostitution in or within view from a church, hospital, school or public place or in a car or within view from a dwelling is committing an offence (s 20). Anyone involved in an act of indecency in a public place is committing an offence (Crimes Act, s 61N).

[14.220] Health and safety The operators of premises providing sexual services must ensure the health and safety of employees, clients and visitors to the workplace (Work Health and Safety Act 2011 (NSW); Workplace Injury Management and Workers Compensation Act 1998 (NSW); Workers Compensation Act 1987 (NSW)). Anyone with a transmissible infection must obtain the other person’s informed consent before having sex with them in any circumstances (Public Health Act 2010 (NSW), s 79). It is a defence if the court is satisfied that the defendant took reasonable precautions to prevent the transmission of the sexually transmitted infection. For further information and assistance in relation to sex work and the law, contact the Sex Workers Outreach Project (SWOP) or your local community legal centre.

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Part 2 — Arrest, interrogation and bail [14.230]

This section discusses police powers, police dealings with people who are suspected of an offence, and what happens up until the case comes to court, including matters concerned with bail.

The Australian court system is discussed in Chapter 1, About the Legal System. Court procedure is discussed below at [14.530].

Police powers [14.240]

At the heart of our common law is a person’s right to refuse to answer questions put by people in authority, and to refuse to accompany those in authority to any particular place unless they have been formally arrested. Those rights, however, can be, and have been, eroded by laws made in parliament. In Australia, unlike the USA, there is no Bill of Rights protecting our rights. Police powers have been extended by legislation, and a complex set of rules has evolved in an effort to strike a balance between protecting people’s rights and liberties and ensuring effective law enforcement. This section discusses what powers police have under the law.

[14.250] Power to demand

information Police questioning Who may police question? While investigating a crime, police may question anyone. Must a person answer? With certain exceptions, mostly involving situations where a person must give their name and address, there is no legal requirement to answer. This does not mean that a person should not normally give their name and address. It

is advisable to cooperate with police when there is nothing to be lost by doing so.

Where information must be given In some situations name and address, and sometimes other information, must be given. In motor traffic cases A driver or person in the driver’s seat, or instructor of a learner driver, must produce their licence when asked to do so by police (Road Transport Act 2013 (NSW), ss 171 and 172). It is an offence not to do so. If a vehicle was involved in a traffic offence, but the owner or person with custody of it was not driving at the time, they must, if asked, give police the details of the person who was driving the vehicle when it was involved in the offence (s 173). Vehicles suspected of being used in an offence If police reasonably suspect that a vehicle was used in committing an offence, the driver must not only provide identification but also disclose the identity of anyone else in the vehicle at the relevant time. Failure to cooperate could lead to a penalty of up to 12 months’ jail (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 14–18). Breath tests A driver must undergo a breath analysis when asked to do so by a police officer (Road Transport Act 2013, s 13). The officer should have reason to believe that the person was:

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• driving a motor vehicle on a public street, or • sitting in the driving seat of a stationary car on a public street and attempting to start it.

[14.260] Customs officers and

ASIO Questions asked by customs officers

Children under 16 In some proclaimed areas of the state, mainly country towns, if police suspect that a person is under 16 they can, under the Children (Protection and Parental Responsibility) Act 1997 (NSW): • demand the person’s name and address • search them, and • detain them at a foster home or detention centre or “escort” them home. Police do not have to charge the person. People near a crime scene Anyone around a crime scene who could reasonably be regarded as able to assist the police must, on demand, give police their name and address and proof of identity if required (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 11, 12). Knowledge about serious offences A person who has information about the commission of a serious crime, which might materially assist the police, has a duty to report it to police. They can be charged and jailed if they do not do so, unless they have a reasonable excuse (such as fear of the offender or fear they may implicate themselves) or a claim for privilege (Crimes Act 1900 (NSW), s 316). Where police suspect underage drinking Under the Summary Offences Act 1988 (NSW), a person suspected of being under 18 and possessing or consuming alcohol in a public place must give their name and address to the police (s 11(5A)). An on-the-spot fine of $20 can be issued (s 29).

Under the Customs Act 1901 (Cth), customs officers have the power to require certain information in some circumstances. Their powers are discussed in more detail in Chapter 21, Drug Offences.

Questions about terrorism ASIO has special powers to question people suspected of knowing about terrorist activity. A special hearing is convened so that the suspect can be interrogated under the Australian Security Intelligence Organisation Act 1979 (Cth). The person must answer questions, and can be prosecuted if they don’t answer or they give false evidence. Anything said during an interrogation cannot be used in criminal proceedings against the person (Div 3). ASIO and NSW police also have special powers to detain terrorist suspects (Australian Security Intelligence Organisation Act; Terrorism (Police Powers) Act 2002 (NSW)).

Questions about organised crime Both the Australian and New South Wales Crime Commissions can compel a person, referred to them by the government, to answer questions and produce documents about organised crime. The person must answer the questions or produce the documents but what they say or produce cannot be used against them in a criminal prosecution other than a charge of lying to the Commission. (See the Crime Commission Act 2012 (NSW) and Australian Crime Commission Act 2002 (Cth)).

The Law Enforcement (Powers and Responsibilities) Act The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) commenced operation on 1 December 2005. The Act consolidates most of the police powers previously found in many other Acts, including the Crimes Act 1900 (NSW) and the Summary Offences Act 1988 (NSW). It also gives police a number of additional powers, and powers that have been presumed but never written down.

Powers at crime scenes The Law Enforcement (Powers and Responsibilities) Act gives police specific powers to set up crime scenes, and control access to and from areas so designated. A crime scene can be established by any police officer; however, a warrant from a magistrate is required before any extensive powers under the Act can be exercised. Those powers include allowing police to inspect, examine,

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photograph, dig-up or dismantle property, and use any electricity or water on a property (ss 88–98). Search powers Specific powers to search suspects are also included in the Act. Frisk searches and strip searches are allowed. Under s 23A, a person may be required to open their mouth and shake their head so police can look for concealed drugs. The Act contains strict rules for strip searches (ss 31–33).

Powers of entry without a warrant

[14.270] Power to give

which the occupier of the premises is entitled to see. If they have no warrant the police can normally be refused entry (however, see Entry and search without a warrant below). Search warrants are dealt with under Pt 5 of the Law Enforcement (Powers and Responsibilities) Act.

directions Police can direct a person to “move on” if they reasonably believe that the person is obstructing traffic or harassing others (Law Enforcement (Powers and Responsibilities) Act, ss 197–200). At police road blocks Police can set up road blocks and stop and search vehicles, seize property and give directions to drivers and passengers: • while looking for vehicles believed to have been involved in a crime, or • if the vehicles are in the vicinity of a place where there is a serious risk to public safety (Law Enforcement (Powers and Responsibilities) Act, ss 35–41).

[14.280] Powers of search and

seizure Police can search a person or premises for the purposes of investigating a crime when the person or occupier consents to the search. Motor vehicles may also be searched. Powers to enter or remain on premises Except in situations where it is permitted by statute (see Entry and search without a warrant below), police cannot lawfully enter or remain on premises just to question a person unless the owner or occupier agrees to it.

Search warrants Unless a crime scene is established, the power to search premises may be enforced only if the police have a search warrant,

The Act also extends police powers to enter premises without a warrant (see Entry and search without a warrant at [14.280]). Police may enter premises if they believe on reasonable grounds it is necessary to prevent a breach of the peace or imminent danger of significant injury, or if a person has suffered significant injury (s 9).

How police obtain a warrant Under the Act, warrants are issued by an authorised justice (a magistrate or authorised justice of the peace at the Local Court). Police must apply for the warrant in writing, setting out the grounds on which the warrant is sought and the offence to which it relates. Police must make a report to the authorised justice within 10 days of the warrant being issued. Notice to occupier Police must produce and serve on the occupier an occupier’s notice setting out details of the warrant. They must also show the warrant to an occupier on request. Hindering police It is an offence to hinder or delay the execution (carrying out) of a warrant (Law Enforcement (Powers and Responsibilities) Act, s 52). It is an offence generally to resist a police officer in the execution of their duty. Night searches Unless it says so, a warrant cannot be executed at night (s 72). Can police use force? If police with a search warrant demand entry and are refused they may use force, whether by breaking open doors or otherwise, to enter the premises (s 70).

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If police take anything A receipt must be issued for anything seized, which must then be disposed of according to the direction of a court (ss 215–220). Improperly obtained evidence Anything that has been improperly or illegally obtained by police cannot be used as evidence unless the court uses its discretion to allow it in the public interest (Evidence Act 1995 (NSW), s 138).

Entry and search without a warrant If police suspect a crime has been committed Police can enter premises to arrest a person reasonably suspected of having committed a crime (Law Enforcement (Powers and Responsibilities) Act, s 9; see also Kennedy v Pagura [1977] 2 NSWLR 870).

Searches carried out under federal law Police may search a named place and seize things under a warrant issued by a magistrate or authorised justice of the peace (Crimes Act 1914 (Cth), Pt 1AA) in relation to an offence against a law of the Commonwealth or a territory. Federal searches are also allowed in emergencies and in relation to terrorist acts.

Searching a person The police can stop, search and detain anyone reasonably suspected of having anything in their possession that is: • stolen • unlawfully obtained, or • intended for use in committing a serious offence (Law Enforcement (Powers and Responsibilities) Act, s 21).

If police suspect an offence is likely to occur Police can also enter premises if they reasonably suspect that a breach of the peace or other offence is likely to take place.

Searching for dangerous implements Police can on “reasonable grounds” search anyone they suspect may have a “dangerous implement” such as a knife or firearm. Being in an area that police say is a location of “high incidence of violent crime” is enough to justify the search (s 26).

If a domestic violence offence has occurred If police believe on reasonable grounds that a domestic violence offence has occurred they can enter to investigate on the invitation of any person on the premises (s 82).

Search after having been arrested A person may be searched immediately upon arrest and property may be seized from that person if police suspect not to do so would present a danger or things relevant to an offence may be found (s 23).

If someone is arrested on the premises If someone is arrested on the premises, police can search them and their possessions without a warrant. They cannot make a general search of the entire premises.

Search after having been charged The person may also be searched once they are in lawful custody and after having been charged with an offence by a police officer. Anything found may be seized (s 24).

Search powers of customs officers Under the Customs Act 1901 (Cth), customs officers (including narcotics agents) may search any ship, boat or aircraft without a warrant if it comes from overseas or may have customs-related goods associated with it (s 187). Personal searches A person can be detained and searched if a customs officer has reasonable cause to suspect they are unlawfully in possession of any prohibited imports or exports

(ss 219L–219R). The search must be carried out as soon as practicable, in a private area and by someone of the same sex as the person searched (s 219M). Internal searches A person suspected of carrying certain substances internally may also be detained. The detention must be authorised as soon as practicable by a judge or magistrate (ss 219RA–219V).

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Arrest [14.290]

All citizens have certain powers to arrest people who have committed or are committing crimes. In practice, it is usually the police who exercise these powers.

[14.300] Citizen's arrest When can a citizen make an arrest? The right of arrest by a private citizen is rarely exercised today, and is limited to cases where: • a crime has been committed or attempted • there is immediate danger that a crime will be committed • a breach of the peace has been committed, or • it is thought on reasonable grounds that a breach of the peace is about to be committed. An arrest for breach of the peace may be justified where there has been an assault, or public alarm and incitement to violence. Mere annoyance, disturbance, or insulting or abusive language are not sufficient reasons for one citizen to arrest another.

Arrests by security guards A security guard at a retail store who makes an arrest does so as a citizen. After the arrest Anyone exercising a power of arrest must be careful, as the person arrested may sue for false imprisonment. The arrested person should be handed over to the police without delay and with a full recorded explanation of the reasons for the arrest.

[14.310] Police arrest The police powers of arrest can be found in the Law Enforcement (Powers and Responsibilities) Act (NSW), s 99 and the Bail Act 2013 (NSW), s 77. If other options, such as a Court Attendance Notice, can ensure a person comes to court, these are encouraged.

Arrest under a warrant A warrant is a written authority from an authorised justice of the peace, magistrate or judge for the arrest of a named person. A warrant can be issued for: • an offence • failure to pay a fine • failure to appear in court, or • police believe on reasonable grounds there has been breach of a bail condition. Effect of the warrant The warrant authorises all police officers to arrest the person named in it wherever and whenever they may be found.

Arrest without a warrant Most arrests are made without a warrant. Arrest under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) A police officer can arrest a person without a warrant or detain them for further investigation when they regard arrest as reasonably necessary. What is reasonable can include: • stopping the person committing this or another offence • stopping the person fleeing • enabling inquiries to be made about the person’s identity • ensuring the person appears before a court • obtaining property in the possession of the person that is connected with the offence • preserving evidence of the offence or preventing the fabrication of evidence • preventing the harassment of, or interference with, witnesses • protecting any person’s safety or welfare, due to the nature and seriousness of the offence. After an arrest without a warrant the arrested person must be taken before an authorised officer or a senior police officer, as soon as possible (s 99(3)). Arresting police must identify themselves and give the reason for the arrest (s 201).

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Arrest under the federal Crimes Act Under the Crimes Act, police can arrest someone without a warrant when: • a breach of the peace has been committed (the breach must involve an offence under the Crimes Act) • police believe on reasonable grounds that a breach of the peace is about to be committed • police believe on reasonable grounds that the person has committed an offence against a federal law, and a charge against the person could not effectively be dealt with otherwise. Arrest to take forensic samples Police can detain a person to obtain a forensic sample under some circumstances (see Detention for forensic tests at [14.380]). Arrest for customs offences Police and customs officers may arrest a person without a warrant if they believe, on reasonable grounds, that the person is involved in offences such as smuggling or the import or export of prohibited goods.

[14.320] Making an arrest There are three elements of a valid arrest: • a statement indicating that the person is being arrested (for example, “you are under arrest”) • a statement indicating a reason for the arrest • the person voluntarily going with police, being physically removed by police, or remaining in a place indicated by police.

Giving reasons for the arrest It is not necessary to specify the charge precisely. The point is that the person should know why they are being arrested. If it is obvious, the police do not have to formally explain it.

A reason does not have to be given if the person makes it difficult; for example, by trying to escape.

Use of force A police officer may use as much force as is reasonably necessary to arrest a person. Unreasonable force is assault. It is up to the judge or magistrate to decide whether the force used was reasonable in the circumstances.

Use of handcuffs Police may handcuff a person after arrest if: • the person tries to escape, or • it is considered necessary to prevent escape.

[14.330] Resisting arrest It is an offence to resist or hinder, or incite anyone to assault, resist or hinder a police officer in the execution of their duty, which includes making lawful arrests (Crimes Act 1900 (NSW), s 546C). An arrest may be valid if the police reasonably suspect that someone has committed an offence, even if they are completely innocent. If the innocent person resists arrest, an offence is committed. This can lead to the person being charged with resisting arrest even if the police do not proceed with any other charge.

Passive resistance and running away Resistance must be active. Merely lying down and refusing to cooperate or running away from a police officer before a valid arrest has been made, is not resisting arrest. Neither is running away before a valid arrest has been completed. However, running away can be seen as evidence of “consciousness of guilt”, and may be used against a person in court.

What to do if you are arrested Cooperate You should not try to resist arrest. It is up to the police officer to decide whether a person

is to be arrested or brought to court by the issue of a court attendance notice. A person's conduct will often influence which course the police adopt. For minor offences, being polite to the

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police may prevent a charge being laid. Cooperation with police is always advisable where there is nothing to be lost by it. Contact a lawyer You should contact a lawyer as soon as possible and ask for the lawyer to be present during questioning.

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Objecting to unlawful arrest If you believe you have been arrested unlawfully, you should object as frequently as possible in the presence of independent witnesses. If you can, you should also tell an independent person of the arrest and place of detention.

Your rights if you are arrested After arrest you must be brought before a custody officer and your rights must be explained to you. If this is not done, demand it. If you are questioned about a crime or arrested and accused of breaking the law in NSW, you have three fundamental rights: • the right to be treated as innocent until proven guilty beyond reasonable doubt by a court • the right to remain silent (except in the case of traffic offences, and some other offences). The police must behave lawfully when investigating a crime and must respect your right not to answer

questions or make statements • the right to lodge a complaint if you are mistreated by police or denied any of the rights discussed in this chapter. Talk to a lawyer before you talk to the police. Remember: no matter how friendly – or intimidating – a police officer may appear, anything said to a police officer, even in casual conversation, can be used as evidence in court. Reproduced from If You Are Arrested, NSW Council for Civil Liberties and Redfern Legal Centre Publishing.

Detention at the police station [14.340]

It is usually a good idea for people questioned by the police to cooperate as far as possible without incriminating themselves.

want to. Once at the station, a person can be arrested or detained for questioning if there is a reasonable suspicion of their involvement in a crime. Police can only force a person to go to a police station if that person is under arrest for an offence.

[14.350] Who can be

detained?

[14.360] At the police station

The police have no power to detain a person who has not been lawfully arrested. To detain someone who has not been arrested is false imprisonment, which is a civil wrong. Neither can the police arrest a person merely for questioning – they must have a reasonable suspicion that a crime has been committed (see Williams v The Queen (1986) 60 ALJR 636).

A person who has been arrested will be taken to a police station.

If a person has not been arrested Police can ask people who have not been arrested to accompany them to the police station for questioning, provided it is made clear that they need go only if they

The custody manager A custody manager (a senior officer) gives the person a form explaining their rights and advising (cautioning) them that they are not obliged to answer questions.

What the police must do The police must: • tell the person why they are being detained • give the person the opportunity to get legal advice (either at their own expense or, if appropriate, from the Legal Aid

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Commission or the Aboriginal Legal Service) • give the person the opportunity to communicate privately with a friend or relative. If someone asks, the police are obliged to tell them where the detained person is being held. Exceptions The only time police may not permit communication is where there is a reasonable fear that it might lead to an accomplice escaping or evidence being destroyed.

• released, or • taken before a magistrate to be formally charged, or • given a court attendance notice and police bail (see Bail at [14.450]). Drunk and disorderly The Law Enforcement (Powers and Responsibilities) Act 2002 allows police to detain a person found intoxicated in a public place who is behaving in a disorderly manner, or is likely to cause injury or damage property, or is in need of physical protection.

The police are obliged to assess whether a detained person is a vulnerable person – for instance, a child or a person suffering an intellectual disability – and arrange support for them.

Period of detention People may be detained for up to eight hours in a police station, but must be released earlier if: • they cease to be intoxicated, or • a responsible person is prepared to care for them. There is no court appearance – drunkenness is no longer a criminal offence.

[14.370] The detention period

Detention in relation to federal offences

Vulnerable persons

Police can detain a person arrested on suspicion of committing a crime for a “reasonable period” (up to four hours) to investigate the crime and question the person (Law Enforcement (Powers and Responsibilities) Act, Pt 9).

Extending the detention period The time spent in detention can be extended by up to eight hours on application to an authorised justice (a magistrate or an authorised justice of the peace employed by the Local Court) (Law Enforcement (Powers and Responsibilities) Act, s 118).

People arrested by the Federal Police under federal legislation can also be detained for up to four hours, or longer if a magistrate allows. Aboriginal people and people under 18 can be held for two hours only (Crimes Act, s 23C). Under the Customs Act The federal Customs Act 1901 (Cth) makes provision for detention and search if a police or customs officer has reasonable cause to suspect that a person is carrying contraband or prohibited imports or exports.

“Time out” There are provisions for “time out” which do not count towards the detention period. This includes travel time, and time spent with a lawyer or any doctor called to attend (Law Enforcement (Powers and Responsibilities) Act, ss 109–113). This may make the total time spent in police custody much longer than the official detention period.

When the detention period is over As soon as the detention period is over the person must be:

[14.380] Detention for

forensic tests A person can be detained for up to two hours for the purpose of taking samples. This time is in addition to that allowed for other investigations, and can be extended.

Legislation The rules and procedures for taking forensic samples and for matching a person’s DNA with samples on police databases are in the Crimes (Forensic Procedures) Act 2000 (NSW).

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The corresponding federal provisions are in the Crimes Act, Pt 1D.

Obtaining consent to take samples Police can ask a person reasonably suspected of committing a serious offence to provide a forensic sample such as blood or a sample for DNA testing, in an attempt to prove or disprove the offence. If the person does not consent If the person does not consent to having the sample taken: • police can apply to a magistrate who can order that the sample be taken by force if necessary • a senior police officer can order that a sample of hair – which can provide DNA – be taken by force. People who cannot consent The testing of children or those incapable of giving consent (for example, because of mental illness) can only be ordered by a magistrate.

Taking non-intimate samples Intimate samples such as blood and DNA cannot be taken for less serious offences. Non-intimate samples such as nail clippings or scrapings from under fingernails can be taken by order of a police officer.

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the police can show a written statement signed by Joe, agreeing with Joe’s statement after reading it is regarded by the law as having adopted the statement, and this may later be tendered as evidence against the person. It is not necessary to respond in any way to other people's statements.

Undercover agents and controlled operations Sometimes police deceive a suspect about their identity to obtain evidence or information of criminal activity. They may lead the person to believe they are, for example, well known in drug circles; induce the person to engage with them in drug dealing; and then arrest the person for it. Deceiving a suspect about police identity is permissible. Even possession and sale of drugs by police is allowed, if they have received express authority to engage in what is now known as a controlled operation. Police engaged in such an operation do so without risk of being themselves accused of criminal activity (Law Enforcement (Controlled Operations) Act 1997 (NSW)). Obtaining false documents Police and other agencies using undercover agents can lawfully obtain false documents such as birth certificates and licences to lend support to their assumed identity (Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW)).

The DNA database Each state and territory has its own DNA database. A national DNA database called CRIMTRAC has also been set up which will allow any sample of DNA taken to be matched against samples taken from crime scenes across the country. Prisoners serving sentences for serious offences can be tested so that their DNA can be put on both the state and the national databases.

[14.390] Police questioning Police are experts at getting information from people, and a suspect at the police station needs to be very careful not to fall for manipulative questioning techniques.

Using records of conversations It is not true that police only use written statements as evidence in court. They can and do use records of verbal conversations. They do this especially in summary (relatively minor) matters, because in serious matters they must comply with strict rules about the recording of statements to make them admissible (Criminal Procedure Act 1986 (NSW), s 281). There is no such thing as an “off the record” conversation with a police officer.

“Your friend told us everything” For example, police may say something like “your friend Joe has told us everything”. This may not be true. Even if it is true, and

The police caution Before questioning a suspected person, the police should caution the person that:

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• no questions need be answered, and • any answers given may be used in evidence (Evidence Act 1995 (NSW), s 139). Special caution for serious offences When a person has been arrested for serious offences carrying a maximum penalty of five years jail or more the police can give a special caution advising the person that their silence or failure to mention certain facts may be used against them in court. Before any negative inference can be drawn in court the special caution must be given when their lawyer was present (Evidence Act, s 89A). Special cautions cannot be given to young people under 18. How the caution may be used in evidence A written statement or recorded interview taken in the police station will end with questions about: • whether or not a caution was given and understood • whether the statement or interview answers were made voluntarily. If the case goes to court, the police may use evidence that they gave the caution to show that what an accused said, was said freely and voluntarily. The right to silence In 2012 a significant change was made to the right to silence. The right to silence no longer applies where an adult has been charged with a serious offence, has been given the special caution when their lawyer was present. For all other matters and as a general rule, someone who has been arrested does not have to answer questions (for exceptions, see Where information must be given at [14.250]). It is important to remember that: • legally, no adverse inference can be drawn from refusing to answer questions (Evidence Act, s 89) • any response given to questions could determine whether or not police will proceed with the matter • suggestions from police that making a statement will make things easier should be ignored. It is for the court alone to determine what will happen. As a rule, it is important not to say or write anything about any offence before speaking to a lawyer. Admissions are used regularly to convict people.

If a person wants to remain silent If a person who has been arrested doesn’t want to say anything to police, this attitude

should be made clear and never changed. Name and address should be stated, and every other question answered with words such as “I do not want to say anything at this stage”. There should be no change to this reply, even if the police ask about the reason for this attitude.

If a person wants to make a statement It may be in the interests of a person who has been arrested to make a statement or participate in a recorded interview, if there is a valid explanation for the behaviour in question (for example, in the case of a charge of theft, if the owner’s consent had been given). Whatever the circumstances, it is important to seek legal advice before making a statement. Explaining to police when pleading guilty A person who, after legal advice, wants to plead guilty may wish to talk to police to put on record the precise extent of their involvement or explain the circumstances of the offence. Surrendering to police Where someone wants to surrender to police, a lawyer can assist in preparing a statement.

After a person has been charged Police can ask questions before they charge someone, and may detain the person for up to 12 hours for the purpose (see The detention period at [14.370]). After the person has been charged, however, police should only question them if: • it is necessary to prevent loss to some other person or body, or • it is necessary to recover property, or • additional charges are to be laid.

[14.400] Lawyers and support

people Right to legal assistance during questioning Unless the accused is a child (ie, under 18), there is no absolute legal right to have an independent witness or a lawyer present during questioning.

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However, the courts have decided that a lawyer should be allowed to be present if requested, and interrogation should be delayed for a reasonable time to permit an accused person to try to get legal assistance (R v Dugan (1970) 92 WN (NSW) 767; Driscoll v The Queen (1977) 137 CLR 517).

Right to a support person during questioning The police code of practice allows for children and vulnerable people to have a support person to sit in on the interview. Support people are not lawyers; they can only assist by interpreting what the police are saying.

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Right of communication after a bail decision After the police have made a bail determination, a person in custody has the right to contact a lawyer, or any other person, in connection with the bail. Under the Bail Act 2013 (NSW), police must inform the person of this right, and reasonable access to telephone facilities must be made available (s 45). A telephone conversation overheard by a police officer can be used as evidence. A person detained by police should speak only about what the police have alleged, not what actually happened.

Right of communication after detention The police code of practice provides that after a person has been detained, facilities should be made available to allow them to telephone a friend, relative, solicitor or doctor. The police code of conduct and ethics The police code of ethics and standards of professional conduct (available on the NSW police website) sets out the ethical and other obligations and responsibilities of NSW police. They are not legal rules and do not confer rights. If they are not followed, however, a complaint should be made (see Chapter 9, Complaints). The conduct of police could cast doubt on whether any admission or confession was voluntary.

Children Children are in a special position. A statement, confession or admission made by someone under 16 will not be admitted as evidence in court unless a parent, guardian or other adult – not a police officer – is present throughout the police interview. For people between 16 and 18, there must be a solicitor or other adult of the young person’s choice present when statements are taken.

[14.410] Records of interview Electronic records

If the person has not been arrested If someone has gone to a police station voluntarily and is not under arrest, they can refuse to give information or even remain at the police station until a lawyer or independent witness is present. If access to a lawyer is prevented If a lawyer requests access to a person in custody and is refused, the fact that the request was made, and the names of police officers spoken to, should be recorded. This can be used as evidence casting doubt on the truth and voluntariness of any record of interview. If access to a lawyer is denied, a written or verbal complaint should be made to the Ombudsman or police commissioner, referring to the police code of practice.

In serious matters, police must offer an accused the opportunity to have an interview conducted in front of a camera, or recorded by audio recording. Most police stations have facilities for doing this. At the end of the interview, a police officer who was not involved in the interview will ask a series of questions designed to reveal whether any threats or inducements were made to the person. Complain on record! The equipment is designed to make tampering with a recording extremely difficult. Any complaints about the interview should be made while the tape is running.

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Access to recordings Recordings are kept at the police station and made available for viewing by the accused person or their legal advisers on request. A CD is generally made available. Access to audio recordings The person must be given a copy of an audio recording: • at the end of the interview, or • on their release from custody.

Written records A written record of the interview is made, either in a police notebook or on a computer: • for less serious offences, or • if taping is impossible, or • the accused person refuses to have it recorded (Criminal Procedure Act 1986 (NSW), s 281). After the record of interview has been made, the person is asked to sign it. What signing a record of interview means When a person reads and signs a document, or agrees that it is correct, they are adopting everything in it. There is no problem where: • the person knows and understands what the document contains, and • agrees that the words recorded in the document are theirs. There is also no problem when a person reads and signs a record of interview that contains no answers except refusals to answer (unless what the police are really after is a specimen of handwriting to be used in court). When not to sign a record of interview A person should not sign a record of interview if: • they have not read it • they do not understand all or any part of it • they disagree with all or any part of it. Unsigned records of interview cannot be used as evidence in court (Evidence Act, s 86), though the police can give evidence of admissions if they can establish a reasonable cause why the admission was not recorded (Criminal Procedure Act 1986 (NSW), s 281(2)(b)).

Access to a written record of interview Where a person’s words are recorded by police, a copy should be given to that person so they can see the extent of any admissions before going to court. Where a person is asked to sign for the copy When a person asks for a copy of the record of interview, police may request a signature as a receipt. This request should not be made, but if it is and the person does not want to sign the statement, it is better for that person to do without the copy.

Disputing a statement in court A jury should be warned to carefully consider the dangers of relying on evidence of a confession, even if it is recorded or signed, where: • it is disputed by an accused person, and • it is not supported by other evidence (Evidence Act, s 165; R v McKinney (1991) 171 CLR 468).

[14.420] Identification of

suspects Police investigations often involve a victim or witness describing an offender. Strict rules apply to ensure that identification is conducted properly.

Line-ups The preferred method of attempting to identify suspects is to conduct a line-up or identification parade (Evidence Act, s 114; Alexander v The Queen (1981) 145 CLR 395). A suspect should be given the opportunity to: • choose any position, and • complain about any aspect of the procedure. The sergeant in charge of the line-up should be independent of the officers investigating the case. When to complain A complaint should be made to the sergeant where other people on the line-up are not of similar age, height or general appearance to the suspected person.

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Keeping a record Participants in line-ups should make written notes of all aspects of the process as soon as possible afterwards, including details of any complaint. Challenging the line-up Even if a suspect is identified, the conduct of the line-up can be challenged if everything was not in order. This is easier if a complaint was made and recorded at the time.

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Searches under the Customs Act Where a customs officer has reason to suspect that a person is carrying or has hidden on their person contraband or prohibited imports or exports, the person may be detained and searched (see Chapter 21, Drug Offences). The person should be told of their right to object before a justice of the peace or collector of customs (Customs Act 1901, s 196). This right to object might not apply to chemical tests to see if the person has recently been in possession of drugs.

The importance of the line-up The failure of a witness to identify a suspect in a line-up can be relied on to assert innocence to a court.

[14.440] After the detention

period Photographs If the suspect has refused a line-up or a line-up cannot be held for other reasons, police may show photographs of suspects to witnesses. Once again, strict rules apply (Evidence Act, s 115). The photographs must be presented in a way that does not indicate they are of people in police custody – there should be no suggestion in the photographs that anyone they show is or has been in trouble with the police.

[14.430] Medical examinations As part of their investigation the police can request, and if necessary compel, a medical examination of a suspect. Strict procedures must be complied with (Crimes (Forensic Procedures) Act 2000 (NSW)).

After the period of detention at the police station, police must either: • release the person, or • charge the person with an offence.

Commencing criminal proceedings Criminal proceedings are started by a formal allegation (charge), set out in a court attendance notice (usually by a police officer), that a person did something forbidden by law. A person must be given a court attendance notice before they can be brought to court. Police bail When a person has been charged, police decide whether or not to grant bail. See below, Bail at [14.450] for a detailed discussion of what bail is, what is involved in granting or refusing bail, and what to do if bail is refused.

Illegal actions by police during the investigation Was the confession voluntary? Under the Evidence Act 1995 (NSW), ss 84, 85, admissions or confessions obtained by violence, undue influence or threats cannot be used as evidence in court. If this happens, the confession can be challenged in court. See Offences heard in court at [14.540]. Taking civil action against police Civil court action can be taken in cases of police misconduct such as: • trespass to property or a person's body (for example, illegal search)

• assault • wrongful arrest • false imprisonment • malicious prosecution. However, the cost and difficulty in proving a case and the doubtful outcome mean civil action is often not worth taking. What to do about police mistreatment A person who has suffered mistreatment at the hands of police or denied his or her legal rights when being questioned or arrested, should: • complain immediately to the officer concerned and

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the custody manager at the police station and then complain to the Police Commissioner or the relevant Ombudsman. Delay makes it easier for police to deny the complaint in any later inquiry. Verbal complaints should be confirmed in writing, if possible, by a solicitor if relevant, arrange an immediate medical examination. This should occur at the earliest opportunity (if possible, by two doctors). Any external injuries should be photographed if relevant, ask someone who saw the person not long before the arrest to look at any injuries and state (in writing) whether they saw them before as soon as practicable, make a full statement of what occurred. The sooner the statement is made, the more credible it will be seek legal advice as soon as possible (not the day

before court). You should contact your nearest community legal centre for advice about this (see Contact points for Chapter 4, Assistance with Legal Problems for a list of community legal centres). • where appropriate, take legal action for assault and/or false imprisonment (see above) • complaints about NSW police officers are referred to the NSW Ombudsman and complaints about Australian Federal Police are referred to the Commonwealth Ombudsman (see Chapter 9, Complaints). If the matter is serious, legal action may also be appropriate. Remember, complaining about the police may require persistence, and may not seem worth the effort at times. However, it is important that people who have been mistreated or denied their rights by police take the opportunity to use the complaint mechanisms available.

Extradition Extradition occurs when a person is sent from one state (or country) to another to be tried for a criminal offence. A justice in the state where the offence was committed issues a warrant for the person's arrest (Service and Execution of Process Act 1992 (Cth), s 18), which is taken to the state where the person lives. The person is arrested (or taken from jail) and brought before a justice (usually a magistrate) in that state, who: • orders that the person be sent to the state where the interstate warrant was issued, in the custody of the police officer bringing the warrant, or • allows the person bail on the condition that they appear in a particular court in the other state, or • allows the person bail until the end of a period when the person should be sent to the other state, or • releases the person, or • makes any other order they think fit.

Avoiding extradition It is rare for a person to avoid extradition. In contrast with the situation for overseas extradition, the fact that there is no offence in NSW comparable with the offence charged in the other state does not enable the person to avoid extradition. The person apprehended should seek full details of the charge before trying to persuade the magistrate not to extradite. Legal representation is strongly advised. Cross-examination of the interstate police may provide useful information as to the strength of the police case, thus enabling better defence preparation. Appeals The Service and Execution of Process Act 1992 (Cth) allows an appeal to the Supreme Court (s 19). The judge can only take into account things the magistrate can consider.

Bail [14.450] What is bail? Bail is the authority to be at liberty for an offence until the proceedings for the offence finish. Bail can be granted to any person accused of an offence or where a person is required to appear in court as a witness but has been arrested to secure their attendance. Bail, if granted, may be conditional or unconditional.

Soon after the person has been charged a decision whether or not bail is required at all, whether it will be granted, and any conditions that are to apply will be made. The decision is made, first by a police officer and later by a court. Subject to certain conditions that decision can be revisited or appealed. Once granted, bail continues until revoked or varied until the proceedings are

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finalised. If bail is granted to a person in custody they are released once any prerelease conditions are met. The right to bail is dealt with in the Bail Act 2013 (NSW). The Bail Act sets out all matters dealing with a person’s detention or liberty after arrest.

The bail decision The following decisions can be made after a person is arrested: • the person can be released without bail by a police officer with bail powers • bail can be dispensed with by a court or authorised justice • bail can be granted with or without conditions • bail can be refused. Underlying any decision whether to dispense with bail, grant bail, grant bail with conditions or refuse bail is the question: Is there an unacceptable risk the person will fail to appear in court, commit a serious offence, endanger the safety of victims or the community or interfere with witnesses? If there is such a risk and it cannot be sufficiently mitigated by conditions bail can be refused.

[14.460] When can bail be

granted? Bail may be granted at any stage of criminal proceedings, notably: • after the person has been charged and before their first appearance in court; • during any adjournments before or after the start of the hearing of the case; • between committal for trial or sentence and appearance in the Supreme or District Court; • between the date of conviction and the date of sentence; • during any period of the stay of execution of a judgment or a sentence; • while the person is waiting an appeal an appeal to be heard.

What the accused person agrees to do A person granted bail or who has had bail dispensed with must appear in court when required by notice to do so. A person who is

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granted bail must sign a copy of the acknowledgment of the decision to grant bail and comply with any pre-release conditions (s 33). The bail acknowledgment form specifies the person’s obligations to appear in court, to notify the court of any change of address and to comply with any formal requirements or conditions. Whoever grants bail is obliged to take reasonably practicable steps to ensure the person understands what is in the bail acknowledgement. A person is not entitled to their liberty until they sign the acknowledgment and agree to, and meet any conditions of, bail (s 11). Bail does not entitle a person to be at liberty while the person is in custody for some other offence.

[14.470] At the police station A person charged and in custody at a station must be considered for bail as soon as practicable after the person is formally charged. One common reason for deferring making a decision is that the person is too intoxicated. The decision to grant, refuse or release without bail can be made by the officer in charge of the police station or an officer over the rank of sergeant. Unless bail is not required the person must be given a bail eligibility information form that contains written information about eligibility for bail and their entitlement to request review of a bail decision made by a police officer.

If bail is refused If a person is refused bail by a police officer or for some other reason is not released on bail they must be brought before a court or an authorised justice as soon as practicable. If bail is dispensed with The police or a court may order that bail be dispensed with. The accused is then free to go until the next court appearance, unless they are being held in police custody for another reason (for example, for some other offence where bail has been refused).

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Right to contact a lawyer or other person for help with bail The person in custody must usually be given reasonable assistance to contact a lawyer or someone else who can help with bail. Note that the right to get in touch with someone only applies to getting assistance for bail. When the police may not allow contact The police may not allow the person to contact someone if they have reason to believe that this might help an accomplice escape or lead to the loss, destruction or fabrication of evidence. It is very rare for a police officer to have such a reason and not to tell a person of their bail rights or help them contact a lawyer.

Right to have the decision reviewed The decision to refuse police bail must be reviewed by a senior officer, on request, unless the time taken to conduct the review would delay in bringing the person before a court. A review is not required if the bail decision has previously been reviewed by a senior police officer. If bail is granted or dispensed with If bail is granted or dispensed with the police will give the arrested person a notice indicating where and when they are to appear in court.

[14.480] A right to release Upon arrest, a person has a right to release without bail or to have bail dispensed with or to conditional bail for: • those offences where a fine is the only penalty; • most crimes in the Summary Offences Act 1988 (NSW) except those relating to obscene exposure, possession or use of a laser pointer in public, loitering as a convicted child sexual offender or where the person has previous convictions for violent disorder or possession of knives; • any offence involving a child accused where the child is being dealt with by conferencing under the Young Offenders Act 1997 (NSW), Bail Act, s 21.

[14.490] Court bail

applications Types of bail applications There are three types of bail application: • a release application, which can be made by the accused person, or • a detention application which can be made by the prosecutor, or • a variation application which can be made by any interested person, including the accused, the prosecutor, the complainant for a domestic violence offence, a person for whose protection an order is or would be made under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (see Bail Act, s 51) or the Attorney General. How to apply A person may apply for bail orally if they are before the court. The person, or a solicitor, spouse, parent or guardian, can also make a written application using a form available from any Local Court. Notice is required for variation applications There is no need for a fresh decision on bail to be made each time a person comes to court. Bail or the refusal of bail will continue until the proceedings are over unless varied. A court cannot hear a variation application made by a person, other than the accused person, unless satisfied that the accused person has been given reasonable notice of the application, subject to the regulations. A court is not to hear a variation application made by a person other than the prosecutor in the proceedings unless satisfied that the prosecutor has been given reasonable notice of the application. If the person is in jail If the person is in jail and bail is refused or granted with conditions that cannot be met and need to be varied, the prison governor must, on request, send the bail application, without delay, to the clerk of the court. When bail applications are heard Unless they are vexatious or frivolous, bail applications must be heard without delay.

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What courts can grant bail In general, a court has power to hear a bail application or bail variation if: • proceedings for the offence are pending in the court, or • proceedings on an appeal against a conviction or sentence of the court are pending in another court and the accused person has not made a first appearance before the other court, or • the bail decision to be varied was made by the court. A court can also hear an application to vary bail conditions if the court has granted bail but the conditions are unable to be met. An authorised justice An authorised justice can grant bail in the Local Court if no magistrate is available. An authorised justice is: • a registrar of the Local Court or the Children's Court, or • an officer of the Department of Attorney General and Justice who is declared, by order of the Minister, whether by reference to his or her name or office, to be an authorised justice for the purposes of this Act. An authorised justice can review certain bail conditions such as reporting, residence and conditions about not associating with certain others with the consent of the prosecutor but only before the matter has been sent to a higher court. They cannot review bail after the matter has been to the Supreme Court. An authorised justice can hear an application to vary bail conditions if bail has been granted but the conditions are unable to be met. An authorised justice cannot vary enforcement conditions or impose new ones. An authorised justice cannot hear a release application or a prosecutor's application that a person at liberty be detained, if a decision to release or detain has been made by another court. The Local Court The Local Court includes the Children's Court and the Drug Court. A Local Court magistrate has no power to grant bail to someone where proceedings for the offence are before a higher court. A Local Court can vary bail given by the other courts by consent of the parties unless the Supreme Court has directed that a condition not be varied.

The District Court The District Court's power to grant bail is similar to that of the Local Court. Once the matter has gone to a higher court, the District Court has no power to hear a bail application. Land and Environment Court The Land and Environment Court's power to grant bail is similar to that of the Local Court. Once the matter has gone to another court, the Land and Environment Court has no power to hear a bail application. Industrial Court The Industrial Court's power to grant bail is similar to that of the Local Court. Once the matter has gone to another court, the Industrial Court has no power to hear a bail application. The Supreme Court The Supreme Court can hear a release application if it has been refused by another court. The Supreme Court can hear a detention application or a variation application if the District Court or Local Court or an authorised justice or police officer made the original bail decision. It is critical that the applications be on the correct forms, which are available from the Supreme Court and its web site. The Court of Criminal Appeal The Court of Criminal Appeal can grant bail if: • it has ordered a new trial and the new trial has not commenced, or • it has made an order that committal proceedings be recommended and the person is before the Court (s 67), or • it has directed a stay of execution of a conviction and the stay is in force, or • an appeal from the Court is pending in the High Court, or • a bail decision has been made by the Land and Environment Court, the Industrial Court or the Supreme Court. If an appeal is pending in the Court of Criminal Appeal, bail cannot be granted unless there are special or exceptional circumstances.

Exceptions The Local Court, District Court, Land and Environment Court and Industrial Court may only hear a bail application after the bail decision is made by the Supreme Court or Court of Criminal Appeal if: • proceedings for the offence are pending in the relevant court, and • the person appears before the relevant

court in those proceedings, and • the relevant court is satisfied that special facts or special circumstances justify the hearing of the bail application. Where a police officer has arrested a person for a suspected breach or applies for a warrant, the person will be brought before an authorised justice or the Local Court who

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may then release the person on their original bail, vary the bail decision, or revoke or refuse bail. The Bail Act gives a District Court power to hear bail applications, which are not strictly before them, where that court is sending the matter to another court (s 65).

Number of applications that can be made if bail is refused There is a limit to the number of times a person can apply for bail. After their initial application to a court, a person cannot then apply again to that court, unless there are grounds for another application. Similarly if a detention application is made by a prosecutor and refused, the prosecutor cannot then apply to that court for another order requesting the person be detained, unless grounds are shown. Grounds include: • new information is available, or • relevant circumstances have changed, or • the person was unrepresented at the first application. If bail was refused on their first appearance in court a child is allowed a second application (s 74).

What happens if the case is adjourned? If a case is adjourned, bail will continue whether or not the person has appeared. If the person does not appear the failure to

appear can be excused but this should not be presumed. The accused should ask the clerk of the Local Court about the magistrate’s attitude to non-attendance. In serious charges, the court is likely to insist that the accused appear. If a person cannot appear they should advise the court immediately they cannot attend and why. If possible a lawyer should be asked to appear for them and evidence such as a medical certificate be provided to the court. The court will give or send the person a notice of listing, setting out the date to which the case is adjourned. An accused who is unable to attend for a reason such as illness should let the police and the court know and provide supporting evidence, such as a medical certificate. The court may – and sometimes does – ignore the information, but if the explanation seems reasonable and is supported by evidence, the court is more likely to adjourn the case and continue bail. If an adjournment has been agreed to Where police and the accused have consented to an adjournment, the court (in relatively minor cases at least) will usually have no objection to non-attendance on the understanding that there will be an appearance on the adjourned date, to save time and lost wages in appearing merely for the adjournment.

Long adjournments Before a person may be asked to consent to a longer adjournment, the court must announce whether or not bail has been granted and whether or not any conditions have been imposed. An accused should not consent to bail conditions or a long adjournment unless they are certain of release, and

that the person who has agreed to lodge or has lodged security is willing and able to provide bail.

Show cause

cally be refused unless the person shows cause why his or her detention is not justified: Bail Act, s 16B. Showing cause involves a separate first step in the process of obtaining bail beyond simply addressing bail concerns (see Bail decisions below) Showing cause requires the person to establish that there is some particular reason why their detention is not justified.

A person arrested for very serious offences, such as murder, sexual intercourse with a child, offences involving the use of a firearm or where the new offence is said to have been committed by a person with previous convictions for a personal violence offences or while on bail or parole bail will automati-

In many cases the court, if it knew the accused was in difficult circumstances, would set less stringent bail conditions.

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[14.500] Bail decisions The decision to grant or dispense with bail involves a consideration of any bail concerns, ie, whether there is an unacceptable risk the person will, if released: • fail to appear at any proceedings for the offence, or • commit a serious offence, or • endanger the safety of victims, individuals or the community, or • interfere with witnesses or evidence.

Refusal of bail Bail can be refused if a show cause offence is charged and the person cannot show cause why their detention is not justified. Bail can be refused only if the bail authority is satisfied that there is an unacceptable risk that cannot be sufficiently mitigated by the imposition of bail conditions. Bail cannot be refused for an offence for which there is a right to be released. (see Bail [14.450]) On refusal or revocation of bail a written notice must be given to the person setting out the terms of the decision and noting any right of appeal or review. If bail is refused by an authorised justice or the Local Court the person will be returned to court within eight days (s 41) unless they consent to a longer adjournment or are in custody for other matters or it is not reasonable to bring the person to court for a longer period. A person should seek legal advice before consenting to a longer adjournment.

Assessing unacceptable risk When deciding whether an accused is an unacceptable risk only the following matters are considered: • the accused person’s background, including criminal history, circumstances and community ties • the nature and seriousness of the offence • the strength of the prosecution case • whether the accused person has a history of violence • whether the accused person has previously committed a serious offence while on bail

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• whether the accused person has a pattern of non-compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders or good behaviour bonds • the length of time the accused person is likely to spend in custody if bail is refused • the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence • if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, and whether the appeal has a reasonably arguable prospect of success • any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment • the need for the accused person to be free to prepare for their appearance in court or to obtain legal advice • the need for the accused person to be free for any other lawful reason • the severity of the likely penalty if the person is found guilty.

The seriousness of the offence In ascertaining the seriousness of an offence, consideration will be given to: • whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument • the likely effect of the offence on any victim and on the community generally • the number of offences likely to be committed or for which the person has been granted bail or released on parole.

Release without conditions If there are no unacceptable risks the person can be released without bail, bail can be dispensed with or bail can be granted without conditions.

Conditional release If conditions can sufficiently mitigate risk then conditional bail must be granted. A condition can only be imposed to mitigate

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an unacceptable risk. Any conditions must be reasonable, proportionate to the offence for which bail is granted, and appropriate to the unacceptable risk. Bail conditions can include requirements: • that the person comply, while at liberty, with police directions designed to monitor or enforce compliance with the underlying bail conditions; • that the accused person do or refrain from doing something, such as surrender a passport or not associate with or contact certain persons. • that someone provides security for compliance with the condition the accused will appear in court. This means an acceptable person enters into an agreement under which that person agrees to forfeit a specified amount of money or deposit a sum of money or some other security to help guarantee the accused will appear in court: see for example R v Lago [2014] NSWSC 660. • that there be an acknowledgment by an acceptable person to the effect that they are acquainted with the accused person and they regard the accused person as a responsible person who is likely to comply with their bail acknowledgment. • for children, that suitable arrangement is made for the accommodation of the accused person before they are released on bail. The police and courts can only impose specific conditions as pre-release requirements. These are a requirement that a passport be surrendered, that security be promised or lodged, that character acknowledgements be made, and, for children, that the accommodation requirement be met.

It is an offence for a person who has offered security to dispose of that security while the agreement is current. If they do so bail can be revoked. A court that finds a person guilty or not guilty must ensure consideration is given to the return of any money or other bail security deposited. Detailed regulations relating to forfeiture of security can be found in Schedule 2 of the Bail Act. Drug rehabilitation A condition that an accused do something can include requiring a person to attend a drug rehabilitation program. These conditions can be imposed at any time, even after a guilty plea (Crimes (Sentencing Procedure) Act 1999 (NSW), s 11). Successful attendance at such programs can be important when a court assesses what sentence to impose.

Putting a case for bail Often, for minor matters, the police will simply issue a court attendance notice and dispense with bail. On arrest, unless there is a right to bail, it may be necessary to convince a police officer, or their superior, that bail should be granted. If the police refuse bail a person must be prepared to argue a case for bail in court. As there are limitations on the number of attempts that can be made for bail an accused must be prepared to argue strongly for bail. The accused should place before the court as much relevant material as possible, and be ready to respond to whatever the police say or show to the court. Sometimes it may be necessary to wait until all that material is available. The rules of evidence (see Bail Act, s 31) do not apply to bail applications. Any issues relating to the grant of or refusal of bail are decided on the balance of probabilities. Only proceedings for an offence need to satisfy the beyond reasonable doubt standard.

If a surety wants to be released If a person has given or promised security and wishes to be discharged from their obligations they may apply to the court that granted bail to be released. If the person is not in court an apprehension warrant or summons can be issued to bring them to court. When the accused appears in court, the court must – unless to do so would be unjust – discharge the surety, and make another bail decision.

Appeal bail After a person has been sentenced in the Local Court the proceedings end and so too does the bail order. If a jail sentence is imposed and an appeal is lodged the person must seek a fresh grant of bail. The same considerations relating to unacceptable risk apply to that application as any other bail decision.

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After a person has been sentenced to a term of imprisonment by the District or Supreme Courts they may appeal to the Court of Criminal Appeal. At this stage fresh bail may only be granted if special or exceptional circumstances are established.

[14.510] Breach of bail A prosecutor can apply to a court requesting bail be refused or revoked but the court cannot do so unless satisfied the accused person has received reasonable notice of the application. There are limits on the number of times a prosecutor can make such applications to the same court (Bail Act, s 76; see Bail at [14.450]). A person on bail can be arrested if: • an arrest warrant is issued by a court • police are aware the person has breached a bail condition or agreement, or • a police officer believes on reasonable grounds that they are about to fail to comply with the bail conditions or agreement. Before police make such an arrest they must consider the relative seriousness or triviality of the breach, the circumstances of the person and whether alternatives to arrest are appropriate. Once arrested, they must be brought before the court to have their bail position reassessed. Failure to appear in court Failing to appear in court after a bail undertaking without reasonable excuse is a summary offence carrying the same penalties as the offence for which bail was granted, with a maximum penalty of three years' jail and/or a $3,300 fine (s 79). The penalty for absconding is intended to be effective in influencing an accused to appear. Once the offence of failing to appear is on record, getting bail in the future may be very difficult. It is up to the accused to prove reasonable excuse.

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[14.520] Appeals from bail

decisions Stay of bail for serious offences If, the first time a person appears in court for a serious offence, a court grants or dispenses with bail a prosecutor can seek a stay of decision and the offender will not be granted their liberty immediately. A serious offence includes murder, any offence carrying a maximum penalty of life in jail, or allegations of sexual intercourse or attempted intercourse with a child under 16. The stay continues until the prosecution withdraws it, the decision is considered by the Supreme Court, or three business days elapse, whichever is the sooner. If the matter gets to the Supreme Court, the Court can affirm or vary the original decision or make a fresh bail determination.

The Supreme Court The Supreme Court can hear a release application if bail has been refused by any other court except the Court of Criminal Appeal. The Supreme Court can hear a detention application or a variation application if the District Court or Local Court or an authorised justice or police officer made the original bail decision.

Revocation of bail A bail decision continues until varied or revoked or until the proceedings are finalised. Bail can be revoked and a person remanded in custody if, when a person is brought before a court or authorised justice, for failing to comply with their bail acknowledgement or conditions or because the police fear on reasonable grounds a breach may occur, and the authorised justice or court is satisfied: • the person has failed or was about to fail to comply with a bail acknowledgment or bail conditions, and • having considered all possible alternatives, the decision to refuse bail is justified. Bail can also be revoked and a person remanded in custody, where the prosecutor has made and given notice of a detention

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application and the court is satisfied that

there is an unacceptable risk and bail should be refused (s 50).

Part 3 — Court Criminal Court process [14.530]

There is an overview of the court hierarchy and the court system in NSW in Chapter 1, About the Legal System. In New South Wales three levels or jurisdictions of criminal courts can deal with criminal charges, the Local Court, the District Court and the Supreme Court. The Land and Environment Court also has a criminal jurisdiction and operates at the same level as the Supreme Court. The Local Court deals with summary charges and charges on indictment that can be dealt with summarily. The Local Court deals with most criminal matters. More serious crimes and most jury trials are dealt with by the District Court. The District Court hears most appals from the Local Court. The Supreme Court deals with the most serious matters such as murder and terrorist offences. Judges of the Supreme Court hears some appeals from the Local Court if they involve legal issues. They also sit on the Court of Criminal Appeal which hears appeals from single judges of the District and Supreme Courts. The High Court of Australia is the ultimate court of appeal for all New South Wales criminal proceedings but leave or permission to appeal to that court is granted rarely. Indictable offences Most indictable (serious) offences are dealt with in the District and Supreme Courts. Certain indictable offences may be dealt with summarily by the Local Court. They fall into two groups: • those where the offence may be dealt with summarily with the consent of both the prosecution and the accused • those where only the consent of the prosecution is required.

The choice – to proceed before the magistrate or go to the District Court – must be made before evidence is called or, if a guilty plea has been entered, before the police facts are put to the court.

Offences that can be dealt with summarily Indictable offences that can be dealt with summarily are listed in Sch 1 of the Criminal Procedure Act. They include stealing offences where the value of the property does not exceed $5000, burglary where less than $15,000 is involved, and assaults and matters that are generally regarded as serious but considered not to justify available maximum penalties of more than two years.

Where only the prosecution need consent Indictable offences such as larceny, false pretences, obtaining credit by fraud and malicious damage can be dealt with summarily with only the prosecution’s consent if the amount of money or value of property involved does not exceed $5000 (s 260). Minor shoplifting charges are dealt with in this way. The case proceeds like a summary offence (see Offences heard in the Local Court at [14.540]).

Making the choice The prosecution considers: • the seriousness of the offence • the maximum penalty that could be imposed • the limits of the courts’ sentencing powers.

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What the accused should consider The accused should take into account that: • the chances of an acquittal may be higher before a jury than a magistrate • the defence may be better able to present its case before a jury, because it can rely on the evidence given in committal proceedings • after conviction by a magistrate, there may be a

second chance through an appeal to the District Court. This is not available after conviction by a jury • the penalties a magistrate can impose are less than those a judge can impose – up to two years' jail and/or up to $11,000 (100 penalty units) or five years for multiple offences.

Offences heard in the Local Court [14.540]

The most common criminal charges – summary offences – are heard by a magistrate in a Local Court. The main Local Court in NSW is at the Downing Centre, 143 Liverpool Street, Sydney. There are also courts in major suburban locations and in country towns.

In many court buildings an accused in custody usually remains in the dock (a closed box in the middle or to the side of the court) even if they are not represented. Leave can be granted for a person in custody to sit out of the dock near their lawyer.

[14.550] How the Local Court

Recording the case

works The magistrate Cases are conducted before a magistrate, who sits at a raised level at the front of the court.

The prosecution

If there is a dock

In most courts, the proceedings are recorded by audio recording. On occasions they may be recorded by a shorthand writer or typist who sits below the magistrate.

Who can attend the court? Local Court hearings must be heard in public unless a person under 18 is involved (see Chapter 7, Children and Young People).

Most criminal cases are the result of police action. The case for the police is presented by a police prosecutor (normally not uniformed) or a Director of Public Prosecutions solicitor, either from their own desk or from a large table for the legal profession (the bar table) in front of the magistrate.

When the court is closed The court can, in the interests of justice, exclude the public (a closed court) to protect the identity of a child witness, victims of certain sex offences or an undercover police officer.

The defence

action

If the accused is represented by a lawyer, the lawyer sits at the bar table and the accused sits behind the lawyer. An unrepresented accused has a chair near the bar table, facing the magistrate. If the accused is in custody they are generally required to sit in a special secure area know as a “dock”.

[14.560] Starting a criminal Court attendance notices All court proceedings for criminal offences in the Local Court are commenced by the issuing and later filing in court of a court attendance notice (Criminal Procedure Act 1986 (NSW), s 172). The notice can be issued on the spot, after arrest or on application to a chamber

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magistrate at a courthouse. Generally, a court attendance notice is issued by police or an authorised public officer from an agency such as the Director of Public Prosecutions or a local council.

Prosecution by a private citizen A private citizen can apply to a registrar at a courthouse for a court attendance notice to be issued (s 173). Grounds must be shown to the registrar before the notice will be issued (s 174). The right of private citizens to personally conduct a criminal prosecution is restricted to summary cases in the Local Court (see R v George Maxwell Ltd [1980] 2 All ER 99). Prosecution by private citizens is rare.

Prosecution by police In most cases, prosecutions for summary offences are brought by police officers in their own name, and a police prosecutor or a solicitor from the office of the Director of Public Prosecutions conducts the prosecution. Some government authorities, such as the Australian Securities and Investments Commission, State Rail and Sydney Water employ their own legal officers for criminal prosecutions.

Bringing the accused to court For proceedings to commence, the accused person must first appear before the court. Police can: • arrest the person, give them a court attendance notice, then release them on bail, or • simply issue them with a court attendance notice. The notice is usually given at the police station, but can also be given out elsewhere. When a warrant may be issued In some cases a warrant is issued, empowering police to arrest a person and bring them before a court. This usually happens when: • the offence is so serious that it is feared the person will disappear if only a court attendance notice is issued • the person’s address is not known, or • the person has ignored a court attendance notice (see Arrest at [14.290]).

Giving details of charges to the accused An accused should be given enough information (particulars) about the alleged offence to enable them to decide whether to plead guilty or defend the matter. For example, in a dangerous driving case an accused should be given details of the exact time and place of the alleged offence, and in what way the driving was supposed to be dangerous. If the accused is not given enough information If sufficient particulars are not provided, a request should be made to adjourn the case until they are.

[14.570] Appearing in the

Local Court If a person has been given a court attendance notice, they must normally appear in court on the date set out in the notice (but see box below).

If the person is in custody If the person has been arrested and refused bail (see ([14.230]), Arrest, interrogation and bail) they will be given a court attendance notice at court.

When to arrive at court Many courts now call through all cases before a magistrate or registrar, at 9.30am, to deal with minor matters, adjournment applications and so on. Most Supreme and District Courts commence at 10am. Even if the court notice says 10am it is best to arrive early.

Appearance of persons in custody Most courts now have a video link with the state’s jails. As a consequence, for bail applications and short appearances, rather than bring the person to court they will stay at the jail and communicate with their lawyers by phone and with the court via the video link. If a personal appearance is required, a special request must be made to the magistrate so that arrangements can be made to bring the person in custody to court.

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Must the accused appear? For minor offences where a court attendance notice was issued, no appearance at court is necessary on the date set out in the notice. The accused, however, must send to the registrar of the court a form saying whether they will plead guilty or not guilty. The form must be delivered five days before the appearance date on the court attendance notice. If pleading guilty for a minor matter (such as a traffic offence or where no jail penalty can be imposed), an accused can send with the form a written statement and references setting out the matters they want the court to consider in mitigation of the offence and any penalty (Criminal Procedure Act 1986, s 182). The matter will either: • be dealt with in their absence and a penalty imposed, or • they will receive a notice setting out the date they must appear for sentence. If an accused does not appear and fails to send in the form, they may be convicted and punished in their absence (s 190(3)), or have a warrant issued for their arrest.

What happens at the Local Court The accused will be asked whether they wish to plead guilty or not guilty. If the accused pleads guilty If the accused pleads guilty to the charge, the magistrate considers the penalty. Getting legal advice A person should not decide what plea to make without legal advice (see Getting legal advice below). If an accused is not legally represented, they should ask the magistrate to adjourn the matter so they can obtain advice. Getting legal advice The duty solicitor A solicitor employed or funded by the Legal Aid Commission NSW is usually available every day at all Local Courts and Children's Courts to advise people who cannot afford a private solicitor. If the accused has not made contact with one of these solicitors before the hearing date, they should arrive at the court early to find and speak to the duty solicitor. Chamber registrars In country areas, chamber registrars (formerly chamber magistrates) may provide advice and referral.

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See Chapter 4, Assistance with Legal Problems, for information on getting advice and assistance.

Setting another date Cases are normally adjourned for at least a week so that the accused can obtain legal advice. The magistrate has a general power to adjourn cases, either before or during a hearing. For plea or mention The case is listed for the adjourned date as being either for plea or mention. This means that on the adjourned date: • the magistrate will hear the case if the accused pleads guilty, or • another date will be set for a full hearing if the accused pleads not guilty.

On the adjourned date If the accused pleads guilty If the accused pleads guilty to the charge, the magistrate considers the penalty. The accused must appear personally in this case. If the accused pleads not guilty If the accused pleads not guilty it may be possible with a less serious charge for the accused not to attend, provided the police involved do not object. In this case, the matter is merely mentioned and a date is set for a defended hearing.

[14.580] The defended hearing Service of the police brief At least 14 days before any date fixed for a hearing, the prosecution (the Director of Public Prosecutions or the police) must serve on (give to) the accused or their lawyer a copy of all written statements and exhibits on which they intend to rely (Criminal Procedure Act, ss 183–189). If it is not practicable to serve copies of exhibits, the accused must be given reasonable opportunity to inspect them. Special time standards apply to encourage prompt hearing of domestic violence charges. A defendant may be asked to enter

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their plea on the first day in court or be given only seven days to decide what they are going to do. Any time standards imposed must be complied with.

an adjournment or the evidence in the documents cannot be used, unless the defence consents (s 188).

Where the brief is not served For minor matters, including most cases where a penalty was used to commence the proceedings, and drink driving offences, a brief of evidence is not served (Criminal Procedure Regulation 2010 (NSW), cl 24). All that is provided is a summary of the prosecution case. Other documents relating to non-material witnesses need not be served (cl 24A). The courts are encouraged to list matters even if all documents have not been served, as long as arrangements are made to serve them before the hearing. The court can also order that parts of a brief not be served (Criminal Procedure Act, s 187). If the rules set by the court are not complied with, the prosecution must ask for

Conducting the prosecution case All criminal court hearings follow the same basic procedures and are subject to the same rules of Evidence. See Evidence and defences below. On the day of the hearing, the magistrate first calls on the prosecutor to present the prosecution case. Calling witnesses The prosecutor calls on the police witnesses and other witnesses for the prosecution to give their evidence one by one. Each witness enters the witness box near the magistrate and takes a religious oath, or makes an affirmation to tell the truth (Criminal Procedure Act, s 195; Oaths Act 1900 (NSW), s 13).

Who prosecutes? Summary offences Summary (minor) matters are usually prosecuted by a police prosecutor (when the charge has been laid by the police and not by a private citizen). Indictable offences heard summarily Certain indictable (more serious) offences can also be heard summarily in the Local Court instead of going

before a jury in the District Court. It is now the general practice for such cases to be prosecuted by a solicitor from the office of the Director of Public Prosecutions.

Examination-in-chief When the witness has taken the oath or made the affirmation, the prosecutor asks the witness questions (examination-in-chief).

Request that the charge be dismissed When the witnesses for the prosecution have been heard and the prosecution case has closed, the accused may submit to the magistrate that there is no case to answer and ask that the charge be dismissed without the defence case being heard, on the basis that the prosecution has not enough evidence to prove the legal elements of the charge. If the magistrate agrees there is no evidence or other legal flaw in the prosecution case, the charge is dismissed and the case against the accused is over. If the magistrate does not agree the accused then has the choice either to present a defence case or ask the Magistrate to find that prosecution evidence is simply not

Cross-examination When the prosecutor has finished, the accused or their lawyer can ask the witness questions about their evidence in crossexamination. Not all questions are acceptable The magistrate decides whether questions asked by either side are permissible in terms of the rules of evidence for criminal court hearings.

The accused or (sometimes) the prosecution must decide if they want an indictable offence to be heard summarily before evidence is called (Criminal Procedure Act, s 260).

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good enough to prove the charge beyond reasonable doubt. Again, if the Magistrate agrees the charge is dismissed and the case against the accused is over. However, if the Magistrate fails to agree the accused does not then get the opportunity to put a defence case: for a detailed explanation of the steps involved see DPP (NSW) v Elskaf [2012] NSWSC 21.

The defence case If the magistrate does not agree with the submission by the accused (if one was made) that there is no case to answer, the defence will be called on to present its case. The accused does not have to prove their innocence. However, it is often necessary for them to call evidence.

The prosecutor's reply When the defence case is finished, the prosecution may give evidence in reply to any new points raised in it.

Addresses to the magistrate After all the evidence has been heard, both prosecutor and accused (or the accused’s lawyer) have the right to address the magistrate on why the accused should or should not be found guilty. The prosecution speaks first, then the defence (Criminal Procedure Act, s 195).

The verdict After hearing all the evidence and the final addresses, the magistrate must decide the matter. The magistrate may adjourn the case to consider the verdict, but usually gives it immediately. Is the case proved? If there is any reasonable doubt that the accused is guilty, the magistrate dismisses the charge and the accused goes free. If, however, the magistrate is satisfied beyond reasonable doubt that the accused is guilty, they will find the offence proved and consider what penalty should be imposed.

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[14.590] Local Court

sentencing procedures If the accused pleaded guilty If the accused pleaded guilty, so that there was no defended hearing, the magistrate calls on the police prosecutor to outline the facts. The police facts The prosecutor generally makes available a document setting out these “facts” before the hearing commences. The document is presented either by the prosecutor or through the police officer in charge of the matter. If the accused does not agree The accused (or their lawyer) should check the police facts for accuracy before they are read or given in evidence. If the accused does not agree with them they should not be allowed to be used.

If the accused pleaded not guilty A magistrate who finds someone guilty of an offence after a defended hearing will consider the penalty according to the facts found to be proved beyond reasonable doubt.

Whether the plea was guilty or not guilty Record of previous convictions The prosecutor hands up a record of any previous convictions recorded against the accused. This should also be checked for accuracy. Facts in mitigation The magistrate calls on the accused or their lawyer to present any facts in mitigation (lessening) of the offence. This is the opportunity to explain the circumstances that led the accused to commit the offence, put forward any references or call evidence of good character, and mention factors that might be taken into account to reduce the penalty; for example, the hardship that will be caused by losing a driver’s licence.

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Parole reports If a Community Corrections parole officer has been supervising the accused, they will prepare a report for the court and can, if asked, be available to answer questions. In most cases (except traffic matters not involving alcohol) the magistrate asks that a parole report be obtained to help determine the sentence. Many courts now have parole officers on duty to prepare reports on the spot. If a parole officer is not available, the case must normally be adjourned for two weeks or more for a report to be obtained.

If either party causes a case to be adjourned by their unreasonable conduct they may be ordered to pay the costs of the adjournment (s 215). The court levy Anyone convicted of an offence must pay a court levy which is paid into the Victims Compensation Fund. The levy is adjusted annually each July according to the CPI index. As at June 2016 it was $76 for the Local Court and $169 for the District Court.

Charges by private citizens or agencies

The defence address Finally, the lawyer for the accused addresses the magistrate on why a severe penalty should not be imposed, and suggests an appropriate penalty.

Where a charge is brought by a private person (including an officer from a government department), the accused may have to pay legal costs if found guilty.

Special sentencing arrangements A number of intervention programs have been established to encourage rehabilitation and community involvement in the sentencing of those convicted of relatively minor matters. These include the Magistrates Early Referral Into Treatment scheme (MERIT) for those with drug addiction problems, the Drug Court and programs for traffic and drink drive offenders. Some courts operate circle sentencing (see Circle sentencing in Chapter 2, Aboriginal People and the Law) where members of the local Aboriginal community sit with the magistrate to assist in fixing appropriate sentences for Aboriginal offenders.

A court has only limited power to award an accused, if successful, costs against the person or agency that brought the charge (s 214). In all but the most exceptional cases, costs will be awarded only if: • the investigation was improper or unreasonable or there was a failure to investigate in a reasonable matter • the prosecution was initiated improperly or without reasonable cause.

[14.600] Costs Where proceedings were brought by police Although a magistrate may order legal costs against an accused who has been found guilty, this is not the practice in NSW if the police bring the original proceedings (Criminal Procedure Act, s 215). Where a private or government agency, such as the RSPCA or the Department of Planning and Environment, brings the prosecution, costs can be substantial.

If the accused is found not guilty

[14.610] Appeals Appeals to the District Court Appeals against a magistrate’s decision are generally made to the District Court, either seeking a rehearing or appealing against the severity of the sentence. The appeal form must state the general grounds of the appeal; for example, “the sentence is too severe” or “the magistrate made an error in their decision”. The appeal automatically stays the penalty unless it involves a licence suspension that was imposed when the person was charged or a jail sentence, in which later case bail must be sought from the magistrate or the District Court (Crimes (Appeal and Review) Act 2001 (NSW), s 63).

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Appeal against a driving conviction Since the appeal stays any penalty, someone appealing against a driving conviction can continue driving until the appeal is decided, unless their licence was suspended when they were charged, such as in high range prescribed concentration of alcohol matters. Unless the person asks the court to lift the suspension it continues until the appeal is determined (s 63(2A) and (2B) of the Crimes (Appeal and Review) Act 2001).

Time limits The appeal must be made within 28 days of the date of conviction and sentence. This limit can be extended by two months by the court. Appeals to the Supreme Court It is also possible to appeal to the Supreme Court about a magistrate's decision, on a question of law or of mixed law and fact, by applying for special types of orders. This is rarely done because of the other rights of appeal mentioned above (Crimes (Appeal and Review) Act 2001 (NSW), ss 52, 53).

How to appeal The first step is to complete an appeal form, available at any Local Court. A magistrate can grant bail and specify conditions, including whether any surety bail is required. Appeals can be lodged against conviction, sentence, or conviction and sentence. If bail is refused If bail is refused an application can be made to another magistrate or the Supreme Court (see ([14.230]), Arrest, Interrogation and Bail). Appeal against conviction If the appeal is against conviction the matter is reheard, and a District Court judge reviews all the material that was before the magistrate, including a transcript of what was said. The judge has the same powers as the magistrate to make a decision (Crimes (Appeal and Review) Act 2001, ss 18–20).

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Fresh evidence will not be allowed unless the judge thinks it is in the interests of justice to do so. Normally witnesses will not be called again, or new witnesses be allowed to be called, unless “substantial reasons” are given. Alleged victims of violence or sexual assault cannot be called unless “special reasons” are given. “Special reasons” are far more difficult to show than “substantial reasons”. Appeal against severity A person who believes that the sentence was too harsh can appeal against severity only. The hearing is restricted to evidence and submissions that affect the sentence. In an appeal against the severity of the sentence, not only is the material that was before the magistrate reviewed but new evidence, such as character witnesses, may be called on the appellant’s behalf. The appellant (or their lawyer) and the prosecutor then in turn make submissions to the judge (s 17).

Appeals to the Court of Criminal Appeal If the person believes that a judge hearing the appeal has made a mistake about a legal question or issue (as opposed to a wrong or unfavourable decision about the facts of a case), an appeal can be made to the Court of Criminal Appeal. Appeals are made by requesting the judge to “state a case”; that is, refer the specific legal question in dispute to the Court of Criminal Appeal for it to rule on and, if appropriate, direct the judge how to properly apply the law. The rules relating to stated cases are strictly applied (see Talay v The Queen [2010] NSWCCA 308). Time limits Appeals to the Court of Criminal Appeal must be lodged within 28 days (Criminal Appeal Act 1912 (NSW), s 5B). Leave to appeal out of time can be given by the court if the reasons for the delay are properly explained.

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Deciding whether to appeal, and on what grounds Someone who is in doubt about whether they should appeal, or appeal against conviction or only against the severity of the sentence, should get legal advice. There are two drawbacks to appeals: • There are fees for lodging the appeal, and the

appellant may have to pay some costs if they lose. • A District Court judge can increase the sentence, although the judge must give the person the option of withdrawing the appeal if they are contemplating an increase.

Offences tried by a judge and jury [14.620]

More serious offences than those heard and decided by a magistrate in a Local Court are generally heard before a judge and jury in the District Court or Supreme Court. These are called indictable offences (although some indictable offences can be heard by a magistrate (see Indictable offences dealt with summarily at [14.50]). Supreme Court or District Court Very serious indictable offences, like murder and gang rape, are heard before a judge and jury in the Supreme Court. Other indictable offences, like manslaughter, arson, perjury, bigamy, armed robbery, malicious wounding and dangerous driving causing death are heard before a judge and jury in the District Court.

[14.630] The committal

hearing When a person is charged with a serious indictable offence, such as murder, a magistrate in the Local Court conducts a preliminary (committal) hearing, and the prosecutor tries to persuade them that there is a strong enough case against the accused to go before a jury.

When is it held? If the accused is in custody, the committal hearing is generally held within three months. If they are on bail, it may not be held until many months after the arrest.

What is it for? The committal hearing attempts to ensure that only an accused, against whom a reasonably strong case can be made, will be subjected to a full-scale jury trial.

Procedure The procedures are set out in ss 97 and 98 of the Criminal Procedure Act. Evidence for the prosecution Evidence for the prosecution in committal proceedings must be given in written statements, which must be in the form set out in the Criminal Procedure Act. Generally, at the first or second mention of the matter (see Glossary), the magistrate will require that copies of all prosecution statements be served on the accused or their lawyer. Court deadlines The accused or their lawyer must be careful to review all statements and respond before the expiry of any deadlines set by the Local Court. Can the defence cross-examine witnesses? The defence must nominate in writing the witnesses they want to cross-examine. For sexual assault or other personal violence offences, the defence must show that there are special reasons why witnesses must attend to give oral evidence (s 93(1)). For other offences, the defence must show there are substantial reasons in the interests of justice (for example, to clear up ambiguities in statements or to test identification evidence) to cross-examine witnesses (s 91(3)).

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Witnesses are usually only required to give evidence once, at the trial rather than the committal hearing.

The witnesses' statements At the committal hearing the prosecution tenders all statements by witnesses not required by the defence for crossexamination. If the accused or their lawyer objects to any part of these statements, the magistrate must rule on the objection, and if any of the evidence in them is inadmissible they can reject the statement or any part of it. There is no discretion to reject challenged confessions or evidence claimed to have been unfairly or unlawfully obtained (s 70). When witnesses are called Where witnesses are permitted to be called, they can be required to give all their evidence in chief and then be crossexamined. In practice, the accused or their lawyer usually agrees that the witness’s written statement can be tendered before the witness is cross-examined. Section 41 of the Evidence Act 1995 gives a court the discretion to disallow questions that are unduly offensive, annoying or repetitive. The defence case The defence then presents their case. Generally, the accused does not call evidence at this stage, keeping the details of their defence for the trial.

The magistrate's decision The magistrate must decide whether, on the evidence put forward, there is a reasonable prospect that a reasonable jury would convict the accused of an indictable offence. If the magistrate decides that a reasonable jury could not convict, the accused is discharged. In most situations where there is some evidence for the prosecution on all elements of the charge or charges, the magistrate commits the accused for trial, either for the offence they were charged with or another indictable offence. The accused is either kept in custody until the trial or released on bail.

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If the accused pleads guilty If the accused pleads guilty at the committal hearing, the magistrate will not require witnesses to give evidence in court. The prosecutor will hand up to the magistrate the police brief, which contains statements by the prosecution witnesses. If, after reading the brief, the magistrate is satisfied that there is a good case against the accused, they are committed for sentence to the District Court (Criminal Procedure Act, s 102). Sentencing The case is normally listed in the Supreme or District Court within one or two months before a single judge without a jury to consider what sentence should be imposed (see Sentencing and penalties at [14.670]). An early guilty plea, particularly while still in the Local Court, generally results in a reduction in the sentence.

Record of the hearing The evidence of witnesses at the committal hearing is recorded and typed up in documents called depositions. A free copy is available from the court for the accused person to use at the trial. Indictment without a committal hearing In exceptional circumstances, the federal or state Director of Public Prosecutions may file a special indictment (an ex officio indictment) against a person even though: • there has been no committal hearing, or • a magistrate has found that there is not enough evidence against the accused to put them on trial. The person must then stand trial in the usual way (see Jury trials at [14.650]).

[14.640] Preparation for trial When will the trial be held? If an accused is committed for trial and is released on bail, they may have to wait over six months before the trial starts. Even if they are in custody, there may still be a wait of six months or more.

What the Crown prosecutor must decide Evidence from the Local Court (see The committal hearing at [14.630]) is sent to a

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solicitor from the office of the Director of Public Prosecutions, who arranges for a Crown prosecutor to consider it and decide: • whether the case should go to trial • if so, what the formal charge (the indictment) should be. What charge If the Crown prosecutor thinks the case should go to trial, they may file an indictment for the charge on which the accused was committed, or they may add other charges or substitute an entirely different charge. This process is called finding a bill (of indictment) against the accused. If the case is weak If the Crown prosecutor thinks the case against the accused is not strong enough, they will recommend to the Director of Public Prosecutions that no bill of indictment be found. This recommendation will normally be supported, and the accused informed by letter that they will not have to stand trial. If the accused is relying on alibi evidence An accused must give notice in advance if they are going to rely on alibi evidence. The magistrate must inform the accused of the law of alibi evidence at the committal hearing, and the accused must then give notice of an alibi defence within 21 days of the date set for trial, with particulars of the alibi and the name and address of anyone proposed to be called in support of it (s 150).

If the prosecution has new evidence The accused is entitled to know if the prosecution intends to: • call witnesses at the trial who were not called at the committal hearing, or • change the charges. When the prosecutor intends to call a new witness, they must send the accused a copy of the statement made by the witness so that the accused can properly prepare a case. If notification is not given Failure to serve new statements can be grounds to adjourn a trial. Trial case management After the indictment is presented in the Supreme or District Courts the prosecution must disclose all the material relevant to their case. The defence must then respond with the prosecution making a further response to whatever the defence discloses. Timetables are set by the court when the indictment is first presented. In more complex District Court and most Supreme Court trials the court can make specific orders about the management of how evidence is to be presented. The defence can be required to disclose expert reports and certain special defences on which they seek to rely, such as self-defence, insanity, intoxication or provocation. Failure to disclose can cause a court to refuse to admit evidence and could mean the court allows the prosecution to ask that unfavourable inferences be drawn (ss 134–149F).

[14.650] Jury trials The arraignment

Application for a no-bill from the accused If the case against the accused is weak or important evidence in their favour was revealed at the committal hearing, the accused should consider applying to the Director of Public Prosecutions for a no-bill before the trial starts. There is no special form for this application. It can be made in a letter setting out why the accused should not be required to stand trial. The accused is notified by letter of the result of the application before the trial starts.

After committal, the magistrate or District Court listing directorate fixes a date for an arraignment (the first time the formal indictment is read to the court and to the accused). This generally takes place eight weeks after committal. The prosecution must have their case, and the indictment, ready, as the accused will be asked by the judge if they wish to plead guilty or not guilty. If either side is not ready, generally only a short adjournment of a week or two will be allowed. Should the accused plead guilty? The accused should consider their position carefully both while in the Local Court and before arraignment. An early guilty plea in

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the Local Court could see the sentence reduced by up to 25%. A plea at arraignment could still mean a much reduced penalty (Crimes (Sentencing Procedure) Act 1999 (NSW), s 22; R v Thompson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1). A guilty plea is also one reason for not imposing a standard minimum non-parole period (R v Way (2004) 60 NSWLR 168). Filing a notice of motion If there are matters that should be raised before the trial, such as an application to be tried separately from a co-accused, or a request for a new trial date because witnesses are sick or otherwise unavailable, a notice of motion must be filed, supported by an affidavit setting out the reasons. In some cases, these will be dealt with by a judge before the date fixed for the trial.

At the hearing On the hearing date, the case will be listed to commence, generally, at 10 am. When the case is called, the accused person is placed in the dock in the centre of the court, the judge’s associate reads out the written accusation and the person is asked to plead. Pleading If the accused pleads guilty, there is no need for a jury, and the judge considers the sentence. If they plead not guilty, a jury is empanelled.

The jury The jury consists of 12 people out of about 30 summoned to the court and given numbers which are chosen at random from a box by the judge’s associate. Their names are not disclosed. In long trials up to 15 jurors can be selected but before the jury retires to consider its verdict excess jurors are balloted off so only 12 remain. Challenging the jury Both the accused and the prosecution have the right to refuse (challenge) up to three jurors without having to give a reason.

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Further challenges are allowed if good reason is shown; for example, that one of the prospective jurors is the prosecutor’s mother. Trials with judge alone If an accused after legal advice elects and the Director of Public Prosecutions agrees, a trial must be held without a jury (Criminal Procedure Act, s 132). If an accused elects and the DPP does not consent the court can still make a judge alone order if it is in the interests of justice to do so. In exceptional circumstances a judge can order the trial proceed without a jury (s 132A(7)).

The prosecution case After the jury has been empanelled, the trial begins. The Crown prosecutor makes an opening statement to the jury, telling them what witnesses will be called and what the prosecution says the case is about. The defence can also make an opening statement if they wish, in answer to the prosecution. Evidence of witnesses The prosecutor calls the prosecution witnesses one by one. Police officers who have made statements in relation to the matter soon after the event are allowed to read the statement to the jury, rather than giving their evidence from memory, if the statement has been signed and provided to the defence. The accused’s lawyer may cross-examine the witnesses.

The defence case After the prosecution case, if it is appropriate, the lawyer for the accused may submit that the judge should direct the jury to acquit on the basis that there is no case to answer. If this submission does not succeed, evidence may be called, both from the accused and from other witnesses. The accused as a witness To give evidence the accused must go into the witness box, give evidence on oath and be cross-examined. No adverse inference can be drawn against an accused person who chooses to remain silent. Nevertheless, the decision to remain silent or give evidence should be made only after careful consideration and legal advice.

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Address to the jury After all the evidence has been given, both prosecutor and defence lawyer address the jury.

The judge's summing up The judge then sums up the case for the jury, and explains and rules on matters of law.

[14.670] Sentencing and

penalties Sentencing is covered by the Crimes (Sentencing Procedure) Act 1999 (NSW). The Act establishing the offence generally sets out the penalty for it. This is a maximum only, and a lesser penalty may be imposed (s 21).

The verdict

What must be considered

The jury leaves the courtroom to consider its verdict. It then returns and the foreperson gives the verdict, which must be unanimous. After a long trial a jury may be given days to try to reach a unanimous decision. If a jury cannot agree, a judge will urge them to carefully review the evidence and the opinions of each other. If they still cannot agree after at least eight hours of deliberation the judge may allow a majority verdict but only where one juror disagrees. If a jury still cannot reach a verdict they will be discharged and the prosecution may ask for a new trial.

In considering the sentence the court must balance the nature and circumstances of the offence and aggravating circumstances, such as the age and vulnerability of any victim, with mitigating factors such as the age, character and rehabilitation prospects of the accused (s 21A). Discounts for pleading guilty Courts must take a plea of guilty into account to reduce penalties (Crimes (Sentencing Procedure) Act, s 22). The earlier the guilty plea, the greater the reduction – from 10% to 25% discount (see R v Thomson and Houlton (2000) 49 NSWLR 383).

[14.660] If the person is found

guilty After someone has pleaded guilty to, or been found guilty of, an indictable offence, the judge hears evidence about the offence and the person’s character, background and previous criminal convictions. Sentence hearing can be heard immediately after the verdict is returned but generally another day is set for the sentence hearing. A Community Corrections officer involved may be asked to prepare a pre-sentence report, setting out the persons’ background and suggesting sentencing options. The person can give evidence and call witnesses on their background and character or provide reports from experts such as psychologists. The defence then addresses the judge on the aspects of the case most favourable to the accused. The judge then formally convicts the accused, now called the prisoner, and passes sentence.

Where the court decides not to punish Sometimes the court considers that, though a charge is proved, the offender, because of their character, background, age, health or mental condition (or because the offence is trivial or there are extenuating circumstances), should not be punished or should be punished only nominally. In this case the court may make an order: • dismissing the charge, or • after making a formal finding of guilt discharging the person without penalty or on a good behaviour bond under s 10 of the Crimes (Sentencing Procedure) Act (this does not have the effect of a conviction (see Effect of conviction at [14.700]), which can be very important), or • recording a conviction but imposing no other penalty (s 10A). As a formal conviction is recorded the effects of conviction, such as licence suspensions, still apply.

Commencement of sentence The court must specify when the sentence is to begin – generally, this is either the date of

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sentencing or the date on which the person was taken into custody. For a cumulative sentence, it is the expiry date of the non-parole period already being served. Maximum sentences Usually, the section of an Act that creates an offence sets the maximum period of imprisonment. Maximum penalties are normally reserved for the worst type of conduct that could constitute the offence, and the magistrate can impose a shorter period (s 21).

Concurrent and cumulative sentences If a person is convicted of more than one offence, they are given a separate sentence for each. The judge may order that the sentences be served at the same time (concurrently), or increase the time the person will spend in prison by directing that the sentences be served one after the other (cumulatively), or be partially concurrent (s 55). Aggregate sentences Where a court is sentencing for a number of matters it can fix one aggregate sentence and an aggregate non-parole period to reflect the appropriate punishment for all the offences. In doing so it must also indicate the appropriate sentence for each individual offence (s 53A). Mandatory minimum sentences People who commit certain specified offences face the risk that the court will impose a standard minimum non-parole period. These sentences are the minimum period that must be served and are very severe: 20 or 25 years for murder, 10 years for aggravated sexual assault and five years for aggravated break and enter. Minimum non-parole periods relate to offences said to fall into the middle of the range of objective circumstances (s 54A). As there are many reasons for departing from this minimum, including an early guilty plea or the case made for the person, judges have considerable discretion to vary the standard minimum (see Muldrock v The Queen [2011] HCA 39). In addition, after a conviction for an assault causing death by an offender who heavily intoxicated the least penalty that can be imposed is 8 years. (Crimes Act 1900, s 25B)

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Other offences taken into account If a person being tried for one offence, such as armed robbery, committed another at about the same time, such as stealing a car, and has other charges before the court, they may, with the Crown’s consent, ask the court to take them all into account when passing sentence. The advantage is that the conviction is only on the first offence. No proceedings can be taken for the others and, in most cases, the sentence will be less severe than if the matters had been dealt with separately.

Restrictions on Magistrate’s sentences Generally, Acts allow magistrates to impose sentences of up to one year’s imprisonment. Exceptions are drug cases and indictable offences dealt with summarily, where a magistrate can impose up to two years’ imprisonment. There is no limit on the number of consecutive sentences magistrates can impose. The magistrate may direct that a sentence of imprisonment not commence until the accused has completed all or part of a term already being served. The maximum total sentence they can impose is five years (s 58).

[14.680] Penalties Imprisonment A court may not impose a full-time prison sentence without considering all possible alternatives and deciding that none is appropriate (Crimes (Sentencing Procedure) Act 1999 (NSW), s 5). Parole and the non-parole period The court can impose a fixed term of detention or, if the sentence is over six months, fix a period that must be spent in detention (the non-parole period) with the remainder to be spent on parole. The parole period is generally one-quarter of the sentence unless special circumstances are shown to justify making the parole perod longer. If a court considers that a person should have a longer than normal parole period, it must set out the reasons for its decision.

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In setting both parole and non-parole periods, the court must always consider that the total term must be appropriate to the criminality involved in the offence, and the subjective circumstances of the person being sentenced. Fixed terms A court may impose a fixed term of imprisonment, with the prisoner being released at the end of that term without parole. Sentences under six months must be fixed terms. Life imprisonment Where the maximum penalty is life imprisonment If the maximum sentence for an offence is life imprisonment, the judge can normally pass a sentence of lesser duration (Crimes (Sentencing Procedure) Act, s 21). Life sentences for murder or heroin trafficking A life sentence imposed for murder, acts of terrorism or trafficking in commercial quantities of heroin is for the term of the prisoner's natural life (Crimes Act 1900, s 19A(2)).

Intensive correction order Periodic detention was abolished in October 2010. Where a magistrate believes a full time jail sentence is likely they can refer a person to the parole service to see if they are suitable for an intensive correction order (ss 7, 67). If suitable, the magistrate can order that a sentence of up to two years be served under the order. Conditions of the order can involve community service and attendance at programs designed to address offending behaviour such as drug and alcohol rehabilitation and anger management. Breaching an intensive corrections order Breaches are not dealt with by a court, but by the Commissioner of Corrective Services or the Parole Authority. Breaching an order will result in stricter conditions being imposed, a short period of home detention or the Parole Authority ordering up to the whole of any remaining sentence being served full time. Home detention If a parole officer certifies that a person is suitable, a sentence of up to 18 months can

be served at home. This severely restricts freedom, but lets the person work and care for their family (Crimes (Sentencing Procedure) Act, s 7, Pt 6). Suspended sentences Where the court is considering detention it may, as a last resort, impose the sentence but then suspend the whole of the sentence on condition that the offender enter a bond to be of good behaviour. Conditions may be placed on the bond, such as attending rehabilitation programs (s 12). If the suspended sentence bond is breached at any time the whole of the sentence must be served. The court will then decide whether it is to be served by full-time jail, home detention or intensive correction order (s 99). The court must take into account anything done in compliance with the bond (s 24). If the breach is trivial no action may be taken, (s 98).

Community service orders Instead of sentencing someone to prison, the court may make a community service order requiring them to perform some unpaid work or service, up to a maximum of 500 hours. This sentencing option is only available if the Community Corrections reports that work is available in the area where the accused lives, and that they are a suitable person for such an order (s 8, Pt 7).

Fines The Act creating an offence will usually set out the maximum fine that can be imposed. Fines can be in addition to other penalties (Crimes (Sentencing Procedure) Act, ss 14–16). The court is required to take into account the person’s capacity to pay (Fines Act 1996 (NSW), s 6). Once a fine is imposed, notice is given of the amount and how it is to be paid. Time to pay Fines must normally be paid in 28 days. A person who cannot pay a fine can approach the registrar of the Local Court and, if there is a reasonable explanation (which may involve giving details of income

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and expenditure), they will be given additional time to pay (Fines Act 1996, ss 10, 11). Penalty units Fines are often expressed in terms of penalty units. At present one penalty unit is $110 for state offences and $180 for Commonwealth offences

Good behaviour bonds

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If no arrangements are made to pay the fine (and any additional costs accrued along the way), the person's driving licence is suspended and, after six months, cancelled, and any vehicle registration is cancelled. If there is nothing to cancel and no action is taken to pay the fine, civil action, including seizure of property or garnisheeing of wages, follows. Community service orders If all measures to recover the money are unsuccessful, a community service order can be imposed requiring the debt to be worked off.

A court may order the person’s immediate release on the person entering into a bond to be of good behaviour for a period that the judge or magistrate thinks appropriate, normally between one and five years. The court may impose conditions as part of the bond, such as accepting supervision from Community Corrections or attending rehabilitation programs. A court must take care to ensure that a condition of a bond is not too onerous or unreasonable: R v Bugmy [2004] NSWCCA 258. Supervision by Community Corrections means that a parole officer remains in contact with the person, ensuring that living and work arrangements and other aspects of the person’s life are satisfactory. A fine can be imposed in addition to the bond.

Breaching the order can lead to imprisonment to serve out the debt. If imprisonment is ordered an application can be made to the Commissioner of Corrective Services for it to be served as an intensive correction order: Fines Act 1996 (NSW)

If a bond is breached A person who is convicted of another offence during the period of the bond, or who breaks any of its conditions, will be called up for breach of the bond before the judge or magistrate who originally gave it, or another judge or magistrate. At the hearing, the prosecution must prove the fact of the original conviction and the bond, as well as the breach. After hearing evidence of the breach and any evidence called by the accused, the court may decide to either take no action or impose a sentence for the original offence (see Crimes (Sentencing Procedure) Act, ss 9, 10, 11 and Pt 8).

The application should be in writing and should set out details of:

Fines and work development orders Some people with intellectual disabilities or mental illnesses or who are suffering homelessness or experiencing acute economic hardship simply cannot pay a fine or do community service in lieu of paying their fines. They can apply to do unpaid work for an approved organisation or undergo medical or mental health treatment or counselling or do an educational course for a certain period as an alternative (Fines Act 1996, s 99A). Financial hardship If someone is unable to pay a fine because of financial hardship, or there are other special circumstances, an application for remission of the fine in whole or in part may be made to the governor, who will refer the matter to the Attorney General (s 100).

• the accused • the case, date and court where they were convicted • the circumstances put forward as the grounds for remission.

Traffic cases In traffic cases, such as drink-driving, where a person who is convicted may be disqualified from holding a licence, dealing with the case under s 10 means that there is no disqualification. Compensation

Enforcement proceedings for unpaid fines If a fine is not paid, enforcement proceedings are commenced by the State Debt Recovery Office. An enforcement notice is sent, giving 28 days to respond.

Compensation for a crime causing personal injury or death can be paid, up to a maximum of $50,000, by NCAT under the Victims Support and Rehabilitation Act 2013 (see Chapter 39, Victims Support).

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In some cases the money can be recovered from the offender.

[14.690] Appeals A person who has been convicted by a jury or has pleaded guilty and been sentenced by a Supreme Court or District Court judge can appeal to the Court of Criminal Appeal.

How to appeal The notice of intention to appeal, or to seek leave to appeal, must be lodged with the Court of Criminal Appeal within 28 days of the date of conviction or sentence. Extensions can be granted if proper reasons are given. Within six months of filing the notice, an applicant must file both the grounds of appeal and written submissions in support of the appeal. A date for hearing will then be set by the court. The appellant may be present at the hearing.

Grounds of appeal The appeal can be: • against conviction on any ground that only involves a question of law • with the leave of the court, against conviction on any ground involving a question of fact, both law and fact, or another sufficient ground of appeal • with the leave of the court, against the sentence (Criminal Appeal Act 1912 (NSW), s 5(1)).

Appeal against conviction The matter is not completely reheard by the Court of Criminal Appeal, as is the case with appeals from magistrates. The appellant must convince the court that: • the verdict was unreasonable or unable to be supported, or • there was a wrong decision on a question of law, or • there was a miscarriage of justice. The appeal is generally decided on the transcript of the evidence at the trial, but if the appellant has new evidence, this should be placed before the court in the form of affidavits from witnesses, saying what they would say if called in a new trial. Even if the court finds in the appellant’s favour, it may dismiss the appeal if it decides that no substantial miscarriage of justice has occurred (s 6). Appeal against sentence If the Court of Criminal Appeal agrees that the sentence is too severe, it may reduce it. The Crown can also appeal against the sentence imposed by the trial judge if it thinks it was too lenient, and the court can increase the sentence if it thinks fit (s 5D). Risks of appealing from jail There are two reasons why an appellant in jail should be careful about appealing: • on rare occasions, if the court considers the appeal frivolous or unarguable, time spent in jail awaiting appeal does not count toward the sentence (s 18(3)) • it may be several months before the appeal is heard, and an appellant in custody may not be eligible for various prison programs during that time.

Effect of conviction [14.700] Criminal records The Police Service has a Criminal Records Unit that records all court appearances, arrests and convictions for: • offenders aged 14 and over, and • offenders under 14 where the offender was fingerprinted.

Records of juvenile offenders Separate records of juvenile offenders are kept by the Criminal Records Unit, the Department of Community Services and the main Children’s Courts (see Chapter 7, Children and Young People).

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Records of traffic convictions Traffic convictions are recorded by the Roads and Maritime Services in a traffic convictions record. Is the record permanent? A person's criminal history remains on record permanently unless they have had a charge dismissed and have applied to the police commissioner to have fingerprints destroyed and evidence of the charge removed.

When can information be released? The police commissioner can release information from a criminal record only: • with the person’s consent, or • on the request of a police officer or authorised public body. What information is released? Where information is requested by a police officer or authorised public body, a summary is normally released that omits: • juvenile offences • arrests • dismissed charges • charges where the offence was proved but no conviction was recorded under s 10 of the Crimes (Sentencing Procedure) Act. If a person received a bond and has not re-offended for 15 years, that conviction can be disregarded (Crimes Act 1900, s 579).

Federal law matters For federal law matters, where a person was convicted of a minor offence (with a sentence of less than 30 months’ imprisonment) and has been of good behaviour for 10 years, the conviction cannot be disclosed.

[14.710] Problems arising from

a conviction As well as being sentenced for the offence, offenders generally suffer other disabilities as a result of conviction – both legal and social – which may last for life.

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rights (Parliamentary Electorates and Elections Act 1912 (NSW), s 21). In Federal elections the High Court has held that persons serving sentences of more than three years are unable to vote (Roach v Electoral Commissioner (2007) 233 CLR 162).

Deportation An immigrant who is not an Australian citizen and who has been sentenced to more than 12 months’ imprisonment may be deported if they have been an Australian resident for less than 10 years.

Disqualification from jury service People are disqualified from jury service if: • they have been served a sentence of imprisonment in the last 10 years • they have been detained in a juvenile institution in the last five years • they are currently subject to bail, a domestic violence order, a court order to be of good behaviour, or parole • they are serving a sentence.

Employment in the public sector A criminal conviction may affect a person’s ability to obtain or keep a job in the public sector. Disclosure of any convictions, including dismissals without conviction, and the authorisation of a criminal record check is generally required on application for a position. While rights of appeal are provided, failure to reveal a conviction when asked or failure to disclose a conviction that occurs while employed can result in suspension or dismissal. The person can appeal with the help of their relevant union. Much will depend on the nature of the offence. Failure to disclose is generally regarded more seriously than the commission of a minor offence.

Applicants for licences Licensing authorities can require details of criminal offences and any pending proceedings (Licensing and Registration (Uniform Procedures) Act 2002 (NSW), s 14(2)).

Loss of voting rights

Registration of professionals

While serving a prison sentence of a year or more, a person loses their NSW voting

Most professional bodies have a good character test and registration is dependent on

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showing such good character. If a person has a conviction, much depends on what it was for and when it occurred. Failure to disclose is generally regarded more seriously than the commission of a minor offence. For example, before registration, health professionals must disclose any criminal record and authorise a criminal record check (see Health Practitioner Regulation National Law, s 77).

Private sector employment There are no legal disabilities affecting a person with a criminal conviction in the private employment sector, but it is clear that many employers will not employ a person with a criminal record, particularly if it involves dishonesty.

Property insurance A criminal record may affect a person’s chances of obtaining property insurance.

Convicted child sex offenders

Minor offences and spent convictions Generally, minor matters (except sexual offences) need not be disclosed and can be disregarded if: • there was a caution in the Children’s Court • no conviction was recorded under s 10 of the Crimes (Sentencing Procedure) Act • the bond period for a no-conviction matter has expired and 10 crime-free years have elapsed. These are called spent convictions (Criminal Records Act 1991 (NSW)). Once someone has a criminal record it stays on police files forever and can be raised if the person comes before a court again, but spent convictions need not otherwise be disclosed.

Section 10 dismissals If a form only asks for convictions, a s 10 dismissal without conviction (under the Crimes (Sentencing Procedure) Act) need not be disclosed. If, however, the form asks whether someone has been charged or had offences proved against them, a s 10 dismissal must be disclosed.

A person convicted of a child sex offence will be placed on the Child Sex Offender Register held by the NSW police. They will have special and very strict reporting and other conditions placed on them once they are convicted and, after any sentence, released into the community. The offences covered and requirements are set out in the Child Protection (Offenders Registration) Act 2000 (NSW). They include restrictions on employment and where a person can live. Failure to comply strictly with the requirements of the orders made can result in a further jail sentence.

There is no limit on how far back disclosure must go, and unless the form sets its own limit, an applicant must disclose all relevant offences. The only exception is, that after 15 years, a suspended sentence can be disregarded for all purposes if the bond entered into was not breached and no other indictable offences have occurred during that time (Crimes Act 1900, s 579).

[14.720] What must be

[14.730] Obtaining a person's

disclosed? What needs to be disclosed depends on the questions an applicant for a job or a licence is asked. These vary, not only in the private sector, but between different parts of the public sector. Most application forms do not require disclosure of traffic offences, though some do.

Time limits

record Private employers cannot obtain a person’s criminal record without their consent. Many employers, however, especially when the job is in a sensitive area such as childcare, will not employ a person unless they either: • obtain a certificate from the police saying they have no relevant convictions, or

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• give the employer the authority to apply to the police on their behalf.

Probity checks Some legislation provides for probity checks of child care or casino employees or security guards. The relevant licensing authority obtains this information. An integrity check for a licensing authority involves an extensive check, but all that is released is a statement of whether or not the person satisfies the test. There are no appeal or review provisions.

Public service and other agencies Public servants, on application, sign an authority allowing a record check. Generally only those in sensitive positions, such as

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child care workers or employees of the Director of Public Prosecutions, are checked, though in theory all can be. Agencies such as electricity and gas authorities can also require employees to allow a check. Records released to the public service or related authorities include not only convictions but also matters that did not proceed. Getting your own record People can get a copy of their record from the police Criminal Records Unit. It contains only convictions, not arrests or dismissals. There is a search fee.

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Contact points [14.740]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au. Federal Circuit Court (previously Federal Magistrates Court)

Australasian Legal Information Institute (AustLII)

Department of Justice (NSW)

www.austlii.edu.au

ph: 8688 7777

Australian Federal Police

ph: 1300 352 000

see Police

Director of Public Prosecutions, Office of

Bar Association, NSW

www.odpp.nsw.gov.au

www.fedcourt.gov.au

www.nswbar.asn.au

ph: 9285 8606

ph: 9230 8567

ph: 9232 4055

Witness Assistance Service

High Court of Australia

Council for Civil Liberties, NSW (NSWCCL)

www.odpp.nsw.gov.au/witnessassistance-service

www.hcourt.gov.au

www.nswccl.org.au

ph: 1800 814 534

ph: 8090 2952

District Court of NSW

Immigration and Citizenship, Department of

Children’s Courts

www.districtcourt.justice.nsw. gov.au

www.immi.gov.au

Civil Registry

See Contact points for Chapter 7, Children and Young People.

www.justice.nsw.gov.au

www.federalcircuitcourt.gov.au. Federal Court of Australia

ph: 6270 6811

ph: 131 881

ph: 1300 679 272

enquiries: 1300 679 272

Independent Commission Against Corruption (ICAC)

Community Legal Centres NSW

records: 9377 5355

www.icac.nsw.gov.au

For a list of Community Legal Centres see www.clcnsw.org.au/ clc_directory.php.

Criminal Registry

ph: 1800 463 909 or 8281 5999

results: 9287 7581

Justice Action

records: 9287 7314

www.justiceaction.org.au

Coroner’s Court

trials: 9287 7332

Juvenile Justice, Department of

www.coroners.justice.nsw.gov.au

all other enquiries: 1300 679 272

www.juvenile.justice.nsw.gov.au

ph: 8584 7777

Domestic Violence Line

ph: 8346 1333

Corrective Services NSW (CSNSW)

www.community.nsw.gov.au

A list of Juvenile Justice Centres is in the Contact points for Chapter 7, Children and Young People.

www.correctiveservices.justice.nsw. gov.au ph: 8346 1333 Court of Criminal Appeal Supreme Court of NSW www.supremecourt.justice.nsw. gov.au Crown Solicitor’s Office www.cso.nsw.gov.au ph: 9224 5000

Dept of Community Services ph: 1800 656 463 A complete list of contacts relevant to domestic violence is in Contact points for Chapter 19, Domestic Violence. Drug Court of NSW www.drugcourt.justice.nsw.gov.au

LawAccess NSW www.lawaccess.nsw.gov.au ph: 1300 888 529 Law and Justice Foundation of NSW

ph: 9287 7305 Family Court of Australia www.familycourt.gov.au

www.lawfoundation.net.au

ph: 1300 352 000

ph: 9926 0333

Law Society of NSW www.lawsociety.com.au

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Legal Aid NSW

Customer assistance unit

Supreme Court of NSW

www.legalaid.nsw.gov.au

ph: 1800 725 631

ph:1300 888 529 or 9219 5000

General enquiries

www.supremecourt.justice.nsw. gov.au/

Youth hotline

ph: 131 444

ph: 1300 679 272

ph: 1800 101 810

Crimestoppers

For a list of Legal Aid offices see www.legalaid.nsw.gov.au/contactus/legal-aid-nsw-offices

www.crimestoppers.com.au

SWOP (Sex Workers Outreach Project)

For a list of Sydney metropolitan, regional and specialist legal aid offices see www.legalaid.nsw.gov. au/contact-us/legal-aid-nswoffices or the Contact points for Chapter 4, Assistance with Legal Problems.. Local Courts For a list of local courts see www. localcourt.justice.nsw.gov.au National Women’s Justice Coalition

ph: 1800 333 000 Office for Women’s Policy www.women.nsw.gov.au

ph: 1800 622 902 or 9206 2166 Victims of Crime

ph: 1300 362 072

A list of contacts relevant to victims of crime is in Contact points for Chapter 39, Victims Support.

Ombudsman, NSW

Witness Assistance Service

www.ombo.nsw.gov.au

Office of the Director of Public Prosecutions

Ombudsman, Commonwealth www.ombudsman.gov.au

ph: 1800 451 524 or 9286 1000 Police, Australian Federal www.afp.gov.au

www.nwjc.org.au

ph: 6131 3000 for all general enquiries

NSW Police

Public Defender’s Office

(including Witness Assistance Program)

www.publicdefenders.nsw.gov.au

www.police.nsw.gov.au

www.swop.org.au

ph: 1300 888 529

www.odpp.nsw.gov.au/witnessassistance-service ph: 1800 814 534 Witness Protection Program www.police.nsw.gov.au Police assistance line ph: 131 444 Customer assistance unit ph: 1800 622 571

15 Debt Matthew Hazard Legal Aid NSW Kai Wu Legal Aid NSW

Contents [15.20]

Demands for payment

[15.80]

Going to court

[15.190]

Enforcing the judgment debt

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[15.10]

A debt is created when one person (the debtor) owes money to another (the creditor). A debt can be resolved either by negotiation between creditor and debtor or by court action. Creditors often prefer to negotiate, as court action can be time-consuming and expensive. The Civil Procedure Act 2005 (NSW) is the main NSW Act dealing with debt collection.

It is only possible to enforce or defend a debt by complying with the Act as well as the court rules, and by using the proper court forms. This chapter considers the three possible stages in the process of debt collection: • demands for payment • going to court • enforcing a judgment debt.

Demands for payment [15.20]

Collection action begins when a creditor, or someone working for them (such as a debt collector), contacts a debtor to require payment.

[15.30] Letters of demand Letters from a creditor or debt collector (letters of demand) often state that unless the debtor pays by a certain date, court action will be taken. Letters of demand that look like court documents It is against the law to send a letter of demand designed to look like a court document (Unauthorised Documents Act 1922 (NSW), s 4). A person receiving one can complain to the police, NSW Fair Trading or the Australian Competition and Consumer Commission.

Responding to a letter of demand Check the creditor's claim The debtor should check the basis of the claim that there is a debt, as well as the calculation of the amount. If necessary the debtor should write requesting copies of contracts, statements or other information, and asking that no further action be taken until they have been provided. Is the claim enforceable? Some consumer contracts are not legally enforceable, or are only partly enforceable – usually because the seller has not obeyed the law in some important respect.

The question of whether or not a debt is fully enforceable directly affects the options open to a debtor. For where to get advice, see Contact points at [15.260]. Debt collectors' costs Debt collection agencies often include a fee, called their “costs”, in letters of demand. This need not be paid. It is illegal in NSW for a debt collector to charge the debtor for collecting the debt, or even to try to do so, except where the fee is for costs incurred in certain types of repossession of goods on hire purchase (Commercial Agents and Private Inquiry Agents Act 2004 (NSW), s 19(1)). The debtor can recover money unlawfully taken by a debt collector in any court of competent jurisdiction (s 19(2)). However, the practice is legal in some states, and some creditors try to recover debts through interstate debt collectors. This can result in proceedings being commenced outside NSW. For the remedies available to a debtor see The debtor's options at [15.50].

[15.40] The creditor's options If a debtor does not pay, reach agreement with the creditor about payment, or establish that they do not in fact owe the money, the creditor can begin legal proceedings, and the debtor may be ordered to pay the creditor’s legal costs.

[15.50] The debtor's options Payment in full If the debt is not disputed, the debtor should consider paying it in full if their circumstances allow.

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Refusal to pay A person may refuse to pay on the grounds that: • they do not owe the money • the debt has been paid already • they cannot afford to pay. Getting into debt and getting advice People sometimes agree to buy things they can't afford; or they take on manageable debt, but then their circumstances change. Taking action Sometimes there is a legal right to get out of a contract establishing a debt, or to vary the contract (see Chapter 11, Contracts and Chapter 13, Credit). Otherwise, it is best to write immediately to the creditor asking to end the agreement. If goods have been bought, the buyer could offer to return them. The seller does not usually have to agree, but may do so. Getting advice People who are overcommitted may benefit from financial counselling. A counsellor can be found by contacting the Financial Counsellors Association of NSW or Wesley Financial Counselling. Advice on debt matters may also be obtained from: • Legal Aid NSW offices • community legal centres • community welfare organisations, including ethnic welfare associations.

If the person disputes the debt A person who believes they do not owe the money should get expert advice and then write to the creditor explaining why they do not owe the money. This may stop the creditor taking further action. Going to a tribunal A person who disputes the debt may be able to ask a tribunal to determine the matter. Tribunals are usually cheaper and less formal than courts. For example, a person who bought something that does not work properly can apply to the Consumer and Commercial Division of NSW Civil and Administrative Tribunal (NCAT) for an order for repairs or release from payment (see Chapter 10, Consumers).

If the debt has been paid If the person has already paid the debt, they should write immediately to the creditor

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stating that this is the case, and including evidence such as bank statements or receipts. If the person cannot afford to pay A person who cannot afford to pay the debt can try negotiating with the creditor (see below). If the person has borrowed money from a finance company or a bank, they may be able to apply to the external dispute resolution schemes, namely Credit and Investments Ombudsman or Financial Ombudsman Service to seek hardship variations (see Chapter 13, Credit); and they may be able to do so even after the statement of claim has been filed but before a judgment has been given.

Negotiating with the creditor If the debtor does not dispute the debt, but cannot afford to pay in full, they can negotiate with the creditor about payment. In particular, the debtor can: • offer to pay by instalments • offer a reduced lump sum to finalise the debt • ask the creditor to write off the debt • ask for a payment moratorium. Some of these options may not be available in certain circumstances, or the debtor may propose a combination of options. Temporary difficulties A debtor who is temporarily unable to pay should ask the creditor for more time. Most creditors will accept reduced payments, or defer payment, if the debtor cannot afford to pay for a month or two.

Writing to the creditor The debtor should write to the creditor explaining their financial situation in some detail, including information about income and expenditure, dependants and any special circumstances. If the inability to pay is likely to be temporary (because of unemployment or illness, for example) this should be mentioned. Offering a lesser amount Sometimes the debtor’s inability to pay is likely to be long term, but they have access

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to a smaller lump sum (such as a compensation payment, inheritance, asset sale, or loan from family or friends). The creditor may be willing to accept less than the full amount in exchange for the certainty of being paid at least some of the money. Asking the creditor to write off the debt When a debt is written off, the creditor can claim a tax benefit that reduces the loss. Writing off the debt also saves the creditor the expense of trying to recover it. So in circumstances of particular hardship, such as the death or permanent disability of a breadwinner or desertion by an incomeearning spouse, the debtor should ask that the debt be written off, especially if they can show they have been a good customer in the past. Similarly, a debtor who has no income or assets obviously cannot pay. If this is pointed out to the creditor, they may agree to write off the debt as the trouble of trying to collect is likely to outweigh any benefit. Any agreement with the creditor should be in writing and signed by both creditor and debtor to avoid the possibility of dispute later on. The agreement should state that it is in full and final settlement of the claim. Ensuring that the agreement is enforceable To be enforceable in a court, the agreement should show that the debtor is giving something or foregoing a legal claim in return for the debt being written off. A clause stating that the debtor pays a nominal sum in exchange is enough to ensure that the agreement is enforceable.

Asking for payment to be postponed If the inability to pay is likely to be temporary, it may be possible to obtain a moratorium (a postponement of payments) for a few months. It is advisable to ask that no interest be charged during this period, or the debtor’s position may not improve. There are special provisions for people whose debts are subject to the National Credit Code (Schedule 1 of the National Consumer Credit Protection Act 2009 (Cth)) and

who are having trouble meeting payments because of illness, unemployment or some other good reasons (see Chapter 13, Credit).

[15.60] Where there are

numerous debts Someone with a number of debts might consider the available options and eventually decide on a different option for each. There are, however, several options available that take all debts into account. These are: • debt consolidation • pro rata repayment schemes • selling assets • voluntary bankruptcy (see Chapter 6, Bankruptcy, for information about this). The matter should be discussed with a financial counsellor before a decision is made.

Debt consolidation The term debt consolidation generally applies to a loan used to pay out two or more existing debts, thus reducing the number of debts and, usually, the monthly repayments. Potential disadvantages Many debtors regard debt consolidation as the solution to their financial problems. However, a person who cannot pay a number of small debts may not be able to make one regular payment of almost the same amount. Debt consolidation may provide only a short-term benefit, and be ultimately more expensive.

Pro rata repayment Pro rata repayment schemes are informal schemes (ie, not arranged through the courts) set up to ensure that all creditors are repaid by instalments over a period of time. They differ from other instalment schemes in the way that the amount offered to each creditor is calculated. Each is offered a monthly amount based on: • the proportion of the total debt owed to that creditor, or • the proportion of the total regular

15 Debt

monthly payments payable to that creditor. The debtor decides how much they can comfortably pay each week to all creditors, and divides the amount in one of the two ways. Creditors generally like pro rata schemes, but they may not always be appropriate; for example, where a debt is secured.

[15.70] Dealing with creditors

and debt collectors There are legal limits to what a creditor or debt collector can do or say in pursuit of the debt.

Debtors at a special disadvantage Debt collectors must not engage in unconscionable or unfair conduct. This means that they cannot take advantage of a debtor’s disability, vulnerability or “special disadvantage”, that is, a person’s condition or circumstances which affect their ability to judge what is in their best interest (see Blomley v Ryan (1956) 99 CLR 362; Commercial Bank of Australia v Amadio (1983) 151 CLR 447).

Harassment by creditors A debt collector should only contact a debtor for a reasonable purpose (for example, to demand payment or discuss a payment arrangement). A debt collector cannot physically threaten or harass a debtor, contact a debtor more than necessary or at unreasonable hours, nor should they make contact with other people without the debtor’s permission. It is an offence under both the Competition and Consumer Act 2010 (Cth) and the Fair Trading Act 1987 (NSW) for a creditor or debt collector to unduly harass someone about a debt.

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False or misleading statements or conduct Debt collectors cannot make false statements about the debt (for example, the amount owed or who is liable to pay it), about what will happen if the debt is not paid (for example, that the debtor will be made bankrupt or that their house will be taken), nor can they engage in conduct which is misleading (for example, sending letters of demand which look like court documents). What to do if unfair or illegal conduct occurs Harassment and other unfair or illegal conduct can be reported to the following agencies: • the Australian Securities and Investments Commission, if the debt relates to loan repayments • the Australian Competition and Consumer Commission, if the debt does not arise from a loan • NSW Fair Trading, for all kinds of debts • the police, in the case of violence, trespass, threats of assault or other possible criminal offences. Cancellation of the debt collector's licence Harassment of debtors or others while collecting debts may be grounds for cancelling a debt collector's licence (Commercial Agents and Private Inquiry Agents Act 2004, ss 10, 11). Creditors who collect their own debts do not need a licence, and have less to fear in harassing debtors (s 5(3)).

Taking the creditor or agency to court Someone who has suffered a loss through harassment (such as loss of reputation) can sue the creditor or collection agency (if it is a company) for damages (compensation for loss).

Going to court [15.80] Which court? Legal action in debt matters can be commenced in the Supreme Court, the District Court or the Local Court.

The Local Court can hear claims for up to $100,000 (or up to $120,000 if the parties consent or fail to object). The District Court can hear claims for up to $750,000 (or more

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if the parties consent). The Supreme Court can hear claims for any amount. This chapter deals with debt collection through the Local Court.

In the Local Court The Local Court is divided into a General Division and a Small Claims Division. Debt matters are usually heard in: • the General Division, if the amount claimed is $10,000 or more • the Small Claims Division, if the amount is less than $10,000. The main advantages of the Small Claims Division are: • the relative lack of formality • the limitation on the legal costs that can be awarded against an unsuccessful party. More detailed explanations on procedures and forms for Local Court cases in the Small Claims Division can be found from the Lawaccess website www.lawassist. lawaccess.nsw.gov.au/lawassist/lawassist_ debt_small_claims_home.html: www. lawassist.lawaccess.nsw.gov.au/lawassist/ lawassist_index.html (provided by LawAccess NSW).

[15.90] Time limits There are time limits (limitation periods) for taking a debtor to court. Most court actions for debt recovery must be started within six years of when the debt (or cause of action) first arose (Limitation Act 1969 (NSW), s 14). However, if the debtor signs a written agreement that an amount is owing, or makes a payment before the end of the limitation period, the limitation period starts again from the date that the debt was confirmed (s 54).

[15.100] What the creditor

must do The statement of claim To take an action to recover a debt in the Local Court, the creditor (plaintiff) must: • complete a statement of claim • file it with the court where they want the action to be heard (this is called “issuing a statement of claim”)

• arrange for it to be served on the debtor (defendant).

Completing the statement of claim A statement of claim is a court document that states what the plaintiff claims, and on what basis. Statement of claim forms are available from any Local Court. A creditor may commence either a liquidated or an unliquidated claim. Both are commenced by a statement of claim (Form 3A or 3B, Uniform Civil Procedure Rules 2005 (UCPR), r 6.2). Liquidated claims A claim is liquidated if it can be calculated to a precise amount, such as a sum of money owing under a loan contract. The debtor (the defendant) must take action within 28 days of receiving a statement of claim. Otherwise the creditor (the plaintiff) can apply to the court for default judgment (Form 38, UCPR, rr 16.3 and 16.6). Unliquidated claims A claim is unliquidated if the sum claimed is unspecified; for example, in an action for damages where the value of damage is not yet known, as may be the case in a claim arising from a motor vehicle accident. The debtor must take action within 28 days of receiving the statement, otherwise the plaintiff can apply for a default judgment in their favour (Form 39, UCPR, rr 16.3 and 16.7). Mixed claims If the claim is for an amount that is partly liquidated and partly unliquidated, it is treated as an unliquidated claim. This could arise, for example, in a tenancy dispute where a tenant has left the premises and the landlord brings proceedings to recover the rent owing (a liquidated claim) as well as the cost of repairing the premises and damages (an unliquidated claim). Default judgments An application for default judgment can be dealt with in the absence of the parties, and need not be served on the debtor (UCPR, r 16.3(1A)). Default judgments are generally only available in relation to claims of possession of land, detention of goods,

15 Debt

debts and liquidated claims, although there are some exceptions for unliquidated claims (see UCPR, rr 16.4–16. 8).

Acknowledging a liquidated claim In a liquidated claim, the defendant can file a statement acknowledging liability for the full amount of the claim (Form 35, UCPR, r 20.34), unless: • the defendant has filed a defence, or • the plaintiff has filed an application for default judgment (UCPR, r 20.34). Once the statement is filed, judgment will be entered for the plaintiff for the full amount of the claim. This will discharge all of the plaintiff’s claims in the proceedings. Acknowledging part of a claim A defendant who wishes to acknowledge part of a liquidated claim cannot file a Form 35, but instead must plead the matter in a defence (see Applying to have a default judgment set aside at [15.130]).

Filing the statement of claim The statement of claim may be filed, and the action commenced, at any Local Court.

Having the action transferred To another Local Court In some circumstances, the debtor can ask for the matter to be transferred to a court more convenient to them (Civil Procedure Act 2005 (NSW), ss 150–154). The procedure is set out in UCPR, r 8.2. This is explained in more detail in Changing courthouses at [15.160].

Serving the statement of claim The creditor must give the debtor an official court copy of the statement of claim. This is called service. The defendant is then considered to have been notified that the plaintiff is taking court proceedings against them. The statement may be served in various ways (UCPR, r 10.20). It may be: • served personally on the defendant, or • left, addressed to the defendant, at the defendant’s business or home address with a person apparently over 16 who is apparently employed or lives at that address, or

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• served by post. The creditor may serve the statement of claim personally. However, it is more common to have the statement served on the creditor’s behalf by: • the creditor’s solicitor, or • a commercial process server. Process servers Commercial process servers must be licensed. As for debt collectors, complaints about their conduct may be made to various government and consumer protection agencies, including: • the Australian Securities and Investments Commission (if the debt relates to loan repayments) • the Australian Competition and Consumer Commission (if the debt did not arise from a loan) • NSW Fair Trading (for all kinds of debts) • the police. See What to do if unfair or illegal conduct occurs at [15.70].

Service by post The claim may be sent by ordinary post to the debtor’s current business or residential address (UCPR, Pt 10). In this case, it must be posted by a court officer in an envelope with the return address of the court. If the envelope is returned unopened and marked “not delivered to the addressee”, the statement is considered not to have been served. If the debtor is a company If the debtor is a company, the claim can be: • served personally on an officer of the corporation, or • posted, preferably by registered mail, to the registered office of the company, or • left at that address, or • served in any other lawful way for service to be effected. If the debtor runs a registered business A person operating a registered business can be served by: • delivering the document to the person, or • posting it to the address specified for service, or the person’s residential or business address, or • sending it by fax to the person’s fax number.

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Time limits

under 16 to the door. This may not work, because the creditor can apply for permission to bring the statement of claim to the debtor's attention in some other way (UCPR, r 10.14). This is called substituted service.

In most courts there are time limits for the service of court documents, after which the documents will be deemed invalid for service. Once invalid, the documents must be filed again. In the Supreme Court, District Court or Local Court, a statement of claim seeking relief in relation to a debt or other liquidated claim is valid for service for six months after filing UCPR, r 6.2(4)). Application can be made to extend this time (UCPR, r 1.12).

[15.110] Responding to

Service outside NSW When someone incurs a debt in another Australian state or territory, the creditor can serve the court documents under the Service and Execution of Process Act 1992 (Cth). Section 16 requires certain information to be attached to a statement of claim that is to be served outside the state.

The debtor has 28 days after service to enter an appearance. An appearance can be entered, unless the court directs otherwise, by filing either: • an appearance (Form 6A, UCPR, rr 6.9 and 6.11) • a submitting appearance (Form 6B, UCPR, rr 6.9 and 6.11), or • a defence (Form 7A or 7B) (UCPR, r 14.3).

If an expected claim is not received Because the rules about service are so wide it is possible for a debtor to be unaware of a statement of claim even if it was properly served. A person who believes they should have received a statement of claim but has not should immediately notify the creditor or the creditor’s solicitor. Notification should be by letter (keep a copy), or telephone if time is short. If the creditor has not yet obtained judgment, the debtor should ask them to do nothing further until the debtor has examined a copy of the statement of claim and decided what to do. Many creditors will allow debtors time to consider their options under such circumstances. Can the debtor avoid service? A debtor may try to avoid service of the claim by, for example, not answering the door or sending children

service Entering an appearance

Filing a notice of appearance A party who files a notice of appearance is considered to have waived any objection to the manner of service (Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529). Submitting to judgment by notice of appearance The debtor can choose to take no active part in the proceedings by filing a notice of appearance stating that they submit to the court’s orders and any judgment made in relation to the claim. This is called submitting to judgment by notice of appearance (UCPR, r 6.11). Once the debtor submits to judgment by notice of appearance, no defence or affidavit can be filed except with leave of the court. Filing a defence See Defending the claim at [15.160].

If recovery is statute-barred Debts cannot be collected through the courts after a certain period of time has passed. A debtor may have a defence if: • six years or more have passed since the debtor last made a payment or confirmed the debt, and • no court action has been taken to recover the debt in the meantime.

In this case, recovery of the debt through the courts is statute-barred, and the courts will not enforce it. Should the debtor make another payment? If there is no court judgment against the debtor and they make another payment on the debt, the limitation period

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535

will usually start again, and normally they will no longer be able to rely on the defence that the debt is statute-barred. A debtor who thinks that a debt collector is contacting

them about a debt that is statute-barred should get legal advice before making any payment or confirming the debt in any other way.

Paying the amount claimed

or the debtor had some other good case, simply because the debtor did not file a defence. Once this has happened the creditor can take further action against the debtor, such as wage garnishment, to enforce payment (see Enforcing the judgment debt at [15.190]).

The debtor may also, within the time limited for making an appearance, respond to the statement of claim by paying the creditor the amount claimed, including any interest and costs (UCPR, r 6.17). The debtor may then file a notice of payment (Form 34) which operates as a permanent stay of the proceedings (subject to court orders).

If the debtor does not respond If for any reason the debtor does nothing within 28 days of the claim being served, the creditor can apply to the clerk of the court (a Local Court officer) for a default judgment against the debtor. If the statement of claim is in proper form, the judgment is made: • without a court hearing • without the creditor having to prove the claim.

[15.120] Obtaining a default

judgment To get a default judgment a creditor simply has to file two statements sworn in front of a justice of the peace – an affidavit of service (Form 41) and an affidavit in support (Form 40) – setting out how much the creditor claims the debtor owes, including court costs (UCPR, r 16.3(2)). An affidavit of service is unnecessary if the documents were served by the Local Court.

Time limits The creditor has 12 months from the expiry of the debtor’s 28-day response period to apply for the default judgment.

Consequences for the debtor A default judgment means the creditor has won, even if the debt was never owed at all

Filing a defence after the default judgment A defence filed after the entry of default judgment is invalid until the judgment is set aside (Guardian Cooperative Housing Society v Pritchard [2002] NSWSC 1002). A judgment creditor has 12 years to enforce the debt after the date of the judgment.

[15.130] Applying to have a

default judgment set aside If a default judgment has been entered against a debtor who has a good defence, the debtor can ask the court to set it aside (UCPR, r 36.16(2)(a)).

How to apply Application to set aside default judgment is made by filing two documents: • a notice of motion (Form 20), and • an affidavit in support (Form 40). The affidavit should: • explain why a defence was not filed before default judgment (for example, because the statement of claim was not received) • explain any delay in bringing proceedings to set aside judgment • contain details of the grounds of defence (for example, illegality or lack of good faith). There should be enough detail to satisfy the court that the defence has merit, and to give the other side advance notice of what will be relied on. The debtor should apply for a stay of proceedings at the same time.

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Filing a defence with the notice of motion In practice, the debtor should file a defence with the notice of motion, or at least attach a draft of the defence to the affidavit in support. Usually, the court will set aside a judgment if it is satisfied that the debtor has a good defence.

If the motion to set aside fails There is no limit on the number of motions that can be filed to have judgment set aside.

Setting aside a default judgment by consent A judgment can be set aside by the court if the parties consent (UCPR, r 36.15(2)), as long as the rights of third parties are not affected. If the creditor consents, the debtor should prepare consent orders setting out any terms and conditions in clear language. Usually, the terms will specify: • the date of the default judgment being set aside • that the debtor will file a defence within 14 days • that the debtor will pay the creditor’s costs. Tribunal judgments If a decision has been made in the NSW Civil and Administrative Tribunal (NCAT) and a certificate of judgment is filed in the Local Court for enforcement, the Local Court does not have jurisdiction to set aside the judgment awarded in NCAT. The debtor (or another party seeking to set aside the judgment) must bring proceedings, in NCAT for internal appeal, or in the District Court or Supreme Court to appeal that original NCAT decision (Civil and Administrative Tribunal Act 2013 (NSW), ss 80, 83 and 84).

The hearing The application is not granted just on the basis of the form. When the notice of motion is filed, the court registrar sets a date for a hearing. The debtor must apply to the court in person on the hearing date, and the creditor

may contest the application. It is therefore vital that the debtor obtains legal advice and appears in court on the date.

If the judgment is set aside If the court sets aside the judgment it often imposes conditions on one or more of the parties, the most common being that the debtor file a defence in the next 14 days if this has not yet been done. If the conditions are not met, the creditor can apply to the registrar to have the judgment re-entered.

Payment of costs The court may make orders for the costs incurred in setting aside the judgment. If the failure to lodge a defence was not the debtor’s fault, the court may order that costs be paid by the party that ultimately loses the case. If the debtor was at fault the court is likely to order the debtor to pay the creditor’s costs. Has someone come to take your furniture? This person is called a court sheriff. If you did not know about any court proceedings it is likely that a creditor has obtained a default judgment against you. Ring the court or the creditor to get a copy of the statement of claim setting out the creditor's claim. If you want the chance to defend the claim you can apply to set aside the default judgment (see above). If you want to make an arrangement to pay the debt, you can apply to the court for an instalment order (see Application to pay by instalments at [15.210]).

[15.140] Applying for a stay of

proceedings A creditor can continue to enforce a judgment until it is set aside. For this reason, a debtor who applies to have a judgment set aside should also apply for a stay of proceedings – an order stopping enforcement of the judgment for a specified period (Civil Procedure Act 2005, s 67). A stay will normally only be granted for substantial reasons (Re Taylor (1876) 4 Ch D 157).

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In the Local Court, a stay is normally granted for a specified period, with the matter to be reviewed at the end of that period. The court may suspend enforcement action until the motion for a stay of proceedings has been resolved.

How to apply To apply for a stay of proceedings, the debtor should complete a notice of motion. This can be done on the form used for applications to set aside judgment (Form 20). The debtor must set out the orders sought, such as length of the stay, and the reasons for the application (for example, that they are applying to have the whole judgment set aside). Alternatively, the reasons can be set out in an affidavit (UCPR, Pt 35). Normally the application should be filed at the court in which judgment was entered. A hearing day is set, and notice given to the other side to allow them to oppose the application at the hearing. Urgent applications Often, enforcement proceedings must be stopped urgently; for example, where a sheriff is about to seize goods under a writ of execution or an employer has been ordered by a garnishee order to deduct the judgment debt from wages. In this case, the debtor can apply to any court (such as the court nearest to their workplace), and the court may grant the order even if notice has not been given to the other side. The court has limited power to grant such a stay until the first available list day for a Local Court to hear the motion.

[15.150] If the debtor admits

the claim Once a statement of claim is served the defendant should check the amount claimed to be owing. There are a number of options open to the debtor if the amount is correct and the debtor does not intend to defend the claim.

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Making an offer The debtor may make an offer to the creditor and, if possible, reach an agreement before default judgment is applied for. This is because the creditor’s costs, for which the debtor is liable if judgment is entered against them, are less if judgment is made after they admit or agree to the claim. Additional costs Where judgment is entered in favour of a creditor within 28 days of service of the statement of claim as a result of agreement, the court will usually only add to the judgment debt the cost of issuing and serving the statement of claim (UCPR, Pt 42 Div 1). Outside this time, a creditor in the General Division can apply to the court for their legal costs to be included.

Effect of informal agreements An informal agreement with a creditor after receiving a statement of claim does not protect the debtor against default judgment. Unless the statement of claim is withdrawn, the creditor can still apply for default judgment, and enforce it (see Judgment by agreement below). If the creditor tries to enforce the judgment If a creditor makes an informal agreement with a debtor and then tries to enforce a judgment, the debtor should apply to have the judgment set aside. If the debtor can satisfy the court that the agreement was made and the debtor has not defaulted in their obligations under it, the court will usually set the judgment aside. If a private agreement is made, the debtor should always get receipts as proof of payment.

Acknowledging the claim The acknowledgement of liquidated claim procedure replaces the full confession procedure previously available in the District and Local Courts. The debtor should seek legal advice before making any acknowledgment. At any time before judgment, a debtor can admit liability for the whole amount of a liquidated claim by filling in and signing an Acknowledgment of liquidated claim (Form 35) in accordance with UCPR, r 20.34, which can

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be obtained from any Local Court. Judgment is then entered for the creditor for the whole amount of the claim. An acknowledgment cannot be filed if: • the debtor has already filed a defence, or • the creditor has already filed an application for default judgment. If a default judgment has already been set aside under UCPR, r 36.15 or r 36.16, the

defendant may only file an acknowledgment with leave of the court (UCPR, r 20.34(5)). Acknowledging part of the debt? Part confessions (as they were previously known) are no longer available. It is not possible to acknowledge only part of the debt. A defendant who wishes to acknowledge only part of a liquidated claim must plead this matter in their defence.

Requesting to pay by instalments The debtor can apply to pay by instalments by filing Form 46 or Form 47 at any time after the default judgment (or earlier if filed together with an acknowledgment Form 35).

The debtor should consider whether there are good prospects of obtaining an order to pay by instalments, or whether they would be better off negotiating with the creditor.

Judgment by admission

tor to its terms, it has the disadvantage of being a judgment in the creditor’s favour. This can affect the debtor’s ability to obtain future credit (see Publication of debt information at [15.250], and Chapter 13, Credit). It is often better for the debtor to seek an informal arrangement to pay by instalments on the understanding that the creditor will not pursue the claim. If the debtor does choose this course of action, it is best to keep records of the informal agreement in case the creditor later applies for a default judgment.

If a party makes admissions, the court may make an order or enter a judgment on the application of any party entitling the applicant to the fact (for example, an amount) admitted. The court’s power to enter judgment by admission is discretionary, and will not be exercised if there is evidence that it would be contrary to the true facts. Admissions may be express or implied, but must be clear. Judgments based on admissions alone are rare in the Local Court. Parties usually use admissions as the basis of agreements or terms of settlement.

Judgment by agreement At any time before judgment the creditor and debtor can make an agreement as to judgment, and any terms and conditions, such as: • the amount the debtor agrees to pay • the amount of instalments, if any • when payments are to be made (UCPR, r 37.1A). When the agreement is filed, the court enters judgment in accordance with the agreement. If terms of payment are named, they are binding on the parties and a court can enforce them. Disadvantage of filing an agreement In practice, it may not be in the debtor’s best interests to file an agreement as to judgment. Though filing the agreement binds the credi-

Filing a defence and continuing to negotiate If the debtor has good reasons for why they should not have to pay, they should file a defence (Form 7A or Form 7B) (see Defending the claim at [15.160]). Once the notice has been filed: • the debtor can still negotiate with the creditor • the creditor cannot obtain a default judgment. A word of warning The debtor should be aware that in the General Division they risk being responsible for the creditor's legal costs if they later wish to discontinue the proceedings: • without reaching an agreement with the creditor about the amount owing, and • without reaching an agreement that each party pay their own costs.

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The debtor should keep in mind that their defence must have reasonable prospects of success, otherwise the costs awarded against them may be greater.

Advantages The advantages of filing a defence and continuing to negotiate are: • the debtor gains an extension of time in which to decide what to do, seek legal advice and negotiate with the creditor • the creditor cannot catch the debtor out by immediately taking out a default judgment • the debtor may gain an edge in negotiations – a defence indicates a determination to make the creditor prove the case in court. The debtor and creditor can reach agreement, or judgment can be entered on the debtor’s acknowledgment, at any time before the hearing. If the creditor offers to reduce the debt An offer by the creditor to reduce the debt should be viewed with suspicion, particularly if no reason is given. The debtor can agree, of course; but it could mean there are inaccuracies in the creditor's accounting, or that the creditor is unable to prove the debt, perhaps through loss of records. An offer to reduce could be the basis for much harder negotiation by the debtor.

If more information is needed for matters heard in the Local Court Sometimes a statement of claim is filed in the Local Court with limited details about how the debt arose or how the amount owing is calculated. Seeking particulars The debtor is entitled to write to the creditor seeking particulars (asking questions). If the creditor does not respond, or if they dispute the relevance of some of the questions, the debtor can: • file a notice of motion asking the court to make an order that the questions be answered (UCPR, r 15.10), or • write to the creditor and notify them that they will seek orders at the next callover or review date.

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Similarly, the creditor can ask for particulars of the defence once it is filed. If a party has not provided sufficient particulars If the court finds that one party has not provided sufficient particulars they are likely to order that they pay the costs of the notice of motion. If a party fails to provide information A continuing failure to provide relevant particulars by one of the parties may lead to the statement of claim, or the defence, being struck out and judgment being entered in favour of the other.

[15.160] Defending the claim Filing a defence The first thing to do in defending a statement of claim is to file a defence (Form 7A or Form 7B) within 28 days of being served with the statement of claim. It should be filed at the Local Court from which the statement of claim was issued. The court may also order another time limit for filing (UCPR, r 14.3). Forms are available from any Local Court. There is no filing fee for a defence. The affidavit In Local Court proceedings, the debtor does not need to file an affidavit stating that the matters set out in the defence are true. What the defence must contain The debtor must set out clearly the grounds of defence – that is, why they do not owe all or part of the debt. It must contain enough information for the creditor to know what the debtor’s case is going to be and how to respond to it. The court may find that the particulars of the defence are insufficient if they mislead the other party. The grounds of the defence should indicate where an issue raised in the statement of claim is admitted; for example, “the cost of fixing the plaintiff’s bicycle is not in dispute”.

Making a cross-claim A debtor who has any claim against the creditor or any other person can make what

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is known as a cross-claim (Civil Procedure Act 2005 (CPA), s 22; UCPR, r 9.1 – see Form 9: Statement of cross claim). A cross-claim should be distinguished from a defendant’s right to set-off, which applies where there are mutual debts (ie, liquidated claims) between the plaintiff and the defendant (CPA, s 21). While a set-off is pleaded by way of defence, a cross-claim must not be included in the same document as the defence (UCPR, r 4.8) (see Set-off of judgments below). What can the claim be about? The debtor’s cross-claim need not arise from the same matter as the creditor’s claim, and can be for payment of a debt or for damages. There can be any number of cross-claims as long as the total is not more than $100,000 (in the General Division). If the debtor’s claims exceed this limit, there is the option of abandoning the excess in order to continue to bring the cross-claim in the Local Court (CPA, s 23(1)(a)). How to make a cross-claim The debtor should file a statement of crossclaim (Form 9).

Time limits A party may make a cross-claim within the time for filing a defence, or within any further time that the court allows (UCPR, r 9.1) (for the discretion to allow further time, see Kandt Stening Group Pty Ltd v Stening [2006] NSWSC 307). What must the debtor prove? If the debtor files a cross-claim they bear the burden of proving on the balance of probabilities their claim against the creditor or other cross-defendant. If the cross-claim is successful If a cross-claim is successful, the court may give judgment for the balance of money awarded taking into account all the claims, or it may give judgment in respect of each claim (CPA, s 90(2)).

Set-off of judgments If the creditor and debtor are the active parties to more than one judgment of the same court, the defendant to any proceedings may apply to the court for an order that the first judgment be set-off against any other judgment that will affect the parties (CPA, ss 21, 96). Judgments of different Local Courts are taken to be judgments of the same court.

Proceedings commenced outside NSW A creditor may start proceedings in a court outside NSW (UCPR, r 10.4; Service and Execution of Process Act 1992 (Cth), s 15). In this case, the debtor can seek to have the proceedings stayed (s 20). If the stay is granted and the

creditor starts proceedings in NSW, the debtor will usually save expense by defending the matter in their home state.

Changing courthouses The court can order that the proceedings be transferred to some other Local Court, even if the parties do not apply for a transfer (Local Court Act 2007 (NSW), s 55; UCPR, r 8.2). What is an appropriate court? An appropriate court is either: • the court closest to where the debtor lives, works or runs a business, or lived, worked or ran a business at the time the cause of action arose, or • the court closest to where the cause of action (the legal issue in dispute) arose.

Application for changing court is to be made by motion in accordance with UCPR, Pt 18 and Local Court Rules 2009 (NSW), r 2.10. What the court may do Even if the court chosen by the creditor is an appropriate court, the court still has the power to order that the case be heard in another court if, in the circumstances, it can be more conveniently or fairly heard there (Local Court Act, s 55; UCPR, r 8.2). Generally, the court will only make such orders if there are very good reasons for doing so.

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[15.170] In the General

Division Debt matters are usually heard in the General Division of the Local Court if the amount claimed is $10,000 or more. The General Division has formal procedures for proving that a debt is owed and then enforcing the debt. A creditor or a debtor should obtain legal advice if they are litigating in this division.

Filing a notice to admit facts Once a defence is filed, either the creditor or the debtor, or both, may serve on the other party a notice to admit facts and authenticity of documents (Form 17). To object, a party must file, within 14 days of service, a notice disputing facts and authenticity of documents (Form 18). For example, the creditor may call on the debtor to admit that they made a specified contract with the creditor, or that a particular bill represents the money claimed. If an objection is not made within 14 days the party must seek leave of the court to withdraw the admission. If there is no objection If the party does not object they are taken to have admitted the facts. This can help to reduce the number of facts to be proved at the hearing.

Case management in the Local Court Proceedings in the Local Court are subject to case management. The court takes an active role in setting a timetable and ensuring that the matter proceeds to hearing in accordance with it. The timetable and standard directions When a defence is filed the court will provide both parties with a document headed Standard Directions, which will include a callover date.

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What the magistrate or registrar may do Both the magistrate and the registrar have wide powers to make orders for the future conduct of the matter. They can: • direct a party to take specified steps within particular time limits • dismiss the action if a party does not comply with directions • refer the matter to mediation or arbitration • set a trial date and a review date • set the matter down for a second callover (within 28 days of the first callover). When an action may be dismissed The court may dismiss an action or strike out a defence if the plaintiff or defendant fails to conduct their case with “due despatch” (UCPR, r 12.7). A lack of “due despatch” usually involves some excessive delay or inefficient use of court time and resources. In deciding whether to dismiss an action, the court will consider general fairness to the parties and the need to ensure the integrity of the judicial system (Fairey v Fairey (No 2) [2000] NSWCA 173 at 52). The court may also dismiss an action within nine months after a statement of claim is filed if: • a defence or cross-claim is not filed, or • a default judgment is not entered, or • the proceedings are not otherwise disposed of. The court does not need to give the parties notice before making an order on these grounds. An action may also be dismissed on more general grounds, such as: • the plaintiff fails to appear (UCPR, r 13.6) • there is no reasonable cause of action (UCPR, r 13.4) • the cause of action is frivolous or vexatious (UCPR, r 13.4).

The callover The first callover will be held within six weeks of the defence filing date, and will be conducted by either a magistrate or a registrar.

If the debtor does not appear If an action has been started by a statement of claim and the debtor does not appear at the callover, judgment may be given in the creditor's favour with no hearing.

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However, if the debtor has good reasons for not appearing this can usually be set aside later on.

When the matter may be referred to mediation Mediation is a structured negotiation process in which the mediator, as a neutral and independent party, assists the parties to resolve the dispute. The court may, at any stage, refer the parties to attend mediation with or without their consent (CPA, s 26). If either party wishes to attend mediation they should raise this at the callover, as the court is likely to support such a suggestion. Parties are under a duty to participate in mediation in good faith (s 27). Evidence of anything said or any admission made in a mediation session or neutral evaluation session is not admissible in any proceedings before any court, unless the court allows evidence of a mediated agreement in order to give effect to it (s 29). A mediator or evaluator may only disclose information obtained during mediation in very limited circumstances (s 31). If the matter is referred to arbitration Under s 38(1) the court may refer a case for arbitration. The arbitrator is usually an experienced solicitor or barrister. These cases are not expected to be long or overly complex. The procedure for an arbitration hearing is similar to that for a court hearing, but the arbitrator must try to bring the parties to an agreed settlement before making a decision. The arbitrator has the same power as the court to make a decision on the claim and to award costs (ss 37, 54). Parties to an arbitration have the same right to representation as if they were before the court (s 48). The arbitrator’s decision (the award) becomes a judgment of the court, and is enforceable in the same way as a court judgment (s 40). When a matter can be reheard after arbitration A party who is not satisfied with an arbitrator’s decision can apply to have the case reheard by a court (CPA, s 42; UCPR, r 20.12). The application must be made within 28 days of the award taking effect

(CPA, ss 43, 40). Applications can currently be made using Form 32. The award is suspended from the time the application is made until an order for rehearing is made (s 42(3)). The application for rehearing is listed before the court, which decides whether it will hold a full or limited rehearing (CPA, s 43; UCPR, r 20.12). An order for rehearing cannot be made if the amount claimed is less than $10,000 (CPA, s 43(2)), and need not be made if it appears that the applicant failed to attend an arbitration without good reason (s 43(3)). If an order for a full rehearing is made, the award ceases to have effect; for limited rehearing, the award is suspended (s 44). If the matter is set down for hearing If the matter is set down for hearing, standard directions will require parties to prepare and exchange evidence such as witness statements, affidavits or reports. A review date will be set at least 28 days before the hearing so that the court can check that the directions have been complied with. A matter can also be relisted for further directions where a party does not comply with a case management direction. The plaintiff must file a statement of agreed facts and issues seven days before the hearing.

The hearing Each party can put their own case, or be represented by a barrister or solicitor. Each side has the opportunity to call and crossexamine witnesses and make submissions to the magistrate on the facts or the law. The magistrate then makes a decision and records a judgment. The court's decision If the court decides in the debtor’s favour, the alleged debt need not be paid. If the court decides in the creditor’s favour, the amount to be paid to the creditor by the debtor is called the judgment debt. The creditor is called the judgment creditor and the debtor the judgment debtor.

What does the judgment debt include? The judgment debt includes the amount claimed by the creditor plus:

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• filing and service fees • solicitor’s costs • pre-judgment interest. Pre-judgment interest If the amount claimed is more than $1,000, the creditor can claim interest on the debt from when the cause of action arose (ie, from the time the debt was payable) to the date of judgment (UCPR, r 36.7(2)). The creditor must specifically claim interest and provide the amount of interest in the statement of claim (CPA, s 100; UCPR, r 6.12(6)). The pre-judgment interest rate is currently 5.75% (as at the date of publication). Interest incurred after the judgment date If the judgment debt is not paid within 28 days of the judgment date, the creditor can claim interest on any unpaid part until it is paid. The rate follows that set by the Supreme Court and is currently 7.75% (as at the date of publication)).

Costs As a general rule the court will order the party who lost the case to pay the court fees and legal costs of the other party.

Appeals The only appeal from a Local Court General Division judgment is to the Supreme Court, on the grounds that the court made an error of law (Local Court Act, s 39). A party may also appeal to the Supreme Court on other grounds with leave under limited circumstances, including where the parties consent to an order or judgment (s 40). If the judgment was wrongly made, the person making the appeal (the appellant) should seek an order setting aside the judgment and a stay of enforcement until the appeal is heard.

[15.180] In the Small Claims

Division The aim of the Small Claims Division is to resolve small claims quickly and cheaply without parties needing legal representation (a party still has the right to be represented by a solicitor or barrister if they choose).

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Cases are heard by magistrates or assessors (who may be solicitors or barristers appointed to help the court hear Small Claims Division cases). The court is obliged to seek settlement between the parties before making any judgment or final orders (s 36).

Procedure The procedures followed are less technical than in the General Division. Certain parts of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules therefore do not apply (UCPR, Sch 1). For example: • the rules of evidence do not apply (Local Court Act, s 35) • there is no provision for filing a notice to admit facts or documents (see Filing a notice to admit facts at [15.170]) • leave of the court is required before a subpoena can be issued (UCPR, r 7.3) • any application must be made orally unless the court orders otherwise (Local Court Rules 2009, r 2.10). Thus there are only limited circumstances in which a notice of motion should be filed. For instance, a notice of motion may be filed when applying: – to set aside or vary judgments or orders – for an order to inspect property – for applications made after judgment – for interpleader motions. Otherwise, the requirements for “Motions” under Pt 18 of the Uniform Civil Procedure Rules 2005 do not apply.

Mediation and arbitration Mediation is encouraged, but matters cannot be referred to arbitration unless the parties consent or the court finds special circumstances to justify a referral (UCPR, r 20.8).

The pre-trial review After a defence has been filed, the court sets a date within six weeks for a pre-trial review (Local Court Rules 2009, r 2.4). Notification of the parties The court notifies the parties of the date and sends an information sheet on how to prepare for it.

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What happens at the review The pre-trial review is a meeting of the plaintiff and the defendant with a court official. Its purpose is to: • identify the facts and legal issues in dispute • encourage and help the parties to settle. Referral to mediation Mediation is encouraged, and the court may make orders as it thinks fit, including an order for adjournment. Referrals may be made to community justice centres (see Chapter 18, Dispute Resolution). In larger courts mediators are present and accept referrals. Note that the regular rules in relation to mediation under the Uniform Civil Procedure Rules 2005, Pt 20 Div 1 and the Civil Procedure Act 2005, Pt 4 do not apply. If settlement is not reached If a settlement cannot be reached, the parties must identify the issues in dispute and disclose the witness statements and documents they wish to rely on at the hearing if they are known. The court will then fix a date for hearing and will advise the parties on how to prepare their cases for hearing. The court will direct that the parties exchange written statements of the intended evidence of each witness, together with any other relevant documentation in support of their case.

The hearing The formal rules of evidence do not apply in the Small Claims Division. The court should conduct proceedings with minimal formality and technicality (Local Court Act, s 35(2)). Proceedings are usually conducted by both sides handing up their witness statements and other documents and then addressing the court on the main points of their case and on the opposing party’s case. A statement of agreed facts and issues should be filed seven days before the hearing; however, not all courts enforce this requirement. Most hearings are informal, although there are some occasions when the court will

conduct semi-formal or formal hearings. The type of hearing will determine how evidence is to be given. What if a party is unrepresented? The rules of evidence and other formalities are relaxed in order to assist unrepresented litigants. The rules of natural justice still apply, however; this means that the court should always conduct cases with fairness. Can witnesses be called to give evidence or be cross-examined? There is no right to call a witness to give evidence, to cross-examine witnesses or to give oral evidence at a hearing unless this is authorised by a Practice Note issued by the court (Local Court Act, s 35(4); Civil Procedure Act 2005, s 62(4)(d)). If the court conducts a more formal hearing, the right to cross-examine may survive; however, such hearings are rare.

Appeals Rights of appeal against a decision of the Small Claims Division are very limited. A party can appeal to the District Court only on the ground that: • they were not given the opportunity to put their case (denial of natural justice), or • the Local Court did not have the power to hear the case (lack of jurisdiction) (Local Court Act, s 39(2)).

Costs There are limits to the costs the court can order a losing party to pay (Local Court Rules 2009, r 2.9). The losing party will still need to pay some costs, such as: • court filing and service fees • the costs of preparing the original statement of claim • witness expenses (considered after a decision is made) • professional costs (limited to the amount prescribed for the entry of default judgment on a claim for that amount) • costs for obtaining an order for judgment or enforcing a judgment later set aside. Where an action is adjourned, struck out or reinstated, costs are allowable if the failure to proceed was caused by one party’s fault or neglect.

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Enforcing a judgment given in the Small Claims Division

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Any applications to enforce a judgment given in the

Enforcing the judgment debt [15.190] When must the debt

be paid? If a creditor gets judgment against a debtor, the amount the court orders to be paid (known as the judgment debt) should be paid immediately. If the debt is paid Whenever any or all of the judgment debt is paid, the debtor should demand a receipt. This applies to payments made before and after judgment. If the creditor's record of payment is subsequently lost and the creditor then proceeds to enforce the judgment, the debtor should at once seek a stay of enforcement (Civil Procedure Act 2005, s 67) and an order setting it aside, using the receipts as evidence that payment has been made.

[15.200] If the debtor does

not pay If the debtor does not or cannot pay the creditor immediately, the creditor can use the court processes described below to recover the money from the debtor. This process is called ’enforcing the judgment debt’. The creditor has 12 years from the date of the judgment to enforce it.

Can a person be imprisoned for debt? A person cannot be imprisoned for debt in NSW. However, a Local Court registrar has power to issue an arrest warrant (s 97) to bring a debtor before the court to be examined.

[15.210] Application to pay by

instalments A debtor who cannot pay the full amount of the judgment debt should ask the court for an order for it to be paid in instalments.

Instalment orders by agreement A debtor and creditor can enter into a formal agreement to pay the judgment debt by instalments (UCPR, r 37.1A). If either the creditor or the debtor is not legally represented, the agreement has no effect unless their signature is witnessed by a registrar or other officer of the court, or by a solicitor or barrister. When the agreement is filed in the court that gave judgment, it becomes a court order. The debtor can seek a new order at any time (r 37.2). The creditor can do so only in some circumstances (see Changing instalment orders below).

Additional costs incurred by delay If the debtor does not pay immediately, they may have to pay the creditor’s cost of enforcing the judgment as well as the original debt. If the debt is not paid in full within 28 days, interest on the judgment debt will be applied from the date of judgment (CPA, s 101(3)) – so it is in the debtor’s financial interests to pay the judgment debt as soon as possible.

Advantages of payment by instalments If you cannot pay the judgment debt in full, it is usually best to pay the judgment debt in this way. The debtor can then pay a regular amount without being forced into further debt. There is no examination hearing, nor the embarrassment and financial hardship of a garnishee order. The instalment order can be changed if the debtor's financial situation changes or they find they cannot keep up payments under the original order.

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Applying after the judgment

Changing instalment orders

If no agreement can be reached, the debtor can apply to the court at any time afterwards (UCPR, r 37.2) by filling in a notice of motion to pay by instalments (Form 46). This form (available from the Local Court) includes a financial statement requiring details of employment, income, property (both goods and land) and liabilities (household expenses such as maintenance or child support, medical expenses, other debts and insurance premiums). The debtor should file the notice of motion at the court in which judgment was entered or in which the examination is being held (see Where will the examination be held? at [15.220]), or mail it to that court office. A full statement should be given in the notice of motion, as the registrar may refuse to make an order if there is not enough information to justify the proposed terms. A registrar would also refuse if, for example, the amount suggested by the debtor was unreasonably low given their income. The registrar can only accept or reject the terms suggested, not change them, so it is important to suggest reasonable terms (UCPR, r 37.3).

Application by the debtor A debtor whose financial circumstances change or who cannot pay the instalments can apply for a new instalment order using the same procedure. If the court grants another order, it replaces the first one.

If the application is not granted If the registrar refuses the debtor’s suggested terms the debtor should file an objection (Form 50) within 14 days. The matter will go for hearing before the court to assess the terms, vary them, or refuse to make an instalment order. If this is the debtor’s first application, it acts as a stay of enforcement until the application is dealt with by the court (UCPR, r 37.5). The creditor cannot take out further enforcement proceedings until the court has made a decision about the instalment order. If the creditor objects If the creditor objects they have 14 days to file an objection (Form 50). The matter is set down for hearing by the court to affirm, vary or repeal the order (UCPR, r 37.4). If the creditor does not object within 14 days, the order becomes binding and can only be changed in certain circumstances.

Application by the creditor The creditor can apply to the court for a variation of the instalment order, but only if there has been a substantial increase in the property or means of the debtor (UCPR, r 37.6). Even then, the court need not change the order. If the court refuses to grant the application, the creditor may have to pay the debtor’s expenses of going to court (such as loss of wages) to oppose the application.

[15.220] Examination Issuing an examination notice If the creditor wishes to find out the financial circumstances of the debtor they can issue an examination notice (UCPR, r 38.1) (Form 51). The creditor can use the information they obtain to consider any further enforcement action they may take. An examination notice requires the debtor to answer the examination questions contained in the notice about their present income, assets and liabilities. The debtor’s response in the financial statement and copies of any relevant documents must then be returned to the judgment creditor.

Examination orders If the debtor does not respond or provides inadequate answers to the examination notice, the creditor can file a notice of motion – examination order (Form 53). This must be served on the debtor 14 days before it is listed in court.

Where will the examination be held? The debtor is required to come to the court named in the notice. This will be the court in which judgment was entered, or the nearest court to the debtor if the debtor neither lives nor works within 30 kms from the court that entered judgment (UCPR, r 38.4).

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If the debtor is avoiding examination

At the examination hearing the debtor must present information about their financial situation. The creditor can then decide on the best way of enforcing the judgment debt; for example, they can ask for details of the debtor’s employer or bank account so that wages or money held in the bank can be garnisheed (see Garnishment at [15.230]).

If the debtor appears to be trying to avoid examination, the court may serve a notice on the debtor that failure to attend for examination may result in their arrest. If the debtor does not appear for examination within 14 days after the service of this notice, the court or the creditor can file at court a notice of motion – arrest warrant for examination (Form 57).

When an examination notice or order is received

At the examination hearing

If the debtor disputes the default judgment If judgment was entered by default and the defendant does not owe the money or the amount is wrong, they should contact the plaintiff immediately and check the facts. If the plaintiff will not cooperate, the defendant should apply for a stay of enforcement and an order setting aside the judgment. The defendant should not simply ignore the examination notice or fail to turn up at court on the date set by the notice of motion – examination order. Without positive action, the judgment is still effective and the creditor can take legal proceedings to enforce the debt or apply to have the debtor arrested and brought before the court for examination. If the debtor has paid A debtor who has paid the judgment debt and court costs can avoid examination by sending copies of receipts to the registrar of the court named in the summons. The debtor should obtain the court’s written confirmation that they are no longer required to attend. If a part of the debt has been paid, the debtor should attend the court for examination and take the receipts for the payment with them. If the debtor cannot attend A debtor who is ill or has other commitments should phone the court office and ask for the examination hearing to be adjourned. A notice will be sent giving the new date and time.

When the debtor attends the court for examination, they can expect to be examined by the creditor about their financial circumstances. The creditor may also wish to use this time to negotiate for payment of the debt.

Being prepared Debtors summoned to court for an examination should try to take a prepared statement of their financial position. The debtor should also talk to a financial counsellor before they attend court, and have ready a workable proposal for paying off the debt by instalments (see Contact points at [15.260] to locate a free financial counsellor).

[15.230] Garnishment If a judgment debt is unpaid, the creditor can apply to the registrar of the court in which the judgment was made for an order to garnishee money from: • certain people who owe money to the debtor • the debtor’s bank account • the debtor’s wages.

Garnisheeing the debtor's wages The most common garnishee order is to the debtor’s employer to take an amount from their wages. The creditor files a notice of motion – garnishee order (Form 69) with an affidavit in support. This may be heard in the absence of the parties, and need not be served on the debtor or garnishee (for example, the debtor’s employer) (UCPR, r 39.34). The court may decline to make an order if, for example, the debt or debtor’s income is relatively small (UCPR, r 39.38).

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Limits on wage garnishee orders The debtor must be left with an amount equivalent to the weekly payment of compensation under s 37 of the Workers Compensation Act 1987 (NSW) ($480.50 as at 1 April 2016). The weekly benefits tables are adjusted at the beginning of April and October each year. Contact the Local Court to check the current amount.

An employer subject to a garnishee order can deduct $13.00 for administration expenses each time they are required by the order to forward money to the creditor. This does not apply where the garnishee order is expressed as an instalment order (CPA, s 123; UCPR, Sch 3).

Disadvantages of a garnishee order A garnishee order has many disadvantages for the debtor: • the creditor can apply for the order ex parte; that is, there need be no hearing at which the debtor can object. The debtor may only become aware that an order has been made when they receive a notice from the registrar – or they actually receive their reduced wages • it may cause great financial hardship. The amount the registrar orders the bank or employer to deduct may mean a sudden, drastic drop in income • the registrar making the order may be unaware of the debtor's circumstances; for example, that the debtor's wages support a big family and outgoings are high

If wages are being garnisheed If the debtor questions the debt or the amount If wages have been garnisheed, and the person is not sure the debt is owed or the amount is correct, they should immediately contact the creditor to check the facts. If the creditor will not cooperate, they can apply for a stay of enforcement and an order setting aside the judgment. The matter may not be heard for some weeks, however, and the debtor’s wages will be garnisheed up to the date of the hearing. The court can make an immediate order stopping the proceedings, but will only do so where the circumstances are urgent and only until the next court date when both parties can be present to argue the issue in detail. Applying for an instalment order If the debt is owed and the garnishee order is made, the debtor should apply at once to the registrar for an instalment order. An instalment order converts the garnishee order into a garnishee instalment order.

• the order may affect the debtor's relations with their employer • the process can be inconvenient and expensive – an employer subject to a continuous garnishee order can deduct an amount to cover expenses (UCPR, Sch 3) • the debtor may find it embarrassing to have their financial affairs revealed • a garnishee order can be made against any person (or company) owing money to the debtor. If the person owing money is a friend or family member, then they can be embarrassed and put in financial hardship when they receive a garnishee order requiring them to pay their debt to the creditor.

This means that the garnishee order lasts until the debt is paid and the deductions from each pay will be less. The creditor can file an objection to the garnishee instalment order (Form 50) within 14 days after which it is listed in court for hearing. Negotiating with the creditor Instead of applying for an instalment order, the debtor can negotiate with the creditor and offer to pay by instalments. Effect of bankruptcy Bankruptcy will stop garnishee action (see Chapter 6, Bankruptcy). Changing jobs Some debtors who have their wages garnisheed change jobs to avoid the garnishment. This is risky, as the debtor may find it difficult to get another job. It may not prevent garnishment of wages from a new employer, and the creditor can summon them for another examination.

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Public servants The wages of state public servants can be subject to garnishee orders (CPA, s 119(4)). Commonwealth public servants are covered by the Public Service Regulations 1999 (Cth), Pt 8A. The department head appoints a paying officer who, once satisfied that the debt exists and has not been paid, decides how much money to deduct from the debtor’s salary in order to pay the debt.

[15.240] Writ for the levy of

property Another option for a creditor is to apply for a writ for the delivery of goods or a writ for the levy of property. Writs for the levy of property are the most common form of enforcement chosen by creditors in NSW. It is a court authorisation to a sheriff to seize and sell goods of the debtor to satisfy the judgment debt.

Applying for the writ The creditor can apply for a writ at any time within 12 years of the date of judgment. This is done by filing a notice of motion – writ for the levy of property (Form 65) in the court that entered the judgment. The notice of motion may be heard in the absence of the parties without notice to the debtor (UCPR, r 39.2).

Executing the writ The writ can be executed (served and enforced) by any sheriff of any Local Court in NSW. The sheriff charges a fee of $80 (as at July 2016) for each address and each time they visit. The sheriff generally goes to the debtor’s house and explains that if they do not pay the amount in the writ, their goods will be seized and auctioned to pay the debt. The sheriff must give the debtor a copy of the writ of execution or leave it in a conspicuous position (UCPR, r 39.18). Most sheriffs are reasonable and allow debtors a short time to get the money, or to negotiate.

If the debtor has no property As the writ may be in force for 12 months (UCPR, r 39.20), the creditor can apply to

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have it sent back to the sheriff for another attempt at execution; ie, at getting more goods or money to pay the debt in full.

If the debtor pays the sheriff Payment can be made to the sheriff at any time, even after goods have been seized, provided they have not yet been sold. On payment of the debt, the sale is stopped and the goods returned. If the debtor pays after the goods have been seized, they may have to pay the costs of seizure, advertising and arranging for sale, if this has been done. If the debtor acts quickly, they may be able to avoid incurring the costs of advertising and sale if the sheriff did not do this immediately.

What property can be seized? Personal property The sheriff can seize personal property such as money, furniture, TVs and radios, electrical appliances and cars. The personal property must belong to the debtor. The sheriff cannot take: • anything on hire purchase • anything rented (such as a TV) • anything belonging to someone else such as the debtor’s spouse. If property that is not the debtor's is seized If the sheriff tries to seize property that does not belong to the debtor, it is up to the owner to prove that they own the goods in dispute. The owner of the goods may give a notice of disputed property (Form 75) to the sheriff outlining their claim over the goods (UCPR, r 43.3). The sheriff must give this notice to the judgment creditor, who has seven days to admit the claim (UCPR, rr 43.3(3), 43.6(1)). If the creditor admits the claim, the sheriff must give back the disputed property (UCPR, r 43.5). If the creditor does not admit the claim or does nothing, the sheriff can file a notice of motion and seek interpleader relief from the court (UCPR, r 43.6). This is to protect the sheriff from civil liability and allow the court to determine the true owner of the goods. If the sheriff does not seek such relief, it is up to the owner of the goods to sue the debtor and/or the sheriff for return of the goods.

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The court has wide powers to grant relief, and can determine issues of contested ownership of property. Some property that cannot be seized The sheriff cannot take, for example: • a car still on hire purchase • a lounge suite that was already in a rented house and belongs to the landlord • a washing machine borrowed from parents • a sewing machine owned by the debtor but used by another family member in their home dressmaking business • clothes, or bedroom or kitchen furniture, used by the debtor or any family member, even if it belongs to the debtor • tools of trade, professional instruments or reference books belonging to the debtor, with a total value under $2,000, used by the debtor or a family member (CPA, s 106(3), UCPR, r 39.46).

What is seizure of goods? A sheriff can “seize” goods without actually picking them up and taking them away. Often it is convenient to leave them at the debtor’s house while a sale is arranged. Notice of seizure The sheriff should give a notice to the debtor, or anyone else looking after their goods, which includes a list of the goods seized. The sheriff may also attach a notice of seizure to any of the property seized. Penalty for interfering with seized goods There is a penalty of $5,500 for interfering with or giving away any property known to be seized without the leave of the court or the sheriff’s written consent (CPA, s 132(2)). Selling the goods The sheriff is responsible for obtaining a fair price for the goods seized. They should ensure that: • the property is advertised for sale in a local newspaper • the sale is by public auction • they get the best price possible. The property can only be sold by private treaty if it fails to reach its fair value at auction.

Despite these efforts to obtain a fair value the proceeds are often much less than the value of the goods to the debtor, or their replacement value. A debtor who has more than enough property to satisfy the judgment debt can negotiate with the sheriff which items to sell first (UCPR, r 39.6(2)).

What the sheriff can do Entering the debtor's house The sheriff or judgment creditor may by notice of motion seek orders authorising the sheriff to enter premises for the purpose of taking possession of goods under a writ for levy of property. The notice of motion need not be served on the debtor (CPA, s 135). If the debtor owns land The creditor can apply for a court order to give the sheriff power to take possession of land owned by the debtor and use the proceeds of sale to repay the debt. The creditor needs to file a notice of motion – writ for possession of land (Form 59), supported by an affidavit. Once the writ is issued the judgment debtor has eight weeks to try to repay the debt themselves by entering into an agreement to sell or mortgage the land. The judgment creditor must consent by notice in writing to the sale or mortgage of the land by the judgment debtor (s 113(3)). If the property is subject to a bank loan, the creditor also needs the bank’s consent. A writ for possession of land lasts for six months from the date it is registered (s 113(2)(b)). The sheriff cannot take possession and sell land if the amount of the debt is less than the jurisdictional limit of the Small Claims Division of the Local Court (currently $10, 000) (s 106(5)). The debtor’s personal goods must be sold first before their land (UCPR, r 39.21(1)(b)), unless the sheriff believes that this would cause hardship to the debtor. Once the writ is registered, and no further personal goods may be sold to satisfy the writ, the creditor can file at the Local Court an affidavit verifying these facts (UCPR, r 39.21). At this time, the creditor should

15 Debt

also lodge with the court two copies of a notice advising the debtor that the writ has been registered, that a sale of the land would proceed after four weeks, that the debtor is only entitled to sell the land under s 113 of the Civil Procedure Act 2005, and that they are entitled to an instalment order under s 107 (UCPR, r 39.21). A sealed copy from the court is to be served on the debtor. Upon service of the above notice to the debtor, the creditor is to file an affidavit of service at the Local Court, along with seven copies of a Notice of Sale (Form 68). Once sealed by the court, the creditor is to give six copies of the Notice of Sale to the sheriff, and may also need to inform the sheriff as to whether any person is occupying the land (UCPR, r 39.3A). The sheriff can then proceed to take steps in accordance with UCPR, r 39.22 to sell the land. The creditor will also need to serve on the debtor a copy of the Notice of Sale at least one week before the sale of the land (UCPR, r 39.22(h)).

If the debtor disputes the writ A person who either does not owe money or believes the amount is wrong should ask the sheriff to delay a few days while they contact the creditor to check the facts. If the sheriff or creditor does not cooperate, the debtor should file a notice of motion and a supporting affidavit at the court where the judgment was entered. The debtor should ask the court for an urgent ex parte application for a stay of enforcement and an order setting aside the judgment.

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Applying for an instalment order to stay enforcement If the person does owe the amount claimed, they should immediately apply to the registrar for an instalment order. This acts as a stay of enforcement of the writ. As long as the debtor keeps making payments, the sheriff cannot seize their goods. It will also prevent the creditor from taking other enforcement action. Bankruptcy will also stop a writ of execution (see Chapter 6, Bankruptcy).

[15.250] Bankruptcy A creditor can enforce a judgment debt of over $5,000 by commencing proceedings to bankrupt the debtor (Bankruptcy Act 1966 (Cth), s 44). If the debtor has many debts that they cannot pay in full, voluntary bankruptcy or formal arrangements to consolidate the debts might be advisable. See Chapter 6, Bankruptcy, for a detailed discussion of what is involved. Publication of debt information Creditors such as banks and finance companies often report a debtor's slow payment or non-payment of a particular debt to a credit bureau. They almost always report a judgment debt. This information forms part of the person's credit record and will be disclosed to those who make an inquiry to the credit bureau. It may be more difficult for the person to get credit in the future. What to do if you are refused credit under these circumstances is discussed in Chapter 13, Credit.

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Contact points [15.260]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au. Administrative Appeals Tribunal www.aat.gov.au ph: 1800 228 333 or 9276 5101

Chartered Accountants Australia & New Zealand www.charteredaccountantsanz.com

Australasian Legal Information Institute (AustLII)

ph: (02) 9290 1314

www.austlii.edu.au

www.cpaaustralia.com.au

Australian Disputes Centre

ph: 1300 737 373

www.disputescentre.com.au

Credit and Investments Ombudsman (CIO)

ph: 9239 0700 Australian Competition and Consumer Commission (ACCC) www.accc.gov.au infoline: 1300 302 502 Australian Finance Conference

CPA Australia

www.cio.org.au ph: 1800 138 422 Customer Owned Banking Association (formerly Abacus Australian Mutuals)

www.ausfic.com

www.customerownedbanking. asn.au

ph: 9231 5877

ph: 8035 8400

Australian Financial Security Authority (AFSA, formerly ITSA)

Financial Counsellors Association of NSW (includes a list of accredited financial counsellors in NSW)

www.afsa.gov.au ph: 1300 364 785

www.fcan.com.au

Australian Prudential Regulation Authority (APRA)

ph: 9211 4409 or 1300 914 408

www.apra.gov.au ph: 1300 558 849 Australian Securities and Investments Commission (ASIC) www.asic.gov.au ph: 1300 300 630 Australian Taxation Office (ATO) www.ato.gov.au ph: 13 28 61

Financial Ombudsman Service www.fos.org.au ph: 1800 367 287 Financial Rights Legal Centre www.financialrights.org.au

The Financial Rights Legal Centre deals with matters concerning credit, debt, bankruptcy and banking issues. It does not deal with general consumer issues (except general insurance matters). LawAccess NSW www.lawaccess.nsw.gov.au Law and Justice Foundation of NSW www.lawfoundation.net.au Legal Aid NSW www.legalaid.nsw.gov.au My Credit File (Veda) www.mycreditfile.com.au ph: 13 83 32 Holds and distributes information on credit ratings and histories. NSW Civil & Administrative Tribunal www.ncat.nsw.gov.au ph: 1300 006 228 NSW Fair Trading www.fairtrading.nsw.gov.au ph: 133 220 or 9895 0111

Financial counselling Credit and Debt Hotline

ph: 9212 4216

www.financialrights.org.au

Credit and debt hotline

ph: 1800 007 007

ph: 1800 007 007 (NSW only)

Wesley Counselling Services

Insurance hotline

www.wesleymission.org.au

ph: 1300 663 464

ph: 1300 827 638

16 Disability Law Tim Chate Intellectual Disability Rights Service Kenn Clift Intellectual Disability Rights Service Janene Cootes Intellectual Disability Rights Service Margot Morris Intellectual Disability Rights Service Jennifer Smythe Intellectual Disability Rights Service Geoffrey Tremelling Legal Aid NSW Jackie Finlay Legal Aid NSW

Contents [16.10] [16.30] [16.80] [16.120] [16.130] [16.140] [16.150] [16.210] [16.220] [16.270] [16.350] [16.400] [16.430] [16.460]

Disability Rights of people with disabilities Services provided or funded by the government Going to court - getting disability assistance Accidents, injuries and other harm Consumer protection The criminal justice system Discrimination Employment and industrial issues Housing Personal relationships Parents with disability Wills

[16.470]

The Guardianship Act

[16.490]

The Guardianship Division of the New South Wales Civil And Administrative Tribunal

[16.520]

Guardianship

[16.560]

Property management

[16.590]

Consent to medical and dental treatment

[16.620] [16.640]

Appeals The National Disability Insurance Scheme

[16.700]

The NDIS Act and Rules

[16.730]

NDIS Participants and NDIS Plans

[16.780]

Compensation and the NDIS

[16.790]

Reviews

Guardianship and property management for adults

[16.800]

Complaints

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Disability [16.10] Disability and the law “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” (United Nations Convention on the Rights of Persons with Disabilities, Article 1) People with disability are subject to the same laws that apply to all citizens of NSW. However, some laws apply specifically to people with disability, for example, guardianship legislation. Some laws contain specific provisions relating to people with disability such as the Mental Health (Forensic Provisions) Act 1990 (NSW) and discrimination legislation. These special provisions often recognise particular vulnerabilities affecting some people with disability in their interactions with the community and the law. In practice, people with disability can encounter additional barriers in successfully accessing legal remedies and exercising their rights. This chapter addresses particular areas of law which relate to legal issues frequently raised by people with disability as well as legal and rights provisions which specifically affect people with disability.

[16.20] United Nations

Convention on the Rights of Persons with Disabilities In July 2008, the Australian government ratified the United Nations Convention on the Rights of Persons with Disabilities (the Convention). This international human rights instrument was drafted by and for people with disability. It identifies the rights of people with disability, and the obligations on States, who are parties to the Convention,

to promote, protect and ensure the enjoyment of those rights by all persons with disabilities. The Convention reaffirms that people with disability enjoy the same human rights as people without disability. The Convention recognises specific rights, including: • equality before the law without discrimination • freedom from torture, exploitation, violence and abuse • an adequate standard of living and social protection • education, work and health. The Convention outlines the obligations that States Parties have in relation to the rights of people with disability. These obligations include: • adopting legislation and administrative measures to promote the human rights of people with disability • adopting legislative and other measures to abolish discrimination • protecting and promoting the rights of people with disability in all policies and programs • stopping any practice that breaches the rights of people with disability • ensuring that the public sector, private sector and individuals respect the rights of people with disability. States that are parties to the Convention periodically report to the United Nations Committee on the Rights of Persons with Disabilities (the Committee). The initial report outlines the actions the State has taken to implement the Convention. Subsequent reports respond to issues and concerns, and indicate progress being made by the State to realise the rights of people with disability. The Optional Protocol to the Convention gives the Committee power to investigate complaints from groups or individuals that a State which is a party to the Optional

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Protocol, has breached the Convention. In 2009, the Optional Protocol entered into force in Australia.

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More information is at www.un.org/ development/desa/disabilities.

Rights of people with disabilities [16.30]

People with disabilities have the same rights as everyone else. Some of their rights which are mentioned in this chapter include rights to: • personal safety and protection • equal treatment under the law • fairness in dealing with complaints • adjustments because of their disabilities • clean and safe housing • access to health services • marriage • have children • privacy • ownership of property • make a will • appoint people to act on their behalf • education • access public places • use public transport • sue for wrongful injury or loss • protection as a consumer • vote etc.

The right to make decisions Children The law is that a child is a person under 18, and an adult is a person 18 or above. The law authorises (with some exceptions) parents to make decisions for their children. A parent’s authority ends when the child becomes an adult at age 18. People over 18 are entitled to make their own decisions. A parent, carer, or support person can still help the person with a disability, who is 18 or over, to make decisions but does not have authority to override an adult’s decisions. Like everyone, adults with disability have the right to make their own decisions. Many will choose to do this alone and unaided. Alternately, others may choose to accept help from other people to make their decisions. This help may include explanation, education, information

gathering, general assistance, advice, help identifying and weighing up options. When help from others is given, this is called supported decision making. Where a person is not able to make their own decision independently, they should have the opportunity to make a decision with appropriate support or to participate in decision making to the greatest extent possible. This is recognised in the philosophy of the National Disability Insurance Scheme.

What is needed for decision making? Making decisions involves: • understanding the facts • understanding the main choices • weighing up the likely results of those choices • understanding how those results will affect the decision maker, and • communicating the decision in some way. If a person with a disability can do all these things then they are legally able to make that decision. If a person with a disability cannot make a decision, even with supports, then consideration should be given as to whether there are existing arrangements or alternative arrangements that can be used which are satisfactory to the person with a disability.

Substitute decision making If they wish, a person with a disability may appoint their own substitute decision maker through an enduring guardianship document for personal, medical and lifestyle decisions or a power of attorney for financial decisions. A person must have an understanding of the nature and effect of the enduring guardianship or power of attorney at the time they complete the documents and must be giving the authority of their own free will. These options can be very useful for someone whose disability means that they

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periodically become incapable of making their own decisions due to mental health or medical conditions. They may avoid the need for guardianship or financial management orders and maintain the person’s choice of decision maker. It is important to have a lawyer involved in drawing up these documents and to explain clearly to the lawyer how the principal wants the appointment to work, eg time limits etc.

[16.40] What is a power of

attorney? A person who makes a power of attorney (called the principal) gives another person (called the attorney) legal authority to act on her/his behalf in financial decisions. The person making a power of attorney needs to understand at least that: • (s)he does not have to make a power of attorney, and • (s)he is giving the attorney complete legal authority to make decisions and /or act for her/him, and • the attorney can do anything with the principal’s property, including things that the principal may not want to do, such as using their money, taking money from or adding money to their bank account, buying goods and services with their money, selling their house or their car or their dog, signing a tenancy agreement for them, borrowing money for them which they will have to pay back, mortgaging their house and/or using their property as security for any loan, for example, and • the attorney does not have to seek the principal’s permission in advance, or tell her/him after the event, and • the attorney should be trustworthy and sufficiently responsible and wise to deal prudently with the principal’s property, and • the attorney should carry out the principal’s directions and account to her/him for the decisions made and actions taken as their attorney, and • the principal will be legally responsible for the attorney’s decisions and/or actions until the power of attorney is

revoked or ended, and • the principal can revoke the power of attorney at any time, and • the power of attorney is not valid from the time the principal becomes of unsound mind (unless it is an enduring power of attorney), and • an enduring power of attorney cannot be revoked if the principal becomes of unsound mind. It is possible to include additional clauses in a power of attorney document to place conditions or limitations on the attorney. It is important to raise any concerns with the solicitor drawing up the document so that the power of attorney represents the wishes of the principal. If a person does not have capacity to make a power of attorney at the time it is granted, then the power of attorney is void (ie, of no effect). A power of attorney cannot be used for lifestyle or health decisions. A power of attorney may be “general”, which means that the attorney may act on behalf of the principal in all financial matters without any limitations (general power of attorney). A power of attorney can be limited to specific matters. It can be limited in time, or in place. A power of attorney can be made to continue even if the principal later becomes of unsound mind (enduring power of attorney). The attorney should not make financial decisions against the wishes of the principal unless (s)he has become of unsound mind and the power of attorney is an enduring one. Decisions should still be in the best interests of the principal as far as possible. There is a standard power of attorney form that is used. The power of attorney should be prepared by a lawyer, signed by the principal, and witnessed by the lawyer. The lawyer must be satisfied that the principal has capacity to make a power of attorney. The lawyer may need to get an opinion from a doctor or disability professional if the lawyer is uncertain about the person’s capacity to make a power of attorney.

16 Disability Law

A power of attorney can be revoked or changed at any time by the principal unless the principal no longer has capacity to do so. If the principal has become of unsound mind the attorney can only continue to act if it is an enduring power of attorney. A power of attorney can be revoked or changed by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT), or the Supreme Court. A power of attorney is suspended if the Guardianship Division makes a financial management order.

[16.50] What is enduring

guardianship? An enduring guardian is a person appointed to make lifestyle and health decisions on behalf of the appointor if (s)he loses capacity at some time in the future. The appointment of enduring guardian document can say exactly what areas of decision making are to be included. A person 18 years of age or over may appoint an enduring guardian. This can be done by an adult if (s)he is able to understand the nature and effect of the enduring guardianship at the time it is made. An appointment of an enduring guardian must be signed by the appointor, and by the appointed guardian, and witnessed by a lawyer. The appointment has effect only during the time that the person is in need of a guardian. An enduring guardian must take into account the wishes of the adult with disability and respect their freedom of decision making and freedom of action. An enduring guardian may have authority to override the objections of the adult who has lost her/his capacity to make a decision, however an enduring guardian does not have authority to override her/his objections to medical or dental treatment.

Does a person have to be able to write their signature to witness a document? A person with a disability can communicate the decision they have made by signaling, (such as nodding or shaking their head), making sounds, and/or speaking, and/or writing his/her mark or signature as best as

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(s)he can. A signature is a sign, mark, name, stamp, and/or proxy which indicates an intention to be bound by the contents of the document. If in doubt, there must be evidence that the signatory had the intention to sign. Beyond that, there is no law prescribing the form that a signature must take. It can be any version of the signatory’s name so long as it has been adopted by the signatory with the purpose of authenticating a document.

What if a person is incapable of appointing an enduring guardian or an attorney? If a person does not have sufficient understanding to be able to appoint an enduring guardian or an attorney for financial decisions, and a decision maker is needed, an application can be made to the Guardianship Division of the NSW Civil and Administrative Tribunal to appoint a guardian or financial manager. This is covered in detail at [16.460] Guardianship and property management for adults.

Useful documents to have available It is useful to safely keep originals and copies of documents such as a birth certificate, doctors’ letters and medical reports about the disability, photographs, school reports, documents recording the person’s name and address, a passport, a driver’s licence, an identity card from Roads and Maritime Services, an appointment of an enduring guardian (if available), a power of attorney (if available), and any guardianship or financial management orders.

[16.60] When rights are

infringed Non-legal remedies As for all people in the community, where a person with a disability has been treated unlawfully or their rights have been infringed, the first step often is to consider non-legal remedies and ways to informally resolve what has happened. This can result in quicker and less stressful outcomes than going to court. Going to court can be costly and there is always the risk that a person

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will not succeed in their case. Informal ways of resolving problems also allow the person bringing the complaint to be involved and to have their say. People with a disability can talk with an advocate or lawyer about informal ways to solve a problem. Some informal ways to solve a problem include: • complaints to your local member of parliament or to the relevant government minister • negotiation by letter or through meetings • mediation or conciliation - Community Justice Centres provide free mediation services.

Free legal assistance Many people with disabilities cannot afford to pay for a lawyer to assist them to negotiate a good outcome for their problem or to run a legal case for them. There are places where free legal advice and assistance is available. Community Legal Centres There are community legal centres throughout NSW that help the people in the local area with legal problems. These are “generalist” community legal centres. Information about the community legal centre near you can be found at www.clcnsw.org.au In addition to these generalist centres, in NSW there are two “specialist” community legal centres that focus on protecting and promoting the rights and autonomy of people with disability: • the Intellectual Disability Rights Service provides legal advice and assistance for people with intellectual disability and provides support persons for people with intellectual disability at police stations and courts in criminal matters, and • the Australian Centre for Disability Law (previously the Disability Discrimination Legal Centre). LawAccess NSW If you need some free legal information or legal advice over the telephone, you can call LawAccess NSW on 1300 888 529.

Legal Aid NSW Legal Aid NSW can provide free legal advice and, in some cases, legal representation in a number of areas of law. Most Legal Aid NSW offices give free legal advice by appointment. If you have a disability and feel you may need extra time tell Legal Aid NSW when making the appointment so they can set aside some extra time if you need it. You might also want to bring a support person. You should let Legal Aid NSW know this as well. It can be difficult to get an appointment at Legal Aid NSW so don’t leave it until the last minute. For Legal Aid NSW to take on your case and represent you in court you must meet the Legal Aid NSW “means test” and your case must meet Legal Aid NSW’s “merits test” to get a grant. A person whose only income is the Disability Support Pension will usually be eligible for Legal Aid. A person who has substantial difficulty in dealing with the legal system by reason of a substantial: • psychiatric condition • developmental disability • intellectual disability, or • physical disability is considered by Legal Aid NSW to have “exceptional circumstances” because they are at “special disadvantage”. This means that in some sorts of cases, where Legal Aid NSW would not normally represent a person, they may represent a person who has a disability. For example, if someone has to go to court because another person has applied to have an Apprehended Domestic Violence Order or Apprehended Personal Violence Order taken out against them, Legal Aid NSW would not normally represent the person. However, Legal Aid would usually represent a person with disability who is at ’special disadvantage’ in this situation. For more information about how Legal Aid NSW works and its services, see Chapter 4, Assistance with Legal Problems. Private lawyers Private lawyers can apply to Legal Aid NSW for a “grant of legal aid” which means that

16 Disability Law

Legal Aid NSW will pay the lawyer a fee to provide legal assistance. The rules about being eligible for this help from Legal Aid NSW are the same as outlined above. Sometimes lawyers in private law firms do work for people for no charge. This is called pro bono work. Other times they might think a case is strong and agree to work for the person on the basis that they will only charge them a fee if the person wins their case. Normally, however, private lawyers will charge a fee for all clients. It is important that private lawyers know how to work with people with a disability. They should be flexible in how they work with their client. For example, they may need to give more time to a client with disability or they may need to adjust their communication methods. Advocacy Advocates assist people with disability to assert their rights. Advocates are not the same as lawyers. There are advocacy organisations specifically for people with disability. For the contact details of the disability advocacy organisations in NSW, see Contact points at [16.810].

Assisting, advising and acting for people with disabilities – tips for solicitors Solicitors working with a client who has a disability should ask the client whether there are any ways that the client would like the solicitor to adjust their usual practices to take account of the client’s needs, for example, particular fonts or print size in documents and what communication methods will work best for the client. People with disability are entitled to have their wishes and rights legally respected. If a person has cognitive impairment such as intellectual disability, brain injury, communication deficits or mental health conditions, it does not automatically mean the person is unable to instruct a lawyer or to understand the law. However, some adjustments may need to be made to help the person exercise their legal rights.

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The following adjustments may help clients with intellectual disability, brain injury, or mental health conditions, as well as some clients with other disabilities. If the client has difficulty reading then letters should be in large print and in simple words. If the client cannot read adequately do not rely on written letters alone to get information across. Explain the information, read any letter to the client on the phone or at the next appointment. A simple letter using dot points to remind the client of the most important information may be useful. Check whether there is someone else that the client would like you to send letters to. The solicitor may use pictures to explain court orders, legal restrictions, behaviour requirements, agreements, obligations, etc. Allow extra time for appointments. Use simple words. Use short sentences. Communicate one idea or question at a time. Check understanding. Beware of the client who says ’yes’ to each question. It is often a sign that the client does not understand but is pretending that they do. Be sure the client knows that you want them to tell you if something is confusing. Otherwise they may assume it is better to cover up their confusion. Also, some clients pretend to read documents. It is sometimes better to read the document to the client. Allow the client to have a rest if the appointment is a long one and you think the client may have a short attention span. Where appropriate, encourage the client to bring a support person who can help them to understand and remember the advice. The support person can help by taking notes, making sure the solicitor talks to the client simply, getting the client to ask questions of the solicitor, and reminding the client about the solicitor’s advice afterwards. In this regard, of course, a support person is only a helper, who does not take away the duty of the solicitor to take clear instructions, and to carry them out. So talk to the client, and not to the support person. Clients with cognitive impairment can be particularly susceptible to undue influence by others. A client may simply agree with

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the demands of their carer, or support person. Be alert to any signs that this is occurring. In all cases, especially criminal cases, the solicitor must make sure that the client is not confused between the roles played by the solicitor and the support person. For example, the client should not talk to the support person about confidential legal matters without the solicitor present. Ensure that any support person knows that legal advice is confidential.

Assessing capacity People with disabilities are all individuals, so do not make assumptions or judgments without checking with the person. In some cases, a person’s cognitive disability may be so significant that even with support and communication adjustments, they do not have the capacity in the eyes of the law to instruct a lawyer. In these circumstances, it is said the person lacks “legal capacity”. A decision about legal capacity should not be made prematurely. It may be necessary to begin by asking a number of simple questions and keeping notes of the responses, such as: What is your name? Where do you live? What is your date of birth? What is your mother’s name? How many brothers and sisters do you have? What date is Christmas? What is today’s date? What does a solicitor do? What is a judge? What does a policeman do? etc. Some clients will be immediately insulted by the simplicity of the questions and will be deliberately uncooperative, and possibly even aggressive. It is a good idea to tell the client that it is your job to ask some questions to work out how well they understand things. This means that you may ask some questions they think are very simple. You may also need to try different supports and communication adjustments. If you have doubts about the client’s capacity you may have to consult a range of people in the person’s life – for example, family, doctors, carers and service providers.

Does the client have legal capacity? The Law Society of NSW has developed guidelines for solicitors “When a client's mental capacity is in doubt” (2016) which is available to solicitors on the “For Solicitors” section of its website at www.lawsociety. com.au/cs/groups/public/documents/internetcontent/ 1191977.pdf. The Capacity Toolkit is also a very practical resource for solicitors. It is available at www.publicguardian.justice. nsw.gov.au/Documents/capacity_toolkit0609.pdf. Remember that a person's capacity can vary over time and it should not be assumed a person always lacks capacity. Also, a person without support may lack capacity, but where that person has support (like a family member to explain things more clearly), they may no longer lack capacity.

Can another person step in for a person who lacks legal capacity? If it is determined that a person lacks legal capacity, but they have a strong legal case or need their rights protected, it is possible to arrange that someone, such as a relative or friend, can bring the case and instruct the lawyer on that person’s behalf. Such a person is sometimes called a tutor, a next friend or a guardian ad litem. This is discussed in the Law Society’s guidelines on capacity.

[16.70] Privacy and access to

personal information There is no law that gives people in NSW a general legally enforceable right to privacy. Also, there is no law saying that everyone is legally entitled to all personal information about them held by an organisation. There are some protections provided in specific situations. The Privacy Act 1988 (Cth) and the Privacy and Personal Information Protection Act 1998 (NSW) create rights and responsibilities about collecting, retaining, using and providing access to personal information. These Acts place restrictions and responsibilities on the way personal information is used and disclosed by government agencies, private sector organisations and health service providers. The Acts also create some rights for people to access and amend personal information held about them. In some cases information may be provided to

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a person acting on behalf of a person with a disability if the person is unable to make their own application. The Health Records and Information Privacy Act 2002 (NSW) sets out privacy protections to be adhered to by NSW government agencies and some private sector organisations that provide health services and hold health information about people. In most instances, information about a person’s disability would be considered health information.

Freedom of information The Government Information (Public Access) Act 2009 (NSW) (GIPA Act) came into force on 1 July 2010. It replaces the Freedom of

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Information Act 1989. The object of the GIPA Act is to open government information to the public. Under the GIPA Act, a person can request access to and copies of personal information held about them by government agencies and departments. For more information on this area of law, see Chapter 25, Freedom of Information. Complaints Complaints about privacy issues and access to government-held information in NSW can be referred to the Information and Privacy Commission New South Wales (IPC), and for privacy issues involving the Commonwealth, to the Office of the Australian Information Commissioner (OAIC).

Services provided or funded by the government [16.80]

Historically a number of government agencies and departments have been responsible for providing funding to disability organisations to provide disability support in NSW. However since 1 July 2013, a fundamental change has taken place in the way a person with disability can access support. In July 2013, the National Disability Insurance Scheme (NDIS), established under the National Disability Insurance Scheme Act 2013 (Cth), commenced in pilot sites throughout Australia. From 1 July 2016 it is gradually being rolled out across Australia. By July 2018 all eligible NSW residents should be covered by the scheme. Under the NDIS a person with a permanent disability that results in significantly reduced functioning in areas of their life, such as communication, social interaction, learning, mobility, selfcare and self-management, will be given an individual funded package of disability services and support. A person with a disability that requires early intervention supports may also qualify for the NDIS, as will children under six years with developmental delay. Participants in the NDIS partici-

pate in the development of their own support plan with the National Disability Insurance Agency. The person with disability is able to choose their own support services and manage their own plan and funding if they are capable and wish to do so. For further Information about the National Disability Insurance Scheme see www. ndis.gov.au where you will find the Access Checklist to help check eligibility for the NDIS. For detailed information on the NDIS please also refer to [16.640].

[16.90] Ageing, Disability and

Home Care, an agency of the NSW Department of Family and Community Services Ageing, Disability and Home Care (ADHC) provides and funds a range of services for people with disability, including assessment, accommodation, case management, skills development and training, behaviour support planning, respite care, transition to work and day activity programs.

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However as mentioned above, the roll out of the NDIS throughout NSW means that by July 2018 people with disability will receive funding for supports and services from the National Disability Insurance Agency instead. The NDIS will be rolled out by local government area and people receiving supports from ADHC will be transitioned to the NDIS first. Through the transition period ADHC will continue to provide government disability services and information, intake and referral in NSW until a person is eligible to move under the NDIS. See Contact points [16.810] for contact numbers for ADHC Intake, Information and Referral Points.

Law and standards on disability services The Disability Inclusion Act 2014 (NSW) provides a legal framework for the state government to deliver individual funding packages to people with disability in NSW, even before the roll out of the NDIS across the state. Under the NSW law ADHC will still assess whether a person qualifies for supports and services, and help to formulate the plan to provide the supports and services. People currently receiving ADHC services or ADHC funded services can register their interest in transferring to an individual funding package with ADHC. See the ADHC website. NSW Disability Service Standards are included in regulations under the Disability Inclusion Act 2014. The Disability Inclusion Act 2014 requires criminal record checks on people providing supports and services to people with disabilities. Organisations receiving financial assistance under the Act to provide supports and services for people with disability living in supported group accommodation are now required to inform the NSW Ombudsman of “reportable incidents”. These include allegations of sexual offences, assaults, ill treatment, neglect etc of people with disabilities in supported group accommodation. Part 3C of the Ombudsman Act 1974 (NSW) increases the Ombudsman’s powers of investigation in relation to those incidents.

[16.100] Department of Social

Services (DSS) At the Commonwealth level the Department of Social Services (DSS) funds and administers employment support services and some advocacy services for people with disability.

Commonwealth laws on disability advocacy and employment The Commonwealth government also has a Disability Services Act 1986 (Cth). The legislation covers disability employment services and disability advocacy services funded by the DSS. These services for people with disability are required to meet disability service standards under the Act. A core component of the standards is that organisations providing these services involve people with disability in making decisions, and respect their rights and dignity.

[16.110] Complaints about

services Employment Services and Advocacy JobAccess has a Complaints, Resolution and Referral Service that can be contacted about complaints about a service funded under the Commonwealth Disability Services Act 1986. These include Disability Employment Services (DES), Australian Disability Enterprises (ADE) and advocacy services. See Contact points at [16.810].

National Disability Insurance Agency Complaints against actions of the National Disability Insurance Agency (NDIA) can be made to the Commonwealth Ombudsman. The Commonwealth Ombudsman can investigate a person’s complaint if a person believes they have been treated unfairly or unreasonably by the NDIA. If a person believes that a decision of the NDIA is wrong, the person should seek review of that decision. For more about the difference between seeking review of NDIA decisions and making complaints about treatment by the NDIA see [16.640] and Reviews at [16.790].

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The NSW Ombudsman The NSW Ombudsman can investigate the conduct of NSW government departments and agencies, prescribed statutory authorities and local councils. The Community Services Division of the NSW Ombudsman can investigate complaints about services provided or funded by agencies of the NSW Department of Family and Community Services including Ageing, Disability and Home Care (ADHC). This authority extends to complaints about services which receive disability support funds through the individual funding packages of people with disability under ADHC or the National Disability Insurance Scheme. Complaints to the Community Services Division can be made about such services as assisted boarding houses (boarding houses that have two or more “persons with additional needs”), respite services and disability accommodation services under the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW). The NSW Ombudsman can also investigate and conduct enquiries into problems affecting groups of people with disability and has the power to conduct a review of the situation of a child

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or a person in the care of a service. The NSW Ombudsman does not have powers like a court to make orders. Instead, the NSW Ombudsman can help to try to resolve the problem and can publish the findings of its investigations and make recommendations direct to the NSW government. The NSW Ombudsman also operates the Official Community Visitor Scheme. Residential services, including assisted boarding houses, should be visited regularly by an Official Community Visitor. The Official Community Visitor has authority to examine records and speak to residents and staff and raise any areas of concern with the Ombudsman. The Official Community Visitor Scheme manager can be contacted at the office of the NSW Ombudsman. There is also a Commonwealth Ombudsman who investigates the administrative conduct of Commonwealth government departments and agencies. For a detailed explanation of Ombudsman powers and how to make a complaint to either the NSW or Commonwealth Ombudsman see Chapter 9, Complaints.

Going to court - getting disability assistance [16.120]

People with disability who are required to attend courts for any purpose can seek assistance from the Court Registry. It is a good idea to contact the court registry at least two weeks prior to your court appointment so that necessary assistance can be arranged. Contacts for Court Registries can be found on the Lawlink website, onlineregistry.lawlink.nsw.gov.au/content. You can get a form to request disability assistance through the Court Registry and on line from the Lawlink website. If you

experience any difficulties in arranging support contact Diversity Services in the Attorney General’s section of the Department of Police and Justice to raise disability needs (see Contact points at [16.810]). Assistance might include hearing loop/ infrared equipment for amplification; wheelchair access; Auslan interpreter; particular document formats eg Braille, large print, audio, electronic; other support. It is wise to provide as much notice as possible.

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Accidents, injuries and other harm [16.130]

Some aspects of accidents and compensation are covered in detail in Chapter 3, Accidents and Compensation. Victims Support, for victims of crimes, is covered in Chapter 39 . If a person with a disability suffers any harm, loss or injury because of the negligence or intentional interference of another person or organisation, they may be able to pursue legal action and sue for damages. Anyone wishing to bring such a case should consult a solicitor who is experienced in personal injury law, because these matters are complex and there is a risk of having to pay a very high costs bill if the case is unsuccessful. If the injury is workrelated, the solicitor should also be experienced in workers’ compensation matters. Workers compensation matters are covered in detail at [3.340]. There are time limits for legal action for personal injury. Depending upon the circumstances, this may be as short as three years from the date on which the injury occurred. The Civil Liability Act 2002 (NSW) restricts the amount of damages that can be claimed for non-economic loss. A consequence of this is that people with a disability who are on a

pension, with limited or no prospects of paid work prior to their injury, may not be able to claim sufficient damages to make legal action worthwhile. Again, a personal injury solicitor should be consulted before making a decision on legal action. Intrusive or restrictive practices Physically intrusive and restrictive practices can only be used on a person where a person's health, life or safety is at risk. Such practices should never be used as a “behaviour management strategy” merely to control a person's challenging behaviour. If intrusive or restrictive practices are proposed to be used on a person on a regular basis, then the proposal should be taken before the Guardianship Division of the NSW Civil and Administrative Tribunal for the Tribunal to consider whether a guardian should be appointed with authority to consent to the particular restrictive practice proposed. The Tribunal will seek the opinions of a range of people in the person's life, including family, doctors, psychologists, carers and service providers before making its decision and orders. In NSW, disability services provided or funded by Ageing Disability and Home Care must also comply with the Behaviour Support Policy of Ageing Disability and Home Care (see www.adhc.nsw.gov.au).

Consumer protection [16.140]

A consumer is a person who buys goods or services for personal, domestic, or household use. Goods include such items as food, clothes, furniture, electrical appliances and motor vehicles bought from a dealer, whilst services include such things as telephone services, car repairs, gym memberships, hairdressers and health services. People with disability are sometimes less able to protect themselves as consumers than are people without disabilities. For example:

• vision or hearing impairment may cause a person to make mistakes when entering into agreements • painful physical conditions may cause a person to be impatient and to act unwisely • intellectual disability or a mental health condition may cause a person to sign a document without understanding it, or • a third party such as a carer may cause a person with a disability to feel pressured into making certain decisions. In exercising their rights as consumers, some people with disabilities may need support. In particular, a person with intellectual

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disability or any form of cognitive impairment may need help to understand the nature and effect of a specific contract at the time it is made. The more complex the transaction and the higher the value of any property involved, the greater the understanding (and possibly the help) required by the person with cognitive impairment. Help required may include: • having a support person present • making the consumer feel comfortable and not vulnerable • having the contract read and explained in simple terms • asking the consumer to explain in their own words what the contract means and providing clarification where necessary • asking questions that test the consumer’s memory of key points • checking the consumer’s ability to understand their needs and how to meet them • asking questions to check the consumer understands when and how much to pay • checking the consumer’s understanding by asking questions that require more than a “yes” or “no” answer • overcoming any speech problems of the consumer • avoiding “nodding” or “smiling” at the consumer to influence answers • checking that there has been no undue influence over the consumer • allowing time for the consumer to think, to change their mind, or to get independent advice. Many people with a disability do not need this type of help. If a person is able to freely and voluntarily enter into a contract which they can understand, they are said to have “legal capacity” to enter into the contract, whether or not they have a disability. People with disabilities are legally bound by the consumer contracts that they enter into unless they can prove that there is a legal reason why the contract is unenforceable or able to be set aside. See generally, Chapter 10 on Consumers, Chapter 11 on Contracts, Chapter 13 on Credit, and Chapter 29 on Insurance.

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Is the consumer contract unenforceable or able to be set aside? Under contract law there are principles that may allow a consumer to get out of a contract and these are explained in detail in Chapter 11 ). The principles most relevant to people with disability are: Incapacity If a person with a disability does not understand the general nature and effect of a contract then they are said to lack legal capacity to enter into the contract. A person’s capacity can vary over time and it should not be assumed a person who lacks capacity on one occasion always lacks capacity. Also, a person may lack capacity when they are unsupported, but when they have support (such as a family member to explain things more clearly), they may have capacity. Undue influence Undue influence occurs when a person cannot make a free and independent decision because of the very strong way their thoughts and actions are influenced by another person. A person with a disability may experience undue influence at the hands of a relative or carer who stands to benefit from a contract. Unconscionable dealings This occurs where one person knew or ought to have known about the other person’s “special disability” or “special disadvantage” and takes advantage of it. A person with a disability, particularly an intellectual disability, may be at a special disadvantage or under a special disability in many contract situations. These principles may also make a contract “unfair” or “unjust” under the consumer laws about goods and services (see below).

The consumer laws about goods and services The general effect of the consumer laws is that if the consumer contract can be shown to be unfair or unjust then the consumer may be able to get out of the contract, vary it, get

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money refunded, or get compensation. How this is done is covered in Chapter 10 on Consumers. The presence of one of more of the following circumstances at the time of entry into a contract may cause it to be unfair or unjust: • unequal bargaining power between the parties • undue pressure or coercion • unreasonable harassment • false advertising • concealment of defects • unreasonable conditions in the consumer contract • overly complicated language and form of the contract • limited educational background and literacy of a party to the contract • lack of help or advice where a party is in need of this in order to understand the contract • physical or mental disability of a party to the contract • poor economic circumstances of a party to the contract

The Consumer Credit Laws Consumer credit is covered in detail in Chapter 13.

A person with an intellectual disability or a disability that affects cognition may be at particular risk of entering into a consumer credit or loan contract that is unaffordable or otherwise unsuitable. If the contract can be shown to be unsuitable or unjust, then remedies are available under the National Consumer Credit Protection Act 2009 (Cth). The matters that may cause a consumer credit contract to be unsuitable or unjust are similar to the matters that can cause a consumer contract for goods and services to be unfair or unjust.

Insurance Insurance is covered in detail in Chapter 29 Insurance. The person applying for insurance has a duty to disclose relevant information to the insurer before entering into a contract of insurance. For some types of insurance, such as life insurance, income protection insurance and travel insurance, information regarding a person’s disability is likely to be considered relevant information. Full disclosure of relevant information is extremely important, since failure to disclose may result in an insurer refusing to pay a claim.

The criminal justice system [16.150]

People with disability have the same rights as people without disabilities in the criminal justice system. The law makes some provision to compensate for the vulnerability of people with disability and other disadvantaged groups. Often people with disability face many barriers in the criminal justice system and are not able to exercise their rights. This is particularly the case for people with cognitive or mental health impairment. Without the right intervention, legal assistance and support, some people with disability can find themselves trapped in the revolving doors of the criminal justice

system. Often a person’s disability is not recognised or properly assessed. Opportunities to seek diversion from the criminal justice system into support services, are not always pursued. People with disability can become institutionalised in prison and are vulnerable to violence, exploitation and abuse in prison. A person with disability may become involved with the criminal justice system as a: • victim of crime • person accused of a crime, or • witness.

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[16.160] Communication

[16.170] As a victim of crime

barriers to accessing justice

Barriers to getting justice

Adjusting communication People with disability are confronted with difficulties and barriers throughout the criminal justice system, whether they are the victim, accused or convicted. Many of these difficulties can be overcome by those around the person with disability making some adjustments in the way that they interact. For people with cognitive impairment involved in the criminal justice system, particularly important adjustments might be in relation to communication. Below are some suggested adjustments to assist a person with cognitive impairment to tell their story: • use short sentences and clear language – one idea at a time • encourage free recall – let the person tell their story • be prepared to wait for the person to answer – taking in information and answering may take longer than you’re used to • allow more than the usual time for an interview – be patient • check whether the person understands what you’re talking about – you can do this by asking the person to explain in their own words what you’ve told them • allow regular breaks – the person may have limited concentration • talk with the person in a quiet and private place, free from distractions • if necessary, allow the person with disability to have a support person present. People with hearing impairments and those with communication disabilities are also particularly disadvantaged. The court can arrange Auslan interpreters and amplification assistance. Ask at the court registry as early as possible before the court date or contact Diversity Services (see Contact points at [16.810]).

People with disability are more likely to be victims of crime because they can be more vulnerable and less able to protect themselves. A person with a disability who is a victim of a crime has the same rights to the protection and assistance of the law as anyone else, but in practice it often does not work out that way. Some problems are: • they may not understand that what happened to them is against the law • they may be reluctant to report a crime if the perpetrator is a staff member or resident of an accommodation service in which they live, or a family member or acquaintance • they may not be believed by others • police or prosecutors may decide not to take the case forward because they feel the person will not be a reliable witness. These problems can often be overcome by people supporting and making adjustments in communication with the victim so as to encourage them to speak up against violence and abuse. It is particularly important that police and prosecutors do not assume a person with disability cannot give reliable evidence, as this might amount to unlawful disability discrimination. The Intellectual Disability Rights Service can provide trained support persons to attend police interviews to help people with intellectual disability who have been victims of crime.

Getting legal assistance It is important that victims with disability or those assisting them obtain legal advice about the person’s civil remedies (like suing for damages or victim’s compensation) in addition to reporting the matter to police. Legal Aid or a local community legal centre may also be able to provide legal assistance for people with disabilities. The Intellectual Disability Rights Service can provide free legal advice and assistance to people with intellectual disability.

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Right to a support person Sometimes people with disability may have additional rights to people without disabilities. Modification to and support in the interview process applies to a vulnerable person whether they be a suspect, accused or victim. A person with disability may be classified as a vulnerable person. The NSW Police Force Handbook instructs police that when a person with impaired intellectual functioning is to be interviewed: “Whether the person is a suspect, witness or victim before starting an interview: • ensure the person understands the reason for the interview and why they are there (a support person may be able to help you in making yourself clearly understood) • ask them if they wish to have a support person present, and take reasonable steps to arrange one if that is what they want • find out if they are, or have been, taking medication which might affect their ability to answer questions • find out if they have disabilities for which adjustments need to be made, eg: hearing or sight impairment. In planning the time for your interview remember that a person with impaired intellectual functioning might need more time to understand or answer questions.”

The police will arrange an interpreter for a person who is deaf, hearing impaired or speaking impaired. The Criminal Justice Support Network, a service of Intellectual Disability Rights Service, can arrange for a trained support person to be present with a victim or witness of crime who has intellectual disability when they are providing a statement to the police (see Contact points at [16.810]).

Charter of Victims Rights In NSW victims of crime have a Charter of Victims Rights. The Charter seeks to protect and promote victims’ rights. Some of the rights in the Charter include that: • victims are to be treated with courtesy, compassion and respect • victims are to be informed about and given access to welfare, health and counselling services • victims’ privacy is to be protected, and

• victims are to be kept informed in a timely manner about any prosecution of the perpetrator of the crime. While the Charter does not give rise to legally enforceable rights, it is taken very seriously by NSW Police and other government agencies that attend to the welfare and support of victims of crime. If you feel that a government agency has not abided by the Charter, you should call the Victims Support Line (ph: 1800 633 063 or 8688 5511). Victims of sexual offences People with cognitive impairment are particularly vulnerable to sexual exploitation and sexual assault. The law in NSW recognises this by making it a crime to have sex with a person with a cognitive impairment in certain situations. A person who is responsible for the care of a person with a cognitive impairment and has, or attempts to have, sexual intercourse with that person is guilty of an offence. An exception to this is when the carer is married to, or in a de facto relationship with, the person with cognitive impairment. It is an offence for anyone to take advantage of, or attempt to take advantage of, a person’s cognitive impairment to get them to engage in sex. Consent is not a defence to either of these offences. In other circumstances where a sexual offence has occurred, the victim’s cognitive impairment or serious physical disability may be an aggravating factor that increases the seriousness of the crime and potential penalty (see Chapter 35, Sexual Offences). Where the crime is a sexual offence a victim should be consulted by police if police are contemplating modifying or withdrawing charges laid against the accused (including any decision to accept a plea of guilty to a less serious charge) unless the victim has expressed a wish not to be contacted or cannot be located. Victims should also be aware of the NSW Rape and Domestic Violence Services formerly Rape Crisis Centre ph: 1800 424 017. Sexual offences are discussed in more detail in Chapter 35, Sexual Offences.

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Giving evidence in court A person with a disability can give evidence in court as long as they generally understand that: • they have promised to tell the truth (and what that means), and • telling a lie in court is against the law. If there is any doubt, the court or the prosecutor should arrange for the person with a disability to be independently assessed by a psychologist for an opinion as to whether they understand these concepts and have the capacity to give reliable evidence in court. Problems in giving evidence Sometimes people with disability experience barriers and problems when giving evidence in court. For example, • the court process is structured around verbal skills and memory – people with cognitive impairment can find these things more difficult than other people • the magistrate, judge or jury may doubt the understanding of people with cognitive impairment and so not consider their evidence as important as other evidence. These barriers and problems can be overcome by people offering appropriate supports and adjusting their communication. Available adjustments in giving evidence for people with disability In some circumstances the Evidence Act 1995 (NSW) and Criminal Procedure Act 1986 (NSW) permit adjustments to be made to the way a person with disability gives evidence in court and how they may be crossexamined. There are also rules of examination in court that prevent questioning that is confusing, repetitive or harassing for the person being questioned. Amendments have been made to the Criminal Procedure Act to improve the way victims of sexual assault are treated in court. Some of these changes relate to all victims of sexual assault: • the victim no longer has to face the accused person in court. They can give evidence from a private room away from the courtroom, which is transmitted to the courtroom via a television. If the

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alleged victim wishes to give evidence in the courtroom but does not wish to see the accused, a request can be made that a screen or partition be used the case may now be heard in a closed court so members of the public cannot hear the evidence the alleged victim may now have a support person with them during the court proceedings. This person can be a member of the family, friend, counsellor or professional court support officer (provided they are not a witness in the case) the court strictly limits what can be published about cases on the internet and in the media. This means that the alleged victim’s name or any information that may identify them must be kept confidential outside the court. This is called a “non-publication order” if the accused person is not legally represented they can no longer directly ask the alleged victim questions in court. Prior to this change in the law, an accused person who was representing him or herself in court could directly ask questions. Now the court may appoint an alternative person, if required the alleged victim may not be asked improper questions, such as those which are humiliating, harassing, repetitive or insulting. In particular, improper questions should not be used by the lawyer representing the accused during a cross-examination the alleged victim’s evidence will be recorded so, if for any reason the trial needs to be re-heard, they may not need to give their evidence again.

Some additional procedures for the protection of vulnerable persons Extra support is provided to “vulnerable people”, including children less than 16 years of age and people with a cognitive impairment. A person is deemed to have a cognitive impairment if they require supervision or social habilitation in connection with daily life activities, as a result of one or more of the following: (a) intellectual disability

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(b) a developmental disorder (including an autistic spectrum disorder) (c) a neurological disorder (d) dementia (e) a severe mental illness (f) a brain injury. If the alleged victim is a vulnerable person, they may receive extra support in court, as detailed below: • alleged victims would normally only have to give evidence once • alleged victims no longer have to appear in the courtroom in person. A vulnerable person can have a pre-recorded statement played to the court as evidence. Further evidence, such as cross-examination, can be given in a private room away from the courtroom, and transmitted to the courtroom via a TV screen • the alleged victim is allowed to be with a support person during the trial • arrangements may be made through the court if the alleged victim needs help with communication. The Criminal Justice Support Network can provide a support person to be at court with a victim or witness who has intellectual disability. Assistance from the Witness Assistance Service If a person with disability is to give evidence in a case where a person has died or there has been a physical or sexual assault, the Witness Assistance Service (part of the Office of the Director of Public Prosecutions) should be contacted. The service can support the person through the court process. Giving evidence successfully Sarah (not her real name) was sexually assaulted by a bus driver on her way home from work. Even though Sarah made a detailed statement to the police, they thought she would be unable to withstand the pressure in court because of her intellectual disability and told her to “go home and forget about it”. The Intellectual Disability Rights Service obtained a psychologist's report stating that Sarah would make a reliable witness. This was used to convince the Director of Public Prosecutions to take the matter to court. Initially Sarah had problems coping with lengthy crossexamination by the defence. However, after a strong submission from the prosecution, the judge allowed her to be cross-examined in 15–20 minute sessions, giving

her time to refresh her concentration. Her mother was allowed to sit behind her and bring to the attention of the court any questions she felt Sarah could not understand. Sarah's evidence improved, and the driver was convicted.

[16.180] Victims' support,

counselling and recognition payments Victims’ Support is discussed in more detail in Chapter 39, Victims Support. Where a person has been physically or mentally injured as a result of an act of violence that occurred in NSW, whether or not it is proven in court as a crime, they may be able to apply to Victims Services, a part of the NSW Department of Justice, for support, counselling, and financial assistance or for a recognition payment. This is called the Victims Support Scheme and is established in accordance with the Victims Rights and Support Act 2013 (NSW). Acts of violence include physical, indecent and sexual assaults. When a person is subject to an act of violence, they should report this to police and be medically examined as soon as possible. Photographs of injuries, witness statements, counsellor’s notes, diary entries and CCTV footage are the types of useful information to include in an application to receive support. A person who witnesses an act of violence carried out on another person may also be able to apply for support, as a secondary victim. A claim for Victims Support must be lodged within two years of the violent incident. If an application is lodged outside the two-year time limit it may not be accepted. There are exceptions to this time limit for some offences. For example, there is no time limit for making a claim for a recognition payment for childhood sexual assault. Applications for Victims Support are determined by an independent assessor through Victims Services and the victim is not required to go to court. The standard of proof for a Victims Support application is lower than for a criminal prosecution – the standard of proof is “on the balance of

16 Disability Law

probabilities” rather than “beyond reasonable doubt”. This means that the victim only has to show that it was more probable than not that they were the victim of an act of violence and they suffered an injury (or injuries) as a result. The NSW government has confirmed that victims of crime who lodged an application for compensation under the old victims’ compensation scheme (ie, prior to 7 May 2013) and whose application was not finalised by that date may have their claim reassessed under the rules of the old scheme. This may mean a greater monetary payment for those victims. Victims of violent crime can also apply for free counselling through Victims’ Services Approved Counselling Scheme. Too often, counselling is not sought for people with disability who have been victims of crime. In seeking counselling through this scheme, it is important to ask for a counsellor who has experience working with people with disability. People with disability sometimes require support when reporting acts of violence carried out against them. At other times, they will be reluctant to tell anyone at all. If the person’s disability prevents them from communicating what has happened, there may be indicators such as sudden mood and behaviour changes by the person with disability. It is important that police and medical practitioners make adjustments and provide support to people with disability to encourage them to speak up against violence and abuse.

[16.190] Accused of a crime Encountering the system People with cognitive disabilities and mental health conditions are over-represented in the criminal justice system, including in prison. They have increased contact with the criminal justice system because they are more likely to experience psychological and socioeconomic disadvantage and sometimes do not receive adequate support and services. Often, justice personnel such as police, lawyers, magistrates and judges do not recognise or understand these disabilities and how they may affect a person.

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People with disability are not inherently more likely than people without disability to commit crimes. A person with a cognitive disability is more likely to: • be charged with an offence, and convicted • admit to an offence they did not commit (to please the police or other authority figures, or to avoid admitting they did not understand questions) • be refused bail • receive a prison sentence and to be refused parole (because of a lack of support options and services in the community).

At the police station Police currently receive little training about identifying, adjusting to and communicating with people with disability. Support is essential People with impaired intellectual functioning and those with impaired physical functioning are “vulnerable persons” at law. This means that there are special provisions to assist them when they are at the police station, including the right to a support person. It is also crucial that a person with disability be offered legal advice before they give any evidence or think about participating in an interview. Failure to get a support person and make appropriate adjustments for a suspect with disability may mean any evidence the police gather will be deemed inadmissible in court.

General rules about police • All police in uniform should wear a badge that shows their name and rank. Police officers who are in plain clothes should provide their name and station if they are asking a person to come to the police station or if they are arresting a person. • A person does not need to go to the police station with police unless they are being arrested. • If a person is being arrested, the police must read the person the formal caution about their rights, including their right to silence. • A person who is under arrest must cooperate and go with police officers.

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• Generally, a person should give their name and address when asked by police. • Except for supplying the police with the person’s name and address, a person generally has a right to silence – that is, the right to not answer any questions from police. There are some exceptions to the right to silence. The police should tell a person if one of these applies. • If a person chooses not to answer questions or give an interview, the police cannot force the person to have this refusal recorded (on ERISP – Electronic Recording Information with Suspected Persons). Sometimes the police ask to do this, but they do not have the power to insist on this. It is best to avoid going to an interview room to be taped.

ments set down under the law. This publication is available to the public on the NSW Police Force website.

Vulnerable persons' right to a support person People who have impaired intellectual functioning, or impaired physical function, are recognised as “vulnerable” persons’. “CRIME” states that if police custody managers suspect that a person is a vulnerable person, to comply with CRIME and the legislation they must take immediate steps to contact a support person and organise for the vulnerable person to have a support person present with them at the police station and during any police interview.

When police may give a warning instead of charging

Support for people with intellectual disability at the police station

Depending on police attitudes to the person and their awareness of the person's disability, they may exercise their discretion to give a warning or caution to a person rather than charge the person. This will usually only be an option where the alleged offence is a minor one.

The Criminal Justice Support Network, operated by the Intellectual Disability Rights Service, provides trained support persons for people with intellectual disability who are in contact with the criminal justice system as suspects, accused, witnesses or victims. A support person can attend police stations, court and legal appointments. One-on-one support is available in Sydney, Illawarra and Shoalhaven, Newcastle/Hunter, Central Coast, Mid North Coast, Riverina and Central West regions from 9am - 10pm every day. Outside these areas the network provides information and links to legal advice. The after-hours phone number for a person with intellectual disability who is under arrest is 1300 665 908.

Rules about police conduct with a person with disability The law aims to protect the rights of people with disability. People with disability may be regarded as “vulnerable people” at law. The police are required to follow certain procedures when a person they have detained a person who has a disability, so it is usually in the person’s interests to tell the police they have a disability, or for someone else to do so on their behalf. The laws about how police must act when dealing with a person with disability are primarily contained in the Criminal Procedure Act 1986 (NSW), Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW). The NSW Police Force Code of Practice for Custody, Rights, Investigation, Management and Evidence (CRIME) provides guidelines to the police in complying with the require-

The support person can assist the person with disability, ensure that any interview is conducted properly and fairly, and should identify any communication problems that arise. Police must also ensure that the detained person understands the warning the police give about the right to remain silent. This warning is sometimes referred to as the caution. This might require the Custody Manager to repeat the warning, explaining it simply or asking the support person to help explain it.

Where to get urgent legal help A person who is in police custody has the right to contact a solicitor.

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The following are options for obtaining urgent legal advice for a person with disability who has been detained by police for questioning: • for adults and children with intellectual disability, the Intellectual Disability Rights Service 1300 665 908, 7 days a week 9am -10pm • for adults and children, LawAccess 1300 888 529, business hours • for people under 18 years, Youth Hotline 1800 101 810 till midnight on weekdays and 24 hours at the weekend • for Aboriginal and Torres Strait Islanders, Aboriginal Legal Service, 24 hours 7 days a week. Excluding evidence in court Where there is doubt about whether an accused with cognitive impairment understands the caution, or about the fairness of questioning or an interview or about whether a confession is genuinely voluntary, the accused's lawyer can ask the court to exclude the evidence. Admissions by an accused with cognitive impairment to police may be unreliable or not genuinely voluntary for a number of reasons, including the accused person's: • willingness to please authority figures • failure to understand questions • failure to understand the caution • desire to “get it over with” and leave the police station quickly. If police have not followed the proper procedures in dealing with people who are charged with criminal offences, a court may decide to exclude evidence or admissions made by a person with cognitive impairment. This is because there are wider, public policy concerns to see that people with disability are dealt with fairly by police.

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With advances in DNA technology, these samples can be useful for police to help with investigations into unsolved crimes. Obtaining forensic samples can be very invasive and traumatic for a person. There are two main types of forensic procedures, non-intimate and intimate. Nonintimate forensic procedures are less invasive and include procedures such as taking buccal swabs, collecting hair samples (other than pubic hair), taking a sample from under a fingernail or taking a hand, finger or foot print. Intimate forensic procedures include procedures such as taking blood samples, collecting pubic hair or a dental impression. Different rules apply depending upon whether the forensic procedure is non-intimate or intimate. Forensic procedures with the informed consent of the person Forensic samples may be taken with the informed consent of the person or with an order of the court. “Informed consent” carries with it a requirement that police inform the person of their rights and, in particular, the fact that the forensic procedure may produce evidence against that person which could be used in court. However, the legislation says that a child or an ’incapable’ person cannot give consent. If police want to take a forensic sample from a person who is incapable, perhaps due to disability, the prudent course is to seek an order of the court to do so.

[16.200] Going to court For more about arrest and interrogation, see Chapter 14, Criminal Law.

Forensic procedures and requests for samples Under the Crimes (Forensic Procedures) Act 2000 (NSW) police have wide powers to obtain forensic samples from suspects and prisoners. Samples include saliva from mouth swabs, fingerprints, hair strands and photographs of parts of a person’s body.

Legal Aid NSW Legal Aid NSW can assist with advice and representation in most criminal matters for people with disability. Where possible, it is best to make contact with Legal Aid before appearing in court. If this is not possible, a person due to appear in a criminal matter in the Local Court should turn up to court by 9am and ask to speak to the duty solicitor. The Criminal Justice Support Network can provide a support person to attend court with a person with intellectual disability (see Contact points at [16.810]).

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Was there an intention to commit a crime? Most criminal offences require the prosecution to prove the accused had a particular mental state at the time of the offence, either: • an intention to do the unlawful act, or • recklessness as to whether or not it was done or as to its consequences. In some circumstances the impairment of a person with cognitive disability may be so substantial that the person is actually incapable of forming the required mental state to constitute a crime.

The Local Court and “section 32” A section 32 order is a way for the Local Court to divert people with mental and cognitive impairments out of the criminal justice system. Part 3 of the Mental Health (Forensic Provisions) Act 1990 (NSW) contains all the provisions (including s 32) relevant to summary proceedings before a magistrate in the Local Court relating to persons with mental and cognitive disabilities. A section 32 application can be made at any time through the course of the proceedings, including at the conclusion of a contested hearing. Section 32 applications may be made without having to enter a plea. This means that a s 32 application can be made where a person is unfit to enter a plea. The application is most commonly raised by the defendant’s lawyer, but it can be raised by any party to proceedings. Sometimes a magistrate, of their own motion, may apply the provisions of s 32. The effect of the order is to dismiss the charges either unconditionally or subject to conditions. Conditions usually relate to complying with a support or treatment plan, which is an outline of various steps to be taken for the accused to engage with services and supports to meet their needs and address any issues associated with their alleged offending conduct. For a magistrate to make an order under s 32 she or he must be satisfied broadly of two things: • first, that the defendant has a developmental disability (or a mental illness or a mental condition for which treatment is available). An intellectual disability falls

within the category of developmental disability; • second, that it would be more appropriate to deal with the defendant through a s 32 order and diversion into support, than through the normal criminal law process of pleas, hearings, sentencing and the like. In deciding whether it is more appropriate, the magistrate must consider an outline of the facts of the alleged offence but then apply his/her discretion in deciding whether or not to apply the section. Section 32 orders normally last six months, but their effect may be lengthened considerably by the use of adjournments. If a person breaches any one of the conditions within those six months, and it is reported to the court, then they can be brought back before the court. What about charges heard in the NSW Children's Court? Section 32 orders are available for charges for summary offences that are heard in the NSW Children’s Court. What about Commonwealth criminal offences? Section 20BQ of the Crimes Act 1914 (Cth) is similar to section 32 and applies to persons “suffering from an intellectual disability” or “suffering from a mental illness within the meaning of the civil law of the State or Territory” who are before a court of summary jurisdiction (like the Local Court) in respect of a Commonwealth offence. The main difference under s 20BQ(1)(c) is that if the charges are dismissed conditionally, the period of the order can be up to three years (compared to the sixmonth maximum period under s 32). For further information on section 32 The Intellectual Disability Rights Service provides more information about s 32 applications online (see www.s32.idrs.org.au). Queries about specific section 32 applications for people with intellectual disability may be directed to [email protected].

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Cases in the District and Supreme Courts Matters in the District and Supreme Courts generally have very serious potential consequences. Only suitably qualified and experienced lawyers should be instructed to appear in such matters, especially in matters for people with cognitive impairment. Questions of fitness and the defence of mental illness are highly specialised areas of criminal law. Fitness to stand trial Section 32 is not available in the District and Supreme Courts. In these courts, an application may be made that an accused is not fit to stand trial because of a cognitive impairment, like intellectual disability. However, a person will not be regarded as unfit to stand trial just because they have cognitive impairment. What must be determined is the degree to which the disability impairs their ability to properly participate in the trial process. To determine this, the court needs to consider, amongst other things, whether the person: • can understand the charge and the nature of the proceedings • can understand the main effects of the evidence • is able to follow the course of the proceedings, at least in a general sense, and can make a defence to the charge. If “fitness” is raised as an issue, the court should order that the person be assessed by a psychologist or other appropriate professional for an independent opinion about whether the person is or is not fit to stand trial. Ultimately, it is a question to be decided by the judge hearing the matter by applying the standards outlined in the case of R v Presser [1958] VR 45. If the person is found unfit to stand trial If the person is found unfit to stand trial, the court makes an order referring them to the Mental Health Review Tribunal (MHRT) for a determination as to whether they are likely to become fit within the next 12 months. The person at this point is classified as a “forensic patient”. If the MHRT determines that

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they are not likely to become fit within the next 12 months, the court will hold a special hearing to determine, on the limited evidence available to it, whether the person committed the alleged offence. This is called a “special hearing” and it is conducted as close as is possible to a regular criminal trial. If the accused chooses to give evidence, little to no weight can be attributed to their evidence. Also, given the finding that they are unfit, they cannot give instructions to their lawyer and effectively they have no control over the process. If the offence is found to be proven at the conclusion of a special hearing, then a qualified finding of guilt is entered. A qualified finding of guilt does not constitute a basis in law for a criminal conviction, but the outcomes are often similar. If the court would have sentenced the accused to a prison term had he or she been fit and had a regular criminal trial taken place, the person can still be sentenced to a prison term. The MHRT will determine where the person will serve that term of imprisonment. It could be in a psychiatric hospital or in a prison hospital. The court sets a maximum term for which the person can be imprisoned or detained known as the “limiting term”, which is the equivalent of the head sentence the court would have imposed had it been a regular criminal trial. The limiting term encompasses the nonparole and parole periods, so these patients can end up serving the entire period without the opportunity for release during the parole period. While serving the limiting term, the person must be reviewed by the MHRT at least once every six months. The MHRT can order that the person be released before the expiry of the limiting term. In 2013, the Mental Health (Forensic Provisions) Amendment Act 2013 introduced provisions into the Mental Health (Forensic Provisions) Act 1990 (NSW) that allow for extension orders to be made in respect of a limited number of forensic patients, to facilitate the continued supervision and review of

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those patients by the MHRT. This now includes people with cognitive impairments. Too often people with disability, particularly people with cognitive impairment, remain in detention because no appropriate alternative is provided to manage or eliminate problematic behaviour. The circumstance of detention itself often exacerbates the person’s behaviour problems, making their release less and less likely. It is important to remember that the risk a person with cognitive impairment may pose to others is not simply a feature of the individual but is also determined by the specific environment within which the person functions. The defence of mental illness Mental illness and cognitive impairment such as intellectual disability are two entirely different things. However, the defence of mental illness can be used by people with cognitive impairment. The legal requirement for the defence of mental illness is that a person, at the time of the offence, had a “disease of the mind” such that they were not aware of the nature and quality of the offending act, or, if they did know the nature and quality of the offending act, they did not know what they were doing was wrong. The defence of mental illness can be raised as a defence to indictable charges being dealt with in the District Court or appellate courts. If the defence is made out, the court must return a special verdict of “not guilty by reason of mental illness” (Mental Health (Forensic Provisions) Act 1990, s 38). However, this verdict does not mean that the person is released. The person is detained as a forensic patient. If a person is found not guilty by reason of mental illness If a person is found not guilty by reason of mental illness then the court can order that the person go to prison or a psychiatric hospital for treatment and for the protection of the community, or be released into the community usually with a plan of management and supervision. Such a person is referred to as a “forensic patient”. As soon as practicable following a forensic patient having been detained in strict custody, the MHRT must review the per-

son’s case and make a decision about the person’s detention, care, treatment or conditional/unconditional release. Conditional release may include supervision by a psychiatrist or case manager, medication and supported accommodation. Review of forensic patients A forensic patient is a person who has: • been found unfit to be tried for an offence and ordered to be detained in a correctional centre, mental health facility or other place, or • been found not guilty by reason of mental illness and ordered to be detained in a correctional centre, mental health facility or other place or released into the community subject to conditions. The main provisions relating to the review of forensic patients are found in the Mental Health (Forensic Provisions) Act 1990 (NSW). Forensic patients are under the review of the MHRT. There is no set period of time for which the person is to remain in detention, and release depends on the orders of the MHRT. The MHRT must review the case of any forensic patient at least once every six months. The MHRT can make orders about the person’s continued detention, care and treatment, or release with or without conditions. These orders may say where the patient is to be detained, under what kind of security, and whether the person can have leave. If the patient is on conditional release, the MHRT can determine the conditions that apply to the patient’s continuing presence in the community. Prior to amendments to the Mental Health (Forensic Provisions) Act 1990 (NSW) and the Mental Health Act 2007 (NSW), the MHRT could only make recommendations to the Minister for Health with regard to release of a forensic patient. Such decisions are now made by the MHRT. Alternatives to imprisonment Even when a person with disability has been convicted of a serious offence, there may be alternatives to imprisonment that are appropriate and best serve the objects of sentencing. Lawyers working with people with disability should be familiar with

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diversionary options and alternatives and actively assist their clients to access them where appropriate. All too often, people with disability are held in prison on remand or given prison sentences because: • they are considered less able to meet bail conditions and not given the support to meet those conditions • there is no accommodation available for them, or • the place in which they have been living no longer accepts them. Restitution orders under the Victims Rights and Support Act 2013 A person who is convicted of an offence which involved an act of violence may face a Provisional Order for Restitution issued by Victims Services under the Victims Rights and Support Act 2013 (NSW). This will occur where the victim has applied for and been granted a recognition payment for an injury sustained as a result of the act of violence. The order may require the convicted person to pay part or all of the recognition payment. It may take years before the victim’s claim is finalised and the person receives the Provisional Order. The Provisional Order can be opposed and contested by notifying Victims Services. Legal Aid is not available in such matters. The Intellectual Disability Rights Service has expertise in opposing Provisional Orders for Restitution for people with intellectual disability. People with intellectual disability usually have very limited financial resources and are most often dependent on the Disability Support Pension. It is important that they are assisted to contest the order to seek a reduction or waiver due to their limited means and sometimes special circumstances.

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ADHC services Ageing, Disability and Home Care (ADHC) has been the primary provider of services for people with intellectual disability in NSW. ADHC operates the Community Justice Program which provides a range of services, including accommodation, for people with intellectual disability who have been in prison. After the full roll out of the National Disability Insurance Scheme in NSW, by July 2018, ADHC will no longer provide direct services or fund specialist services such as the Community Justice Program for people with intellectual disability who have been in prison. The timetable for the roll out in different areas of NSW is available from the NDIS website (www.ndis.gov.au/aboutus/our-sites/nsw). Support services for people with intellectual disability will be provided by non-government, non-profit organisations and some private for-profit providers. Applications for support under the scheme need to be made directly to the National Disability Insurance Agency which will fund reasonable and necessary support based upon an assessment of the person’s needs. Information on how to apply for NDIS supports can be found on the NDIS website (http://www.ndis.gov.au). Where possible, it is advisable for a person living with cognitive disability to have a trusted support person assist them with the NDIS application and assessment processes, which require a level of literacy and insight that people with cognitive disabilities may lack. ADHC will remain a key contact in seeking services for people with disability, particularly intellectual disability, in areas where the NDIS is yet to commence. Each of its regions has an Information, Referral and Intake number which is the first point of contact (see Contact points at [16.810]).

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Discrimination [16.210]

See Chapter 17 for detailed information about discrimination law. Discrimination on the basis of disability is prohibited in certain circumstances by laws including the Anti-Discrimination Act 1977 (NSW), the Disability Discrimination Act 1992 (Cth) and the Fair Work Act 2009 (Cth).

These laws do not give a person with disability special rights. Rather, they aim to ensure that a person with a disability has equal access to things like accommodation, education and employment, and is not treated less favourably or harassed because of their disability.

Employment and industrial issues [16.220]

(Refer to Chapter 22, Employment for general information about employment laws, and refer to Chapter 3 at [3.340], for information on workers’ compensation for injuries at work.) Laws that are relevant to the employment of people with a disability are: • the Disability Services Act 1986 (Cth) • the Fair Work Act 2009 (Cth) and other laws referred to in Chapter 22, Employment. • the common law • the anti-discrimination laws (see [16.210]).

[16.230] Awards, industry

instruments and agreements, and minimum employment standards Most employees who have a disability will work in open employment under an award, industrial instrument, or agreement. In most cases these will be covered by the same awards that apply to other employees. Some of these people with disability employed in open employment may have their wages determined under the Supported Wage System. Other people with disability will work in supported employment. These people are employed in Australian Disability Enterprises (supported employment), and they may be employed under the Supported Employment Services Award 2010 (see [16. 250] for details).

From January 2010, most employers and employees in Australia are covered by the national workplace relations system and one set of workplace relations laws, including most employers and employees who were previously covered by state workplace laws. (The national system does not cover public sector employees in state and local government in NSW. These employees are covered by NSW laws about employment conditions, awards, wages, and termination. These matters, and employment disputes are dealt with by the NSW Industrial Relations Commission.) For employees not covered by any awards, industry instruments or agreements, there are the National Employment Standards (NES) and the National Minimum Wage Order 2016. Information about awards, industrial instruments or agreements, and minimum employment standards can be obtained from the Fair Work Commission, and from the Fair Work Ombudsman. Both bodies also deal with employment complaints.

[16.240] Open employment Open employment exists where an employee with a disability works, in the open workforce under award wages and conditions. Open employment can be arranged directly with an employer, or by using a Disability Employment Service (DES) Provider. Disability Employment Service

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providers are specialist employment service providers funded by the Department of Social Services to assist job seekers with disability with employment preparation, job search, post placement, and ongoing support. Information about Disability Employment Services can be found on the Department of Employment website www. employment.gov.au The wage assessment tool used in open employment is the supported wage system (SWS). The Department of Social Services has Supported Wage Management Units (SWMU) which deal with applications under the Supported Wage System, and manage the Supported Wages System in offices in state and territory capital cities (phone 1800 065 123). To be eligible, under the Supported Wage System a person must be aged at least 15 years, and meet the impairment criteria for receipt of Disability Support Pension (DSP), which is advised by Centrelink (now part of the Department of Human Services, see www.humanservices.gov.au or phone 132 468 for recorded information). The job must be for a minimum of 8 hours per week. The prospective employee is given a trial period (if necessary) of up to 12 weeks. A negotiated wage is paid during the trial period (the minimum weekly wage being $82.00, as at 1 July 2016). The assessment of productivity is made. Assessments are generally undertaken by Department of Social Services approved SWS assessors, although depending on the industrial instrument, the productivity assessment may also be conducted by the employer and worker representative in consultation with the worker. The pro-rata wage is calculated. The award wage used for the SWS wage assessment cannot be less that the national minimum wage. The employee and the employer then sign the wage assessment agreement, which is sent to the Fair Work Commission. If there is no objection from the union, then the wage agreement is effective. The employer can legally pay the pro-rata award wage and superannuation from the date the agreement is signed. The wage agreement is reviewed in 12 months unless an earlier review date is agreed. The cost of a review assessment is

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paid by the Australian Government. The employer must provide workers’ compensation insurance for potential SWS recipients who are working during the trial period and those employed after the SWS productivity assessment. Part-time jobs can be assessed under the SWS using the same procedure and calculations as for full-time jobs. This can be achieved by using the part-time hourly figures in the wage calculations. Disputes about the SWS productivity assessment can be referred to the SWMU for review. Disputes on other matters once the worker has been engaged on SWS provisions are dealt with by the same dispute resolution mechanisms that are available to other workers in the workplace. If unsuccessful, further complaints may be made to Job Access’ Complaints Resolution and Referral Service (CRRS), or to the Fair Work Commission, or to the Fair Work Ombudsman.

[16.250] Supported

employment Supported employment exists where an employee works in an Australian Disability Enterprise (ADE). ADEs are businesses (generally not-forprofit organisations) that provide employment for people with disabilities who require support to remain in paid employment. ADEs were previously known as “business services” and before that as “sheltered workshops”. Most ADEs are funded by the Department of Social Services (DSS). People with disability may be referred to an ADE by Centrelink, or a community group. Some ADEs advertise for employees. The employee must be eligible to receive the Disability Support Pension. The job must be at least eight hours per week to get government funding. Each ADE has its own certified agreement which must comply with the Disability Service Standards. These have been revised for transition to the National Disability Insurance Scheme (NDIS). They are called the National Standards for Disability Services. There are six service standards.

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There is now greater emphasis on human rights, choice, control and being personcentred (refer to the website of the Department of Social Services). ADEs funded by the DSS are audited to check that their certified agreements meet the National Standards for Disability Services. The funding for ADEs is gradually transitioning from the DSS to the NDIS. The certified agreement must specify the wage assessment tool that is used. ADEs can currently choose one out of the 29 wage assessment tools used. The award governing employees of ADEs is the Supported Employment Services Award 2010. That Award requires payment of wages assessed under one of the 29 approved wage assessment tools including the SWS, the Greenacre wage assessment tool, the Skillmaster tool and others. (At the time of writing, the Department of Social Services is developing a new wage assessment tool for use in ADEs that previously used the Business Services Wage Assessment Tool, or BSWAT.) The wage assessment is done by an assessor. The assessor may be independent, although some organisations have their own assessors. The assessment can also be arranged by the Commonwealth Department of Social Services. A wage assessment tool compares the work performance of a person with a disability to the work performance of a person without a disability doing the same work. The result of that comparison is recorded as a percentage. The wage that is paid to the person with disability is calculated using that percentage and multiplying it by the award wage. For example, the minimum rate of pay for a grade one full-time employee under the Supported Employment Services Award 2010 is $17.29 per hour or $656.90 per week. Then, if that person’s work performance, using a wage assessment tool, was assessed at 50%, they would be paid $8.65 per hour or $328.45 per week. Complaints about employment services can be made to JobAcess’ Complaints Resolution and Referral Service (CRRS). This is a complaints resolution service for people

using Australian Government-funded disability employment and advocacy services. It deals with: • open and supported employment • complaints about service providers • breaches of the National Standards for Disability Services • occupational health and safety matters • wages paid relating to DESs and ADEs. Some ADEs are not funded by the DSS and have their own wage assessment tools. In such cases the CRRS may not be able to deal with the complaint; however, the ADE is required by the National Standards for Disability Services to have a complaint mechanism. This should be followed and if the result is unsatisfactory a complaint may be made to the Fair Work Commission, or the Fair Work Ombudsman. The Fair Work Commission has information about awards and deals with industrial disputes relating to open employment and supported employment. The Fair Work Ombudsman has information about awards and deals with complaints relating to open employment and supported employment.

Business Services Wage Assessment Tool (BSWAT) Payment Scheme The BSWAT was previously used to determine the wages of supported employees in Australian Disability Enterprises. In 2012, the Federal Court of Australia held that the BSWAT was discriminatory. The effect of this is that many supported employees whose wages were assessed using the BSWAT should have been paid higher wages. The Commonwealth Government has since established the “BSWAT Payment Scheme” to provide a one-off payment to eligible intellectually impaired people who had their wages assessed under the BSWAT. The payment scheme is an alternative to legal proceedings. For a payment to be made the person needs to show that they: • have an intellectual impairment • were employed by an ADE for at least 1 day between 1 January 2004 and 28 May 2014

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• were paid a wage based on a BSWAT assessment, or received a training wage while waiting for a BSWAT assessment • required daily support in the workplace to maintain employment • have not had their claim settled or finalised by a court. The person must register their interest by 30 April 2017. (The reader should check for updated information as the scheme is in the process of being changed at the time of writing). If the person accepts the payment they forgo being able to be part of a current or future legal case or claim in relatioin to the BSWAT. The BSWAT Payment Scheme Information Line phone number is 1800 799 515. People should get their own legal advice about the payment scheme.

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[16.260] Employment

information JobAccess is a free information and advice service about the employment of people with disability. JobAccess helps people with disability, employers, service providers and the community to access information about services, financial assistance and workplace solutions. You can find useful information about reasonable adjustments, disclosure of disability, disability employment case studies, tools and checklists. Refer to the website at www.jobaccess.gov.au or phone 1800 464 800 (see Contact points at [16.810] for more details).

Housing [16.270]

This section focuses on housing issues for people with disability. For general information about housing and related issues, see Chapter 27, Housing People with disability may live independently on their own or with their families or with other people. Some may require supported accommodation. There is a continuum of supported accommodation services. Where little support is needed, some people may live independently with drop in support or personal care being provided for only a few hours per week. Other people may need more than a few hours of support each week, and some high needs people may need to live in a group living setting with 24 hour staff support, seven days per week. Unfortunately, there are cases where no group home accommodation is available and some young people with disability are living in nursing home accommodation.

[16.280] Renting public or

private accommodation For information about applying for public housing contact Housing NSW.

Where people with a disability rent (or have a lease), problems can arise if landlords try to impose large rent increases or attempt to evict them without reasonable grounds. People with disabilities have the same rights as other people who rent premises. For detailed information about rights and responsibilities involved in renting, see Chapter 27, on Housing. People with disabilities who rent independently may still receive support services from a service provider funded by Ageing Disability and Home Care (ADHC).

[16.290] Group homes For information about applying for supported accommodation, contact the Department of Family and Community Services Ageing Disability and Home Care (ADHC). ADHC maintains a waiting list of people requiring supported accommodation assistance. See the ADHC phone numbers listed in the Contact points section at [16. 810]. Group homes are staffed by disability workers, and they support people with disability who are unable to live more independently. The staffing level is based on

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the assessed need of the group of people living in the home. Group homes provide up to 24 hours of support, seven days per week. The services include attention to the general health and safety needs, development of a person centred lifestyle plan, help with social relationships, development of household routines, help to maintain personal care, planning to help to access recreational programs, leisure activities, holidays, development of skills for independent living, assistance with access to health services etc. People with disabilities have the right to make a complaint about problems in accommodation including: • not being treated with dignity and respect • not having their own bedroom • not sharing common areas • not having community participation • not having personal possessions secured • not being safe • not being given behaviour support • not being given information • not being allowed privacy. Group homes are funded by ADHC to provide accommodation or services, or both. Usually the person with a disability agrees to an accommodation and services plan and they will sign an accommodation and services agreement with the service provider. This agreement is usually not in the form of a tenancy agreement and therefore it does not create any tenancy rights. The service provider may be ADHC, or a nongovernment organisation (NGO) that is funded by ADHC to provide accommodation, or services, or both. The agreement may require the person with a disability to pay most of their disability support pension (DSP), for example about 85%, to the service provider. The Disability Inclusion Act 2014 (NSW), and the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) apply to the services provided for people with disabilities that are provided directly by ADHC and also to the services provided by NGOs receiving funding from ADHC. The Commonwealth government is still working on issues relating to supports and services that are provided under the NDIS.

Service providers in NSW should have regard to the Disability Principles in ss 4 and 5 of the Disability Inclusion Act. These refer to rights that are related to concepts such as dignity, equality, participation, privacy, etc. However, the Disability Principles are only general principles which are not meant to create legally enforceable rights (see s 47 of the Act). The Disability Inclusion Regulation 2014 (NSW) also has six Disability Service Standards in Schedule 1. Generally, these related to service access, participation, decision-making and choice, complaints procedures, individual needs, and service management. All NSW government-funded services for people with disability have to meet the Disability Service Standards. If they do not meet these standards their funding may be withdrawn. The NSW Acts further require the service provider to have a complaints procedure. Complaints should be addressed to the service provider and there should be meetings held to work out solutions. If the complaint is not fixed the person with a disability can complain to the regional ADHC office. ADHC may make recommendations to the service provider. If the service provider does not follow ADHC’s recommendations, and ADHC thereafter decides that the service provider was not complying with the Disability Service Standards, then ADHC may review its future funding agreement with the service provider. Also, under the above Acts, the person with a disability can also complain to the NSW Ombudsman (see Complaints about services at [16.110]).

[16.300] Boarding houses For boarding houses covered by the Boarding Houses Act 2012 (NSW), the boarder has the right to a written occupancy agreement. This agreement must comply with the “occupancy principles” set out in s 30 and Sch 1 of the Act. In the event of a dispute, there is a dispute resolution process under occupancy principle 11. If that does not work, or if it is a serious or urgent problem, the boarder can apply to the NSW Civil and Administrative Tribunal (NCAT), to resolve

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the dispute. If the dispute is not about occupancy, but about the services the boarding house agreed to supply, for example meals, the boarder may have a consumer claim which can be taken to the NCAT. Also, there are standards for places of shared accommodation, set out in Pt 1 of Sch 2 of the Local Government (General) Regulation 2005 (NSW), which apply to boarding houses covered by the Act. For general information on rights and responsibilities under the Boarding Houses Act 2012, see Chapter 27, Housing.

[16.310] Assisted boarding

houses People with a disability may also occupy an assisted boarding house under the Boarding Houses Act 2012. This includes boarding premises that provide beds, for fee or reward, for use by two or more residents who are persons with additional needs. “Additional needs” means residents who have age-related frailty, mental illness or disability which is permanent or likely to be permanent, and which results in the need for care or support services involving assistance with, or supervision of, daily tasks and personal care (such as showering or bathing, the preparation of meals and the management of medication). Assisted boarding houses used to be known as “licensed boarding houses” or “licensed residential centres”. These are private, usually for-profit shared accommodation services, where two or more people with disability elect to reside. Assisted boarding houses, as defined under the Boarding Houses Act 2012, do not include premises funded in whole or part by the government -– see s 37(2)(o). Therefore most group homes run by ADHC and NGOs are not assisted boarding houses as defined, and are not covered by the Boarding Houses Act 2012. The Boarding Houses Act, and the Regulations, apply to general boarding houses and assisted boarding houses, but there are additional requirements for as-

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sisted boarding houses. For example, the proprietors of assisted boarding houses must apply to ADHC for authorisation to operate. Assisted boarding houses are required to comply with additional conditions relating to accommodation, staff and service standards as set out in the Boarding Houses Regulation 2013 (NSW), and especially Sch 1 which will be monitored by ADHC. ADHC can inspect assisted boarding houses, issue compliance notices, prosecute breaches, and suspend or revoke authorisations. These additional rules for assisted boarding houses do not create additional legally-enforceable personal rights – see s 34(4). Complaints about assisted boarding houses not meeting the additional rules and conditions applying to them should be referred to the proprietors initially, and if they are not fixed, a further complaint can be made to ADHC. Complaints can also be made to the Official Community Visitor (for more information see [16.340]).

[16.320] Lodgers If an occupant does not have an agreement covered by the Residential Tenancies Act 2010 (NSW), nor by the Boarding Houses Act 2012, nor any other type of agreement or contract that gives them occupancy rights, then they may be a lodger. In most circumstances they would have only the minimal rights and obligations of a lodger under the common law.

[16.330] Complaints about

housing and related services People with disabilities who rent or board may be able to have their problems dealt with by making a claim in the NSW Civil and Adminstrative Tribunal (NCAT), however, it is advisable to get legal advice from a solicitor before doing this. Also, people with disabilities who have complaints about accommodation and services funded by the government, or monitored by government can follow the appropriate complaints procedures referred to under the above headings of “Group

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Homes” or “Assisted Boarding Houses”. A person making a complaint can: • use an advocate to help them • complain to the proprietor or manager • complain to the service provider • complain to the regional ADHC office • request a visit from the Official Community Visitor • complain to the NSW Ombudsman Office • seek legal advice from a solicitor about whether they are able to take legal action (for example, making a claim under the consumer laws). Advocacy organisations can usually help with housing problems. An advocacy organisation called People with Disability Australia (see Contact points at [16.810]) receives some funding to provide advocacy for residents of assisted boarding houses. For more difficult housing problems, legal advice from a solicitor may be needed.

[16.340] The Official

Community Visitor Service The Official Community Visitor Service was established by the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW). Official Community Visitors visit disability accommodation services and boarding houses and seek to resolve issues and concerns about service quality. They may refer the complaint to the service provider to resolve, or attempt conciliation, and try to arrange mediation, however participation in this process is voluntary. They attempt to visit group homes at least once every six months. People with disabili-

ties can make a complaint about the conduct of ADHC operated, funded, or licensed services, to the NSW Ombudsman. To request a visit by the Official Community Visitor you should contact the NSW Ombudsman. Where the issues in the complaint are serious the NSW Ombudsman may conduct an investigation, however, due to funding restrictions, not every serious complaint can be investigated. The general practice of the Ombudsman with respect to serious complaints is to only take up complaints that raise issues of public concern where there is no other avenue of appeal or where the complainant is unable or unlikely to be able to obtain a resolution by other means. Also the Ombudsman does not investigate policy decisions of the service provider. After an investigation the Ombudsman can make recommendations. There is no power to compel compliance by the service provider with those recommendations that follow the Ombudsman’s investigation. However, the person who made the complaint may then be able to apply to the NCAT for an order compelling the service provider to comply with the Ombudsman’s recommendations. Also, if the recommendations are not followed by the service provider, the Ombudsman can make a report to the NSW parliament, and to the minister responsible, for example, the minister responsible for ADHC. Neither the NSW parliament, nor the minister responsible is required to follow the recommendations of the Ombudsman.

Personal relationships [16.350]

People with disability have the same rights as people without disability to have friendships and sexual relationships, to live with someone, and to marry and have children.

[16.360] Sexual relationships In NSW, the law affords privacy and choice

to all people over 16, including people with disability, regarding their sexual relationships. A parent cannot normally legally prevent a person with disability, who is at or over the age of consent, from having a sexual relationship.

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All people have the right to enjoy sexual relationships without being abused or exploited. The law will only interfere in sexual relationships where there is abuse, potential for exploitation or lack of consent (see section on sexual assault at [16.170]). Unfortunately, people with disability are more likely to be victims of sexual assault and can be vulnerable to sexual exploitation. Specific offences exist to protect people with cognitive impairment from sexual exploitation. For more detail see [16.170], As a victim of crime.

[16.370] Marriage Anyone is free to marry provided they are old enough, and they generally understand the nature and effect of the marriage ceremony. A marriage will be void where a party is mentally incapable of understanding the nature and effect of the marriage ceremony: Marriage Act 1961 (Cth), s 23B(1)(iii). This has been interpreted to mean that a person entering a marriage must have either a general understanding of marriage and its consequences, or an understanding of the specific consequences of the marriage for them (See Babich v Sokur [2007] FamCA 236).

Under the Family Law Act The Family Law Act 1975 (Cth) covers marriage relationships, breakdown of marriage and the welfare of the children of a marriage or de facto relationship (see Chapter 24, Family Law). Where a marriage breakdown involves children, the law treats parents with disability no differently from parents without disability. In matters about with whom a child is to live, a parent with a disability will have a much better chance of success if they can show an awareness of the needs of the child and how they can support the child either by themselves or with the assistance of friends, family or government agencies.

[16.380] De facto

relationships De facto couples (including same-sex couples) have many of the same rights and

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responsibilities as married people. All couples, including couples where one or both people have a disability, have these rights and responsibilities.

[16.390] Family planning Many people with disability want to be parents, but can face opposition from others including their parents, friends and authorities. This may make it difficult for the person to plan pregnancy and parenthood and access services. With the right support, many parents with disability raise happy and healthy families.

Contraception All men and women, including those with disability, have the right to make their own decision about whether to use contraception and which method to use. Making these choices requires access to accurate and accessible information about reproduction and contraceptive options. If a person does not have the capacity to decide A person’s cognitive impairment may prevent them from being able to understand and make a decision about contraception, even with appropriate supports in place. A ’person responsible’ (defined in [16.590] Consent to medical treatment) can consent to contraception treatments on behalf of a person who is incapable of understanding sufficiently to consent themselves. If the person objects to contraception, the consent of a person responsible is not valid. In these circumstances or if there is dispute about whether contraception is in the interests of the person with disability an application should be made to the NSW Civil and Administrative Tribunal (Guardianship Division) under the Guardianship Act 1987 (NSW) to determine whether the person is able to make the decision or, if not, who can make decisions around contraception for the person. Abortions are legally available in many situations in NSW. Under the law, no one can make a woman with a disability have an abortion if she is capable of making an informed decision that she does not want one.

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Likewise, no one can stop a woman with a disability from having an abortion if her decision to have one is informed. If a person does not have the capacity to decide A person’s cognitive impairment may prevent them from being able to understand and make a decision about termination of a pregnancy even with appropriate supports in place. In these circumstances only the NSW Civil and Administrative Tribunal or the Supreme Court can decide whether to terminate or not.

Sterilisation Both women and men can undergo surgery for sterilisation, although the operation is more complicated for women than for men. People with disability have the right to make fully informed decisions about the matter. Sterilisation is a very serious matter and its effect is permanent. It should only be considered in extreme situations of emergency, where a person’s life is at risk or to prevent serious damage to health.

If a person does not have the capacity to decide Where sterilisation is sought for an adult who is incapable of understanding and making the decision, even with appropriate supports in place, or for a child, an application must be made to the NSW Civil and Administrative Tribunal (Guardianship Division) under the Guardianship Act 1987 (NSW). The Tribunal can consent to a sterilisation only if it is satisfied that it is necessary to save the person’s life, or prevent serious damage to their health, and that it is the most appropriate treatment in all the circumstances. Sterilisation ordered by the Family Court The Family Court also has power to order sterilisation operations for children. The Family Court's power exists in addition to that of the NSW Civil and Administrative Tribunal.

Parents with disability [16.400]

Parents with disability can face discrimination when parenting, and it is not uncommon for their ability to parent to be challenged by members of the community and authorities. Parents with cognitive impairment and mental health conditions frequently experience challenges to their parenting ability and make up a disproportionate number of child removal cases in the NSW Children’s Court. Under the UN Convention on the Rights of Persons with Disabilities, to which Australia is a signatory, the State has an obligation to eliminate discrimination against parents with disability and assist them in their child rearing responsibilities. All children, including those born to parents with disability, have a right to grow up in their birth family, unless there are reasons why this is not in the child’s best interests.

Parents with cognitive impairment Historically, people with cognitive impairment were institutionalised and sterilised, which denied them the opportunity to become parents. Today, these practices are far less common, and becoming a parent is a more realistic goal for people with cognitive impairment. Research shows that cognitive impairment, in the mild range, does not preclude a person from being a loving and responsible parent. The environment in which some people with cognitive impairment parent, can make parenting more difficult. Parents with cognitive impairment are more likely to experience social isolation, poverty and domestic violence. Addressing these issues can enhance parenting capacity. Like all parents, it is essential that parents with cognitive impairment have access to appropriate guidance and support in relation to parenting.

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[16.410] When FACS becomes

involved with a family If the NSW Department of Family and Community Services (Community Services) is concerned about the safety, welfare or wellbeing of a child, they can become involved in a family’s life. They are given this power through the Children and Young Persons (Care and Protection) Act 1998 (NSW). A child is defined as someone under 16 and a young person is someone aged 16 or 17 (see [7.380] on Children and young people in need of care and protection). Note: In 2013, a raft of amendments were made to the Children and Young Persons (Care and Protection) Act 1998. These amendments came into force on 29 October 2014. The impact of some of these changes on parents with cognitive impairment is highlighted below.

The law gives Community Services the power to investigate its concerns and, if it thinks it is necessary, take the action it believes will promote the safety, welfare and wellbeing of the child. The most extreme action Community Services can take is to remove a child from their parent. Community Services may call a parent into its office for a meeting or go and visit the parent at home. At these meetings, parents may be asked to sign documents or agree to do (or not do) certain things. It is important that a parent with cognitive impairment knows what they are agreeing to or signing, as breaking an agreement may eventually result in a child being removed. If a parent is asked to sign something without a support person present, the parent should ask to take the papers away, so that they can get independent advice before signing the document. Even if they are not going to be asked to sign anything, parents with cognitive impairment should always attend meetings with Community Services with a support person. Everything that is said at a meeting with Community Services is documented and forms part of the case file. Community Services’ policy states that birth parents may have a support person with them at meetings or conferences. The support person can

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be informal, eg a friend, relative, or formal, eg a disability advocate or family support worker. The advantage of having a disability advocate as a support person in any meetings with Community Services is that the advocate will be able to assist the parent to explain their abilities and encourage Community Services to treat the person fairly.

If a matter goes to court If, after investigating the matter, Community Services’ caseworkers form the opinion that a child is in need of care and protection, it has to make a care application in the Children’s Court, where the case will be decided by a Magistrate. The focus of the Children’s Court is the “best interests of the child”. (See Chapter 7, Children and Young People for further information on care and protection proceedings.) The law says that the Children’s Court cannot make a decision that a parent cannot meet their child’s needs just because the parent has a disability (Children and Young Persons (Care and Protection) Act 1998, s 71(2)(a)). Community Services will have to show how the parent’s disability is causing the child to be harmed, abused or neglected, or why it is placing the child at risk of being harmed, abused or neglected. Community Services will also have to prove that whatever the problem is, it cannot be addressed. During a care and protection matter, the court considers who should care for the child going forward. In making this decision, the court will consider whether there is a realistic possibility of restoring the child to their parent. If there is no realistic possibility of restoration, the court will look at alternative care arrangements for the child. The amended legislation introduces permanent placement principles. Care arrangements must be made in accordance with these principles. Under the placement principles, placement with birth parents is the preferred placement, followed by placement with relatives or kin, followed by adoption (unless

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the child is Aboriginal or Torres Strait Islander), and finally placement under the care of the Minister. Under the amendments, a decision around realistic possibility of restoration must be made within six months of the care application if a child is less than one and within a year if the child is over one. There is discretion to extend these timeframes. For parents with cognitive impairment, a challenge will be finding appropriate services, courses and supports to put in place to allow the parent to either prove or improve their parenting capacity within the specified timeframe. Not many parenting supports, services or courses are tailored to parents with cognitive impairment. It is important that tailored services are used or they are unlikely to be effective.

Legal representation The child, or children, who are the subject of the care application will automatically be given a lawyer to represent them in their care matter. It is advisable that parents get lawyers for the case. Each parent will need a separate lawyer. If the parent has not arranged a lawyer before the matter goes to court, a duty solicitor will speak on behalf of the parent/s the first time the matter is in court. If a parent is eligible for Legal Aid, they can either keep the lawyer who represented them on the first day, or find another lawyer through the Legal Aid Care and Protection Panel lawyers. Parents who are not eligible for Legal Aid will have to arrange a private lawyer – Legal Aid NSW can provide a list of Care and Protection lawyers. If a parent is Aboriginal they may be able to get a lawyer through Aboriginal Legal Services. It is important that the parent understands what is going on in their court case, and it is the duty of the lawyer to assist the parent to understand what is happening. The parent should ask their lawyer to explain what is going on, and tell their lawyer if they do not understand any of the court proceedings or documents. A parent may also want to take a support person to all meetings with their lawyer.

If a parent is unhappy with the legal representation they are receiving, they can change lawyers. Where the parent is represented through a Legal Aid grant, they should contact Legal Aid and let them know they want to change lawyers. The grant of Legal Aid is allocated to the parent, not the lawyer, so it moves with parent when they change lawyers.

Support person during the case Care proceedings can be traumatic and confusing for parents. Parents may find it useful to have a support person with them when they attend court and meetings about their case. The law allows a person involved in a care and protection matter to have a support person with them in court. Permission from the court is required and must be granted unless the support person is a witness in the proceedings; or it is against the wishes of the child, who is the subject of the proceedings, that this person be a support person; or there is any other good reason why the court should refuse to allow this person to be the support person in court (Children and Young Persons (Care and Protection) Act 1998, s 102). A support person can be informal (friend or family) or formal (disability case worker, disability advocate, family support worker). A disability advocate may be a useful support person if the parent’s disability is an issue in the case. If the matter goes to a Dispute Resolution Conference (DRC) the parent may want the support person to attend the DRC with them. A support person can assist the parent to understand what is happening during the DRC and ask for breaks if necessary. Under the amended legislation there is greater emphasis on the use of alternative dispute resolution (ADR) processes, including DRCs. For example, most contact issues are now resolved through ADR. It is advisable that a parent with cognitive impairment has a lawyer and support person present during any ADR process.

Guardian ad Litem A Guardian ad Litem (GAL) is a guardian, appointed by the court, to represent the

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interests of a person seen as incapable of giving proper instructions to their lawyer. A Guardian ad Litem is appointed for the duration of the legal case only. The Court can appoint a Guardian ad Litem for a parent in a care and protection matter if it thinks that the parent is incapable of properly instructing their lawyer (s 101). The Guardian ad Litem instructs the lawyer on behalf of the parent. In performing this role, the Guardian ad Litem is to protect and promote the parent’s interests. The law identifies a parent having intellectual disability as a situation when a Guardian ad Litem may be appointed in care proceedings (s 101). Once a Guardian ad Litem is appointed, the parent loses their direct voice in the case so it is important to be sure that the parent actually needs a Guardian ad Litem before one is appointed. Other options that will allow the parent to continue to participate in the proceedings, should first be explored. In many cases, a support person or advocate may be able to assist the parent to understand sufficiently to instruct their solicitor. Intellectual Disability Rights Service has developed a website to assist lawyers and disability workers who are representing or assisting parents with disability trying to navigate the Care and Protection system This can be found at www.idrs.org.au/careandprotection.

[16.420] Adoption

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Where there is no proper consent The court will refuse to make an order where there is no proper consent. For example, where the consent is obtained by fraud, duress or improper means, or the person giving consent did not fully understand what they were doing (Adoption Act 2000 (NSW), s 58), the court will not make an adoption order.

Where the person cannot consent The court may dispense with the need for consent if the parent is incapable of properly considering the question and giving consent because of a physical or mental condition (Adoption Act 2000, s 67(1)(b)). The court will require extensive information on the circumstances of the child and the parent before making an order in this situation. As discussed above, under the amended legislation adoption will be included in the permanent placement principles. It is expected that the number of adoptions, as alternative care arrangements, will increase. Parents with cognitive impairment should make sure they understand the implications of adoption and the terms of any adoption plan they are asked to sign and always seek independent advice. A support worker or advocate may assist them through this process. See Chapter 7, Children and Young People, for a detailed discussion of adoption.

The consent of the parents or guardians is normally required before the court can make an adoption order.

Wills [16.430]

For more information on Wills, Estates, and Funerals see Chapter 40. Wills, trusts and estate planning can be complicated. Below is some basic information on these areas. You should always talk

about your own particular circumstances with a solicitor who has expertise in wills, trusts and estates matters.

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[16.440] Wills where a

beneficiary is a person with a disability Everyone should make a will – particularly if they have a son or daughter with a disability who may be unable to look after their own property independently. A will can be made flexible enough to allow for changes in the person’s capacity and in their support network.

Where there is no will Where there is no will, a person with a disability is entitled to inherit in the usual way (see Chapter 40, Wills, Estates and Funerals). However, without specific provision in a will, the law does not have the flexibility to ensure that the property is used to the maximum benefit of the person with a disability if they lack capacity. It is very important to make a will.

Considerations in making the will Leaving enough for changed circumstances Parents should be wary of making only a small provision for children with a disability. Parents sometimes do this if the child is permanently placed in an institution or other residential facility, and has modest needs as a result, or if the person receives financial support from Centrelink through a pension. It is of course impossible to predict the vicissitudes of life and the needs of a person with a disability 10 or 30 years after parents die. For example, the residential facility may have closed down, or raised its fees to an amount well above the pension. So parents need to be sure they make enough provision for changing circumstances. Leaving all property to siblings Parents sometimes give all their property under the will to their children who do not have a disability and rely on them to look after their sibling with a disability. This approach has its own dangers. The other children may die first, perhaps many

years before the sibling with the disability. Or they may not carry out their parents’ wishes.

Leaving property directly to the person It may not be desirable to leave property outright to a person with a disability. It will depend on the person’s capacity to look after property, understand its worth and whether or not they are vulnerable to exploitation by others. The type of estate and the level of the person’s cognitive disability, physical disability, and general vulnerability should be considered and assessed in each situation. It may be suitable to give some property outright, with the bulk of property being placed in trust for use as required (see Setting up a trust under the will below). Applications under the Succession Act Where parents make much greater provision for one child than for another, or fail to provide adequately for a child with disability, an application can be made under the Succession Act 2006 (NSW) to the Supreme Court for a greater share in the estate (see Chapter 40, Wills, Estates and Funerals).

Where the person receives property Where a person with a disability is absolutely entitled to property from a parent’s estate because there is no will or the will contains an outright gift to them, the property is handed to them provided they have enough capacity to understand how to look after it, taking into account the amount and nature of the property. If the person has insufficient capacity to understand If the person does not have sufficient capacity to understand, the executor (if there is a will) or the administrator (if there is no will) of the parent’s estate is not allowed to hand the property over to them. What happens depends on whether or not the person has had a financial manager appointed by the NSW Civil and Administrative Tribunal (Guardianship Division) under the Guardianship Act 1987 (NSW) who looks after their finances.

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If there is a financial manager If a financial manager has been appointed to manage the person’s finances (see Guardianship and property management for adults at [16.460]), the property must be handed over to the financial manager. If there is no financial manager If there is no financial manager, the executor or administrator can hold the property in trust for the person or hand it over to the Public Trustee or a trustee company (Trustee Act 1925 (NSW), s 47). Disadvantages In all cases, the person ultimately holding the property has limited power to use it for the benefit of the person who lacks capacity. This power is not nearly as wide and flexible as the powers that parents would normally put in their wills.

Setting up a trust under the will An alternative to leaving property outright to a person with a disability is for a parent to set up a trust under the will so that the property can be used for the benefit of that person in the way the parent chooses. This means the parent needs to appoint trustees to use the property in the way and for the purposes specified in the will. For example, if there is only one child and that child has a disability, the parents could leave all their property to be held and applied by trustees for the child’s benefit. The will should say what is to happen to whatever property is left when the child dies. For example … Suppose there are three children and one of them has intellectual disability. The parents could leave a third of their property directly to each child without a disability and leave the remaining third in trust to be used for the benefit of the child with intellectual disability. The will could also say that anything remaining in the trust if the child with intellectual disability dies without issue will go to the other children or their families, or to charity.

Tax on money held in trust Income from a trust under a will is taxable – so it may be better to use the money to buy

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something for the person with a disability (such as a car or somewhere to live) rather than investing it for income. What the will allows the trustees to decide The will can be very specific about how much the trustees have to spend on the person with a disability, or it can give the trustees a wide discretion. The advantages of giving the trustee a wide discretion include: • maximum flexibility for the trustees to react to changing needs and circumstances • it allows the trustees to remove or at least minimise the effect of the will on the person’s social security benefits. A disadvantage of giving wide discretion is that it limits what can be done if the person with a disability feels that the trustees are not acting fairly. This highlights the importance of choosing suitable trustees. Who should be trustees The trustees can be the same people as the executors named in the will. Qualities to look for in trustees include: • youth – they may have to act for decades • business sense – knowledge of investments, income tax and social security • independence from the family situation – they may need to make “unpopular” decisions about how property is to be divided among the will-maker’s children • continued interest in the person with a disability – a willingness to engage with the person and to keep up an awareness of their needs and wishes and what services and resources are available for them. It is always better to have more than one trustee. People to consider as trustees include: • a sibling (but be wary of conflicts of interest – see below) • an accountant, solicitor or trustee company • an advocate for the person with disability • a friend who takes an interest in the person with a disability and in whom the person has confidence.

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The NSW Trustee and Guardian and private trustee companies If parents cannot find suitable trustees, the NSW Trustee and Guardian or a private trustee company can be appointed. The advantages of using these organisations are that: • they offer permanent life-time services • they are normally cautious and sensible about investing money. The disadvantage is the lack of a personal touch. People with a disability often feel organisations and trustees that look after their money do not listen to their requests and unreasonably refuse them. Frustration can increase because they are dealing with an organisation – not a single real person. These disadvantages can be partly overcome by including a direction in the will saying, for example, that the trustees must consult with the person with a disability and the people or organisations providing day-today care for them. Siblings as trustees If siblings without a disability are appointed as the only trustees, they may be in a situation of conflict of interest. Wills often provide that when the person with a disability dies, their share goes to the children without a disability or their families. In this case, the children who are trustees know that whatever they do not spend on the person with a disability will come to them, and so they may be tempted not to spend the trust money on the person with a disability while they are alive.

If a trustee dies Unless the will provides for a substitute trustee, if the trustee dies it is normally necessary for a new one to be appointed. Parents can set out in the will how this is to be done. Otherwise, the Trustee Act 1925 (NSW) provides a mechanism for this. Special disability trusts A special disability trust can be set up and operate during the lifetime of a person or commence via their will when they die. There are some specific rules about special disability trusts: • the beneficiary must have a “severe disability”

• there can only be one beneficiary, and • the primary purpose of the trust must be to provide only for the “care and accommodation” of the beneficiary. The initial step should be to verify with Centrelink or the Department of Veterans Affairs that the person for whom the trust is being established is “severely disabled” as required by the special disability trust rules. The trust funds can be used for: • the cost of accommodation of the person with severe disability • extra care costs arising from the disability • the beneficiary’s dental and medical expenses, including membership costs for private health funds • up to $11,500 in a financial year on discretionary items not related to the care and accommodation needs of the beneficiary. These items must relate to a beneficiary’s health, wellbeing, recreation, independence and social inclusion. The expenditure should remain compliant within the legislative requirements of a special disability trust, and • costs associated with operating the trust. Some of the benefits of special disability trusts are that: • assets in the trust up to $647,500 (indexed each year and current as at July 2016) will not be counted by Centrelink when assessing the person with disability’s eligibility for an income support payment such as the disability support pension. • immediate family members can gift up to $500,000 (combined) into the trust and still be eligible for their own pension. Limitations on and possible problems with special disability trusts include: • once money is in the trust it cannot be withdrawn or used for anything other than the purpose of the trust, and • depending upon a person’s particular circumstances, asset amounts, Centrelink thresholds and income tax consequences, a special disability trust may not put the beneficiary and their family in a better financial position than other future planning arrangements. You should always discuss future planning, special disability trusts, wills and estates

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matters with a lawyer who has expertise in those areas or with the NSW Trustee and Guardian.

Testamentary guardians Testamentary guardians are people appointed in a will to take over the parents’ role as guardians of their children. How long does the guardianship last? Like those of parents, the guardian’s powers only apply until the person with a disability reaches 18. There is no way that a parent can appoint a guardian for the rest of the person’s life. However, just as many parents continue to exercise a parental role in an informal way after a person with a disability reaches 18, there may be someone who will fill this role when the parents die. Parents can name, in their wills, a person who they would wish to do this and explain why they choose this person. This will help decide who the new guardian will be, if one needs to be formally appointed.

Property not governed by the will Not all of a person’s property will be covered by their will. For example, life insurance policies and superannuation benefits often go to the person specified in the policy or the fund’s rules. People wanting such things to be covered by a trust must make sure that suitable arrangements are made. Using a lawyer If a will-maker wishes to benefit a person with a disability, it is important to have the will drawn up by a lawyer with expertise in will-drafting (or the NSW Trustee and Guardian or a trustee company). Wills setting up trusts for people with a disability are more complicated than most. The will-maker should check that the lawyer is familiar with this area of the law. The Intellectual Disability Rights Service can refer people to suitable lawyers.

Rights of a beneficiary A beneficiary is a person who receives a gift or any other benefit under a will. A beneficiary with a disability might: • receive a gift of money or other property

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• be entitled to live in the family home for as long as they want or live • be entitled to the income earned by a trust fund set up under the will. The job of the executors or administrators of a will is to deal with the deceased person’s property as set out in the will. A beneficiary with a disability has the same rights as any other beneficiary (see Chapter 40, Wills, Estates and Funerals). Examples of possible claims under the Succession Act 2006 Where nothing was left in the will Jane is a person with intellectual disability whose father died leaving his estate to her brother and sister. A friend applies to the court on Jane's behalf to challenge the will. The court orders that Jane receive a share of the estate – how big a share will depend on all the circumstances. She may get less than her brother and sister, or she may get more. Where a small amount was left in trust Jane's father set up a $10,000 trust fund for her but gave the rest of his $200,000 estate to her brother and sister. The court would probably order that Jane's share be increased. Where the estate was divided equally Jane's father divided his estate equally between the three children and appointed trustees to invest Jane's share and to use the income as they see fit. If Jane is sufficiently capable and wants to get her own home but the trustees will not pay for this, Jane can apply to the court to intervene. The court might order that Jane's share be used to buy a house for her and some friends, or that the trustees pay rent for a house.

[16.450] Wills made by people

with intellectual disability, brain injury, mental health conditions, or other conditions of mental impairment Can these people make a valid will? There are two basic requirements for a person to be able to make a valid will.

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Testamentary capacity First, the will-maker must have testamentary capacity to make a proper will – ie, they must: • know what a will is • know, in general terms, the amount and type of property they are disposing of • be able to weigh the moral claims of people (ie, the people they should be considering, including family members or people previously dependent on them), to share in their estate. Knowledge and approval of the will's content Second, the will-maker must know and approve of the contents of the will. There is a strong presumption that this is the case if the will has been read by or to the willmaker.

Precautions when making a will Where a will is made by a person with a cognitive disability, a number of precautions should be taken to protect the will from challenge. Draft the will in plain language While the will-maker need not understand all the legal terms in the will, it is best if the will is uncomplicated and in plain language. Use a witness who can attest to the will-maker's capacity One of the witnesses to the will could be someone such as a psychologist, or general

practitioner (who has known the will-maker for some time), who could sign a statement that they were satisfied that the will-maker had testamentary capacity and knew and approved of the contents of the will. The statement should also set out the person’s basis for believing this, including details of their conversation about the will with the will-maker and how long they have known the will-maker. If the will-maker cannot read, the statement should also say that before the will was signed, the witness heard the will read over to the will-maker who then stated that they approved what was in it. Get an experienced lawyer The will should be drawn up by a lawyer experienced in will-making and, preferably, in working with people with a disability. The lawyer should keep comprehensive notes.

Should the person make a will? A person should be allowed to make a will even if there is some doubt as to whether they are capable of making a valid will. If the person does not leave a valid will If a person dies with no will or with an invalid will the intestacy laws in the Succession Act 2006 apply (see Chapter 40, Wills, Estates and Funerals).

Guardianship and property management for adults [16.460]

This section deals with guardianship and property management for people 16 and over who are unable to make decisions for themselves.

The relevant Acts are the Guardianship Act 1987 (NSW), the NSW Trustee and Guardian Act 2009 (NSW) and the Civil and Administrative Tribunal Act 2013 (NSW).

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The Civil and Administrative Tribunal Act 2013 establishes the Guardianship Division of the Tribunal, which can: • appoint guardians and financial managers for people 16 and over who cannot make decisions for themselves because of a cognitive disability • consent to certain medical and dental procedures for people who are incapable of consenting for themselves • review enduring guardianship appointments and enduring powers of attorney (Powers of Attorney Act 2003 (NSW)), and make a range of orders about those arrangements.

[16.480] Principles of the

Guardianship Act The main principles in s 4 of the Guardianship Act are, in summary, that: • the welfare and interests of people with

disabilities should be paramount, and their freedom of decision and freedom of action should be restricted as little as possible • people with disabilities should be encouraged, as far as possible, to live a normal life in the community and be protected from neglect, abuse and exploitation • the views of the person with a disability should be taken into account. Guardianship jurisdiction of the Supreme Court The Supreme Court has an inherent guardianship jurisdiction which is not affected by the legislative scheme (Guardianship Act, ss 8, 31), but it rarely makes guardianship orders for adults. The Supreme Court can also make estate management orders under the NSW Trustee and Guardian Act 2009 which place a person's financial affairs under the management of the NSW Trustee (s 41).

The Guardianship Division of the New South Wales Civil And Administrative Tribunal [16.490]

The Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) is a statutory body and its decisions are legally binding. The Guardianship Division of the tribunal, and anyone exercising functions under the Guardianship Act, are under a duty to observe the principles set out in s 4 of the Act. People bound by this duty include not only tribunal members and staff, but also guardians and estate managers.

[16.500] What the

Guardianship Division of NCAT does The Guardianship Division conducts hearings where it considers applications for: • guardianship orders • financial management orders • consent to medical and dental treatment • approval of clinical trials as being suitable for people who are unable to give their consent to participation in the trial • review of an enduring guardianship appointment

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• review of an enduring power of attorney. The tribunal also provides information to the public about guardianship and property management issues.

Tribunal members The Guardianship Division has part-time members, a principal member and a fulltime deputy president who is the Division Head. When hearing guardianship or financial management applications, the tribunal consists of a panel of three members which includes: • a legal member, who must be a lawyer of at least seven years standing, and • a professional member, such as a medical practitioner, psychologist or social worker, who has experience in assessing or treating people with disabilities, and • a community member who has experience with people with disabilities. Certain matters, such as reviews of guardianship or financial management orders, can be dealt with by one or two members of the tribunal. The registrar can deal with procedural applications.

[16.510] Procedures of the

tribunal Making an application Applications to the tribunal should be made using its application form, which can be obtained from the tribunal and are available to be downloaded from its website (www. ncat.nsw.gov.au/Pages/guardianship/gd_ forms.aspx). Applications can be submitted online or faxed, posted or lodged in person at the tribunal. Information and advice about completing the forms can be obtained from the tribunal’s toll free telephone enquiry service on 1800 463928 or 9556 7600 or 1300 006 228. If a person is unable to make a written application, they should contact the tribunal for assistance. There is no fee for making the application. Applications by solicitors It is preferable that solicitors do not make applications for guardianship or financial management for their

clients because of the inherent conflict of interest (see McD v McD [1983] 3 NSWLR 81). However, a solicitor can arrange for another interested person such as a family member or social worker to make the application, and can assist them in doing this. If this is not practicable, the solicitor should contact the tribunal for further advice.

When the application has been received Much of the work of preparing applications for a hearing is done by the tribunal’s staff. Once an application has been received, it is allocated to an officer of the tribunal’s Coordination and Investigation Unit, who is responsible for preparing the application for hearing. This officer: • contacts the parties to the application and anyone else who may provide evidence and information to the tribunal • ensures that the applicant obtains any necessary written reports before the hearing • coordinates the collection of relevant information • writes a report for the hearing, detailing the issues and evidence available, which is made available to all the parties before the hearing (the report does not make recommendations). After the process of obtaining evidence and information has begun, a date is set for hearing the application before the tribunal. Applications for legal representation Parties before the tribunal may appear in person or, with the tribunal’s permission, be represented by a lawyer or other person (Civil and Administrative Tribunal Act, s 45) A lawyer who wishes to represent a person at a tribunal hearing should contact the Coordination and Investigation Unit officer handling the case at least five working days before the hearing to discuss making an application for leave for legal representation. These applications are considered at procedural hearings, which are usually conducted by telephone at least a week before the final hearing. Procedural hearings are usually conducted by a single member who does not have to be a legal member, who will consider whether leave should be given for a person who is a

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party to the matter to be legally represented at the tribunal hearing. The tribunal can also, when appropriate, order separate legal representation for the person who is the subject of the application. When representation may be allowed Submissions for leave to represent a party must address the following issues: • the disability, if any, that the party requesting the representation has • the effect of the disability on the party’s ability to protect their own interests. The person who is the subject of the hearing is likely to have their personal rights affected to a greater degree than any other party • the possible effect of the proceedings on the party’s rights and interests • whether a party to the hearing will be disadvantaged if leave to be represented is refused • whether parties to the hearing who are not represented will be disadvantaged if another party is allowed to be represented • whether there are complex facts and legal questions involved • fairness to parties and their ability to make their views known • whether there is a dispute between parties. Other assistance from lawyers A lawyer may in any case: • give advice • prepare applications and gather evidence for their clients • give other help outside the hearing room. Lawyers may also attend the hearing to advise and assist their client without representing them. Speaking for yourself It is important for people appearing before the tribunal to speak for themselves rather than through a lawyer. Sometimes it may be appropriate for the tribunal to obtain the views and evidence of the person who is the subject of the application in the absence of other parties. In all cases, it is critical that the tribunal is given information about the capacities of the person who is the subject of the application, and makes its own

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assessment of the person proposed as guardian or financial manager.

Notice requirements The application, together with a notice of the hearing, is sent to the applicant for service on the person who is the subject of the application. The tribunal’s staff post or fax hearing notices and copies of the application to the other parties to the proceedings.

Conciliation When it considers it appropriate, the tribunal may require parties to use resolution processes (Civil and Administrative Tribunal Act, s 37). Hearings The tribunal conducts its hearings informally, but it must follow the rules of natural justice. It is not bound by the rules of evidence (Civil and Administrative Tribunal Act, s 38). The tribunal must generally conduct its hearings in public, though it can decide to hold particular cases in private (Civil and Administrative Tribunal Act, s 49). Hearings are conducted at the tribunal’s premises at Balmain and in regional and country locations. Evidence The tribunal relies on written and oral evidence when making its decisions. Witnesses may either attend the hearing in person or participate by phone or audiovisual link. Witnesses Any interested person can give relevant evidence to the tribunal and the tribunal may call and examine any witness. The tribunal can compel witnesses to appear or produce documents.. A witness does not have to answer a question if the witness has a reasonable excuse for refusing to answer the question (s 46). If the person who is the subject of the application cannot attend the hearing, the tribunal must ensure that every effort has been made to obtain their views before making an order (s 14).

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The tribunal must also try to obtain the views of the person’s spouse or partner, if any, and their carer. The tribunal's decision Usually, the tribunal will make its decision on the day of the hearing and will announce it to the parties at the conclusion of the hearing. After the hearing, written reasons are generally to be provided. The tribunal sends the parties written orders and reasons for its decision (Civil and Administrative Tribunal Act 2013, Sch 6, cl 11). Are there restrictions on publication? It is an offence to publish or broadcast, without the tribunal’s consent, any identifying material about:

• a person under guardianship • a person whose affairs are under financial management • a person who is the subject of any application to the tribunal • a child (s 65). This provision does not prevent the tribunal from providing written reasons for its decision to the parties involved (s 65(3)). There are also penalties imposed for the disclosure of information obtained in the course of administering or executing duties under the Guardianship Act (s 101).

Reviews of enduring powers of attorney Under the Powers of Attorney Act, the tribunal can review an enduring power of attorney and make a range of orders including: • varying a term or power of an enduring power of attorney • removing a person from office as attorney • replacing an attorney with another person • reinstating an enduring power of attorney which has lapsed • directing attorneys to provide accounts and other information to the tribunal

• revoking all or part of an enduring power of attorney • declaring that a person did not have mental capacity to make an enduring power of attorney. (Powers of Attorney Act, s 36) Recognition of interstate enduring powers of attorney An enduring power of attorney which has been made in another state or territory is recognised as having effect in NSW (Powers of Attorney Act, s 25(1)). These instruments are recognised only to the extent that the powers that they give could have been validly given under the NSW Act.

Guardianship [16.520]

Guardianship is substitute decision-making in personal or life matters. An appointed guardian can make some or all personal decisions for the person who is the subject of a guardianship order. This usually means being given the authority to make decisions appropriate to the needs of the person under guardianship. The Guardianship Division of NCAT can appoint either the Public Guardian or a private guardian.

[16.530] Applying for

guardianship orders When to apply It is appropriate to apply or at least seek the advice of the tribunal’s staff where a person with a cognitive disability cannot make decisions for themselves and there is a need for a guardian to be appointed to make decisions on their behalf because: • the person’s health is at serious risk and will continue to be at risk if no substitute decision-maker is appointed • informal arrangements to support a person with a disability have collapsed or

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become insufficient for their increasing needs, and the person is at risk and lacks the insight to make decisions to reduce or prevent the risks • a person with a disability is unable to make decisions and is in need of protection from abuse or exploitation • there is a dispute between a person whose disabilities impair their decisionmaking capacities and their family or service providers about where the person should live or what support services they should receive, or • although the person does not resist decisions being made for them, there is dispute between care-givers and family members or among care-givers about what decisions should be made. Further information about whether it is appropriate or necessary to make a guardianship application can be obtained from the tribunal's enquiry service.

Who may apply Applications for a guardianship order may be made by: • the person with a disability • the Public Guardian (in practice this rarely happens) • anyone the tribunal considers to have a genuine concern for the welfare of the person the application is about (Guardianship Act, s 9(1)). Those with a genuine concern for the welfare of the person with a disability may include family members, friends and carers as well as involved health professionals or service providers. Parties to the application Under s 3F of the Guardianship Act, the following are parties to a guardianship application: • the person the application is about • the applicant • their spouse (or de facto or same-sex partner) • the person, who has care of the person to whom the application relates • the Public Guardian.

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The tribunal can join anyone as a party to the proceedings if it considers that person should be joined (s 44 and cl 7 Schedule 6 of the Civil and Administrative Tribunal Act).

What must be established before a guardian can be appointed Before the Guardianship Division of NCAT can appoint a guardian, it must be satisfied that: • the person who is the subject of the application has a disability, and • because of the disability, the person is totally or partially incapable of managing themselves, and • there is a need for a guardian to be appointed (Guardianship Act, ss 3, 14). It is helpful if evidence of disability, incapacity and need are provided with the application. What does “disability” mean? Under the Guardianship Act, a person has a disability if they are restricted in one or more major life activities to the extent that they need supervision or “social habilitation” because of: • intellectual, physical, psychological or sensory impairment • advanced age • mental illness within the meaning of the Mental Health Act 2007, or • other disabilities (s 3(2)).

Evidence of disability and incapacity Wherever possible, the tribunal requires evidence of the person’s disability from professionals with expertise in disability and capacity assessment. The tribunal may also rely on evidence from others about their own observations of the person’s disabilities. The evidence of social workers, community nurses, family members, friends and others who have had regular contact with the person is also considered in deciding whether the person is incapable of managing themselves and whether there is a need to appoint a guardian. What the tribunal considers In deciding whether a person needs a guardian, the tribunal must take into

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account the views of the person and those of their spouse or partner, if any, and any person who provides them with care. It must also consider the importance of preserving the person’s family relationships and their cultural and linguistic environment. The tribunal should also explore whether it is practical for services to be provided to the person without the need for an order being made (Guardianship Act, s 14).

[16.540] Guardianship orders The Guardianship Division of NCAT can make three types of guardianship orders: • temporary limited or plenary orders • continuing limited orders • continuing plenary orders. Where possible, the tribunal must make a continuing limited order (s 15). Decisions that can be made under a limited guardianship order Under a limited guardianship order, a guardian can be given the function of making decisions in different areas of a person's life, such as where they should live or what medical and dental care they should receive. Another common function is to decide what services the person should receive, such as therapy or home care support. A guardian may also be responsible for approving behaviour management programs or restrictive practices. When there is a need, a guardian may be authorised to make the decision about whether a person should move to an aged care facility or other accommodation. A guardian may be given the power to authorise others, such as the ambulance service or police, to take a person to that accommodation and return them if they leave. This power is occasionally given to guardians of people who have dementia and require a higher level of care than they can receive at home.

Temporary orders Temporary orders appoint the Public Guardian, and are made when a short-term solution to a problem is required, or an urgent order is needed (s 17). They can be limited or plenary orders. They are for a maximum of 30 days and may be renewed only once for up to 30 days (s 18).

A temporary order may not be made where it is practicable to make a continuing order (s 15).

Continuing limited orders The vast majority of guardianship orders made by the tribunal are continuing limited guardianship orders, under which the tribunal gives the guardian specific functions. Orders may be made for a maximum of only one year initially, and can be renewed for up to three years (ss 16, 18(1)).

Continuing plenary orders Under a continuing plenary order, the guardian has custody of the person under guardianship to the exclusion of all others, and has all the functions of a guardian at law and equity (s 21). Such orders are rarely made, and only if a continuing limited order is not adequate. Orders may be made initially for one year, and renewed for up to three years after review (s 18). Longer orders The tribunal can make longer guardianship orders if it is satisfied that: • the person who is the subject of an application has permanent disabilities • the person is unlikely to regain the capacity to manage themselves, and • there is a need for a longer order. Where appropriate, the tribunal can make an initial order for up to three years and a renewed order for up to five years (ss 18(1A), (1B)).

Who can be appointed When a continuing order is made, the tribunal appoints a private person wherever possible (s 15). The Public Guardian must be appointed as guardian if the tribunal decides to make a temporary guardianship order (s 17). Private guardians Private guardians are usually relatives, close friends or someone who has a positive relationship with the person under guardianship. They must be 18 or older (s 16).

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The Guardianship Division of NCAT must be satisfied that: • the proposed guardian’s personality is generally compatible with that of the person under guardianship • there is no undue conflict between the interests, particularly the financial interests, of the proposed guardian and the person under guardianship, and • the proposed guardian is willing and able to exercise the functions conferred by the guardianship order (s 17). Alternative guardians Where the tribunal makes a continuing guardianship order and appoints a private person, it may also appoint an alternative guardian to act for the guardian during the guardian’s absence or incapacity (s 20). Joint guardians When making a limited guardianship order the tribunal can appoint two or more private guardians, either as joint guardians with the same functions, or with separate functions (s 16). The Public Guardian cannot be appointed as a joint guardian. If a guardian dies If a jointly appointed guardian dies, the surviving joint guardians continue to act jointly (s 22A). If a guardian dies and there is no surviving joint guardian, the alternative guardian, if any, acts until the order is reviewed. The Public Guardian becomes the guardian of anyone under guardianship who does not have a surviving guardian or alternative guardian. When the Public Guardian may be appointed The Public Guardian is often appointed where: • the person under guardianship has no family or friends who would be appropriate guardians • proposed guardians do not meet the criteria set down in s 17 of the Act (see Who can be appointed, above) • the circumstances of the case mean it is not in the interests of the person to appoint otherwise appropriate people (for example, conflict between family members means they would not act objectively if appointed as guardians).

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Assessment of orders When making a guardianship order, the tribunal may specify that an assessment of the person and the operation of the order be carried out by the tribunal during the currency of the order (s 24).

Review of orders Who may request a review? The tribunal may be asked to review a guardianship order by: • the person under guardianship • the guardian • the Public Guardian • anyone who, in the tribunal’s opinion, has a genuine concern for the person’s welfare (s 25B). The tribunal may also initiate such a review itself (s 25(1)). After the review, the tribunal may vary, suspend, revoke, or confirm the order (s 25C). Automatic review The tribunal must review each guardianship order before it expires (s 25(2)(b)) unless it has been made as a non-reviewable order (s 16). The tribunal may renew the order, with or without variation, or decide the order should lapse at the set time. If the review process has begun and the order expires, the order is deemed to remain effective until the review is completed (s 25(6)). Non-reviewable orders A guardianship order may contain a statement that it is not to be reviewed at the end of its term. This can only be done if the tribunal is satisfied it is in the best interests of the person who is the subject of the order. However, a review of a non-reviewable order can be requested if circumstances change and this would be in the best interests of the person. Seeking directions from the tribunal Guardians unsure about what to do in certain circumstances may apply to the tribunal for directions (Guardianship Act, s 26). Before making a direction, the tribunal must consider any views of both the person under guardianship and the guardian. The tribunal must also

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consider the importance of preserving the person's cultural environment and existing family relationships. Guardians rarely request directions.

Removal orders Where an application for a guardianship order has been made, the tribunal may order that the person who is the subject of the application be removed from their current dwelling and placed under the care of the Director-General of the Department of Ageing, Disability and Home Care (ss 11, 13). Under a removal order, various officers of the department have the delegated power to enter and search premises and to remove the person, using reasonable force if necessary. The police may also be authorised by the tribunal to carry out a removal order (s 11). When removal orders may be made Removal orders intrude on the rights of individuals. In our legal tradition such powers are exercised rarely, and only for very good reasons. Orders may be made when a person has a disability and: • is being held on premises against their will, or • is being abused, exploited or seriously neglected. The power may also apply where a person, because of dementia, brain damage or other disability, does not realise they are living in a situation in which they are in danger or need medical treatment urgently to protect them from a life-threatening illness or decline in health. The tribunal will grant removal orders only in urgent situations. It will expect to hear evidence of informal attempts by discussion or persuasion to remove the person from the premises, or an explanation of why such techniques are not appropriate in the circumstances.

Must the person be removed? An authorised officer of the department does not have to remove the person if the officer thinks there is no immediate need to remove them. For example, the officer may organise appropriate services or move the person later.

Admissions to mental health facilities Application by a guardian A guardian may make a request to a mental health service for a person under their

guardianship to be admitted as a voluntary patient under s 7 of the Mental Health Act 2007 (NSW). The right to leave hospital The guardian’s request cannot override s 8 of the Mental Health Act 2007, which provides that voluntary patients may, at any time, discharge themselves or leave the hospital. See White v Local Health Authority [2015] NSWSC 417. This provision, intended to safeguard the rights of people who admit themselves to psychiatric hospitals as voluntary patients, applies equally to patients admitted by guardians. It can create difficulties for guardians and those in psychiatric hospitals responsible for the care, safety and wellbeing of patients. If the guardian objects to an admission Section 7(2) of the Mental Health Act 2007 provides that a person under guardianship cannot be voluntarily admitted to a psychiatric hospital if their guardian objects. A person under guardianship who is admitted to a psychiatric hospital as a voluntary patient must also be discharged on their guardian’s request. If the person is discharged If a person under guardianship is discharged from voluntary admission, their guardian must be advised by an authorised medical officer (s 8). The guardian should also be given information about follow-up care (see ss 71, 79). If the person cannot consent to treatment If a person under guardianship is admitted to a psychiatric hospital as a voluntary patient, and is unable to give an informed consent to treatment, their “person responsible” must consent to such treatment (see The person responsible at [16.610]).

[16.550] Enduring

guardianship Appointing an enduring guardian A person over 18 who is legally competent can appoint their own enduring guardian. The appointment must be in writing in an approved form.

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Witnessing requirements Both the person and their appointed enduring guardian (including any alternative enduring guardians) must sign the appointment in front of: • an Australian solicitor or barrister with a current practising certificate, or • a registrar of a NSW Local Court (Guardianship Act, ss 5, 6, 6C). The witness must not be the person who is being appointed as the enduring guardian. The witness must certify on the form that the appointor signed the form voluntarily and appeared to understand the effect of appointing an enduring guardian. The signatures of the appointor and of the enduring guardian can be witnessed at different times, different places and by different witnesses (s 6C(4)). If the appointor cannot sign If the appointor is unable to sign the appointment due to physical disability, another person (the eligible signer) can sign on their behalf (s 6C(b)(ii)). The witness must certify that the person who could not sign directed the eligible signer to sign for them and that this happened in the presence of the witness. The eligible signer must be over 18, and cannot be either: • a witness to the appointment, or • the appointed enduring guardian (s 5). If the appointor cannot sign their name, they can make their mark on the document instead (s 6C(2)). Who cannot be appointed A person is not eligible to be appointed as an enduring guardian if they are: • under 18 • directly or indirectly involved in, or responsible for, providing certain services (see below) for a fee to the appointor (s 6B) • a relative or spouse of someone providing such services (s 6B(2)(b)). Services covered in section 6B(2)(a) The services covered in s 6B(2)(a) include: • medical services (whether in a hospital, at home or elsewhere)

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• accommodation services, or • any other services which support the appointor in activities of daily living.

What the appointment should specify The appointment should specify the functions the enduring guardian is to exercise, and any directions or limitations required. In the instrument of appointment, the appointor may: • exclude, limit or add areas of decisionmaking authority for an enduring guardian • include lawful directions to the guardian. The enduring guardian must exercise their authority in accordance with those directions, unless otherwise directed by the tribunal (s 6E(3)). When the appointment takes effect An enduring guardianship appointment takes effect only when the appointor is no longer capable and has become “a person in need of a guardian” (s 6A).

What decisions the guardian can make An enduring guardian is authorised to make lifestyle decisions about the appointor when that person is no longer capable. An enduring guardian cannot make decisions about financial matters. The enduring guardian may be authorised to make decisions about the appointor in the following areas: • where the person should live • the health care the person should receive • the personal services the person should receive • consent to medical and dental treatment under Pt 5 of the Act (s 6E). An enduring guardian does not have authority to override the appointor’s objections to medical or dental treatment. The guardian's right of access to information The enduring guardian has the right to access information about the appointor (sometimes including health information or medical records), as long as: • such access is to assist them to carry out their duties as enduring guardian, and

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• the appointor would have been able to access that information (s 6E(2A)).

appointor, but only if the appointor is not in need of a guardian (s 6HB).

If two or more guardians are appointed

If the appointor is in need of guardianship If the person is in need of a guardian, the enduring guardian can only resign with the approval of the Guardianship Division of the tribunal.

If two or more enduring guardians are appointed, they can be appointed to act severally, jointly or jointly and severally (s 6D(1)). Guardians appointed severally If the guardians are appointed severally they can make decisions separately and independently. If each of the enduring guardians is to exercise different functions, they must be appointed severally, with each enduring guardian having a specific function.

Signing and witnessing requirements for resignation The requirements for signing a resignation and witnessing signatures are similar to those for appointing an enduring guardian (see Appointing an enduring guardian at [16.550]).

Guardians appointed jointly and severally If the guardians are appointed jointly and severally they can either act separately and independently to make decisions, or they can act together. Guardians appointed jointly If the guardians are appointed jointly they must act together to make decisions.

Revoking an appointment

If one guardian cannot continue If one enduring guardian dies, resigns or becomes incapacitated: • where the guardians were appointed severally or jointly and severally, the remaining guardians can continue to make decisions • where the guardians were appointed jointly, the appointment of other guardians is terminated unless the appointment document makes other specific provisions. Alternative enduring guardians An appointor may appoint an alternative enduring guardian (s 6DA), who can act only if the original enduring guardian dies, resigns or becomes incapable. An original enduring guardian who becomes able to perform their duties again resumes those duties from the alternative guardian.

Resigning as an enduring guardian If the appointor is not in need of guardianship An enduring guardian may resign their appointment by giving written notice to the

An enduring guardianship appointment can be revoked in writing by an appointor who still has capacity to understand their decision (s 6H). Signing and witnessing requirements The revocation must be in an approved form, and witnessed by someone who meets the requirements for witnessing the appointment of an enduring guardian (see Appointing an enduring guardian at [16.550]). The witness must certify on the form that the person revoking the appointment signed the revocation form voluntarily and appeared to understand the effect of revoking the appointment of the enduring guardian. If the person cannot sign The considerations that apply when a person cannot sign the instrument of appointment apply when they are unable to sign a revocation (see Appointing an enduring guardian at [16.550]). When does the revocation take effect? The revocation takes effect when written notice of the revocation is given to the person appointed as enduring guardian. Automatic revocation by marriage If a person marries, or remarries, after appointing an enduring guardian, the marriage automatically revokes the appointment. This means that the person must make a new enduring guardianship appointment after the marriage (s 6HA).

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This does not apply if the person has married the enduring guardian. In that case, the enduring guardianship appointment continues.

Reviewing an appointment An enduring guardianship appointment can be reviewed by either: • the Guardianship Division of NCAT (s 6J), or • the Supreme Court (s 6L). When the tribunal can review an appointment The tribunal can review an appointment on its own initiative or on the application of anyone who, in the opinion of the tribunal, has a genuine concern for the welfare of the appointor (s 6J). What the tribunal may do The tribunal can confirm, revoke or vary the appointment. It may also: • confirm the appointment even if the instrument of appointment was not executed properly or in certain other cases (s 6K(4)), if satisfied that this reflects the person’s intentions • appoint a person to replace an enduring guardian who has resigned, died or become incapacitated (s 6MA), if satisfied

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that the appointor is in need of a guardian and that the person replacing the guardian is suitable • make an order declaring that the appointment of an enduring guardian has effect (s 6M), if satisfied that there is a need and the person has been appointed as the enduring guardian • make orders as if an application had been made for guardianship and/or financial management but if they do appoint a guardian, it suspends the operation of the appointment of the enduring guardian (See WBN, Re [2015] NSWCATGD 9) (ss ss 6K(1) and (3). If a guardianship order is made, the enduring guardianship appointment is suspended for the period of the order (s 6I). Recognition of interstate appointments Certain interstate instruments that appoint the equivalent of enduring guardians in other states and territories are recognised as having effect in NSW (s 6O). These instruments are listed in the Guardianship Regulation 2010, cl 8. These instruments are recognised only to the extent that the functions conferred could have been validly conferred on an enduring guardian in NSW.

Property management [16.560]

Property management is called “financial management” in the Guardianship Act. The NSW Trustee and Guardian Act 2009 uses the term “estate management”. If a person cannot manage their financial affairs, including their property, a manager can be appointed. This can be either: • a private manager who is subject to the authorisation and direction of the NSW Trustee and Guardian, or • the NSW Trustee and Guardian.

Jurisdiction of the Supreme Court and the Mental Health Review Tribunal The Supreme Court can appoint a manager for a person's estate under the NSW Trustee and Guardian Act 2009. Applications should be made to the Supreme Court Equity Division – Protective. The Supreme Court's powers are found primarily in s 41 of the Act. Orders under the Act can also be made by The Mental Health Review Tribunal.

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[16.570] Appointment of a

manager by the Guardianship Division of NCAT The power of the tribunal to make financial management orders is set out in the Guardianship Act, but management under the order is still given effect under the NSW Trustee and Guardian Act 2009.

When a financial manager may be required The need for a financial manager may arise when: • the incapable person needs to engage in a legal transaction (for example, to sell their house), and there is a need for a legally authorised person to sign or execute documents, or • informal arrangements are no longer satisfactory because the person who used to carry them out is no longer able to do so, or • there are disputes in the family about the management of the person’s finances and property, or • there is dispute between the family and caregivers, or between various caregivers, about the management of the person’s finances and property, or • there is a risk of financial exploitation. Further information about making a financial management application can be obtained from the tribunal’s enquiry service.

Who may apply? Applications for financial management can be made by: • the NSW Trustee • anyone who, in the tribunal’s opinion, has a genuine concern for the welfare of the person who is the subject of the application (s 25I).

When may the tribunal make an order? Before the tribunal may make a financial management order, it must be satisfied that: • a person is not capable of managing his or her own affairs

• there is a need for someone else to manage the person’s affairs, and • it is in the best interests of the person that the order be made (s 25G). What does “not capable of managing his or her own affairs” mean? The Supreme Court has defined “incapable of managing his or her affairs” in PY v RJS [1982] 2 NSWLR 700 to mean that a person must be incapable of dealing competently with their own affairs to the extent that there is a real risk of personal disadvantage or monetary loss. In H v H (unreported, Supreme Court, Equity Division, Protective List, 20 March 2000) the court explained that for a person to have the capacity to manage their own affairs they do not need to be able to manage complex financial affairs, but they must be able to manage more than the household bills. The relevant time for considering whether a person is incapable of managing their own affairs is not merely the day of hearing but the reasonably foreseeable future (McD v McD [1983] 3 NSWLR 81).

Proof of incapability and need Professional evidence from doctors or psychologists is required to establish the person’s inability to manage their affairs. Evidence from family members, care-givers and others is also relevant. Protected persons Someone whose estate is subject to a current financial management order is referred to as a “protected person” (s 25D).

[16.580] Financial

management orders If the Guardianship Division of the tribunal is satisfied that a financial management order is needed, it may make an order that the person’s estate be managed under the NSW Trustee and Guardian Act 2009, and then appoint a manager (Guardianship Act, ss 25E, 25M).

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NSW Trustee & Guardian Fees The fees NSW Trustee & Guardian charge for managing a person's estate and for their involvement with a private financial manager are set by government in the NSW Trustee and Guardian Act 2009. The Private Management Fees from 1 July 2016 are: Establishment $500 establishment fee is payable by new private management clients from 1 July 2016 Fee reductions apply for clients with total assets $75, 000 or less. Clients with assets: $25,000 or less will be exempt $25,001 – $75,000 will pay $250 $75,001 or greater will pay $500 Administration $120 yearly fee

What orders can be made Financial management orders may be for the person’s whole estate and the rest of their life. Many orders like this are made, but the Guardianship Act also allows for greater flexibility in the scope and duration of orders. The tribunal can exclude part of a person’s estate (such as their pension) from a financial management order (s 25E). The manager can also authorise the protected person to deal with a specified part of their estate. The authorisation must be in writing and approved by the NSW Trustee (NSW Trustee and Guardian Act 2009, s 71).

Interim financial management orders The Guardianship Division of the tribunal can make short-term (interim) financial management orders – up to six months – while the person’s capability to manage their affairs is being considered (Guardianship Act, s 25H). These orders protect the person’s financial resources when it is unclear whether they lack the capability to manage their affairs.

Duration of orders Orders remain in force until: • the protected person’s death

Fee reductions apply for clients with total assets $75, 000 or less. Clients with assets: $25,000 or less will be exempt $25,001 – $75,000 will pay $60 $75,001 or greater will pay $120 Account checking Yearly fee, based on complexity: $100 (low) $200 (medium) $300 (high) Investment 0.1% per year on the of value of assets invested in NSW Trustee & Guardian investment funds For further information about the fees charged, contact the NSW Trustee and Guardian or refer to its website.

• revocation by the Supreme Court • set aside by the internal appeal jurisdiction of the tribunal • revocation by the Guardianship Division of NCAT • revocation by the Mental Health Review Tribunal • termination of management by the NSW Trustee and Guardian • expiration of an interim financial management order without a further order. What happens to a power of attorney? Any power of attorney the protected person made before the financial management order is suspended for the duration of the financial management order (Powers of Attorney Act, s 50).

Review of financial management orders Review periods Financial management orders are permanent orders. However, the Guardianship Division of the tribunal can set a review period for orders that it makes (Guardianship Act, s 25N).

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Orders that cannot be reviewed or revoked The Guardianship Division of the tribunal cannot review or revoke financial management orders made by the Supreme Court or the Mental Health Review Tribunal (see Mental health in Chapter 26, Health Law).

Applying for revocation or review of an order The protected person who is the subject of the order, the NSW Trustee, the private manager or anyone else who, in the opinion of the tribunal, has a genuine concern for the welfare of the protected person, can apply to the tribunal for the revocation or variation of a financial management order made by the Guardianship Division of the tribunal (ss 25N, 25R). An application can also be made to review the appointment of the financial manager under the order (Guardianship Act 1987, s 25S). When the tribunal may refuse to review an order The tribunal can refuse to review a financial management order, or the appointment of a financial manager, if: • it has previously reviewed the order, or • the request does not show grounds that

warrant a review (ss 25O, 25T). When the tribunal may revoke an order The tribunal can revoke a financial management order if: • the person is capable of managing their affairs, or • the tribunal considers that it is in their best interests, even though they may not be capable of managing their affairs (s 25P(2)). Replacing a financial manager The tribunal can also consider applications to review the appointment of a financial manager such as the NSW Trustee or a private person (s 25S). After conducting such a review, the tribunal can either revoke or confirm the appointment of the manager. If the tribunal revokes the appointment, it can appoint another person as manager (Guardianship Act 1987, s 25U(3)). If a manager dies, is unable or unwilling to act, or is acting in an unsuitable manner, the tribunal can appoint a new manager (Guardianship Act 1987, s 25U and see Holt v Protective Commissioner (1993) 31 NSWLR 227).

Recognition of interstate orders The Guardianship Division of NCAT can recognise the appointment of guardians and financial managers appointed under a corresponding interstate law (Guardianship Act 1987, s 48B). Any guardian or manager who was appointed under such a law may apply to the tribunal to have their appointment recognised in NSW. When the appointment has been recognised, the guardian or financial manager is taken to have been appointed as the person's guardian or manager under the Guardianship Act 1987.

Guardians and managers appointed under the recognition provisions can only exercise functions granted under their original appointment if they are also functions under the Guardianship Act 1987. Corresponding laws are defined in the Guardianship Regulation 2010 (NSW), cl 16, and include guardianship and financial administration legislation of all the Australian states and territories, and New Zealand.

Consent to medical and dental treatment [16.590]

Medical and dental treatment may not be carried out on an adult unless: • the person consents to the treatment

• the treating doctor is empowered by law to treat them without their consent, or • another person authorised by law consents to the treatment.

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[16.600] When the

Guardianship Act applies Part 5 of the Guardianship Act 1987 covers medical and dental treatment for people unable to consent to treatment. It provides mechanisms for: • identifying substitute decision-makers (such as “persons responsible”) • Guardianship Division of the tribunal consent to certain treatments (such as “special medical treatments”) in certain circumstances • treatment without the person’s consent, in limited circumstances.

What is medical and dental treatment? Medical treatment is defined in the Guardianship Act 1987 to include procedures normally carried out, or supervised, by a medical practitioner (s 33). Dental treatment is defined to include procedures normally carried out, or supervised, by a dentist (s 33). What is not included Non-intrusive (for example, visual) examinations for the purpose of diagnosis, firstaid medical or dental treatment, and giving non-prescription drugs are not included, and the substitute consent provisions of the Act do not apply to them.

When is a person unable to consent? In some cases, a person is unable to consent to their own treatment because of a preexisting disability such as dementia, developmental disability or brain damage. In other cases, they may be unable to consent because of unconsciousness, disorientation or confusion due to some illness. A person may be able to consent to simple medical treatment (like straightforward dental treatment) but not to more complicated procedures or medication (like surgical operations or anti-psychotic medication).

To whom the Act applies The Act applies to a person 16 or older, who is:

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• incapable of understanding the general nature and effect of the proposed treatment, or • incapable of indicating whether or not they consent to it (s 34).

If there is an emergency A medical practitioner or dentist may carry out treatment on a person if they believe the treatment is necessary as a matter of urgency to: • save the person’s life • prevent serious damage to the person’s health • prevent the patient suffering, or continuing to suffer, significant pain or distress, except in the case of special treatment (see What are special medical treatments? at [16.610]) (Guardianship Act 1987, s 37).

[16.610] Who may give

consent Authority to consent depends on the type of treatment proposed. The Guardianship Act 1987 divides treatment into special, major and minor treatment. These are defined in the Act and the Guardianship Regulation 2010.

Consent for special treatment Only the Guardianship Division of the tribunal can give consent for special treatment under the Guardianship Act 1987. However, it can confer on a patient’s guardian the authority to consent to the continuation of the treatment, and the carrying out of similar special treatment (s 45A). Only the Guardianship Division of NCAT can consent to certain special medical treatments for people under 16 under the Children and Young Persons (Care and Protection) Act 1998 (s 175) (see Special medical treatment for children in [16.610]).

Consent for major and minor treatment Both the Guardianship Division of the tribunal and the person responsible (see below) can give consent for minor and major treatments to promote or maintain the person’s health and wellbeing.

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The person responsible Under the Guardianship Act 1987, the “person responsible” is, in order of precedence: • a legally appointed guardian or enduring guardian authorised to give consent to medical and dental treatment on behalf of the person under guardianship • the most recent spouse or de facto spouse (including a same-sex partner) with whom the person has a close, continuing relationship • an unpaid carer (or recipient of carer pension) or someone who arranges care and support services on

If the patient objects In some circumstances, if a patient objects to treatment only the Guardianship Division of the tribunal or an authorised guardian with a specific authority to override the person’s objections can give consent on their behalf (see Objections to treatment at [16.610]).

When the tribunal can consent Before it can consent to a treatment, the tribunal must be satisfied it is the most appropriate treatment to promote and maintain the person’s health and wellbeing (Guardianship Act 1987, s 45). Special treatment Where a proposed treatment is special treatment (see What are special medical treatments? at [16.610]), the Guardianship Division of the tribunal can consent only if additional requirements are met (s 45).

a regular basis, or who provided this support before the patient entered residential care • a close friend or relative who is interested in the patient's welfare (s 33A). If a “person responsible” declines in writing to exercise the relevant functions, or a doctor or other qualified person certifies that they are not capable of exercising them, the next person in the hierarchy becomes the “person responsible”.

Before the tribunal can consent to special treatment such as sterilisation, termination of pregnancy, it must be satisfied that the treatment is necessary: • to save the person’s life, or • to prevent serious damage to the person’s health. If the special treatment is a new treatment which has not gained widespread support in the particular medical specialty or it is a special treatment set out in cl 10 of the Guardianship Regulation 2010 (experimental treatment or androgen-reducing medication for behavioural control), the tribunal can only consent if the treatment: • is the only or most appropriate treatment and is manifestly in the person’s best interests, and • complies with any relevant guidelines of the National Health and Medical Research Council (s 45(3)).

What are special medical treatments? “Special medical treatments” listed in the Guardianship Act 1987 and the Guardianship Regulation 2010 include: • treatment intended (or likely) to render the person infertile (s 33) • termination of pregnancy (cl 9) • vasectomy or tubal occlusion (cl 9) • an aversive stimulus – mechanical, chemical, physical or otherwise (cl 9) • new treatment that has not yet gained the support of

a substantial number of medical practitioners or dentists specialising in the relevant area (s 33) • androgen-reducing medication for the purpose of behavioural control (cl 10) • administration of one or more prescription medications affecting the central nervous system if dosage levels, combinations or number of medications, or duration of treatment, are outside the accepted treatment for such a patient (cl 10).

Major treatment A person’s primary substitute decisionmaker in relation to major treatment is their “person responsible” (see The person responsible at [16.610]).

The Act provides for alternative consents to medical treatment for persons above 16 years of age who are incapable of giving consent themselves (s 34).

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Consent may be given to minor or major medical treatment by the person responsible or by the tribunal (s 36).

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The tribunal should be approached where there is no person responsible or the person responsible cannot be located.

What are major medical treatments? For the purposes of Pt 5 of the Guardianship Act 1987, cl 11 of the Regulation identifies major medical treatment as: • the administration of a drug of addiction (see s 8 of the Poisons List issued under the Poisons and Therapeutic Goods Act 1966) • the administration of long-acting injectable hormonal substances for contraception or menstrual regulation • the administration of a general anaesthetic or other sedation, but not a treatment involving sedation to facilitate the management of fractured or dislocated limbs or most endoscopy treatments • treatment to eliminate menstruation • the administration of a prescription only medication for the purpose of affecting the central nervous

system (Guardianship Regulation 2010, cl 11), other than for certain therapeutic purposes • any treatment involving testing for the human immunodeficiency virus (HIV) • treatment with a substantial risk (ie, more than a mere possibility) of: – death – brain damage – paralysis – permanent loss of function of any organ or limb – permanent and disfiguring scarring – exacerbation of the condition being treated – an unusually prolonged period of recovery – a detrimental change of personality – a high level of pain or stress. For full details, check the Guardianship Regulation 2010.

Major dental treatment Major dental treatment is listed in cl 12 as any treatment: • involving the administration of a general anaesthetic or simple sedation • intended to, or likely to result in, the removal of all teeth

• likely to result in significant impairment of the patient's ability to chew food for an indefinite or prolonged period.

Minor treatment What are minor medical treatments? Any treatment not identified as either special or major treatment is considered minor medical or minor dental treatment. Minor medical or dental treatments may be consented to by the person responsible or the Guardianship Division of the tribunal. Minor medical or dental treatments If there is no person responsible or the person responsible cannot be contacted or is unable or unwilling to make a decision concerning a request for their consent, the minor treatment may be given, providing the patient does not object.

The medical practitioner or dentist must certify in writing in the patient's clinical record that: • the treatment is necessary and is the most appropriate treatment to promote their health and wellbeing, and • the patient does not object (s 37). If either the patient objects to the treatment or there is concern that a refusal by the person responsible is not in the patient's best interest, an application can be made to the tribunal.

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Objections to treatment If the patient objects The person responsible cannot consent if the person who is to receive the treatment objects (s 46). The person is taken to have objected to the treatment, even though they are unable to consent to it, if: • they indicate (by whatever means) that they do not want it carried out, or • they have indicated before in similar circumstances that they do not want it carried out, and have not subsequently indicated otherwise (s 33). In these circumstances, only the Guardianship Division of the tribunal can give consent to the proposed treatment. When a guardian can override objections A guardian may be authorised to override a person’s objections if the tribunal is satisfied that person objects because of a lack of understanding of the nature of or reason for the treatment (s 46A). When objections can be disregarded A patient’s objection may be disregarded and the consent of the substitute decisionmaker takes effect if: • the patient has minimal or no understanding of what the treatment entails, and • the treatment will cause them no distress or, if it will cause some distress, it is likely to be reasonably tolerable and brief (s 46(4)).

Information for the substitute decision-maker The person responsible (including a guardian or enduring guardian with a consent role) must, when asked to consent to treat-

ment on behalf of a patient, be given information about a number of matters (s 40). These are: • why the doctor or dentist believes the person cannot give their own consent • the condition that requires treatment • other courses of treatment available for that condition • the general nature and effect of those courses of treatment • the nature and degree of significant risks (if any) associated with each course of treatment, and • the reasons for proposing a particular course of treatment. The person responsible should consider the views of the person who is to receive the treatment, if that person is capable of communicating their views, and must also consider whether the treatment will promote and maintain the person’s health and wellbeing. If the Guardianship Division of the tribunal is the substitute decision-maker, the views of the person responsible should also be considered.

New treatments available in clinical trials The Guardianship Division of the tribunal can approve clinical trials as being suitable for the participation of patients who cannot give their own consent (s 45AA). This gives such people access to new treatments that are only available through clinical trials. Consent can be given by the tribunal even though the person may receive a placebo in the trial. A person who cannot consent cannot be included in a clinical trial unless the tribunal approves the trial.

Special medical treatment for children The Guardianship Division of the tribunal has power under the Children and Young Persons (Care and Protection) Act 1998 to consent to certain special medical treatments proposed for a child (under 16) who may or may not have a disability. They are: • treatment intended or reasonably likely to make the person infertile (not including treatment to treat a

life-threatening condition where infertility is an unwanted consequence) • treatment for the purpose of contraception or menstrual regulation (if listed in the Children and Young Persons (Care and Protection) Regulations – however, none is listed as yet) • vasectomy or tubal occlusion.

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The tribunal must be satisfied that the treatment is necessary to save the child's life or prevent serious damage to the child's psychological or physical health. The child is entitled to be legally represented at the

tribunal's hearing of the application. If the treatment is needed urgently to save the child's life or prevent serious damage to their psychological or physical health, it may be given without consent.

When the tribunal may approve the trial The tribunal must be satisfied that: • the trial meets the required ethical and safety standards • the trial has been approved by all relevant ethics committees and complies with relevant guidelines of the National Health and Medical Research Council • only people with the condition the trial seeks to treat are recruited into the trial, and

• participation poses no known substantial risk, or no greater risk than other available treatments (s 45AA). Above all, it must be satisfied that the opportunity to participate in the trial is in the person’s best interests. If the tribunal approves the trial as suitable, it can delegate consent for individual patients to their person responsible (s 45AB).

Appeals [16.620] To the Supreme

[16.630] Appeal Panel - NSW

Court

Civil and Administrative Tribunal

A party to proceedings before the Guardianship Division of the tribunal can appeal to the Supreme Court against a decision of the tribunal (Sch 6, cl 12). If a financial management order is made under the NSW Trustee and Guardian Act 2009 by the Mental Health Review Tribunal when the person was in a mental health facility, only the person who is the subject of the order can appeal the decision. Appeals can be made as of right on questions of law. If the appeal is not about a question of law, the Supreme Court’s permission is needed. An appeal should be made within 28 days after receipt of the tribunal’s written reasons, although the Supreme Court may extend the time. An appeal operates as a stay of the order of the tribunal, unless the court makes an order bringing the order back into force (Sch 6, cl 14)

A party to proceedings before the Guardianship Division of the tribunal may also appeal against certain decisions of the tribunal to the Internal Appeal Panel of NCAT (s 5 of the Civil and Administrative Tribunal Act lists the decisions that can be appealed). If the appeal is not about a question of law, NCAT’s permission is needed (Civil and Administrative Tribunal Act, s 80). An appeal should be made within 28 days from the day of receipt of the Guardianship Division’s written reasons or 28 days from the day of notification of the decision (Civil and Administrative Tribunal Rules 2014, r 25). The tribunal may extend the time (Civil and Administrative Tribunal Act, s 41). Unlike an appeal to the Supreme Court, an appeal to the Appeal Panel does not operate as a stay of the Guardianship Division of NCAT’s decision unless the tribunal orders otherwise. (Civil and Administrative Tribunal Act, s 43).

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Can a person lodge two appeals? The Supreme Court may refuse to conduct a review of a decision of the Tribunal if an internal appeal has been lodged against the decision (Civil and Administrative Tribunal Act, s 34).

The National Disability Insurance Scheme [16.640]

This section deals with the National Disability Insurance Scheme (NDIS). The relevant Act is the National Disability Insurance Scheme Act 2013 (Cth). See also the National Disability Insurance Scheme Rules and National Disability Insurance Scheme - Operational Guidelines.

[16.650] The National

(NDIA) is the Commonwealth Government Agency responsible for delivering the NDIS. Its other roles include developing and enhancing the disability sector, building community awareness of disability, collecting and analysing data about people with disability and supports for people with disability, and undertaking research in relation to disability.

Disability Insurance Scheme

[16.670] New South Wales

The National Disability Insurance Scheme (NDIS) is a new way of providing community linking and individualised services and support for people with permanent and significant disability that affects their ability to take part in everyday activities. The aim of the NDIS is to deliver a life-long approach to support people with disability through individualised planning processes to identify the reasonable and necessary supports they need to enable them to achieve their goals. Participants in the NDIS are given individually funded packages of support. Participants can chose who will deliver disability services to them and how to manage the funding package. The NDIS is not means tested. The NDIS began being introduced in stages from July 2013.

In NSW, the scheme commenced from 1 July 2013 for people living in the local government area (LGA) of Newcastle, then Lake Macquarie LGA and Maitland LGA. From July 2016, the NDIS is being progressively rolled out in New South Wales and by July 2018, all eligible residents will be covered (www.ndis.gov.au/about-us/ our-sites).

[16.660] The National

Disability Insurance Agency The National Disability Insurance Agency

[16.680] The NDIS in relation

to other mainstream supports The NDIS will be a significant source of support for participants. However the NDIS is not intended to replace other mainstream supports. Governments have agreed to key principles in key areas that determine whether

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the NDIS or another system is more appropriate to fund supports for individuals. If another system is responsible for a support, the NDIS cannot fund that support, even if the system responsible does not provide it. Not stepping in to replace other systems is a critical principle of the NDIS to ensure people with disability continue to have access to mainstream systems and the NDIS is financially sustainable. For example, the NDIS will fund supports that assist a participant to undertake activities of daily living. This includes supports such as aids and equipment, and therapy where this is required as a result of the participant’s impairment, including physiotherapy, speech therapy or occupational therapy. Whereas, the health system has responsibility for the diagnosis, assessment and treatment of health conditions. This includes clinical services, such as general practitioners, care while admitted in hospital, surgery, the cost of medical specialists, dental care, medications and pharmaceuticals.

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[16.690] Supports funded by

the NDIS The NDIS will fund supports that assist a person to undertake activities of daily living. This includes: • assistance with personal care • supports such as aids and equipment, home modifications • assistance with planning and decision making and household tasks • assistance to build capacity to live independently and achieve their goals, such as building social relationships, as well as financial management and tenancy management skills • supports to engage in community activities such as recreation, education, training and employment. Participants can choose to access their funded supports through centre-based services, in-home, day services, community access and outreach services.

The NDIS Act and Rules [16.700] The NDIS Act The National Disability Insurance Scheme Act 2013 commenced on 1 July 2013. The Act creates the framework for the National Disability Insurance Scheme. It sets out the objects and principles under which the NDIS will operate. It sets out the process for a person becoming a participant in the NDIS, how participants develop an individual, goal-based plan with the National Disability Insurance Agency, and how reasonable and necessary supports will be funded for participants. In addition, the legislation provides options for how a participant’s funded supports can be managed, in what circumstances a nominee will be appointed, and who can be appointed as a child’s representative.

The legislation also provides for a system of internal and external review for decisions made under the Act where an affected person disagrees with the decision.

[16.710] The Rules The Act provides for the making of rules which guide the detailed operation of the NDIS and accompany the legislation. The NDIS Rules cover issues such as: • becoming a participant (the eligibility criteria) • supports for participants – (ie criteria whether a support is “reasonable and necessary” and therefore will be funded under the Act) • children – who can be a child’s representative and when a child can represent themselves • nominees – when it is appropriate to

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appoint a nominee, who can be a nominee, and duties of a nominee • facilitating the preparation of participants plans • registered providers, and • plan management – who will manage the funded supports in a participant’s plan. The NDIA has developed Operational Guidelines which contain the agency’s operational information. See the NDIS website (ndis.gov.au/about-us/governance/ legislation).

[16.720] Objects and

principles of the NDIS Act The objects of the NDIS Act include: • giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities • supporting the independence and social and economic participation of people with disability • providing reasonable and necessary supports for NDIS participants • enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports • raising community awareness of the issues that affect the social and economic participation of people with disability, and facilitating greater community inclusion of people with disability (s 3).

In giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS (s 3(3)). General principles guiding actions under the Act include: • people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development • people with disability should be supported to participate in and contribute to social and economic life • people with disability and their families and carers should have certainty as to care and support • people with disability should be supported to exercise choice • people with disability should be supported to receive reasonable and necessary supports, including early intervention supports • people with disability have the same right as other members of Australian society to determine their own best interests including the right to exercise choice and control • people with disability should be supported in all their dealings and communications with the NDIA so that their capacity to exercise choice and control is maximised • people with disability should have their privacy and dignity respected (s 4).

NDIS Participants and their NDIS Plans [16.730] Becoming a

participant of the NDIS Making an access request To become a participant of the NDIS a person must make an access request to the National Disability Insurance Agency (NDIA) (s 18). Once a decision is made under the Act that a person is a participant in the NDIS that person is likely to remain a participant for life. Before making an access request a potential participant can access the NDIS Access

Checklist to help check their eligibility for the NDIS (www.ndis.gov.au/ndis-accesschecklist). Prospective participants who need assistance to make an access request should seek the help of NDIA officers. The NDIA may provide support and assistance to prospective participants and participants of the NDIS, in relation to doing things in relation to the Act (s 6). The Act requires that the contents of any form or notice must be explained by the NDIA officer to the maximum extent

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possible in the language and mode of communication which the person with disability is most likely to understand (s 7). Once an access request is received the NDIA must: a. decide whether the access request is a valid request (s 19) b. if it is a valid request make a decision whether the person meets the access criteria to become a participant or request further information - within 21 days of receiving the request (s 20). To be a valid access request, the information and documents received by the NDIA must substantially comply with the requirements in the Act (s 19). Strict compliance is not necessary. A third party, on behalf of the prospective participant, may submit an access request form. The NDIA may request further information from the prospective participant or undergo an assessment or examination prior to determining the access request (s 26). A decision that a person does not meet the access criteria is a reviewable decision under the Act (s 99(a)). See Reviews at [16.790] for how to seek review of a decision.

Access criteria to the NDIS A person meets the access criteria of the Act if the NDIA is satisfied that the person meets: • the age requirements, and • the residence requirements, and • the disability requirements or the early intervention requirements (s 21).

Age A person meets the age requirements if the person was aged from birth to 65 when the access request was made (s 22).

Residence A person meets the residence requirements if the person resides in Australia and is either: • an Australian citizen • the holder of a permanent visa, or • a special category visa holder who is a protected SCV holder (s 23(1)).

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Disability A person meets the disability requirements if the person has a disability that is attributable to an impairment that is, or is likely to be, permanent and that results in substantially reduced functional capacity. Specifically, a person meets the disability requirements if: • the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or to one or more impairments attributable to a psychiatric condition, and • the person’s impairment or impairments are, or are likely to be, permanent, and • the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities: communication, social interaction, learning, mobility, selfcare, self-management, and • the impairment or impairments affect the person’s capacity for social and economic participation, and • the person is likely to require support under the NDIS for the person’s lifetime (s 24).

Early intervention Alternatively a person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead the early intervention requirements consider the likely trajectory and impact of a person’s impairment over time and potential benefits of early intervention. Specifically a person meets the early intervention requirements if: • the person has one or more identified intellectual, cognitive, neurological, sensory or physical impairments or one or more impairments attributable to a psychiatric condition, that are permanent or are likely to be permanent; or the person is a child under six years with developmental delay, and • the NDIA is satisfied that the provision of early intervention supports is likely to benefit the person by reducing the

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person’s future needs for supports in relation to disability, and • the NDIA is satisfied that the provision of early intervention supports is likely to benefit the person by: – mitigating or alleviating the impact of the impairment on the person’s functional capacity, or – preventing the deterioration of their functional capacity, or – improving such their functional capacity, or – strengthening the sustainability of informal supports available to the person, including though building capacity of the person’s carer, and • the early intervention support is most appropriately funded or provided through the NDIS, and not through other service system (such as the health system) (s 25).

[16.740] NDIS Plans – planning

and assessment The participant's statement of goals and aspirations Once a person becomes a participant of the NDIS, the NDIA must facilitate the preparation of the participant’s plan (s 32). A participant’s plan has two parts. The first part is the participant’s statement of goals and aspirations. The statement is to be prepared by the participant (with or without support). The statement is to specify: • the goals, objectives and aspirations of the participant to enable increased participation, and • the participant’s: i. living arrangements, and ii. informal community supports and other community supports, and iii. social and economic participation (s 33(1)). The participant’s statement of goals and aspirations can be in any form the participant wishes. If the statement has not been supplied the NDIA officer will record the statement as part of the planning and assessment procedure (s 33(8)).

The statement of participant supports The second part of the plan is the statement of participant supports. The statement is prepared by the NDIA with input from the participant, important others and the available assessments and specifies the: • general supports (if any) that will be provided to, the participant, and • reasonable and necessary supports (if any) that will be funded under the NDIS, and • date by which, the NDIA must review the plan, and • arrangements for management of the funding for supports under the plan, and • management of other aspects of the plan (s 33(2)).

The reasonable and necessary supports in the plan The participant’s plan must include any general or reasonable and necessary supports that will be provided or funded as part of the participant’s NDIS plan. Before specifying any general support, or reasonable and necessary support, in a participant’s plan the NDIS must be satisfied of all of the following in relation to each support: • the support will assist the participant to pursue their stated goals, objectives and aspirations, and • the support will assist the participant to undertake activities to facilitate the participant’s social and economic participation, and • the support represents value for money, and • the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice, and • the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, and • the support is most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided through other general systems of service delivery or support services, ie health system, education system), and

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• the support is not prescribed by the NDIS Rules as a support that will not be funded or provided by the NDIS (s 34). Certain supports will never be funded under the NDIS. A support will not be provided or funded under the NDIS if it: • is likely to cause harm to the participant or pose a risk to others, or • is not related to the participant’s disability, or • duplicates other supports delivered under alternative funding through the NDIS, or • relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs (See r 5.1 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth).) In assessing or deciding “reasonable and necessary supports” that will be funded, the NDIA is to take into account compensation amounts that a participant did not receive because the person entered into an agreement to give up their right to compensation (s 35(5)).

The decision to approve a statement of participant's supports The planning and assessment process outlined above leads to the decision under s 33(2) of the NDIS Act to approve the participant’s statement of participant supports, whether or not the plan includes funded supports. There is no time limit for when a decision must be made whether or not to approve a statement of participant supports, however it must be done as soon as reasonably practicable (s 33(4)). The NDIA must provide a copy of the participant’s NDIS plan to the participant within seven days after the statement of participants supports are approved (s 38).

[16.750] NDIS Plans -

reviewing plans A participant’s statement of participant’s supports includes a review date. The review date is generally one to two years after the plan started. The Act provides that the

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NDIA must conduct review of the person’s plan before the review date (s 48(5)). In conducting the review the NDIA must prepare a new plan, including inviting the participant if they wish to update their statement of goals and aspirations, and approving a new statement of participant supports (s 49). A person may request that the NDIA conduct a review of their plan at any time (s 48(1)). Within 14 days of this request the NDIA must decide whether or not it will conduct a plan review. If the NDIA refuses, the person can request review of that decision (s 99(f)).

[16.760] Nominees Under the Act, people with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives. Two types of nominees can be appointed under the Act, each with distinct areas of responsibility: A Plan Nominee may do any act that may be done by a participant that relates to: i. the preparation, review or replacement of the participant’s plan, or ii. the management of the funding for supports under the participant’s plan. A Correspondence Nominee has a narrower role. A correspondence nominee can make requests for information to the NDIA and receive correspondence from the NDIA on behalf of a participant. A correspondence nominee cannot do the acts a plan nominee is authorised to do (ss 78 to 79).

Nominees are appointed as a last resort People with disability are presumed to have capacity to make decisions that affect their own lives. The Act recognises that there may be circumstances where it is necessary for a person to be appointed as a nominee of a participant, and to act on behalf of, or make decisions on behalf of, a participant (s 86). Appointments of nominees will be justified only when it is not possible for participants to be assisted to make decisions for themselves. Consequently, if the NDIA

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becomes aware that there may be a need for a nominee, the NDIA has a decision to make as to whether a nominee is necessary or whether the participant can be supported to make his or her own decisions for the purposes of the NDIS (r 3.3 of the National Disability Insurance Scheme (Nominees) Rules 2013). It is only in rare and exceptional cases that the NDIA will find it necessary to appoint a nominee for a participant who has not requested that an appointment be made (Nominee Rules, r 3.4). Some people cannot be appointed as nominees and the person with parental responsibility for a child is the preferred choice of nominee. There are special rules for guardians and other people appointed as decision makers for a child (s 88(4)).

How appointments come about Appointments of nominees usually come about as a result of a participant requesting that a nominee be appointed but can also come about on the initiative of the NDIA. Before appointing a nominee the Act and Nominees Rules require the NDIA to consult with a number of people, consider a number of matters and have regard to a number of things. This will assist the NDIA to consider: • who is the best person to appoint • what term is appropriate for the appointment, and • for Plan Nominees – any limits the NDIA will impose on the appointment to limit the functions for which the person will be a nominee (ss 86 to 87).

Removal of nominees The appointment of a nominee can be suspended or cancelled in specific circumstances including, for example, where the nominee’s ability to act as nominee becomes compromised or the NDIA has reasonable grounds to believe that the nominee has caused, or is likely to cause, physical, mental or financial harm to the participant. The decision to suspend or cancel the appointment of a nominee is a reviewable decision under the Act (s 99(n)).

Duties of Nominees Under the NDIS Act and Nominees Rules, nominees have duties to both the participant and the NDIA. The duties of a nominee include: 1. Duty to ascertain wishes, and promote personal and social wellbeing, of participant. See s 80 of the Act and 5.3 of the Nominee Rules. 2. Duty to consult with any any courtappointed appointed decision-maker or any participant-appointed decision-maker and any other person who assists the participant to manage their day-to-day activities and make decisions See rr 5.8 and 5.9 of the Nominees Rules. 3. Duty to develop capacity of participant where possible to a point where a nominee is no longer necessary. See r 5.10 of the Nominees Rules. 4. Duty not to do certain things unless participant not capable or does not want to do the act himself or herself. See s 78(5) of the NDIS Act and rr 5.5 and 5.6 of the Nominees Rules. 5. Duty to avoid or manage conflicts of interest and to inform the NDIA of any such conflict of interest as it arises. See rr 5.12, 5.13 and 7.4 of the Nominees Rules. 6. Duty for corporate nominee to inform CEO if person closely involved in performance of the nominee functions changes See r 5.14 of the Nominees Rules. 7. Nominee to inform the NDIA of matters affecting ability to act as nominee (s 83 of the Act).

[16.770] Managing funding for

supports Managing the funding for supports includes purchasing and paying for any supports in the participant’s NDIS plan, receiving and managing funding, and acquitting any funding (s 42(1)). A participant’s statement of participant supports must specify how the funded supports will be managed.

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Deciding who will manage a participant's funding for supports Under the Act a participant can request who will manage their NDIS funded supports (s 43). A person’s options include: • self-managing, some or all of the funding • nominating a registered plan management provider to manage some or all of the funding • a person chosen by the NDIA to manage some or all of the funding. If a plan nominee has been appointed, management of the funded supports must be in accordance with the terms of the plan nominee’s appointment. If a person doesn’t make a request then the funding will be managed by a registered plan management provider chosen by the NDIA or the NDIA itself (s 43).

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If a person’s funding is managed by the NDIA, the supports must be provided by service providers registered with the NDIA (s 33(6)).

Circumstances when a participant must not manage their funded supports The Act specifies circumstances when a participant must not manage their plan, including when it would pose an unreasonable risk to the participant (s 44(2)(a)). In considering whether there is an unreasonable risk to the participant, the NDIA must consider many factors including whether the participant is vulnerable to physical, mental or financial harm, or exploitation, or undue influence (see rr 3.7–3.9 of the National Disability Insurance Scheme (Plan Management) Rules 2013 for the factors that must be considered).

Compensation and the NDIS [16.780] Compensation The NDIS is designed to complement, not replace existing compensation arrangements for personal injury. A person’s reasonable and necessary supports will be reduced to take into account compensation payments received or given up by the person.

Requirement to seek compensation The NDIA may issue a notice requiring a participant to seek compensation for a personal injury if the person has not tried to make a claim and if it is reasonable to take action. In considering whether it is reasonable the NDIA must have regard to a number of factors including the disability and financial circumstances of the participant, any impediments the person may face in recovering compensation, and the impact of the requirement to take compensation action on the participant and their family s 104 of the Act and Operational Guideline – Compensation – Recovery of NDIS Amounts – Action has not Been Commence to Recover Compensation).

NDIA may take compensation action If the participant does not take action within the time required then NDIA can take action to claim compensation or take over an existing claim and take steps to bring the claim to a conclusion (s 105A). Any amount obtained as a result of a claim made or taken over by NDIA must be paid to the agency. The NDIA must deduct from the amount of those damages: (a) an amount equal to the total of all NDIS amounts paid to, or for the benefit of, the participant before the amount is paid to the NDIA; and (b) the amount of any costs incidental to the claim paid by the NDIA. The NDIA must pay the balance to the participant or prospective participant (s 105B).

NDIA can recover compensation from participants The NDIA can recover from compensation awarded for personal injury the amount that has been paid by the NDIS for supports in relation to the participant’s impairment if the judgment specified that the

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compensation was for supports of the type funded by the NDIS (ss 106(1) and (2)). Where a person has received compensation for personal injury following a consent judgement or settlement, the NDIS can recover any amounts paid to the participant for supports when they receive compensation for those same supports. For details on how to calculate the recoverable amount see Operational Guideline – Compensation – Recovery of NDIS Amounts – Compensation Received by a Participant from a Judgement or Settlement.

Special circumstances The Act provides a discretion to treat all or part of the compensation payments as not having been made if appropriate to do in the special circumstances of the person (s 116). If a person is in hardship as a result of applying the compensation rules, or the result is unfair or inequitable, the person should ask the NDIA to treat the compensation as not having been made. If this is refused, the person can seek review of that decision (s 99(q)).

Reviews [16.790] Requests for review

of decisions If an affected person is unhappy with a decision made by the NDIA, then they may request a review of that decision (s 100(2)). Most of the decisions made by the NDIA under the Act are reviewable. There are 25 types of reviewable decisions which are set out in s 99 of the Act. These include: • a decision that the person does not meet the access criteria • a decision revoking a person’s status as a participant • a decision approving the statement of participant supports in a participant’s plan • a decision to appoint a plan nominee • a decision to appoint a correspondence nominee • a decision to give a notice to require a person to take reasonable action to claim or obtain compensation • a decision not to treat the whole or part of a compensation payment as not having been fixed by a judgment or settlement.

A person directly affected A person directly affected by a reviewable decision may include, amongst others, people from the following categories: • prospective participants • participants • nominees • people who seek to have parental responsibility or to become a nominee

• persons or organisations applying to become registered service providers, and • registered providers of supports.

Internal Merits Review When a reviewable decision has been made, the NDIA must give written notice to each person directly affected by the decision outlining that the decision has been made and the avenues available for review of the decision. If the person is given written notice of the decision the request for a review must be made within three months of receiving the notice (s 100(2)). A request for a review may be made in writing, in person or by telephone. The first, or internal review is conducted by another delegate of the NDIA which is usually conducted at the local NDIA office level (s 100(6)). The review delegate must decide whether to: • confirm, • vary, or • set aside the original decision. The review should be carried out at arm’s length from the original decision maker. The NDIA can vary a decision at any time during the review process. The Operational Guideline – Review of Decisions – Conducting an Internal review state that the internal review should be conducted in a manner and location that is most appropriate for the person’s circumstances and needs. In any internal review the review delegate

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should discuss the matter with the applicant by telephone or an equivalent means. The internal review should be informal, easy to understand and allow the person directly affected to have their say. The outcome of the internal review should be explained to the maximum extent possible, in the language, mode of communication and terms that are most appropriate to the person directly affected. Wherever practical, the internal review decision should be provided orally as well as in writing (s 7).

Review by the Administrative Appeals Tribunal A person directly affected by an internal review decision who remains dissatisfied with the outcome of the internal review can apply to the Administrative Appeals Tribunal (AAT) for further review. An application to the AAT must be made within 28 days from the date of receiving the reviewable

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decision. See s 29(2) of the Administrative Appeals Tribunal Act 1975. The AAT might allow a longer period if it is satisfied that it is reasonable in all the circumstances. A person cannot request review of a decision by the AAT unless they have first gone through internal review in respect of the decision. The AAT must decide whether to confirm, vary or set aside the decision.

The AAT Review of National Disability Insurance Scheme Decisions Practice Direction The AAT has published a Practice Direction which explains what the AAT does when it reviews a decision made by the NDIA. It also explains what an applicant and the agency must do. The procedures apply to all kinds of decisions that the AAT reviews under the NDIS Act. The Practice Direction is available at www.aat.gov.au/resources/ practice-directions-guides-and-guidelines.

Complaints [16.800] Making a complaint A complaint about the actions of the NDIA, including an individual NDIA officer, can be made to any NDIA offices in-person, by telephone, email or in writing. A complaint can be lodged on-line via its website. Forms are available at www.ndis.gov.au/ feedback.

NDIA action on a complaint The NDIA will contact the complainant and may ask for more information to help them understand the nature of the complaint. They will contact the person complained about, provide them with details and ask for their comments and relevant information. They will let the complainant know what they say in response to the complaint. If the complainant is dissatisfied with the

outcome of their complaint then a supervisor or manager can be requested to review the complaint and how it was handled. If the complainant is not satisfied about the way the complaint was managed, assistance may be sought from the Commonwealth Ombudsman. Their contact details are: • call: 1300 362 072 visit the website: www.ombudsman.gov.au/ pages/making-a-complaint

If the complaint is about a decision by the NDIA If the complaint is about a decision made by the NDIA the person affected can lodge an application for review of that decision. A form requesting a review is also available from www.ndis.gov.au/document/394 (See Reviews, [16.790]).

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More information • Visit: www.ndis.gov.au • Email: [email protected] • Call 1800 800 110 Monday to Friday, 9am to 5pm EST. For people with hearing or speech loss: • TTY: 1800 555 677

• Speak and Listen: 1800 555 727 • For people who need help with English TIS: 131 450 See also “The National Disability Insurance Scheme Handbook” Madden; McIlwraith; Brell.

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Contact points [16.810]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au. Australasian Legal Information Institute (AustLII)

ph: 1800 000 201

Centrelink

Southern NSW

www.austlii.edu.au

ph: 1300 841 566

Government bodies

Sydney

Ageing, Disability and Home Care (an agency of NSW Department of Family and Community Services) www.adhc.nsw.gov.au

Western NSW

Inquiries about the Disability Support Pension ph: 132 717 Financial Information Service ph: 132 300 Community Justice Centres www.cjc.nsw.gov.au

Head Office ph: 9377 6000 ADHC contact numbers for information, referral and intake District Central Coast ph: 1300 160 096 Far West ph: 1300 134 450 Hunter New England ph: 1300 205 268 Illawarra Shoalhaven ph: 1300 841 566 Mid North Coast ph: 1300 364 563 Murrumbidgee ph: 1300 134 450 Nepean Blue Mountains ph: 1800 881 901 Northern NSW ph: 1300 364 563 Northern Sydney Information and Pathway ph: 1800 905 535 South Eastern Sydney ph: 1800 000 201 South Western Sydney

Anti-Discrimination Board

ph: 1800 000 201 ph: 1300 134 450 Western Sydney ph: (02) 9407 1650 www.antidiscrimination.justice. nsw.gov.au Sydney ph: 1800 670 812 or 9268 5555 Newcastle ph: 4903 5300 Wollongong ph: 4267 6200 Australian Competition and Consumer Commission (ACCC) www.accc.gov.au ph: 1300 302 502 Australian Human Rights Commission www.humanrights.gov.au ph: 9284 9600 or 1300 369 711 Australian Information Commissioner, Office of the www.oaic.gov.au privacy hotline: 1300 363 992 Australian Securities and Investments Commission (ASIC) www.asic.gov.au ph: 1300 300 630

ph: 1800 990 777 Director of Public Prosecutions, Office of the www.odpp.nsw.gov.au ph: 9285 8606 Witness Assistance Service ph: 1800 814 534 or 9285 8606 Disability Council of NSW www.disabilitycouncil.nsw.gov.au ph: 8879 9100 Disability Discrimination Commissioner Australian Human Rights Commission www.humanrights.gov.au ph: 9284 9600 complaints infoline: 1300 656 419 privacy hotline: 1300 363 992 Diversity Services, Department of Justice ph: 8688 8460 Employment, Department of www.employment.gov.au ph: 1300 488 064 Equity Division, Supreme Court of NSW www.supremecourt.justice.nsw. gov.au ph:1300 679 272

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Fair Trading, Department of www.fairtrading.nsw.gov.au ph: 133 220 Fair Work Commission www.fwc.gov.au ph: 1300 799 675 Fair Work Ombudsman www.fairwork.gov.au ph: 13 13 94 Family and Community Services, Department of www.community.nsw.gov.au ph: 9377 6000 Child Protection Helpline ph: 132 111 or TTY: 1800 212 936 (to report child abuse and neglect, 24 hrs) Please see website for a list of regional and metropolitan offices. Guardianship Division See NSW Civil and Administrative Tribunal (below) Health Care Complaints Commission (HCCC) www.hccc.nsw.gov.au ph: 1800 043 159 or 9219 7444 TTY: 9219 7555 Housing NSW www.housing.nsw.gov.au ph: 1300 468 746 icare (Insurance & Care NSW) www.icare.nsw.gov.au Industrial Relations, NSW www.industrialrelations.nsw. gov.au ph: 131 628 Information and Privacy Commission NSW www.ipc.nsw.gov.au ph: 1800 472 679 Job Access www.jobaccess.gov.au ph: 1800 464 800 LawAccess NSW www.lawaccess.nsw.gov.au

Law Society Solicitors Referral Service

Private Guardian Support Unit

ph: 1800 422 713 or 9926 0300

SafeWork NSW

Law Society Pro Bono Scheme

www.safework.nsw.gov.au

ph: 9926 0364 ph: 132 011

ph: 13 10 50 Social Services, Department of www.dss.gov.au

Mental Health Advocacy Service

ph: 1300 653 227

www.legalaid.nsw.gov.au

National Disability Abuse and Neglect Hotline www.disabilityhotline.net.au

Medicare

ph: 9745 4277 Mental Health Review Tribunal www.mhrt.nsw.gov.au ph: 1800 815 511 or 9816 5955 National Disability Insurance Scheme www.ndis.gov.au ph: 1800 800 110 NSW Civil and Administrative Tribunal www.ncat.nsw.gov.au ph: 1300 006 228 Guardianship Division www.ncat.nsw.gov.au/ guardianship ph: 9556 7600 or 1300 006 228 NSW Trustee and Guardian www.tag.nsw.gov.au Trustee Services: 1300 364 103 Managed Clients: 1300 320 320 NSW Trustee and Guardian has a network of 19 branches throughout metropolitan and regional areas across NSW. See website for details. Ombudsman, Commonwealth www.ombudsman.gov.au ph: 1300 362 072 Ombudsman, NSW (including Community Services Division and Official Community Visitors) www.ombo.nsw.gov.au ph: 1800 451 524 or 9286 1000 Public Guardian, Office of the www.publicguardian.justice.nsw. gov.au

ph: 1300 888 529 Law Society of NSW www.lawsociety.com.au

General Information

ph: 9926 0333

ph: 8688 2650 or 1800 451 510

ph: 8688 6070 or 1800 451 510 Contact a guardian,

ph: 8688 6060 or 1800 451 510

ph: 1800 880 052 State Insurance Regulatory Authority (SIRA) www.sira.nsw.gov.au Statewide Disability Services (NSW Corrective Services) www.correctiveservices.nsw.gov. au/programs/statewide-disabilityservices ph: 9289 2136 Witness Assistance Service www.odpp.nsw.gov.au/witnessassistance-service ph: 9285 8606 WorkCover NSW www.workcover.nsw.gov.au

Support and advocacy organisations Ability Incorporated www.abilityincorporated.org.au ph: 6628 8188 or 1800 657 961 Aboriginal Disability Network www.adsnnsw.org.au ph: 8399 0881 ACTION for People with Disabilities (North Sydney) www.actionadvocacy.org.au ph: 9449 5355 Aftercare Association of NSW www.aftercare.org.au ph: 8572 7700 Alzheimer’s Australia NSW www.nsw.fightdementia.org.au ph: 9805 0100 Dementia helpline: 1800 100 500

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Association of Relatives and Friends of the Mentally Ill NSW (ARAFMI) www.arafmi.org

Sydney 9318 0144 Newcastle 4926 5643 Wollongong 4228 4040

ph: 9332 0777

After hours for support at police station 1300 665 908

Information and support line 1800 655 198 or 9332 0700

Deaf Society of NSW

Australian Centre for Disability Law

Parramatta

www.deafsocietynsw.org.au

(previously Disability Discrimination Legal Centre NSW)

ph: 8833 3600

www.disabilitylaw.org.au

TTY: 8833 3691

ph: 1800 800 708 or 9370 3135

Email: [email protected]

Australian Communication Exchange (ACE) www.aceinfo.net.au

Disability Advocacy NSW

ph: (07) 3815 7600 TTY: (07) 3815 7602 Autism Spectrum Australia (ASPECT) www.autismspectrum.org.au

Hunter Region

ph: 1800 277 328 Carers NSW www.carersnsw.org.au ph: 9280 4744 Carer Line ph: 1800 242 636 Central Coast Disability Network www.ccdn.com.au ph: 4324 2355 Illawarra Advocacy www.illawarraadvocacy.org.au ph: 4229 4999 Community Legal Centres NSW www.clcnsw.org.au ph: 9212 7333 Complaints Resolution and Referral Service (CRRS) www.crrs.net.au ph: 1800 880 052 Email: [email protected] Council for Intellectual Disability, NSW www.nswcid.org.au

SMS: 0427 741 420

www.da.org.au ph: 1300 365 085 Newcastle office ph: 4927 0111 New England Region

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Family Advocacy www.family-advocacy.com ph: 1800 620 588 or 9869 0866 Financial Rights Legal Centre www.financialrights.org.au ph: 1800 007 007 Home Care Service of NSW See Department of Ageing, Disability and Home Care under Government bodies. IDEAS Information on Disability and Education Awareness Services www.ideas.org.au ph: 1800 029 904 or 6947 3377 Database of services throughout NSW Institute of Psychiatry NSW www.nswiop.nsw.edu.au

Armidale office

ph: 9840 3833 Intellectual Disability Rights Service www.idrs.org.au

ph: 6776 6201

ph: 1800 666 611 or 9318 0144

Mid North Coast Region

Legal Aid NSW

Coffs Harbour office

www.legalaid.nsw.gov.au

ph: 6651 1159

Legal Aid Youth Hotline ph: 1800 101 810 For a list of metropolitan, regional and specialist legal aid offices please see the website. Mental Health Coordinating Council www.mhcc.org.au

Tamworth office ph: 6766 4588

Forster/Taree office ph: 6552 6936 Port Macquarie office ph: 6580 2100 Disability Advocacy Network Inc Riverina www.dan-inc.net.au ph: 6921 9225 or 1800 250 292 Disability Advocacy and Information Service Albury-Wodonga www.dais.org.au ph: 6056 2420 or 1300 886 388 Disability Council of NSW See Government bodies. TTY 9211 5549 or 1800 644 419

ph: 1800 424 065 or 9211 1611 Criminal Justice Support Network

Disability Information Advocacy Service Inc

(part of Intellectual Disability Rights Service) www.idrs.org.au

Bathurst

www.dias.net.au ph: (02) 6332 2100

ph: 9555 8388 Mental Health Commission NSW nswmentalhealthcommission. com.au ph: 9555 8388 Multicultural Disability Advocacy Association of NSW www.mdaa.org.au ph: (02) 9859 5200 or 1300 884 563 National Disability Abuse and Neglect Hotline www.disabilityhotline.net.au ph: 1800 880 052 National Disability Insurance Scheme (NDIS) www.ndis.gov.au ph: 1800 800 110

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National Disability Services NSW

Public Interest Advocacy Centre

Side By Side Advocacy

www.nds.org.au

www.piac.asn.au

www.sidebysideadvocacy.org.au

ph: 9256 3111

ph: 8898 6500

ph: 9808 5500

Newell Advocacy

Rape Crisis Centre NSW

ph: 6792 3195

www.nswrapecrisis.com.au

Spinal Life Australia (formerly Spinal Injuries Australia)

NSW Council for Intellectual Disability

ph: 1800 424 017 Online counselling available through website. Richmond PRA www.richmondpra.org.au

www.spinal.com.au

ph: 1300 779 270 or 9393 9000 Schizophrenia Fellowship of NSW

ph: 1800 673 074 or (07) 3137 7400

www.sfnsw.org.au

www.dhi.health.nsw.gov.au/tmhc

ph: 1800 985 944 or 9879 2600 Self-Advocacy Sydney www.sasinc.com.au

ph: 9912 3851 or 1800 648 911

Physical Disability Council of NSW (PDCN)

ph: 9622 3005

ph: 9881 5999

Seniors Information Service

www.pdcnsw.org.au

www.seniorsinfo.nsw.gov.au

WayAhead — Mental Health Association NSW

ph: 9552 1606 or 1800 688 831

www.wayahead.org.au

www.pda.org.au

ph: 137 788 Shopfront Youth Legal Centre, www.theshopfront.org

ph: (08) 7129 8085

ph: 9322 4808

ph: 1300 794 991

www.nswcid.org.au ph: 9211 1611 Official Community Visitors See Ombudsman (NSW) under Government bodies. People with Disability Australia (including Individual and Group Advocacy Service) www.pwd.org.au ph: 1800 422 015 or 9370 3100

Physical Disability Australia

ph: 1300 555 727 Synapse — Brain Injury Association of NSW www.synapse.org.au Transcultural Mental Health Centre

Unions NSW www.unionsnsw.org.au

ph: 9339 6000 Mental Health Information Service

17 Discrimination Bronwyn Byrnes

Australian Human Rights Commission

Contents [17.10]

What is unlawful discrimination?

[17.20]

Types of discrimination

[17.120]

When is discrimination against the law? Victimisation

[17.180]

[17.190]

Vilification

[17.210]

Equal employment opportunity

[17.250]

Complaints about discrimination

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What is unlawful discrimination? [17.10]

Discrimination, in the legal sense, means treating someone unfairly because they happen to belong to a particular group – because, for example, the person is female or comes from a particular ethnic group or has a disability. Discrimination is often the result of prejudice or negative stereotyping based on ignorance, fear or simple naivety. Unfair treatment can be obvious (like when you are treated unfairly because you belong to a particular group compared to someone else from a different group), or it can be less obvious, (like when a rule or policy seems to apply equally to everybody but when it is examined more closely, it actually has an unfair impact on a particular group of people). In law, obviously unfair treatment is known as direct discrimination and less obvious unfair treatment is known as indirect discrimination. Direct discrimination example If an employer won't hire someone just because he is a man, this is likely to be direct sex discrimination.

Not all forms of unfair treatment are against the law. To be unlawful, both the type of unfair treatment and the area of public life that it happens in must be covered by a law. In NSW, both the Commonwealth and NSW anti-discrimination legislation determine what forms of discrimination are against the law. Although both Commonwealth laws and the state/territory laws generally cover the same grounds and areas of discrimination, there are some differences in the protection that is offered and there are also circumstances where only the Commonwealth law applies or where only the state law applies. Legislation Federal laws Federal laws dealing with discrimination are the: • Racial Discrimination Act 1975 (Cth) • Sex Discrimination Act 1984 (Cth) • Disability Discrimination Act 1992 (Cth) Disability Standards for Accessible Public Transport Disability Standards for Education

Indirect discrimination example An employer who advertises for someone 190 cm tall to do a job is likely to end up discriminating against women and against men from some ethnic groups. If it can be shown that a shorter person could do the job, or that it could easily be adapted to suit shorter people, indirect sex or race discrimination could be claimed.

Disability (Access to Premises - Buildings) Standards • Australian Human Rights Commission Act 1986 (Cth) • Age Discrimination Act 2004 (Cth). NSW laws The Anti-Discrimination Act 1977 (NSW) is the most important NSW anti-discrimination law.

Types of discrimination [17.20] Types of

discrimination Under state and/or federal legislation, it is against the law in NSW to discriminate against a person in employment, education,

the provision of goods, services and accommodation and in relation to registered clubs, on the grounds of: • race • disability • sex • sexual orientation • gender identity

17 Discrimination

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• intersex status • marital or relationship status • pregnancy • age • who they are related to or associate with • carer’s and family responsibilities. Vilification on the basis of race, colour, nationality, descent, homosexuality, HIV/ AIDS or transgender status and ethnic, ethno-religious or national origin, is also unlawful.

The law relating to mental illness is discussed in Chapter 16, Disability Law.

[17.30] Race discrimination

[17.40] Disability

In most cases, if people with disabilities need special services or facilities (to enable them to work, have access to accommodation, and so on), employers and service providers must make these services and facilities available – unless it would cause unjustifiable cost or inconvenience. Employers should also look at whether a person can get the job done, rather than how. For example, if the job involves moving boxes from one room to another, and the best person for the job cannot move them by hand because of a disability, but can get them moved by another means that does not cause unjustifiable hardship to the employer, that person should be employed. Who is the “best person for the job” in any particular case should be decided on merit – by judging which of the individual applicants best meets the essential requirements of the job.

discrimination

Disability standards

Race discrimination happens when someone is treated unfairly or harassed because of their: • race • colour • nationality • descent • immigrant status • ethnic or ethno-religious background. What does “ethno-religious background” mean? Ethno-religious background includes backgrounds such as Jewish, Sikh and Buddhist. It does not include backgrounds such as Muslim or Roman Catholic – religions widespread across many different ethnic groupings.

Disability discrimination happens where someone is treated unfairly or harassed because: • they have a disability or an illness • they have had a disability or illness in the past • they will, or might, become disabled or ill in the future.

What kind of disability or illness is covered? The law covers any kind of disability or illness – physical, intellectual, psychiatric, sensory or categorised in some other way. It is against the law, for example, to discriminate against someone because they have HIV or AIDS.

The law relating to HIV/AIDS is discussed in Chapter 26, Health Law.

Obligations of employers and service providers

The Attorney-General may make Disability Standards to specify rights and responsibilities about equal access and opportunity for people with a disability. To date, Disability Standards have been enacted in relation to public transport, education and access to premises. These standards require: • providers and operators of public transport to comply with standards that set out the minimum requirements for access by people with disability, their families and carers • schools to comply with standards to ensure that students with disabilities are able to access and participate in education and training free from discrimination, and on the same basis as other students

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• people with disabilities to be able to access public buildings.

Sex discrimination happens when a person is treated unfairly or harassed because they are female and not male, or male and not female.

single married divorced living in a de facto relationship with a member of the opposite or same sex, or • because of the particular person they are married to or in a de facto relationship with.

Sexual harassment

[17.80] Sexual orientation,

[17.50] Sex discrimination

Sexual harassment is unlawful. Unwanted or unwelcome behaviour that may constitute sexual harassment includes: • suggestive behaviour • staring or leering • wolf whistling • making sexual jokes • making sexual propositions • sexual or physical contact • making sexually offensive gestures • displaying sexually offensive objects • displaying sexually explicit material in a public place or in people’s work areas. The sexual harassment can occur in person or via the internet, social networking sites or mobile phones.

Sex-based harassment Sex-based harassment that is not sexual – for example, addressing a woman as “bitch” may also be against the law. What about pregnancy? Discrimination against a woman because she is pregnant can be sex discrimination.

[17.60] Breastfeeding It is unlawful to discriminate against a woman because she is breastfeeding (this includes expressing milk).

[17.70] Marital or relationship

status discrimination Marital or relationship status discrimination happens when someone is treated unfairly or harassed: • because of their marital or relationship status; for example, because they are:

– – – –

gender identity and intersex status discrimination Discrimination occurs when someone is treated unfairly or harassed because of their sexual orientation, gender identity or intersex status or because someone thinks they have a particular orientation, identity or status. Sexual orientation includes a person’s sexual orientation towards persons of the same sex, persons of a different sex or persons of the same sex and persons of a different sex. Gender identity encompasses the way people express or present their gender and may include an identity other than male or female. Intersex status means the status of having physical, hormonal or genetic features that are neither wholly female nor wholly male, or a combination of female and male, or neither female nor male. The law relating to lesbian and gay couples and their families is discussed in Chapter 34, Same-sex Couples and their Families.

[17.90] Age discrimination Age discrimination happens where someone is treated unfairly because of their age. For example, generally it is against the law for an employer to advertise for someone of a particular age or age group or to compulsorily retire workers because they have reached a certain age.

Exceptions There are, of course, many common sense exceptions. For example, the legal age limits

17 Discrimination

for such things as driving, drinking, marriage, voting, sexual activity, watching adult-rated films, being accompanied by an adult for safety and so on, override the age discrimination law. Juniors The employment of juniors is a major exception. Employers can advertise for and employ people under 21 and pay them at junior rates.

Compulsory retirement In most cases, it is against the law to require an employee to retire at a certain age (including by hiring only older workers on fixed term contracts as a way of ensuring they will retire at a specific time). Threatening to do so, or doing anything that could result in their retiring due to their age, is also unlawful. Exceptions People are not covered by the law against compulsory retirement in NSW if they are employed: • as judges and magistrates • as an officer not appointed for a fixed term, who can only be removed from office by parliament.

The Age Discrimination Act The Commonwealth enacted the Age Discrimination Act in 2004. This Act makes it against the law to treat people less favourably because of their age in areas such as employment, education, accommodation, use of services, and the administration of Commonwealth laws and programs. The Act does not make it unlawful to provide a benefit to a particular age group to meet a need that arises from being a member of that age group (for example, discounts and concessions provided to older Australians for services and/or facilities). Exceptions The Age Discrimination Act may not apply in relation to: • Commonwealth laws that govern taxation, social security, migration and superannuation

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• state laws • certain health programs • youth wages or direct compliance with industrial agreements and awards.

[17.100] Discrimination

because of a person's relatives or associates This type of discrimination happens where someone is treated unfairly or harassed because of the sex, pregnancy, race, age, marital status, homosexuality, transgender or disability of one of their relatives, friends or colleagues. For example … It is against the law for a real estate agent to refuse to let a house to a couple just because they have children. This would also apply if a hotel refused admission to a group of people because one of them was Aboriginal. That person could obviously claim discrimination, but so could all the other members of the group.

[17.110] Carer's and family

responsibilities discrimination This type of discrimination occurs when a job applicant or employee is treated unfairly because they need to care for or support a child or other immediate family member. Under NSW law, past, future and presumed carer’s responsibilities are covered – that is, the discrimination may occur because someone: • had or might have had a carer’s responsibility in the past • might or will have it in the future, or • is thought by the employer to have it now or in the future. Under the Sex Discrimination Act 1984, both men and women are protected from direct sex discrimination on the basis of family responsibilities in all areas of their work. Women may make complaints of indirect sex discrimination where they are disadvantaged because of their family responsibilities. Under NSW law, both men and women are protected from both direct and indirect

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discrimination on the ground of carer’s responsibilities in all areas of their work.

• grandchild or partner's grandchild • grandparent or partner's grandparent. This includes adoptive, foster and step relationships.

Who is an immediate family member? For these purposes, immediate family members are: • married or de facto with a partner of the same-sex or different sex • ex-partner • parent or partner's parent • brother or sister, or partner's brother or sister

In most cases, employers must provide whatever flexible working arrangements are necessary to enable the job applicant or employee to meet their family responsibilities alongside their work – as long as they can still get the work done.

When is discrimination against the law? [17.120]

In general, the forms of discrimination discussed in this chapter (except carer’s/family responsibilities) are against the law if they happen in the following areas: • education • access to goods or services • employment • accommodation • registered clubs. Carer's/family responsibilities discrimination Carer's/family responsibilities discrimination is only against the law if it occurs in relation to employment.

[17.130] Education Government educational institutions Government schools, colleges, and universities must comply with the antidiscrimination laws.

Private educational institutions Private educational institutions need only satisfy the provisions of the NSW AntiDiscrimination Act 1977 relating to: • age discrimination in employment • race discrimination • sexual harassment. Private educational institutions must also comply with the relevant provisions of federal discrimination laws.

[17.140] Goods and services The anti-discrimination laws cover buying or trying to buy goods, and getting or trying to get services, from such sources as banks, government departments, councils, hospitals, hotels, trades people, shops and transport authorities.

[17.150] Employment The anti-discrimination laws cover everything to do with work – applying for a job, what happens at work and leaving the job. They also cover independent contractors, commission agents, partnerships and qualifying bodies. Many employers call themselves equal employment opportunity (EEO) employers, some have EEO officers and some run various types of affirmative action programs. Whether they do these things or not, all employers must try to ensure that people in their workplace do not discriminate against or harass anyone for any of the reasons discussed above.

The Human Rights and Equal Opportunity Commission Regulations Regulations under the federal Australian Human Rights Commission Act 1986 cover, in relation to employment, discrimination on some of the grounds discussed in this chapter, as well as other grounds including: • criminal record • medical record • religion or political opinion • trade union activity.

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Industrial relations legislation The Fair Work Act 2009 (Cth) applies to almost all private sector employees across Australia. Under the Fair Work Act 2009 an employer must not take any adverse action against an employee (or prospective employee) because of their race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Neither can an employer dismiss an employee because they are temporarily absent from work because of illness or injury. If a person has either been dismissed or feels there has been some other breach of the Act, they may make an application to the Fair Work Commission (FWC) to deal with the dispute. If the dispute remains unresolved, the person can make an application to a court to deal with the matter. State public sector and local government employees may be able to complain about unfair dismissal to the NSW Industrial Relations Commission. See Chapter 22, Employment, for more information.

[17.160] Accommodation Renting The anti-discrimination laws cover the renting of: • flats • houses • hotel and motel rooms • commercial premises, and • caravans. For example … A woman told a real estate agent she wanted to rent a particular house but the owners refused to let it to her

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because she was Aboriginal. Conciliation by the AntiDiscrimination Board resulted in an apology and a monetary settlement.

Sale of land Under federal law, sex, age, race and disability discrimination are against the law in relation to the sale of land. Under NSW law, it is unlawful to sexually harass another person in the course of the sale of land.

[17.170] Registered clubs Registered clubs sell alcohol or have gambling machines. The anti-discrimination laws cover: • becoming a member of a club • entry into the club • services provided by the club.

Single-sex clubs Clubs set up as single-sex clubs can continue as single-sex clubs. Once the club admits the other sex as members, however, it must give both sexes the same access to all classes of membership. For example … A woman complained that a particular club still had a “men only” bar. After discussions with the AntiDiscrimination Board, the club opened the bar to both men and women.

Clubs for racial or ethnic groups Clubs specifically set up to provide benefits to people of a particular racial or ethnic group may operate as single racial or ethnic group clubs.

Victimisation [17.180]

Once a person has complained to the Australian Human Rights Commission or the Anti-Discrimination Board, or

claimed that they have been discriminated

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against, it is an offence for someone to punish (victimise) them because of their complaint.

For example … A person who is sacked or demoted because they have complained about discrimination can lodge a complaint with the board or Commission claiming victimisation.

Vilification [17.190]

Vilification is publicly saying or doing something that could make others hate or ridicule a particular group of people.

[17.200] The law about

vilification Racial, homosexual, transgender and HIV/ AIDS vilification are against NSW law. Racial vilification is also against federal law.

What do the laws cover? NSW vilification laws cover any public act that could encourage hatred, serious contempt or severe ridicule because of a person’s or group’s: • race, colour, nationality, descent, ethnic, ethno-religious or national origin (racial vilification) • homosexuality, whether male or female, actual or presumed (homosexual vilification) • HIV or AIDS status, whether actual or presumed (HIV/AIDS vilification) • transgender identity, whether actual or presumed (transgender vilification). Commonwealth racial vilification laws make it against the law to do something in public based on the race, colour, national or ethnic origin of a person or group of people which is likely to offend, insult, humiliate or intimidate them. An example of racial hatred may include putting racially offensive material on

e-forums, blogs, social networking sites or video sharing sites on the internet. The law aims to strike a balance between the right to freedom of speech and the right to live free from racial hatred. Under federal law it is not unlawful to say something “done reasonably and in good faith” in: • an artistic work or performance • a statement, publication, discussion or debate made for genuine academic or scientific, or other public interest purposes • a fair and accurate report on a matter of public interest, or • a fair comment on any matter of public interest which is an expression of a person’s genuine belief. What is a “public act”? To be against the law, vilification must be a public act. Generally speaking, this means that it must have been possible for someone other than those directly involved to have seen, heard or read it. The following could be against the law if their content was racist, homophobic, anti-HIV/AIDS or anti-transgender: • speeches or statements made in public – except those made “reasonably and in good faith” for academic, artistic, scientific or research purposes • statements in a newspaper or journal, or on radio or TV – except for “fair reports” of an act of vilification • symbols worn in public, such as badges or clothing with slogans • gestures made in public • publications (works of literature and scientific and academic works would generally be exempt) • graffiti, posters or stickers in a public place.

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Equal employment opportunity [17.210]

Equal opportunity in a workplace context means that all employees have equal access to the opportunities that are available at work. In Australia, equal employment opportunity (EEO) policies are mandatory across federal and state public sectors and public organisations are required to have EEO plans and to monitor EEO progress.

[17.220] Affirmative action In certain circumstances employers can discriminate in favour of some groups – for example, people of one sex rather than the other, or people of particular races or ethnic groups, or people in particular age groups can be sought for particular types of jobs. This situation, where the aim is to redress past disadvantage or discrimination, is often called affirmative action. Sometimes it can be done legally without seeking a specific exemption from the anti-discrimination laws. For example … It is acceptable to advertise for and employ someone of a particular racial background where: • the job is to provide welfare services to people of that racial background, and • the best way of providing these services is through someone of the same background. However, an employer who wanted to set up a femaleonly apprenticeship scheme to encourage more women to take up a particular trade would almost certainly need to get a specific exemption to do so.

For information on exemptions, contact the AntiDiscrimination Board or the Australian Human Rights Commission.

[17.230] Equal employment

opportunity management plans NSW government bodies Previously all NSW government departments, statutory authorities and local councils were required to prepare and implement equal employment opportunity management plans – plans to remove discrimination and harassment from their work practices and procedures. However, the requirement for such plans was repealed by the Government Sector Employment Act 2013 (NSW) (the GSE Act) which commenced on 24 February 2014. The Act preserves the focus on existing diversity groups (Aboriginal people, women, people from culturally and linguistically diverse backgrounds, and people with disability) while also encompassing mature workers, young people and carers. Government departments, statutory authorities and local councils must comply with all workforce diversity requirements that are specific to the government sector as set out in the GSE Act and with their obligations under the Anti-Discrimination Act 1977 (NSW). The responsibility for workforce diversity within the agency vests with the head of that government sector agency. The NSW Public Services Commissioner is to include in annual reports to the NSW Premier or other reports, periodic reports on workforce diversity across government sector agencies.

Federal government bodies Under the Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (Cth), federal authorities like Australia Post, the Reserve Bank and the ABC must have equal employment opportunity plans and affirmative action programs for: • women • Aboriginal people • people of non-English speaking backgrounds

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• people with disabilities.

[17.240] Equal opportunity for

women and men The Workplace Gender Equality Agency (WGEA) (formerly known as the Equal Opportunity for Women in the Workplace Agency) is the Australian Government statutory agency charged with promoting and improving gender equality in Australian workplaces. The WGEA administers the Workplace Gender Equality Act 2012 (Cth) and its functions include: advising and assisting employers in promoting and improving gender equality in the workplace; developing, in consultation with relevant employers and employee organisations, benchmarks in relation to gender equality indicators; issuing guidelines to assist relevant employers to achieve the purposes of the Act; reviewing compliance with the Act

by relevant employers; reviewing public reports lodged by relevant employers and responding to those reports in accordance with the Act. Relevant private sector employers with 100 or more employees are required to report against standardised “gender equality indicators” including matters like gender composition of the workforce, remuneration differences between men and women, and practices that permit flexible work arrangements. Also from 2015-2016, relevant employers will be required to report on the: • number of appointments made • number of promotions awarded • number of resignations • number of employees who ceased employment during or at the end of a period of parental leave.

Complaints about discrimination [17.250]

It is often a good idea for a person who believes they have been discriminated against to try talking to the person or organisation doing the discriminating. A community worker or welfare worker may be able to do this on their behalf, or there may be other sources of help. For example, if it is a work problem, their union (if the person is in one) may be able to help. Often, people who have a good understanding of their rights are able to sort out the problem themselves. If this doesn’t work, or it isn’t appropriate, the person can make a formal complaint.

[17.260] Which agency? Complaints about discrimination go to the: • Australian Human Rights Commission (for discrimination under federal law) • NSW Anti-Discrimination Board (for discrimination under NSW law) • NSW Industrial Relations Commission or the Fair Work Commission for

employment-related complaints. If a complaint is covered by both laws a choice must be made about which law you want to lodge your complaint under – you cannot lodge a complaint under both. Both the Anti-Discrimination Board and the Australian Human Rights Commission can advise whether they can handle a particular complaint, and refer complaints to the other agency if necessary. How to make enquiries Both the Anti-Discrimination Board and the Australian Human Rights Commission operate phone and drop-in enquiry services during business hours to give advice about the law and how to lodge a complaint.

[17.270] Formal complaints Complaints to both the Anti-Discrimination Board and the Australian Human Rights Commission should be in writing.

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Complaints may be in any language, or in braille. They can be mailed, hand delivered, faxed or emailed to the Anti-Discrimination Board. The Australian Human Rights Commission can assist in the making of a complaint, and can also receive complaints online or via email.

What should be in the letter The letter should: • explain what type of discrimination the person has suffered

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• state who caused it • state when it occurred, and • ask the president of the board or Commission to investigate. The letter need not be long, and there is no need for supporting documents. Further material and evidence will be collected later, if necessary. If the matter is urgent (because, for example, the person making the complaint is about to lose their job) this should be stated in the letter.

Who handles what? The general guidelines for where to take complaints are discussed below: • complaints about sex, sexual orientation, gender identity, intersex status, race, age or disability discrimination, direct discrimination in work only for carer’s/family responsibilities and racial vilification complaints can go to either the Anti-Discrimination Board or the Australian Human Rights Commission. There are subtle differences between federal and state unlawful discrimination, so it is a good idea to phone both before deciding where to lodge the complaint • transgender, homosexual (male or female) and HIV/ AIDs vilification complaints go to the Anti-

Discrimination Board. Complaints of indirect discrimination in work for carer’s/family responsibilities can be brought by both men and women to the AntiDiscrimination Board • other types of employment-related complaints (such as discrimination because of criminal record, religion, medical record or trade union activity) can go to the Australian Human Rights Commission. Unlawful and unfair dismissal complaints • Some unlawful and unfair dismissal or adverse action complaints should go to the Fair Work Commission. • People covered by a state award can take some types of unfair dismissal complaints to the NSW Industrial Relations Commission.

Complaints of discrimination in relation to equal opportunity in employment and human rights breaches under the Australian Human Rights Commission Act The Australian Human Rights Commission also has functions in relation to complaints of human rights breaches and complaints about equal opportunity in employment (as distinct from complaints of unlawful discrimination) under the Australian Human Rights Commission Act 1986 (Cth). Divisions 3 and 4 of Pt II of the Act specify the functions of the Commission, which include inquiring into: • alleged breaches of human rights by the Commonwealth (such as a federal government department) against accepted international standards (such as those contained in the International Covenant on Civil and Political Rights) • any act or practice, including any systemic practice, that may constitute discrimination in employment (public and private organisations) on a range of

grounds set out in the Act, including age, religion, sexual preference, political opinion, trade union activity and criminal record. Complaints received can be resolved by conciliation between the parties. If the matter cannot be conciliated, and is not discontinued for other reasons provided for in the Act, the commission will (in contrast to the treatment of complaints of unlawful discrimination under Pt IIB) present a report to federal parliament outlining the key issues and recommendations to resolve the complaint. However, the findings of the Australian Human Rights Commission are not legally binding and cannot be enforced in a court.

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Time limits Complaints to both the Anti-Discrimination Board and the Australian Human Rights Commission must be made within 12 months of the last occasion of discrimination, harassment or vilification. Extensions of time The presidents of both the AntiDiscrimination Board and the Australian Human Rights Commission can only accept complaints outside these time limits if there is a very good reason why they should do so. How long will it take? Both agencies deal with complaints as quickly as possible. However, how long the agency takes to respond to, and ultimately settle, a complaint will depend on a number of factors – for example, how urgent the complaint is in comparison with other complaints at the agency, how quickly those involved respond, and so on.

[17.280] Who can lodge a

complaint? Complaints about vilification must come from a representative body or member of the group claiming to have been vilified. Generally, the letter or complaint form must be signed by the person making the complaint. NSW law allows organisations representing people of the particular race, sex, age, or other status (depending on the type of discrimination being claimed) to lodge a complaint on a person’s behalf. NSW law also provides for a parent or guardian to be able to lodge a complaint for a person who lacks legal capacity to do so (because of disability or age).

[17.290] Investigation and

conciliation An officer from the agency first investigates the complaint to check that it is covered by the anti-discrimination laws. This person must not take sides, and must give both parties the opportunity to explain their version of events.

If the officer decides that the complaint is covered by the anti-discrimination laws (and if it has not been settled during investigation), an attempt is made to conciliate the matter. The Anti-Discrimination Board (ADB) may “decline the complaint”, and the Australian Human Rights Commission (AHRC) may ’terminate the complaint’ at this stage (for example, because it was lodged more than 12 months after the discrimination happened or doesn’t show a breach of discrimination law). If the ADB declines the complaint, application can be made to have the decision reviewed by the Supreme Court of New South Wales within 28 days or leave can be sought for the ADB to refer the matter to the NSW Civil and Administrative Tribunal for hearing within 21 days (depending on the reasons for declining the complaint). If the AHRC terminates the complaint, the complaint can be lodged with the Federal Court or Federal Circuit Court within 60 days.

Conciliation Conciliation involves helping the complainant (the person making the complaint) and the respondent (the person or organisation they are complaining about) to reach a private settlement that they both agree on. The type of settlement will depend on the facts of the case. It could be, for example: • an apology • financial compensation • an offer to give someone back their job • setting up an education program in the workplace to try to ensure that the discrimination does not recur. Most complaints are settled by conciliation.

[17.300] If conciliation is not

successful If the complaint is not settled: • it will be referred to the NSW Civil and Administrative Tribunal (NCAT) (for complaints made to the AntiDiscrimination Board), or • the complainant may commence proceedings in the Federal Court or the Federal

17 Discrimination

Circuit Court (for complaints made to the Australian Human Rights Commission).

The Equal Opportunity Division of the NSW Civil and Administrative Tribunal The Equal Opportunity Division of NCAT deals with discrimination, harassment, vilification or victimisation cases that have been referred to NCAT by the President of the NSW Anti-Discrimination Board. Hearings The tribunal hears from the complainant, the respondent and any witnesses. Hearings are designed to be informal and accessible. The formal rules of evidence do not apply, and generally each side pays their own costs of having the complaint heard. What the tribunal may do After hearing all the evidence the tribunal determines whether discrimination, harassment or vilification has occurred, and makes a legally binding decision. It can order a respondent to pay compensation to the victim of discrimination up to $100,000. It can also make orders to ensure that the discrimination does not occur again.

Hearings in the Federal Court or the Federal Circuit Court Time limits When the Australian Human Rights Commission can take no further action in relation to a complaint about sex, sexual orientation, gender identity, intersex status, family responsibilities, race, age or disability discrimination, it terminates the matter. The complainant then has 60 days to decide whether to take the matter further by applying to the Federal Court or the Federal Circuit Court for a decision. Formal requirements The complainant must complete and lodge a form setting out the allegations, and an affidavit (a statement of evidence) from the

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alleged victim explaining what has happened. There is a $55 fee (which can sometimes be waived) when a discrimination case is started in the courts. Hearings A hearing is held before a judge of the Federal Court or judge of the Federal Circuit Court. Cases are conducted formally, and the rules of evidence normally apply, although the judge can decide that the formalities and the strict rules of evidence will not apply in every case. Procedures in the two courts are very similar, but cases in the Federal Circuit Court are generally resolved more quickly than in the Federal Court. What the courts may do Either court may award compensation and, in contrast to the situation under NSW law, there is no limit on the amount of compensation that may be awarded. The courts may also order a respondent to do certain things to ensure the discrimination or harassment does not continue. Costs The side that loses the case generally has to pay the other party’s legal costs. A discriminatory examination Mr Bishop suffered from dyslexia. He complained to the Human Rights and Equal Opportunity Commission (as it was then called) when a college he attended to learn sports massage required him to take a written exam, making no allowance for his dyslexia (it was difficult for him to complete the exam in the same two-hour period as the other students) and failing to offer him the alternative of an oral exam. Because of this, Mr Bishop failed the exam and had to enrol in another college, delaying his training and work opportunities. The college's failure to give Mr Bishop an extra half-hour to complete the exam, or the option of an oral exam, was found to be disability discrimination, and he was awarded $3,000 to redress the loss and damage he suffered (Bishop v Sports Massage Training School Pty Ltd, decided December 2000).

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Where to get more information Both the Anti-Discrimination Board and the Australian Human Rights Commission have produced several fact sheets and guidelines for people wanting to know about their rights or responsibilities under anti-discrimination law. These are available free of charge from the agencies. Their annual reports contain other useful information, including case examples.

The Anti-Discrimination Board also produces a quarterly newsletter, Equal Time, which anyone can subscribe to. Each agency also has an extensive internet website for information.

17 Discrimination

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Contact points [17.310]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au. Anti-Discrimination Board of NSW www.antidiscrimination.justice. nsw.gov.au ph: 1800 670 812 Sydney Office ph: 9268 5555 or 9268 5544 (general enquiries) or 9268 5522 (TTY) To make a complaint: Post: PO Box A2122, Sydney South NSW 1235 Street address: Level 4, 175 Castlereagh Street, Sydney NSW 2000 Email: [email protected] Australian Centre for Disability Law (formerly Disability Discrimination Legal Centre) www.disabilitylaw.org.au ph: 1800 800 708 or 1800 644 419 (free TTY) Australian Human Rights Commission www.humanrights.gov.au ph: 9284 9600 Info line: 1300 656 419 (local call) or 1800 620 241(TTY)

Fair Work Commission

Human Rights Committee

www.fwc.gov.au

ph: 9219 5790 or 1300 888 529

ph: 1300 799 675

NCAT Administrative and Equal Opportunity Division

Federal Circuit Court www.federalcircuitcourt.gov.au ph: 9230 8567 HIV/AIDS Legal Centre www.halc.org.au ph: 9206 2060 Inner City Legal Centre

www.ncat.nsw.gov.au ph: 1300 006 228 or 13 36 77 (TTY) National Children’s and Youth Law Centre www.ncylc.org.au ph: 9385 9588

www.iclc.org.au

NSW Industrial Relations Commission

ph: 1800 244 481 or 9332 1966

www.irc.justice.nsw.gov.au

Intellectual Disability Rights Service

ph: 9258 0866 Office of the High Commissioner for Human Rights

www.idrs.org.au ph: 9318 0144 or 1800 666 611 Complaints infoline ph: 1300 656 419 Kingsford Legal Centre www.klc.unsw.edu.au ph: 9385 9566 LawAccess NSW www.lawaccess.nsw.gov.au ph: 1300 888 529 Legal Aid NSW www.legalaid.nsw.gov.au

www.ohchr.org Public Interest Advocacy Centre www.piac.asn.au ph: 8898 6500 Women’s Legal Services NSW www.wlsnsw.org.au ph: 1800 801 501 or 8745 6988 Wirringa Baiya Aboriginal Women’s Legal Centre www.wirringabaiya.org.au ph: 1800 686 587 or 9569 3847

18 Dispute Resolution Natascha Rohr

Contents [18.20]

Types of ADR

[18.80]

Dispute resolution in practice

[18.140]

Advantages and disadvantages of ADR compared to legal proceedings

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[18.10]

The vast majority of civil disputes in NSW are resolved without a court or tribunal decision. Some are resolved before litigation is commenced and others while proceedings are on foot. In many cases, these settlements take place just before, during or even after the hearing. It is generally accepted that, where possible, early resolution is preferable compared to late settlement. In addition to the time, stress and money involved for the parties leading up to the settlement, protracted litigation has other costs, including irretrievable damage to relationships and loss of confidentiality. Of course, there are also costs to the public purse associated with administering courts and tribunals and other public services required to assist people in dispute.

In addition to direct negotiations between parties and/or their legal representatives, there is a wide range of dispute resolution methods in use today. Alternative dispute resolution (ADR) is a term used to describe a variety of different processes in which an impartial practitioner helps people to resolve their disputes. The word “alternative” is usually understood to mean that these processes are an alternative to having a decision made by a judge or magistrate in court. Some people prefer to use ADR as an acronym for appropriate dispute resolution, recognising that these forms of dispute resolution are now thoroughly mainstream.

Types of ADR [18.20] Facilitative, advisory and determinative processes There are an infinite variety of possible dispute resolution processes, with sometimes confusing names. Broadly speaking, ADR processes can be classified in terms of the role of the dispute resolution practitioner; facilitative, advisory, determinative or combined/hybrid: • facilitative or non-advisory ADR is where the dispute resolution practitioner does not provide advice or evaluate the dispute nor make a decision for the parties. Examples include mediation, facilitation and facilitated negotiation • advisory or evaluative ADR is where the practitioner may provide an expert opinion but does not make a decision for the parties. Examples include case appraisal, conciliation, (early) neutral evaluation and sometimes “advisory” or “evaluative” mediation • determinative ADR is where the practitioner makes a decision for the parties • there are also hybrid forms of ADR where

the impartial third party will start out in one role but move to another during the course of the session. For example, medarb (mediation-arbitration) is a process that may start as mediation and, if not resolved, progress to arbitration with the dispute resolution practitioner making a decision for the parties.

Rights-based vs interests-based ADR While many lawyers assume all negotiations about civil disputes should focus on the legal rights of the parties, interests-based ADR provides parties an opportunity to discuss their non-legal interests and needs. These may include commercial matters, relationships and emotions. Mediation is often conducted as an interests-based process, though if lawyers are present they may focus the discussion on the parties’ legal rights. Advisory processes such as conciliation may be interests- or rights-based or a combination. Determinative forms of ADR such as arbitration are more likely to focus on the legal rights of the parties.

18 Dispute Resolution

[18.30] Mediation Mediation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. Mediation may be undertaken voluntarily, at the direction of a court or tribunal or pursuant to an existing contractual agreement. In practice, participation is voluntary as a party may leave or terminate the session at any time. Mediation is considered a facilitative rather than an advisory or determinative form of ADR. Parties can generally bring any issues they would like to discuss to mediation and, unlike a court hearing, are not restricted to discussing matters related to their legal rights or obligations.

Accreditation and training of mediators Since 2008, the National Mediator Accreditation System (NMAS) has provided national professional standards for the training, accreditation and practice of mediators (see the Mediator Standards Board website (www.msb.org.au) for further information). The NMAS describes mediation as a process that promotes the self-determination of participants to reach and make their own decisions and requires that mediators practise in a way that is impartial and unbiased.

About the mediation process Before a mediation session, there will be an intake process to decide whether it is appropriate to proceed to mediation and, if so, to ensure the parties are prepared for the process and agree to participate. Parties will also be asked if they have had any legal or other professional advice they need in preparation for the session. The mediation session is usually a structured, face-to-face meeting with all the people in dispute and one or more

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mediators. The process will usually involve both joint sessions and private meetings between the parties and mediators. The mediator will guide the parties through the process and ensure their communication is appropriate and productive. Mediators will use a range of techniques to enable parties to understand what has led to the dispute and what they and the other party need in order to resolve the dispute. Mediators will also assist parties to carefully consider their options in light of possible outcomes. Parties who initially assume mediation will not assist because direct negotiations have already failed are often surprised by what a difference the mediator and mediation process can make. Some mediation sessions are conducted entirely or mostly “shuttle style” with the parties in separate rooms and the mediators moving between them. This sometimes appeals to lawyers as it has similarities to the way legal settlement talks are conducted, but many experienced mediators find joint sessions where the parties communicate directly more effective and likely to satisfy the parties’ desire to have a say and be heard. However, there may also be times that shuttle mediation is most appropriate because of violence or other circumstances that mean having the parties together in the same room is unsuitable. It is also possible to conduct mediation by video or telephone link. This may be done for various reasons, including distance or safety concerns. It is important that participants in mediation understand that the mediator will not: • give any advice • make any decisions, including decisions about who is right or wrong or what the outcome should be • make any findings of fact • consider the evidence • give legal or other advice • act as a counsellor.

When is mediation effective? Mediation can be effective in most dispute types and is one of the most common types of ADR. Mediation is also readily available

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in NSW, with a range of private practitioners, court and tribunal mediator panels and the free, statewide mediation service offered by Community Justice Centres. Mediation can typically assist where: A party wishes to resolve the dispute in a way that is comparatively quick and cheap and informal Mediation can be arranged at any stage of the dispute, including before evidence and expert reports are prepared. There are non-legal interests or a non-legal remedy is sought Most disputes involve legal and non-legal issues. Some disputes do not contain any significant legal issues but still generate litigation. Because mediation can be conducted in a way that is interests-based and non-advisory, it is often the appropriate form of ADR to use where the focus of the dispute is interpersonal rather than (or as well as) legal. For example, neighbours involved in Apprehended Personal Violence Order proceedings are likely to benefit more from a wide ranging discussion of their relationship as neighbours and underlying issues than from a strictly legal negotiation on whether the application for a protection order should be consented to or withdrawn in light of whether there is evidence of risk. Even in cases that clearly do involve major legal issues, parties may benefit from being able to raise and discuss non-legal issues that are important to them. For example, parties to a debt matter may wish to discuss their ongoing commercial relationship or parties to a personal injury case may be able to ask for and receive an apology. A party wants to have their say Mediation, particularly interests-based mediation, usually gives each party the opportunity to express their feelings about the dispute and how it has affected them. Feedback from clients often includes satisfaction about finally being heard and therefore ready to move forward to making an agreement.

The parties want to be in control of the outcome Because mediation is non-determinative, there is no risk that a decision will be made against a party’s will. It can therefore be an opportunity to arrive at an outcome within both parties’ control. Relationships are important Mediation may improve relationships through the process of communication and understanding. Mediation agreements may contain clauses about how parties will communicate and behave towards each other in future. Confidentiality is desirable Like most forms of ADR, parties to mediation can agree to keep the contents of the mediation completely confidential. There are also legislative provisions related to mediation confidentiality and privilege applicable in some areas, see for example sections 30 and 31 of the Civil Procedure Act 2005 (NSW).

When is mediation unsuitable? Mediation may not be suitable if there is a significant power imbalance or a party is unable to participate effectively in the session either because they are vulnerable or unable to control their behaviour. The NMAS Standards require all mediators to be able to recognise and appropriately respond to power imbalances. This may involve a matter being assessed as unsuitable for mediation or terminated or for the issue to be addressed in other ways, for example through the use of screening, support persons or representatives, referrals and the use of conferencing technology rather than meeting face to face.

[18.40] Conciliation Conciliation is an ADR process where an independent third party, the conciliator, helps people in a dispute to identify the disputed issues, develop options, consider alternatives and try to reach an agreement. A conciliator may have professional expertise in the subject matter in dispute and will generally provide advice about the issues and options for resolution. However, a conciliator will not make a judgment or decision about the dispute. Conciliation may be voluntary, court ordered or required as

18 Dispute Resolution

part of a contract. It is often part of a court, tribunal or government agency process. Terminology may be confusing, with conciliation processes sometimes referred to by different names, including conferencing or mediation. Conciliation can be considered advisory and conciliation is sometimes referred to as advisory or evaluative mediation or a “blended” process, blending (non-advisory) mediation with an evaluative or advisory function. The conciliator’s area of expertise may be the law or other technical area related to the dispute, for example building construction, town planning or financial matters. Conciliation will often be more focused on the legal rights of the parties than mediation, particularly when provided by a court or tribunal as part of a case management process and involving legal opinion by the conciliator.

About the conciliation process The format of conciliation sessions varies depending on the context and may or may not be similar to a mediation process.

When is conciliation suitable? Conciliation can be of particular assistance where parties would like to hear the views of someone with expertise or for unrepresented parties dealing with legal issues who would like to reach agreement on legal and technical issues. Conciliation may also be of use where mediation has not resulted in an agreement.

[18.50] Arbitration Arbitration is a process in which the parties to a dispute present arguments and evidence to a dispute resolution practitioner (the arbitrator) who makes a determination. Generally people going to arbitration will have agreed in advance that the arbitrator’s decision will be binding and enforceable. A matter before a court may also be referred to arbitration, see for example s 38 of the Civil Procedure Act 2005 (NSW).

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About the arbitration process Parties will generally need to produce evidence or facts. The arbitrator/s may be a lawyer or have specialist knowledge in the subject matter of the dispute. Parties are often legally represented. The arbitration procedure may be governed by statute or rules, see for example, the Commercial Arbitration Act 2010 (NSW).

When is arbitration suitable? Arbitration is often used for the resolution of commercial disputes, particularly those related to international transactions. Arbitration can be particularly useful where mediation or conciliation has not led to an agreement or if parties want a process where a decision is made for them, but is confidential and usually cheaper and quicker than going to court.

[18.60] Other forms of ADR There is an infinite range of possibilities in relation to ADR methods and a range of different terms used, for example: • Case appraisal, where a dispute resolution practitioner investigates the dispute and provides advice on possible and desirable outcomes. Expert appraisal is a similar process relying on the subject matter expertise of the dispute resolution practitioner. • Mini-trial, where the parties present their evidence and arguments to a dispute resolution practitioner who provides advice on the facts of the dispute and potentially on possible outcomes. • Early neutral evaluation, a process in which the parties at an early stage present arguments and evidence to a dispute resolution practitioner who then makes a determination on the key issues in dispute and most effective means of resolving the dispute without determining the facts of the dispute. • Expert determination is where the parties present arguments and evidence and a specialist dispute resolution practitioner makes a determination. • Fact finding is an investigation process in which the parties present arguments and evidence to a dispute resolution

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practitioner who makes a determination as to the facts, but who does not make any finding or recommendations on the outcome. • Multi-party mediation, sometimes called conflict management, is a mediation process, which involves several parties or groups of parties. One emerging area of ADR is online dispute resolution, where various types of dispute resolution process are accessible electronically. These may range from online versions of interests-based negotiation to automated blind-bidding processes.

[18.70] Other alternatives to

litigation As well as forms of ADR using a neutral third party to avoid a litigated outcome, there are other methods of settling matters before they require determination, for example using settlement conferences or collaborative law.

Collaborative law Another emerging approach to dispute resolution is collaborative law, which is particularly useful in family law disputes. The process has the support of the Family Law Council and the Family Court of Australia. The process involves an agreement between clients and their lawyers at the outset of family law proceedings that they will attempt to reach a resolution without the matter going to court. If discussions break down the clients must hire new lawyers if they wish to pursue the matter in court. Collaborative practitioners in New South Wales can be located through Collaborative Professionals (NSW) Inc (www.collabprofessionalsnsw.org.au).

Settlement conferences Settlement conferences are held between the lawyers and parties in order to attempt settlement without the assistance of a neutral third party.

Dispute resolution in practice [18.80] Community mediation

through Community Justice Centres Community Justice Centres (CJC) provides community mediation services across NSW using local mediators and venues. CJC is part of the NSW Department of Justice. CJC services are provided in accordance with the Community Justice Centres Act 1983 (NSW). CJC mediations are free, quick and accessible.

What matter types does CJC deal with? CJC deals with a wide range of issues including those related to: • neighbours (eg disputes about trees, fences, noise, access, animals and more) • money and debt (eg unpaid bills, small claims, small business) • communities and associations (eg arguments within clubs, communities and societies)

• business and consumers (eg unpaid and disputed bills, quality complaints) • Employment disputes (eg disputes between employees) • family, relationships and children (eg family disputes, including extended family feuding, wills and estates, elder disputes, sibling disputes and in some cases children and property disputes following relationship breakdown) • housing disputes (eg between tenants in public housing and between landlords and tenants) • social relationships (eg friends, acquaintances, mediation in schools). CJC does not mediate matters involving criminal acts or matters that are unsuitable for mediation for reasons such as risk of violence, bad faith or significant power imbalance.

18 Dispute Resolution

Requesting and referring to CJC mediation CJC has 150-200 panel mediators who conduct the sessions across the state. If required, CJC can arrange accessible venues, interpreters and similar support for parties to enable them to attend mediation. CJC can usually provide an Aboriginal mediator if requested by a party. Anyone may request CJC mediation for themselves. Service providers may also refer parties to CJC mediation. CJC also receives referrals from courts and tribunals. Once CJC receives a request or referral for mediation, CJC will contact the parties to conduct intake screening and assessment and, where appropriate, offer to arrange mediation. If the parties agree to attend, CJC will schedule mediation at a suitable venue near them. Mediation can usually be arranged quite quickly, within a few weeks of

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parties agreeing to attend. Telephone mediation can be arranged where required, for example if the parties are far apart geographically and not able to meet.

Mediation at Community Justice Centres CJC mediation is an informal but structured process that takes parties through a series of steps designed to help them communicate about the dispute and consider options for the future. An important feature of CJC mediation is that parties are encouraged to fully consider the issues and their needs before moving forward to discuss options for agreement. The mediators keep the discussion on track and make sure each party has a chance to have their say. The mediators will also meet with the parties privately to help them think realistically about possible options and outcomes.

Provisions in the Community Justice Centres Act • CJC mediators are statutory appointees appointed for a term of up to three years • mediations are conducted informally and as quickly as possible • participation in mediation is voluntary • mediation is subject to privilege and evidence of things said and admissions made at mediation are not admissible in legal proceedings except in limited circumstances • mediators must take an oath or affirmation of secrecy. Mediators and CJC staff may not disclose

[18.90] Other ADR providers There is a wide range of organisations that can provide ADR services, including: • The Australian Disputes Centre (ADC) • Australian Dispute Resolution Association Inc. (ADRA) • Australian Institute of Family Law Arbitrators and Mediators • Australian Mediation Association (AMA) • Resolution Institute • NSW Bar Association • New South Wales Law Society • Australian Centre for International Commercial Arbitration (ACICA). The Mediator Standards Board also maintains a register of nationally accredited

any information obtained in connection with mediation except in limited circumstances, such as consent of the parties or where necessary to prevent or minimise risk of injury to a person or damage to property • CJC mediators are mandatory reporters with respect to risk of significant harm to children • most CJC agreements are made in good faith and are not legally binding unless the parties agree in writing that they wish to make a legally binding agreement.

mediators that members of the public can search (www.msb.org.au/mediators). See Contact points at [18.160] for how to get in touch with these organisations.

[18.100] Pre-litigation ADR Using ADR early can help parties avoid court altogether by resolving the dispute before proceedings are initiated. For this reason, it is common for commercial and other agreements to contain a dispute resolution clause, specifying the parties’ agreement on how any future dispute should be resolved. Provided the dis-

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pute resolution clause is sufficiently clear, the court may effectively enforce it by staying or adjourning proceedings until the dispute resolution clause has been complied with. As well as contractual obligations, prelitigation ADR is sometimes required by law. In 2006, pre-filing mediation became a requirement in family law proceedings involving parenting disputes. There are a number of legislative schemes in NSW that also require pre-litigation dispute resolution. For example, the Farm Debt Mediation Act 1994 (NSW) requires creditors to participate in mediation before they take possession of property or other enforcement action under a farm mortgage. Similarly, the Retail Leases Act 1994 (NSW) requires that parties to a tenancy dispute apply to the Retail Tenancy Unit of NSW Fair Trading for mediation before proceedings can commence. At the Commonwealth level, the Civil Dispute Resolution Act 2011 (Cth) requires parties to file a “genuine steps” statement setting out what has been done to attempt settlement before filing when commencing proceedings.

[18.110] ADR in NSW courts

and tribunals Parties may, at any time while their dispute is before the court, elect to use an ADR process with the aim of avoiding a hearing. Courts may adjourn proceedings to accommodate such attempts. The Civil Procedure Act 2005 (NSW) contains specific referral powers in relation to mediation (Pt 4) and arbitration (Pt 5), including the power to make mandatory referrals. There is also a range of other pieces of legislation that promote or require ADR between parties to legal proceedings and provide specific referral powers.

Small Claims Division, the court regularly refers matters to CJC. CJC also accepts mandatory referrals to mediation from the Local Court in applications for Apprehended Personal Violence Orders (APVOs) pursuant to s 21 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Children's Court The Children’s Court uses ADR procedures in care and protection cases in order to provide frank and open discussion between the parties in a structured forum to encourage agreement on what action should be taken in the best interests of the child or young person. The forms of ADR used are dispute resolution conferences, external mediation and, in some areas, care circles for cases involving Aboriginal children.

District Court Matters are regularly referred to ADR (which the District Court defines to include settlement conferences) at the time of listing them for hearing. Additionally, matters may be referred to ADR at an earlier stage where it is considered that it may be beneficial in either the resolution of the matter or in narrowing the issues between the parties.

Supreme Court Almost all family provision cases are referred to mediation. In other contested civil cases (including appeals) litigants are encouraged to consider mediation, and the Court may order mediation to take place even if one of the parties objects. Most of the mediations are conducted by Supreme Court registrar-mediators.

Land and Environment Court The Land and Environment Court uses mediation, conciliation and hybrid forms of ADR. Sessions are conducted by commissioners or registrars who are trained mediators or by external mediators.

Local Court

NSW Civil and Administrative Tribunal (NCAT)

Local court registrars regularly conduct pretrial review meetings with clients at which settlement is discussed. In relation to civil proceedings and in particular to matters that would be determined in the Local Court’s

A range of ADR processes are used in the different divisions of NCAT, including conciliation, mediation and processes involving expert conclaves for building disputes.

18 Dispute Resolution

[18.120] ADR in family and

relationship disputes ADR has become thoroughly integrated into the family law process and is regularly used in disputes arising from relationship breakdown.

Parenting disputes Since 2006, the Family Law Act 1975 (Cth) has required most parties to participate in dispute resolution before commencing parenting proceedings. The new provisions created a new category of ADR called Family Dispute Resolution (FDR) to be conducted by Family Dispute Resolution Practitioners (FDRPs). The qualification and registration requirements of FDRPs are set out in the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) and administered by the Commonwealth Attorney-General’s Department. In order to file an application in relation to a parenting dispute, a party must be able to demonstrate they have made a genuine effort to resolve the dispute through FDR or otherwise that the matter is not suitable for FDR. There are a number of limited exceptions, including where a matter is unsuitable for mediation or relates to urgent issues. There is a process for FDRPs to issue parties with certificates that may provide one of the following: (a) the party did not attend FDR because the other party refused to attend, (b) the party did not attend FDR because the matter was assessed as unsuitable, (c) the parties attended FDR and all attendees made a genuine effort to resolve the issues, (d) the party attended FDR but did not make a genuine effort, (e) the party began attending FDR but it was not appropriate to continue. Parties may also submit an affidavit in lieu of a certificate to the court if they wish to claim an exception from the FDR requirement. A network of federally funded Family Relationship Centres (FRCs) was also established in 2006 to provide FDR and other

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supportive services including parenting programs and counselling services. There are over 20 FRCs in NSW. Individual centres are managed by a number of non-government service providers including Relationships Australia, Interrelate, Uniting Care and CatholicCare. As well as FRCs, other FDR providers include: • private practitioners working independently or through a non-FRC mediation provider • Legal Aid NSW. CJC can only provide FDR services in limited circumstances.

Property disputes While there is no legislative requirement to attempt ADR before starting property proceedings in the Family Court, many separating couples find ADR very useful. Private ADR providers, a range of FRCs and Community Justice Centres can assist with property disputes. See Contact points at [18.160] for how to get in touch with these bodies.

[18.130] Examples of

specialist ADR in other dispute types Employment and industrial disputes Private ADR providers and CJC can offer ADR regardless of whether there are proceedings on foot. Once proceedings are initiated in employment law jurisdictions such as the Fair Work Commission, they are typically subject to ADR requirements.

Strata schemes NSW Fair Trading provides a mediation service in strata and community land management disputes.

Aged care complaints The Aged Care Complaints Commissioner uses mediation and conciliation to try and resolve disputes about residential care, respite care and home care.

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Health care complaints

Tenancy and housing disputes

The Health Care Complaints Commission provides a resolution service as part of its complaints process in appropriate complaint types.

NSW Fair Trading provides opportunities for resolving disputes between landlords and tenants. CJC can also mediate disputes between landlords and tenants and between tenants, particularly in public housing.

Advantages and disadvantages of ADR compared to legal proceedings [18.140] Advantages • ADR processes are often much faster and cheaper than going to court • where matters are likely to resolve at some point before the hearing, early use of ADR can bring forward the date of settlement and thereby minimise the amount of time and money spent on the dispute • even where non-determinative ADR processes such as mediation do not result in a settlement, they may assist the parties to clarify and narrow the issues in dispute • ADR processes can maximise the selfdetermination of the parties. Participants may negotiate on and agree to an outcome that is different from what a court would or could order. Agreements may include matters that are not legal issues in dispute but are of importance to the parties • ADR processes can be more flexible than court processes and parties can choose a process that has certain benefits for the particular dispute. For example, if the dispute concerns scientific, engineering or other technical issues, parties can engage

•

• • • • •

•

an ADR practitioner with more specialist knowledge than a judicial decision-maker might have ADR processes are typically confidential and will not be conducted in an open courtroom or result in published reasons for judgment parties involved in ADR processes such as mediation typically report high levels of satisfaction with the process ADR processes are often informal and allow more direct involvement by parties than court processes do ADR may maintain or improve personal and business relationships for the future increased use of ADR may decrease the pressure on courts and the public purse low cost or free ADR processes, such as free mediation through Community Justice Centres, may increase access to justice for parties who do not have the financial or personal resources to go to court ADR can help resolve non-legal disputes for which court is not an appropriate avenue, for example interpersonal disputes between neighbours, friends and family members.

Legal and financial advice Legal, financial and other specialist advice may assist people to prepare for dispute resolution. It is important for each party to be aware of their legal rights so that

they can negotiate from an informed position, especially where there is a significant imbalance of power between them.

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[18.150] Disadvantages • ADR may not be suitable for every civil dispute, for example if the dispute involves a matter of public interest, it may be more appropriate to have a court judgment to set a precedent • some forms of ADR, for example forms of mediation where the parties negotiate with one another directly and come to agreement without advice or input by the ADR practitioner on the merits or fairness of the agreement, may not be appropriate if a party is not able to represent their own interests effectively, for example because of a history of violence or other source of power imbalance or vulnerability

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• where a binding agreement is made (for example through negotiations or use of ADR) or an arbitral award is going to be made, parties often give up the right to go back to court about the same matter. However, parties who make good faith agreements at CJC mediation do not give up rights in this way • some agreements made at ADR may not be as easy to enforce as a court or tribunal order. In some cases this can be addressed by having the terms of an agreement made into orders by consent by a court or tribunal • if ADR is not successful and is followed by litigation, the legal costs may be higher overall.

Communication and support Parties to a mediation session may feel ill-at-ease communicating and negotiating directly with each other without help. Mediators, on the other hand, are trained to facilitate direct communication and negotiation between parties. It is also becoming more common in mediation for parties to bring support persons with them, though this

needs to be with the agreement of all parties. Support persons do not play an active part in the mediation (with some rare exceptions – for example, where a party has a physical or mental disability that prevents them from participating fully on their own behalf – when the support person can actually represent the party).

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Contact points [18.160]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au. Aged Care Complaints Commissioner

Family Relationships Online

ph: 1300 006 228

www.familyrelationships.gov.au

www.agedcarecomplaints.gov.au

ph: 1800 050 321 Family relationships centres www.familyrelationships.gov.au/ Services/FRC/Pages/default.aspx

Registries are located in Sydney, Liverpool, Newcastle, Penrith, Tamworth and Wollongong.

ph: 1800 550 552 Australian Disputes Centre www.disputescentre.com.au ph: 9239 0700 Community Justice Centres (CJC) www.cjc.justice.nsw.gov.au ph: 1800 990 777 Family and Community Services, Department of www.community.nsw.gov.au ph: 9716 2222

NSW Fair Trading www.fairtrading.nsw.gov.au

Health Care Complaints Commission (HCCC) www.hccc.nsw.gov.au

ph: 13 32 20

ph: 1800 043 159 or 9219 7444 Law Society of NSW www.lawsociety.com.au

ph: 1300 364 277

ph: 9926 0333 NSW Civil and Administrative Tribunal www.ncat.nsw.gov.au

Relationships Australia www.relationshipsnsw.org.au Resolution Institute (merger of LEADR and Institute of Arbitrators and Mediators Australia (IAMA) www.resolution.institute ph: 9251 3366 or 1800 651 650

19 Domestic Violence Janet Loughman Kellie McDonald

Women’s Legal Service NSW Women’s Legal Service NSW

Contents [19.10]

What is domestic violence?

[19.20]

Legal remedies

[19.130]

Practical help

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What is domestic violence? [19.10] Gender and language While domestic violence can happen in any relationship, in the vast majority of reported domestic violence cases men are the perpetrators and women the victims. For this reason this chapter uses “he” to refer to perpetrators and “she” to refer to victims. This is not intended to exclude other situations. The term domestic violence describes a situation where one person in an intimate or family type relationship uses violent or intimidating tactics to gain power and control over the other.

Domestic violence is not restricted to physical assault. It also includes: • sexual abuse • emotional or psychological abuse • verbal abuse • stalking and intimidation • social and geographical isolation • financial abuse • cruelty to pets. Domestic violence is a crime. Police can charge an offender for domestic violence offences and the person experiencing violence can get a court order protecting them from continuing or future domestic violence.

Domestic violence in the community The 2012 Personal Safety Survey conducted by the Australian Bureau of Statistics (found that 17% of women and 5.3% of men had experienced domestic violence since the age of 15 years. There had been no significant change in the proportion of men and women who experienced domestic violence since the 2005 Personal Safety Survey. The rate of reported domestic violence related assault in NSW has been increasing over the period 2010-11 to 2014-15 [NSW Bureau of Crime Statistics and Research, (2016)]. Involvement of children The 2012 Personal Safety Survey found that 44% of women who had experienced current partner domestic violence, and 49% who had experienced previous partner violence, had children in their care at the time. In 18% of current partner cases, and 34% of previous partner cases, the children had witnessed the violence. Increased risk Women are at greater risk of violence at particular times, such as during pregnancy and at separation. The 2012 Personal Safety Survey found that 54% of women who had experienced violence from a partner during a relationship experienced it during pregnancy, and 25% experienced it for the first time during pregnancy.

Under-reporting Despite increased knowledge about domestic violence and the legal remedies available, domestic violence is still substantially under-reported. In 2012 a study by BOCSAR found that less than 50% of victims of domestic violence reported to police. This is due to various factors, including: • community attitudes • the tendency of some women to blame themselves • lack of awareness that help is available • a desire to keep families intact • dependence on the violent partner. Lesbian and gay relationships Domestic violence also occurs in lesbian and gay relationships. It is difficult to determine its extent because under-reporting is made worse by: • the victim's fear of discrimination • their unwillingness to reveal their sexuality if they are not already “out” • a perceived lack of community understanding. There is, however, increasing awareness and services to help victims of violence in same-sex relationships. The recently amended Crimes (Domestic and Personal Violence) Act 2007 now recognises the particular impact of domestic violence on lesbian, gay, bisexual, transgender and intersex people (s 9(3)(f1)).

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Legal remedies [19.20]

Legal action in response to domestic violence may include: • getting help from police • making an application for an apprehended domestic violence order • amending family law contact orders to protect the victim or her children • charging the perpetrator with a crime. There are two types of apprehended violence orders (AVOs), apprehended domestic violence orders (ADVO) and apprehended personal violence orders (APVO). We refer to both as AVOs throughout the chapter.

[19.30] Getting help from

police The most immediate concern for a victim who has been, is being, or is about to be abused is her protection. Victims can seek protection by contacting local police or dialing 000. The NSW Police Force Response to Domestic and Family Violence (Code of Practice) requires police to take action in domestic violence cases.

What to tell police When phoning the police a victim should: • give their name and address • emphasise the urgency of their situation • ask for the name of the officer who takes the call.

Police powers to enter premises The police have very wide powers to enter a private house to investigate a complaint of domestic violence. Police can enter without a warrant: • if invited to do so by a member of the household (including a child who appears to live there) to investigate whether an offence has been committed or prevent a further offence, as long as the legal occupier (the person who holds the lease or owns the house) does not expressly forbid entry, or • if invited to do so by the apparent victim

of violence, even if the legal occupier objects. If police are refused access If the police are refused access, they can apply for a warrant immediately over the police car radio (a telephone or radio warrant) to enter the premises. What police may do When the police arrive, they may: • refer the victim for support • help the victim leave safely and take the victim (and any children) to a safe place • remove the offender from the premises • request a senior police officer make a Provisional Apprehended Domestic Violence Order (informally called an “On the Spot AVO”) • give a direction to an offender to remain in a place or go to a place (usually the police station) so that an “On the Spot AVO” can be served • search for and seize firearms • in some circumstances, search for and seize dangerous implements or dangerous articles • charge the offender with assault. Referring victims for support Police will administer a risk assessment tool called a Domestic Violence Safety Assessment Tool (DVSAT). NSW police automatically refer all victims of domestic violence when an AVO is sought or charges are laid, to a central electronic database called the Central Referral Point (CRP). The CRP will refer female victims of domestic violence to a Local Coordination Point (LCP) provided through Women's Domestic Violence Court Advocacy Services (WDVCAS); and male victims will be automatically referred to Victims Services NSW. Here, further risk assessment will be undertaken and services will be offered to all victims. The WDVCAS operates in many courts in NSW. The WDVCAS offers support, information and referral to women in AVO proceedings. Many of the WDVCAS manage safe rooms for women and their children while they are at court, and some have a duty solicitor scheme (DVPS) to represent women in court on the day and provide legal advice about related issues. Both the

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WDVCAS and duty solicitor may be able to assist female defendants who are primarily victims of domestic violence (see below paragraph “Can defendants get legal aid?”). Serious cases will be referred to a Safety Action Meeting (SAM) where a coordinated response will be facilitated between relevant government and non-government agencies. At May 2016, SAMs are held in Waverley, Orange, Tweed Heads, Parramatta, Bankstown and Broken Hill and will be rolled out around NSW over the next three years. Agencies are able to share information in cases where victims are deemed at serious threat, without their consent, within a legal framework. See Pt 13A of the Crimes (Domestic and Personal Violence) Act and associated Information Sharing Protocol; DVSAT Guidelines; and Safety Action Meeting Manual for further information.

[19.40] Police application for

an AVO When police attend a domestic violence incident, or are informed by the victim that a domestic violence incident has occurred, they may apply for an AVO on the victim’s behalf. See “Apprehended violence orders” below for more information about AVOs.

Police powers to demand information Police can demand a person to disclose his or her identity where they suspect, on reasonable grounds, that an AVO has been made against the person. However, the power does not extend to defendants of AVOs where an application has been made but not served on the defendant.

Police powers to search for and seize firearms Police have broad powers to search for firearms when attending a house, by invitation or warrant, to investigate a complaint of domestic violence. Under s 85 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), police must ask if there are firearms on the premises and, if the answer is yes, “take all such action as is reasonably practicable to search for and seize” the firearms. When police must apply for a warrant If police are told there are no firearms on the premises, but have reason to suspect other-

wise (because, for example, the victim says there are, police records show that there have been in the past, or an occupant of the house has a firearms licence or permit), they must apply for a search warrant (s 86). They must also apply for a search warrant if they believe that a person perpetrating domestic violence somewhere outside their home (such as a hotel) has a firearm at home.

Police powers to search for and seize dangerous implements or dangerous articles Police also have powers to search for and seize dangerous implements or dangerous articles when attending a house, by invitation or warrant, if they believe, on reasonable grounds that the dangerous implement or dangerous article was, is, or may have been, used to commit a domestic violence offence. Dangerous implements include: • knives, spears, guns • any implement made or adapted to cause injury • anything belonging to a person who intends to use it to cause injury or to damage property. When a firearms licence must be suspended The police must suspend a firearms licence or permit if: • the holder has been charged with a domestic violence offence • the police believe the holder has committed or has threatened to commit such an offence. In these circumstances the suspension is in force for up to 28 days. The firearms licence of someone who is the subject of an interim AVO is suspended for the duration of the order (Firearms Act 1996 (NSW), s 23).

If the police response is not satisfactory If the police refuse to attend or do not come promptly, a victim should ring again and ask to speak to the duty sergeant. A counsellor from a telephone crisis service such as

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the Domestic Violence Line (1800 65 64 63, 24 hours a day) may also be able to call the police for the victim. Every police local area command has a Domestic Violence Liaison Officer (DVLO) whose role is to assist people experiencing domestic violence and see that all officers in that patrol follow the Code of Practice. A victim who finds the police unresponsive should ask to speak to the DVLO. There is usually only one DVLO at each patrol, and they may also be assigned to general duties, so their availability may be limited.

Complaints about police If the police do not attend when called to a domestic violence incident, or do not act appropriately to protect the victim or investigate an offence, a complaint can be made to the police (usually to the DVLO or the Local Area Commander) and/or the NSW Ombudsman. If the Police Service receives certain complaints in writing they are required to refer the matter to the NSW Ombudsman.

[19.50] Apprehended Violence

Orders AVOs provide legal protection against continuing or future domestic violence. AVOs are regulated by the Crimes (Domestic and Personal Violence) Act, which recognises the community’s commitment to the elimination of violence between people in domestic relationships; supports the principles underlying the United Nations Declaration on the Elimination of Violence against Women and the United Nations Convention on the Rights of the Child (ss 9 and 10). In 2016, changes were made to the Crimes (Domestic and Personal Violence) Act. These changes are due to take effect in October 2016. This chapter has been written to reflect the 2016 changes.

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Do AVOs work? Many people find an AVO helps in stopping or reducing violence at home. Once the defendant understands that their behaviour is to be made public and that the community will not tolerate it, they often choose to stop behaving violently. A study on the effectiveness of the AVO scheme conducted by BOSCAR in 1997 found that “positive changes occurred in the lives of the majority” of the people involved in the study, and that there was a “reduction in the prevalence of each behaviour prohibited by the AVO legislation”. Domestic violence is a very serious matter and can result in serious injury, or murder. People who think an AVO may not be enough to prevent further violence should take steps to protect their safety. A women's refuge might be a safe place to begin as well as getting legal advice about family law and children. Services such as the Domestic Violence Line can also assist with developing a safety plan.

Types of AVOs AVOs can be either domestic or personal. Apprehended Domestic Violence Orders (ADVOs) ADVOs are made when there is a domestic relationship between complainant and defendant. The definition is broad and covers not only people in an intimate relationship or who are related to each other but extends to flatmates, people living in the same residential care facility, carers and family or kin according to the Indigenous kinship system. The definition also includes the relationship between a current partner and former partner of a person as a domestic relationship (s 5(2)). This means a woman’s ex-partner and current partner would have a domestic relationship for the purpose of the Act, even if they have never met each other. Apprehended Personal Violence Orders (APVOs) APVOs protect a person from someone where there is no domestic relationship linking the two people; for example, neighbours or work colleagues.

Are ADVOs and APVOs the same? An ADVO and an APVO both have the same legal effect once they are made. There

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are, however, some significant differences in the way the ADVO and APVO matters are initiated and progress through the courts: • the police have a particular obligation to apply for an ADVO in domestic violence cases (see Police application for an AVO below) • legal aid is only granted in APVO matters in exceptional circumstances • parties involved in APVO matters may be referred to a community justice centre for mediation. This should not happen with ADVOs • there is a different legal test for making a costs order. A court can only order an applicant in an ADVO matter to pay the other party’s professional costs if it is decided that the application was frivolous or vexatious (s 99A). Whereas in APVO matters, costs are usually paid by the unsuccessful party.

Grounds for an ADVO An ADVO is made by a court if satisfied, on the balance of probabilities, that the person seeking the order has reasonable grounds to fear, and in fact fears, that the defendant will: • commit a domestic violence offence (s 16(1)(a)) (any form of assault), or • engage in intimidation or stalking that is intended to cause fear of physical or mental harm, or • abandon, expose or fail to provide a child under 7 with the necessities of life (s 4(a)). Where proof of actual fear is not required A person under 16 or a person who has an “appreciably below average general intellectual function” is not required to prove they are actually fearful of the defendant. Proof of actual fear is also not required where, in the opinion of the court, a person has been the victim of a personal violence offence on more than one occasion (s 16(2)(c)(i)), there is a reasonable likelihood that a personal violence offence may be committed, and the making of the order is necessary to prevent further violence. The court can also make an AVO, with mandatory conditions only, if it is satisfied on the balance of probabilities that the person has

reasonable grounds to fear the commission of a domestic violence offence (ss 16(2) and (2A)).

What AVOs do AVOs protect people against future acts of violence such as physical assault, nonphysical abuse such as threats, harassment or intimidation, and damage or threatened damage to property

Who is protected by an AVO? An AVO provides protection to the person named on the AVO as the protected person and automatically extends the mandatory orders to anyone with whom the protected person has a domestic relationship, whether they live with the person or not. AVOs that specifically include another person The law gives courts the power to extend the protection of an AVO to a person who has a domestic relationship with the person seeking protection. Where that other person is at risk of violence or other harassing or abusive behaviours from the defendant they can be specifically named on the AVO as a protected person. They then receive the protection of all orders made. AVOs and children The courts are required to include as a named protected person under an AVO any child with whom the adult seeking protection has a domestic relationship (unless there are good reasons for not doing so) (s 38). If a child under 16 is the specific person in need of protection, or if their parent is not fearful of the defendant, or if the child’s circumstances and needs are different from the parent’s, the police must apply for the AVO to protect the child. A court may refer an application for an AVO to the Commissioner of Police if the person in need of protection is a child and the police are not the applicant and the court considers it would be in the child’s best interests for a police office to appear in the application (s 48(4A)). An application for an AVO, or the variation or revocation of an AVO, for a child under 16 must be heard in a closed court

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unless the court orders otherwise. Even if the court is open to the public, it may direct any person (other than someone directly interested in the proceedings, such as the defendant) to leave the courtroom when any witness is giving evidence. A child should not be required to give direct evidence unless the court believes that it is in the interests of justice for the child to do so. If a child gives evidence in AVO proceedings, including an application to vary or revoke an AVO, they can only be questioned by the defendant’s solicitor or another suitable person appointed by the court, not by the defendant directly (s 41A). Children have a right to have a support person with them while giving evidence in AVO proceedings. If the defendant in AVO proceedings is under 18 years old, the case will be heard in the Children’s Court. The Children’s Court can, during care proceedings and after notifying Police and Family and Community Services, make, vary or revoke an AVO for a child, or a person they live with, unless the defendant is subject to criminal proceedings in relation to the same circumstances (s 40A).

• assaulting or threatening the protected person • stalking, harassing or intimidating the protected person • intentionally or recklessly destroying the protected person’s property. These three orders extend to anyone with whom the protected person has a domestic relationship. The mandatory orders do not prohibit contact between the protected person and the defendant. In fact, a protected person could still be living with the defendant or still in a relationship with the defendant and have an AVO in the mandatory terms only.

What orders can an AVO contain

Must the order specify an address? There is a presumption that a protected person’s home address will not be included in an AVO, subject to certain exceptions (s 43). A home or work address does not have to be specified to have protection under the terms of an AVO. For example, an order that does not specify an address could say: “Not to knowingly go within 200 metres of the premises at which the protected person may from time to time reside”. Nonetheless, many magistrates are unwilling to make an order in relation to home or work without a specific address being provided. The court will not include the address of the person in need of protection in an order unless it is satisfied that: • the defendant already knows the address, or • it is necessary to achieve compliance with the order, and the person’s personal

An AVO can include a range of conditions that prevent the defendant from doing certain things. An AVO cannot make the defendant do anything, such as attend an anger management course. What conditions should be included A person seeking an AVO should discuss their circumstances with the police (or the Registrar for private applications) to work out the conditions that should be included in the AVO to make sure it provides the protection needed. The court only makes orders it believes to be necessary; it will not make orders “just in case”. Standard conditions All AVOs contain three standard conditions called the mandatory orders, so named because the law states that they must be included in every AVO (s 36). These orders prohibit the defendant from:

Other conditions An AVO may also include conditions such as stopping the defendant from: • entering the person’s home or workplace • contacting or approaching the person • approaching the person’s home for 12 hours after drinking alcohol or taking drugs • destroying property • approaching a school or other place of education • locating or attempting to locating the person.

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safety or property will not be seriously threatened or likely to be damaged, or • the person (if over 16) consents to it being included. Exclusion orders An order prohibiting a defendant from entering or living in the protected person’s home is called an exclusion order. In deciding whether to grant an exclusion order the court considers: • the accommodation needs of the protected person and the defendant • the effect of the order on children who normally live at that address • the consequences for the protected person and any children if the order is not made. A court can make an exclusion order regardless of whether the defendant owns the premises or is the person named on the lease – it makes no difference whether the defendant has a legal or equitable interest in the property. If the court decides not to make an exclusion order that has been sought, it must give reasons for not making that order.

Ancillary property recovery orders An ancillary property recovery order can be made when either the person seeking the protection of an AVO or the defendant to the AVO has left personal property at the premises which the other person occupies. The ancillary property recovery order allows access to the relevant premises to remove the property. This is often in the company of police. An order can only be made upon the making of an interim or final ADVO. The applicant needs to tell the court whether there are any family law property orders have been made or are pending (s 37(1C)). An order cannot be made for the defendant to retrieve personal property if the defendant is not present in court when it is made.

Do AVOs go on a criminal record? It is possible to apply for an AVO against a person without bringing criminal charges. The AVO does not give the person a criminal record. However, breaching an AVO is a criminal offence, for which a person may be arrested and charged.

[19.60] Police application for

an AVO Mandatory police AVOs The police must apply for an AVO if they suspect or believe that one of the following offences has been, or is likely to be, committed: • a domestic violence offence • an offence of stalking or intimidation • an offence against s 227 of the Children and Young Persons (Care and Protection) Act relating to abuse of a child under 16. The police must apply for an AVO for a child under 16 when a domestic violence offence, or an offence of stalking, intimidation or child abuse has been committed or is likely to be committed. There are no exceptions. Only a police officer can apply for an AVO for a child under 16 if the child is the specific person in need of protection. For example, a young person of 15 who is being stalked and harassed by an exboyfriend must contact the police to apply for an AVO to give her protection. She cannot make the application herself through the registrar at a Local Court, nor can a parent make an application on her behalf.

Police powers to give a direction and detain Police have powers to direct and detain offenders for the purposes of applying for and serving provisional AVOs. The direction and detention powers (Crimes (Domestic and Personal Violence) Act, s 89) provide six options for a direction, and if a defendant refuses to comply they may be detained for up to two hours.

When police need not apply for an AVO Police need not apply for an AVO where they believe that: • the victim intends to make a complaint herself (see Private applications for an AVO below), or • there is a “good reason” (which must be recorded in writing by the police officer) not to make the application.

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Provisional AVOs (On the Spot AVOs) A Provisional AVO (informally called an “On the Spot AVO”) is an interim AVO that the police may apply for by telephone, facsimile or other communication device. Senior police officers have the power to determine applications for provisional AVOs. Provisional AVOs are available at any time where the police believe an AVO “needs to be made immediately to ensure the safety of the person or to prevent substantial damage to any property of that person”. Police must apply for a Provisional AVO if they attend an incident where they believe a domestic violence offence or an offence of child abuse against a child under 16 has been committed or is likely to be committed, unless, as with AVOs for adults generally, they believe the victim is going to apply for their own AVO or there is a good reason (which must be recorded in writing) not to apply. Only a Police officer may apply for an AVO for the protection of a person under the age of 16. The terms that may be included in a Provisional AVO are the same as those available in an AVO made by a court. The police officer may direct the defendant to remain at the scene or another place such as the police station, so that the Provisional AVO may be served on them. If the defendant refuses to do so, the police may arrest and detain them for the purposes of serving the AVO. It is not necessary for the police to make a further application for an AVO. The Provisional AVO contains a court attendance notice advising the defendant of the date and time to appear at court. The provisional AVO ceases to have effect when: • it is revoked, or • a court makes an AVO (interim or final) about the complaint, or • an AVO is served on the defendant (if the defendant is not in court).

[19.70] Private application for

an AVO If Police refuse to apply for an AVO, or if the victim does not want to ask police to apply for an AVO, they can make a private application for an AVO by attending their nearest Local Court. Court staff provides the victim with an AVO application kit, which includes an application for an AVO. The victim completes and returns the form to the Local Court. They will need to explain why they need an AVO and, if they are really frightened, ask the registrar to have the matter heard as soon as possible so that the

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court can make an interim order. The Registrar will create and list the AVO application in court and will electronically transfer the AVO application to the police to serve on the defendant. Commencement of AVO proceedings AVO proceedings are commenced by either the police or a registrar at a Local Court issuing an application notice under Pt 10, Div 2 of the Crimes (Domestic and Personal Violence) Act. The registrar initiates the proceedings by issuing an application that contains the grounds of the application and a Notice to the Defendant to attend court at a certain date and place. If an interim order has been made, this will also be served on the defendant. A police officer can issue and serve an application without attending the courthouse.

Notifying the defendant The defendant is legally notified when the documents (containing the application and the court attendance notice) are given to or served upon the defendant, which is done by a police officer. The notice sets out the date and time the defendant should attend court (the first return date). The officer who gives the papers to the defendant must swear an affidavit that they did so, or provide a statement of service. The affidavit or statement must be sent to the court. Except in special circumstances, the court will not proceed to make a final AVO where there is no proof of service.

Substituted service Where it is not reasonably practicable to serve the defendant personally, the court may order the application to be served in another way (substituted service). This means service on some other person who has contact with the defendant, such as their parents, or service by registered post. The court only orders substituted service if it is satisfied that regular service has been tried unsuccessfully. The court may also order that a warrant be issued for the purpose of detaining the defendant in order to serve him with an application or provisional or interim order.

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Applications served by a warrant Warrants may be used where the defendant is unable to be located. For example, the defendant has no fixed address or is attempting to evade service.

[19.80] AVO proceedings What happens when an AVO case is first in court (the first return date) depends on whether or not the defendant is present and, if they are, whether or not they agree to the order being made.

If the defendant is not present in court There are several reasons why a defendant may not turn up at court on the first day. The defendant may not have received the application and court attendance notice telling them to come to court (that is, the defendant has not been served). Or the defendant may have advised the court that because of short notice (for example, the defendant was served the night before) the defendant cannot attend due to work commitments. In both these situations the case will be adjourned, provided the protected person still wants the order. If the protected person does not have an interim order they can ask for one on this date, or have the interim order continued if there already is one.

Orders made in the absence of the defendant Interim AVO Interim orders are granted where the court considers it is necessary or appropriate in the circumstances to give the person immediate protection. The court considers these applications very carefully, as it is possible for orders to be made against a defendant before he has been served with a copy of the application. If the defendant was not at court when the interim AVO was made, it will not enforceable until the defendant is served with a copy. The protected person should obtain a copy of the interim order or bail conditions before leaving the court and carry it at all times – it is useful to show it to the police if the defendant breaches it.

Final ex parte AVO If the defendant does not appear in court after being served with an application, a final AVO may be obtained in the defendant’s absence. This is called an ex parte order. The protected person still has to satisfy the court, on the balance of probabilities, that they have a reasonable fear of the defendant. In most cases the protected person is asked to give evidence. If the AVO is granted, it must be served on the defendant before it is enforceable. Once it is served the defendant may be charged with a breach if they contravene any of its terms. If the defendant offers an undertaking If the defendant attends court, they may offer to give an undertaking. An undertaking is a promise the defendant gives to the court. It can be in the same terms as an AVO, and it can be written or oral. If the victim accepts the undertaking and the magistrate also accepts it, the application for an AVO is withdrawn. From the victim's point of view, it is always better to get an order from the court than an agreement or undertaking from the defendant. Under the law, the police can arrest a defendant for a breach of an AVO but they probably won't help if it is just an undertaking that has been breached, unless the breach involves a criminal offence such as assault or malicious damage. If the victim accepts the defendant's undertaking, and the defendant breaches it, the victim can make another application for an AVO through the police or the registrar at any time.

If the defendant does not contest the order If the defendant attends court, they will be asked if they agree to abide by the conditions of the AVO. If the defendant agrees, the AVO is made by consent, and it is not necessary to present evidence against the defendant or for them to admit any of the facts in the application. The magistrate makes sure the defendant knows what is in the AVO and that they can be fined or imprisoned if the AVO is breached. The order comes into force immediately. If the defendant contests the order If the defendant does not agree to an order being made, the Magistrate will make

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directions for the exchange of written statements, which is the main evidence the applicant and the defendant will rely on at the hearing (see Local Court Practice Note 2 of 2012). Another court date is set down to check the written statements have been exchanged and if so, the court sets a hearing date, perhaps several weeks or even months away, when the court can hear the whole story. At the hearing At the hearing the protected person, the defendant and any witnesses give evidence based on their written statements and they may be cross-examined. If the court has audio visual link (AVL) facilities the protected person can ask to give evidence by AVL if they are afraid of giving evidence in front of the defendant. In a police initiated application, the police prosecutor will speak for the protected person. This means she will not require her own solicitor. In a private application, the protected person will need to represent herself or engage a solicitor to act for her. In some circumstances, the protected person will be eligible for legal aid. The WDVCAS or Women’s Legal Service NSW may be able to assist with finding a solicitor. The court must be told about any family law parenting orders or any application for such orders that is pending (see Children section in Chapter 24, Family Law). The court must consider family law orders, and make sure that the AVO does not affect contact between parent and child, unless there good reason to do so. For example, there is new material before the Local Court suggesting a child may be at risk spending time with a parent. Subsequent family law orders override any inconsistent order in AVOs. Failure to inform the court of existing or pending family law orders does not make the AVO invalid, but may weaken the protection for the victim if any of the AVO clauses are inconsistent with existing family law orders. After considering all the evidence, the court decides, on the balance of probabilities, whether the person seeking protection has reasonable grounds to fear the defendant.

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Explaining the order When a court makes or varies an AVO it must explain the order to both the protected person and the defendant (if they are present in court). The explanation must include: • the effect of the order • the consequences of a breach • the rights of the protected person and the defendant in relation to the order. The explanation should be in a language understood by both parties. Both the protected person and the defendant must also receive a written explanation. Usually this is given to them when they collect the final AVO from the court office. The AVO is valid, however, even if the court fails to do this. When a firearms licence must be revoked If a final AVO is made against the person, their firearms licence is revoked (Firearms Act 1996 (NSW), s 24). There is no appeal against this revocation. A person who is subject to a final AVO may not obtain a firearms licence for ten years from the expiry date of the order, unless the AVO has been revoked (s 29(3)(c)). If a licence is suspended or revoked A person whose firearms licence is suspended or revoked must surrender the licence and any firearms to the police (s 25). It is an offence for a person to have a firearm without a licence (s 7).

Costs in ADVOs In private applications for ADVOs, professional costs may only be awarded against the applicant if the application is dismissed, and the court is satisfied that the complaint was “frivolous or vexatious” (Crimes (Domestic and Personal Violence) Act, s 99A). In police applications for ADVOs the court can only make a costs order against the police if satisfied “that the applicant made the application knowing that it contained matter that was false or misleading in a material particular or the applicant has deviated from the reasonable case management of the proceedings so significantly as to be inexcusable” (s 99A(2)). The case of

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Constable Redman v Willcocks (2010) 79 NSWLR 226, decided that costs could be awarded against the police for “procedural misconduct”. In that case the police decided to withdraw an application for an AVO but did not let the defendant know and the defendant incurred costs in attending for a hearing. Enforcing the order The protected person should obtain a copy of the order before leaving court on the day it is made, and carry it at all times. The court also sends a copy to the local police station. Details of AVOs are stored on the Police Service’s Domestic Violence Central Data Bank. The protected person should contact police immediately if the defendant breaches any of the terms of the order. Penalties for breach Breach of an AVO is a criminal offence. The police can arrest the person without a warrant and take them back before the court. If the court decides beyond reasonable doubt that the defendant breached the order, the penalty is up to two years’ jail and/or a fine of $5,500. Keeping a record of breaches If the defendant breaches the AVO there are a number of things a protected person can do: • keep a record of all breaches of the AVO, no matter how small they may seem. This may help to establish a pattern of abusive behaviour over a period of time. Every time the defendant breaches the AVO, a record should be kept of: – the date and time of the incident – what happened, what the defendant did or said and how the protected person responded – any witnesses who saw or heard what happened, and – what the protected person did afterwards • ask any witnesses to keep a record of the incident and write down what they saw or heard • collect evidence of the breach: – a message from the defendant may be a breach of the AVO. Emails, text messages, messages on social media or voicemail messages should be kept. These messages can be shown or played to police – if the protected person is physically injured, they

should go to the doctor or hospital for medical care – photographs of any injuries (eg bruises or scratches) should be taken • all breaches should be reported to police in person or over the phone. The protected person should use their notes to assist them in making a statement • a record of all reports made to police should be kept, including: – the date(s) of the report to the police – how the report was made (by telephone or in person) – the name of the police station where the report was made – the name of the police officer who took the report, and – the police event number. This is the number that records the incident on the police computer system.

Applying for an annulment If an AVO is made ex parte against a defendant (where the defendant was not present at court), the defendant can make an application for the annulment of that order under s 4 of the Crimes (Appeal and Review) Act 2001 (NSW) within two years of the order being made. The court can grant the annulment if the magistrate is satisfied that: the defendant was not aware of the proceedings until after the order was made, or the defendant was prevented from attending court due to illness, accident or some other misfortune, or it is in the interests of justice to annul the order. The defendant can apply to annul the AVO through the registrar. The AVO should not be annulled without the protected person being notified of the application. If the AVO is annulled If the AVO is annulled, the court must consider the victim’s application for an AVO as if the ex parte AVO was never made, and the defendant has the options outlined above – the defendant can consent to the AVO or contest it and ask for a hearing.

Variation or revocation of an AVO It may be necessary to revoke or change the terms of an AVO when circumstances change, such as where violence or

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harassment has increased, or the parties wish to resume living together and there is an order excluding the defendant from the home. Changing an order may involve: • adding further prohibitions or restrictions • amending certain terms • deleting terms • extending the length of time it is in operation. An application to vary or revoke an order is made by the protected person, the defendant or the police. The applicant must state why they are applying for a change, as well as the change they are seeking (revocation, variation or extension). The transcript and any evidence admitted in the District or Supreme Court in respect to a serious offence is admissible in the Local or Children’s Court for purpose of determining whether to revoke or vary a final or interim AVO (s 40(4)). The person affected by the application, whether the protected person or the defendant, is notified of the application and summoned to appear in court to answer it. When the court may not hear the application The court can refuse to hear the application if it is satisfied that there has been no change in the circumstances on which the AVO was granted in the first place, and that the application is in effect an appeal against the making of the order. If the other party has not been served It is not normally possible to vary an AVO in any way if the other party has not been served with the application. The only exception to this is where the protected person wishes to extend an AVO but cannot serve the defendant before the AVO is due to expire. If the application to extend the AVO is lodged before the day on which it is due to expire, the court will extend it for up to 21 days beyond its expiry date (s 73). Further orders can be made from time to time before the order ceases to have effect. If there is more than one protected person When more than one person over 16 is protected by the AVO, a variation or revoca-

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tion application must be served on all persons protected by the AVO. A variation will only apply to the person applying to vary or revoke the order unless the court is satisfied that the other persons protected by the AVO have also consented to the application. Police-initiated AVO where children are included A person requires leave (permission) of the court to make an application to vary or revoke an AVO where a child is named as a protected person on the order. A court can grant leave if there has been a significant change in circumstances since the AVO was made (or last varied), or if a care plan is inconsistent with the AVO, or it is in the interests of justice to do so. The court must not grant leave if the child would be exposed to an increased risk of harm if the application were successful s 72B) or the Commissioner of Police has not been notified of the application (s 72C).

Appeal to the District Court The applicant or the defendant can appeal to the District Court against: • the making of an AVO, or refusal to make an AVO, or • the granting of an application to vary or revoke an AVO, or refusal to vary or revoke an AVO. Time limits Any appeal to the District Court must be made within 28 days of the decision. If a person misses the 28 day deadline, it is possible in some cases to ask for leave to bring an appeal within three months of the decision. How appeals are heard Appeals are heard by way of a rehearing of the transcript of the Local Court evidence. The District Court will give leave to introduce new evidence only if it is satisfied that it is in the interests of justice to do so.

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[19.90] Domestic violence

orders made in other states and territories of Australia and NZ A domestic violence order (DVO) made in any Australian or New Zealand jurisdiction is recognised in NSW (s 98Y). A DVO is enforceable against a defendant in NSW when they are properly notified of the making of the DVO under the law of the jurisdiction in which the DVO was made (s 98ZD(3)). Any variation or revocation of the DVO in any Australian or New Zealand jurisdiction outside NSW is recognised in NSW (ss 98Z and 98ZA). A new DVO made against a defendant in NSW supersedes and revokes any comparable DVO made earlier (s 98ZB).

Moving interstate An AVO made, varied or revoked in NSW is recognised and enforceable in any other Australian or New Zealand jurisdiction.

[19.100] Protective orders

under the Family Law Act Under s 114 of the Family Law Act a person can apply to the Local Court, the Federal Circuit Court or the Family Court for an injunction. If a breach of the order is proved, the person in breach is regarded as being in contempt of the court and can be sentenced to imprisonment, put on a recognisance (good behaviour bond) or fined (Pt XIIIA). Other injunctions under the Act can be sought in relation to children, and can give protection to either parent or child (s 68B). Injunctions are used less often than AVOs, and can be more complicated to enforce, but they may be useful for people who are already involved in proceedings under the Family Law Act 1975 (Cth).

[19.110] Family law

arrangements The Family Law Act recognises a child’s legal right to have a meaningful relationship with both parents. The Act lists factors to be

considered in determining who a child will live with and how much time a child will spend with the other parent. The Act requires safety to have higher priority than “maintaining a meaningful relationship” with a parent. The Act recognises that domestic violence is a relevant factor in considering whether arrangements are in the child’s best interests.

Where spending time with a parent and protection are incompatible The Family Court must make orders that are in the best interests of the child, which includes a consideration of family violence. The court should make sure its orders do not expose children or their primary carers to violence, and must also try to resolve any inconsistencies between the family law order and an AVO.

Where there are inconsistencies If a family law order is inconsistent with an AVO it overrides the AVO, but only to the extent of the inconsistency; for example, where the AVO says a father must not contact a protected person and the family law order says he can contact her to arrange to see the children, he is permitted to contact her only for that purpose. If there is already a family law order, the magistrate hearing the AVO can be asked to change or discharge the family law order if it conflicts with the AVO. The court may also do this on its own initiative (Family Law Act 1975, s 68P)). For the Local Court to vary a family law order there must be new material before it that was not before the court making the original family law order. A magistrate hearing an application for an AVO may change a family law order if satisfied that someone has been or is likely to be exposed to violence because of the order. If only making an interim AVO, the court cannot discharge the family law order, but it may make other types of changes, including suspension. The changes last as long as the interim order or for 21 days, whichever is shorter.

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Changes made to a family law order on the basis of an interim AVO cannot be appealed. Changes made to a family law order because of a final AVO may be appealed.

[19.120] Criminal charges Domestic violence is a crime. However, victims of domestic violence are often not aware that this is what they are experiencing, particularly when they are socially and geographically isolated. Domestic violence is a crime the same way as violence or assault between strangers. Domestic violence offences A domestic violence offence includes any form of assault, intimidation, stalking or any offence intended to coerce or control a person against whom it is committed or to cause that person to be intimidated or/and fearful, against a person who they have, or have had, a domestic relationship with (which is broadly defined) (ss 4, 5 and 11 of the Crimes (Domestic and Personal Violence) Act).

Assault An assault can be committed without actual physical contact; for example, it is an assault if the attacker threatens violence and appears to be immediately capable of and willing to carry out the threat (for example, with a raised knife or a clenched fist). It is also an assault to intentionally push or spit on a person, even if it does not cause physical injury.

Technology facilitated domestic violence It is an offence under the Criminal Code Act 1995 (Cth) to make menacing, harassing or offensive phone calls. Cyberbullying is posting embarrassing pictures, spreading false or misleading information on the internet. Cyberstalking is using technology to harass, threaten or frighten. Digitally assisted stalking is using technology such as mobile phone apps to track someone’s whereabout.

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Strangulation Strangulation is a very serious form of violence. It is common in cases of domestic violence and is considered an indicator of the risk of further harm and potential escalation of the violence. There are separate offences relating to choking, suffocation and strangulation with a maximum penalty of 10 years imprisonment, or 25 years imprisonment for the aggravated offence. Under the Crimes Act 1900 (NSW) a person is guilty of an offence if they choke, suffocate or strangle another person so as to render the other person unconscious, insensible or incapable of resistance.

What police must do Police have a duty to arrest and charge anyone they reasonably suspect has committed a crime. Where an alleged offender is charged and released from police custody until the court hearing, police should apply for an AVO for the victim and consider putting the offender on conditional bail (see Bail in Chapter 14). If the person is arrested and charged When the alleged offender is arrested and charged, the police can indicate on the charge that the offence is specifically a domestic violence offence. The police, not the victim, are responsible for deciding whether or not to proceed with a criminal case. Usually the police will consult with the victim and/or WDVCAS to let the victim know how the police intend to proceed. It is important for victims to be aware that the police can compel them to give evidence in a criminal prosecution. Conversely, the police can withdraw the matter and not prosecute the offender if the police assess there is insufficient evidence to prove the offender is guilty beyond a reasonable doubt. The police do not need the victim’s consent to do this. There is a Charter of Victims Rights in NSW which states that if possible, victims will be provided certain information about the prosecution and police investigation. If a victim of domestic violence is defending a criminal charge and AVO Sometimes a person who is primarily a victim of domestic violence is charged with a domestic violence offence, rather than the

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primary aggressor. When police are called after a violent incident, the primary victim’s version of events may not have been viewed as credible compared with the other person, due to the circumstances of their heightened stress and anxiety. The other person may have deliberately initiated AVO proceedings as a further mechanism of power and control, by threatening the victim with reports to police in the future. NSW Police policy requires police to look behind the presenting incident to investigate whether there is a history of violence, so that the primary victim can be identified and appropriately protected. For defendants in these circumstances, usually women, legal advice should be sought about defending the charges and the AVO; whether, legally, self defence can be established; and to also seek an AVO for their protection. In these circumstances, a defendant to criminal charge and/or an AVO may be eligible for legal aid. Interim AVOs When a person is charged with a serious offence, the court must make an interim AVO unless it is satisfied that it is not required – for example, there is already an AVO in place (s 40). A serious offence is defined in the Crimes (Domestic and Personal Violence) Act to include (among other things) murder, a domestic violence offence and stalking.

Going to court If police arrest the defendant and he is not released, the case will go to court as soon as possible – usually the day the defendant was arrested or the following day. If the defendant was not arrested, a court attendance notice to appear in the Local Court will be served upon the defendant and the case will go to court a week or two later. In either case, the first court appearance is called a first return day or a mention day. It is designed to allow the magistrate to find out what is happening in the matter – it is not a full hearing In the case of criminal charges, the defendant is asked whether they want to plead guilty or not guilty. The defendant may sometimes ask for the case to be adjourned so

that legal advice can be sought. Victims may be excused from attending on subsequent mention days, but it is important for victims to attend court, even if excused, especially on the first mention date. This is particularly important if there is an AVO application for the victim’s protection along with the criminal charge. If the defendant pleads guilty If the defendant pleads guilty, the court listens to the prosecution’s facts, hears what the defendant or their lawyer has to say about these facts (or about the appropriate sentence), then imposes a punishment (possibly on another day). The court must also direct that the offence be recorded on the person’s criminal record as a domestic violence offence. An AVO must be made if the defendant pleads guilty. If the defendant pleads not guilty If the defendant pleads not guilty, the court sets a hearing date (which could be weeks or months away), and usually releases the defendant on bail until the hearing. The defendant can also be held in custody until the hearing date if bail is refused. An interim AVO will be made and will continue until the criminal charges are finalised. Giving evidence The victim is usually the main witness to the violence and sometimes the only witness. The victim’s evidence is vital to the prosecution case, and without it the case may be dismissed. People can be called to give evidence against their married or de facto partners in cases of family violence (they are compellable witnesses), although the court also has discretion to excuse them (Criminal Procedure Act 1986, s 279(3)). The victim’s evidence may be enough to prove the case, but it will help if there is other evidence that supports the complaint. For example, evidence of bruising may be given by a treating doctor (this evidence will have more weight if the doctor was seen as soon as possible after the assault). Photographs may also be helpful. Blacktown, Mount Druitt and Nepean Hospitals operate

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Forensic Medical Units (FMU), which conduct sexual assault and domestic violence examinations and collect forensic evidence. FMU workers can give expert evidence in court. Police can take a domestic violence victim’s statement by video or audio recording, and use this recording as all or part of the victim’s evidence in chief (DVEC) (Criminal Procedure Amendment (Domestic Violence Complainants) Act 2014 (NSW), ss 289C and 289F(1)). DVEC can only be used for defended hearings relating to criminal charge matters and ADVO applications connected to these charge matters (s 289H). Unrepresented defendants are not given a copy of the recording, however must be served with the audio extract of the recording and police must, as far as is reasonably practicable, provide the unrepresented defendant with an opportunity to view the DVEC video recording at a police station (s 289M). The victim’s consent is not required to play the recording at court. While the recorded statement will form their evidence in chief, victims must still attend court for cross-examination (ss 289F(5) and 289G). The court has discretion to order that evidence may be given by AVL if there is an AVL facility at the court. If the defendant is found guilty A defendant found guilty of a criminal offence, or who pleads guilty, may be: • imprisoned, or • fined, or • put on a good behaviour bond with various conditions attached, or • in certain circumstances, have the charge dismissed without a conviction recorded (Crimes (Sentencing Procedure) Act 1999, s 10). The court must make an AVO against the defendant (Crimes (Domestic and Personal Violence) Act, s 39) who pleads guilty or is found guilty of a “serious offence” (s 40(5)), unless it is satisfied that it is not required – for example, because there is an existing AVO in place. The court must also direct that the offence be recorded on the person’s criminal record

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as a domestic violence offence. The prosecution can also request that similar entries are noted on the criminal record in relation to previous offences that are domestic violence offences committed by that person. If the offence was particularly serious If the assault has caused serious injuries, the defendant may be charged with malicious wounding, or attempted murder or manslaughter. These are indictable offences, which carry higher penalties (see Chapter 14, Criminal Law). The defendant is brought before a magistrate who decides whether there is enough evidence for the matter to go for a full hearing before a judge and jury in a higher court (either the District Court or the Supreme Court). For these matters, the court may consider there is an unacceptable risk to release the defendant on bail so the defendant is kept in jail until the trial. Alternatively, the court may decide to release the defendant on bail or under an interim AVO until the trial.

Bail Will the defendant get bail? Bail involves a promise to attend court to answer a criminal charge. Bail is decided based on whether there is an “unacceptable risk”. Bail can be granted with or without conditions which must be appropriate to the unacceptable risk; or bail can be refused. A defendant in AVO proceedings can be placed on bail conditions even if there is no criminal charge (Crimes (Domestic and Personal Violence) Act, s 83). Conditions may include that the defendant is not to: • approach, harass or molest the protected person • come within a certain distance of the protected person’s home • telephone or contact the protected person except through their lawyer (or some other person). It is important to note that if a person in need of protection does not have an AVO for their protection because bail conditions reflect the AVO terms, the person in need of

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protection may be left without protection if the court revokes or varies the bail conditions on a later date. If the person breaches bail conditions A person who breaches bail conditions can be arrested, held in police custody and brought again before the court. Can bail be varied? The prosecutor, the complainant and the protected person are all able to make an application to court or an authorised justice to vary bail conditions (Bail Act 2013, s 51).

If the victim wants police action dropped Sometimes, the victim may want the police to drop criminal charges. That decision is made by the police, not the victim. What the victim can do The victim can write to police requesting that the charge be withdrawn and stating why. This process is called “making representations”. What police may do Police consider such matters very thoroughly, as there is a risk that an offender

may have pressured, coerced or threatened a victim to get them to drop the charges. Sometimes, despite representations having been made, police will proceed with the charge. What the victim should not say A victim should not say that they made things up or lied in the original statement to the police in the hope that the charge will be withdrawn, as this can result in charges being laid against the victim for public mischief. Pressure can be put on victims by perpetrators of violence to withdraw complaints and police operating procedures require that great care must be taken in acting only on the admission of a victim that they lied. If there is no corroboration, the police are required not to proceed with charges against the victim without the approval of the crime manager. Getting legal advice Independent legal advice should always be sought before making representations or wanting to change a police statement.

Practical help [19.130]

The legal remedies available to victims of domestic violence may not be much use in a crisis. Practical steps taken by the victim can be much more important. Health workers and other professionals, as well as family and friends, can support people who are experiencing domestic violence by giving them accurate information and referral to the following services: • help with protecting children • Aboriginal and Torres Strait Island specialist services • specialist immigration services • counselling • housing support • financial support • information about employee rights • legal advice.

Please see “Contact Points” at [19.190] for the contact details for the services referred to below.

[19.140] Protecting children There is increasing recognition of the harm children suffer from living in a violent household, for example seeing or hearing their mother being assaulted, being caught in the cross-fire or intervening to help their mother, or actually being the subject of violence. Parents who need help Parents who need help for themselves may contact Department of Family and Community Services (FaCS).

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Two 24-hour telephone lines may be contacted for advice and assistance. These are the Domestic Violence Line (for domestic violence) and the Child Protection Helpline (to report suspected child abuse or neglect).

Notification requirements Who must report suspected child abuse Some professionals (“a person who, in the course of his or her professional work or other paid employment, delivers health care, welfare, education, children’s services, residential services, or law enforcement to children”) are obliged by law to report that a child is at risk of significant harm, to FaCS Child Protection Helpline (Children and Young Persons (Care and Protection) Act 1998, s 27). They include medical practitioners, teachers, school principals, school counsellors and early childhood teachers. There are penalties for failing to do so (see Chapter 7, Children and Young People). Reporting by the public Anyone else (friends, family, neighbours, other workers) who suspects on reasonable grounds that a child is at risk of significant harm may also notify FaCS.

[19.150] Assistance for

Aboriginal and Torres Strait Islander women Aboriginal and Torres Strait Islander women often face particular problems when they suffer family violence in their communities. As well as the difficulties faced by all women in these situations, they may have to contend with racist attitudes. Historically, Aboriginal and Torres Strait Islander women have had negative experiences with mainstream services, and there are few Aboriginal and Torres Strait Islander workers employed by these services. For many complex reasons, Aboriginal and Torres Strait Islander women may be reluctant to use the courts and the police to help them and their children when they face violence at home. Aboriginal and Torres Strait Islander women may also hold fears about the

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danger to Aboriginal and Torres Strait Islander men when police do intervene and they are held in police cells. However, the findings of the Royal Commission into Aboriginal Deaths in Custody must not be used by the police or the legal system as an excuse for not taking appropriate action to protect Aboriginal and Torres Strait Islander women and children. The Aboriginal Medical Service The Aboriginal Medical Service provides a child sexual assault service as well as medical and other services to adults. Family Violence Prevention Legal Services Family Violence Prevention Legal Services (FVPLS) provide services to respond to and reduce the level of violence in Aboriginal and Torres Strait Islander communities. These services have a holistic approach, such as providing community education and legal help for protection orders, and family law matters. Women's Legal Service NSW The Indigenous Women’s Legal Program at Women’s Legal Service NSW provides legal advice, community education and referral to appropriate services. The Wirringa Baiya Aboriginal Women's Legal Centre The Wirringa Baiya Aboriginal Women’s Legal Centre provides legal advice, community education and referral to other services to help victims of violence. See also Chapter 2, Aboriginal People and the Law.

[19.160] Assistance for

immigrant women Immigrant women can experience particular difficulty reporting domestic violence, contacting support services and navigating the legal system. There may be language, cultural and social barriers for immigrant women. Some immigrant women have had negative experiences of the authorities in other countries and have a mistrust of police and fear of imprisonment for the perpetrator.

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Sometimes a lack of knowledge about Australian laws and protections available, such as AVOs, means some women are unaware certain behaviour is even illegal.

Exemption from visa requirements The “family violence provisions” in immigration law allow for some people who have been sponsored to live in Australia to continue with their application for permanent residence after the breakdown of the relationship, if they or a member of their family unit have experienced family violence by the sponsor. Visa applicants need to provide evidence to prove the family violence. Evidence against the violent partner can include judicial or non-judicial evidence such as: • an AVO, where the alleged perpetrator had an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter • an injunction under the Family Law Act 1975 • a conviction for an act of violence committed against the visa applicant or their dependant • a joint undertaking filed in court proceedings where there was an allegation of violence • a statutory declaration from the applicant, and • at least two types of evidence from a list of acceptable evidence. For example, a doctor’s report, statutory declaration by registered psychologist, report by registered nurse, statutory declaration by social worker, statutory declaration by family consultant, letter from a women’s refuge or statutory declaration from school counsellor or principal detailing that family violence has been perpetrated against the applicant by the sponsoring partner. Although not required, it is recommended that statutory declarations are made using the Department of Immigration and Border Protection Form 1410 – Statutory declaration for family violence claim.

When the victim is a child, evidence may also be accepted from the state child protection authority (in NSW, this is Family and Community Services). For more information or advice about the family violence provisions contact the Immigration Advice and Rights Centre or the Immigrant Women’s Speakout Association.

[19.170] Counselling Counselling for victims Early engagement with trauma informed counselling services can be beneficial for women escaping domestic violence. Women’s health centres and community health centres provide both individual counselling and opportunities for women to speak to others who have had similar experiences. The Domestic Violence Line can provide counselling and referrals 24 hours a day. Victims Services NSW provides access to an initial 10 hours of free counselling and a further 12 hours if required, for all victims of violent crimes.

Counselling for perpetrators Counselling is available though services such as Mensline Australia. There are some men’s behaviour change programs available in NSW. Check to ensure that the minimum standards set by NSW government are adhered to. It is important that counselling and men’s behaviour change programs do not detract from or minimise keeping men who use violence accountable, and they must keep the safety of women and children as the highest priority. The efficacy of men’s behaviour change programs is yet to be proven.

Housing There are a number of refuges in NSW providing crisis accommodation and a supportive, safe environment for women and their children who are escaping domestic violence. Most are open 24 hours a day. For a referral to a refuge call the Domestic Violence Line. Refuge staff can assist women with information about their legal and welfare needs and help them apply for social security benefits and legal aid.

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Many women’s refuges are unable to accommodate pets but there are some temporary housing options for pets of people who have escaped domestic violence. One program is “Safe Beds for Pets” through the RSPCA. If a victim of domestic violence leaves home A victim of domestic violence will not jeopardise their rights in a later property settlement or maintenance application if they have left the home in circumstances of domestic violence. If the legal title to the real property is held in the perpetrator's sole name, the victim should seek timely advice regarding how best to protect their interest in the property.

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ing domestic or family violence and their children to remain in their home. The service includes outreach support, risk assessment, safety planning, security modifications and equipment, court support and casework and advocacy.

Start Safely Housing NSW has also developed Start Safely, a rental subsidy program to provide short to medium term financial help to women, including those with children, who have experienced domestic or family violence so that they can secure private rental accommodation.

[19.180] Financial assistance Renting A person may want to stay at the rented premises and have the perpetrator leave, or to leave and end their legal liability. There are several different options to assist the victim under tenancy laws however; they do depend on the whether they are a sole or co-tenant or occupant and whether they have a fixed term or periodic residential tenancy agreement. Tenants with a final AVO with an exclusion order can stay in the property or leave a fixed term tenancy by giving two weeks written notice, without needing to compensate the landlord. Co-tenants without a final AVO with an exclusion order can make an application to the NSW Civil and Administrative Tribunal to end their tenancy or the offender’s tenancy due to the special circumstances of their case. Women’s Legal Service NSW can be contacted for advice. A tenant can change the locks, without the landlord’s consent, if any occupant has an AVO with exclusion order (interim, provisional or final) against them. The tenant can also withhold copies of the new keys from the excluded occupant. Housing NSW

Staying Home Leaving Violence (SHLV) SHLV is a Housing NSW initiative, which aims to increase safety and prevent homelessness by enabling the person experienc-

Centrelink Anyone on an income support payment from Centrelink can apply for a crisis payment within seven days of “the crisis” – for example, if a victim of domestic violence has left her home and cannot return because of domestic violence. A social worker at Centrelink can make an assessment for a crisis payment. Victims Support Victims Services NSW provides: • Immediate needs payment of up to $5,000 to victims of violent crimes. This can be for the costs of relocating to a safer location; changing locks or other safety measures; emergency medical and dental expenses. Applicants need a police or medical report plus receipts or other evidence of the expenditure. Claims must be made within two years of the incident, or within two years of turning 18 for children. • Financial assistance of up to $30,000 for victims of violent crimes. This can be for loss of wages (up to $20,000); living expenses for rent, furniture, child care, bills (up to $5,000) for victims who were not employed; travel, medical and dental expenses; damage to personal effects (up to $1,500). Claims must be made within two years of the incident, or within two years of turning 18 for children (but no time limit if the crime was child sexual assault).

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• Recognition payments of $1,500 or $5,000 for victims of domestic violence (depending on the degree of injury) or $5,000 or $10,000 for victims of a sexual assault (depending on the nature of the assault). Claims for domestic violence assault, sexual assaults and child physical abuse must be lodged within 10 years of the incident or within 10 years of turning 18 for children. There is no limit time for claims for child sexual abuse (see Chapter 39 on Victims Support for full information). Other resources Community Services and charities such as the Smith Family, Salvation Army and St Vincent de Paul may be able to offer emergency financial help.

Employment information The Fair Work Act 2009 (Cth) provides victims of domestic violence and those caring for an immediate family member or member of their household who is a victim of domestic violence with a right to request flexible working arrangements. These may include changing hours of work (eg working less hours or changing start or finish times), changing patterns of work (eg working split shifts) and/or changing the place of work (eg moving office or working from home). However, an employer is not obliged to agree to the request and can refuse on “reasonable business grounds”. While there are limitations in the flexible working arrangements provisions contained in the Act, these protections still play an important role in increasing the safety and job security of victims of violence and the people supporting them.

Legal advice LawAccess NSW LawAccess NSW is a free, government telephone service that provides legal information, referrals, including to community legal centres and Legal Aid and in some cases provides advice for people who have a legal problem in NSW.

Women's Legal Service NSW Women’s Legal Service NSW gives free legal advice and information to women experiencing domestic violence in NSW over the telephone and face to face at various outreach locations. Legal Aid NSW Free legal advice and representation for AVO matters may be obtained from Legal Aid. Legal aid may be available in domestic violence proceedings, subject to means test and availability of funds test. It is not necessary to go through a Legal Aid office to get legal aid. A grant of legal aid may be assigned to private legal practitioners willing to accept legal aid rates of payment. If police have applied for an AVO on behalf of a protected person, the police prosecutor represents the protected person in court and they do not need their own lawyer for that application. Can a victim of domestic violence making a private application get legal aid? Legal aid is available to victims of domestic violence making a private application, subject to the means and merits test.

Can defendants get legal aid? Legal aid is generally not available to defendants in AVO proceedings. There are exceptions in some circumstances; for example, where Legal Aid is satisfied that the defendant in the ADVO proceedings is a primarily a victim of domestic violence, or where they meet the special disadvantage guidelines, for example, have a cognitive impairment.

Assistance in dealing with the courts The Women’s Domestic Violence Court Advocacy Service (WDVCAS) operates in many courts in NSW. The WDVCAS offers support, information and referral to women in Apprehended Violence Order proceedings. Many of the WDVCAS operate a safe rooms for women and their children while they are at court, and many have a duty solicitor scheme (DVPS) to represent women in court

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on the day and provide legal advice about related issues. Both the WDVCAS and duty solicitor may be able to assist defendants who are primarily victims of domestic violence (see above paragraph “Can defendants get legal aid?”).

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Contact points [19.190]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au.

Police Call 000 for all emergencies Call the Police Assistance Line on 131 444 if you are a victim of a crime, other than life threatening or time critical emergency situations.

Child Protection Child Protection Helpline (to report child abuse and neglect, 24 hrs) ph: 132 111 (TTY 1800 212 936)

Counselling and crisis support AVERT Family Violence www.avertfamilyviolence.com.au Digital-Trust (Helping Victims of Digital and Cyber Abuse) www.digital-trust.org

Mens Referral Service

Victims Services NSW

www.mrs.org.au

www.victimsservices.justice.nsw. gov.au

ph:1300 766 491 Mensline Australia www.mensline.org.au ph: 1300 78 99 78 (24 hrs) National Sexual Assault, Domestic Family Violence Counselling Service (1800 Respect)

www.whnsw.asn.au ph: 9560 0866 Blacktown/Mt Druitt Forensic Medical Unit Call hospital main switch ph: (02) 9881 8000 For a full list of Women’s Health Centres in NSW, see Contact points in Chapter 24, Family Law.

No to Violence – Male Family Violence Prevention Association www.ntv.org.au ph: (03) 9487 4500 RSPCA Safe Beds for Pets www.rspcansw.org.au ph: 9782 4408 Salvos Counselling

ph: 1800 656 463 Education Centre Against Violence

www.thesmithfamily.com.au

ph: (02) 9743 2831 Smith Family ph: 1300 326 459 or 9085 7222 A list of metropolitan and regional offices is in Contact points for Chapter 15, Debt. St Vincent de Paul Society www.vinnies.org.au

ph: 9635 8022

ph: 9568 0262

Lifeline Telephone Counselling Service www.lifeline.org.au

Technology Safety Planning

ph: 131 114 (24 hrs)

Women’s Health NSW

Ph: 1800 737 732

www.salvoscounselling.salvos. org.au

ph: 9840 3735 Immigrant Women’s Speakout www.speakout.org.au

ph: 9045 8444

www.1800respect.org.au

Domestic Violence Line (for counselling, information and refuge accommodation 24hrs) www.domesticviolence.nsw.gov.au

www.ecav.health.nsw.gov.au

ph: 1800 633 063 or 8688 5511 Aboriginal Contact Line ph: 1800 019 123 White Ribbon Australia www.whiteribbon.org.au

www.smartsafe.org.au/tech-safetyhub/technology-safety-planning

Staying Home Leaving Violence A program to help women escaping domestic violence to remain safely in their homes. Bega: 6492 6239 Blacktown: 9677 1962 Broken Hill: (08) 8088 2020 Campbelltown: 1800 077 760 Dubbo: 6883 1561 Eastern Sydney: 0439 414 673 Fairfield/Liverpool: 9602 7795 Kempsey: 6562 2272 Lake Macquarie: 4943 9255 Maitland/Cessnock: 4937 1927 Moree: 6752 4536 Newcastle: 4926 3577 Nowra/Shoalhaven: 4421 7400

19 Domestic Violence

Parramatta/Holroyd: 9636 8437

Women’s Legal Contact Line

ph: 6622 6116

Penrith: 4721 2499

ph: 1800 801 501 or 8745 6988

Tweed Heads

Redfern: 9699 9036

ph: 5536 8868

Tamworth: 0418 598 556

Domestic Violence Legal Advice Line

Wollongong: 4256 7333

ph: 1800 810 784 or 8745 6999

Broadmeadow / Maitland

Wyong/Gosford: 4356 2600

Indigenous Women’s Legal Contact Line

ph: 4940 1500 or 1300 364 277

Legal Assistance

ph: 1800 639 784 or 8745 6977

Community Legal Centres NSW

ph: (02) 8745 6954

www.clcnsw.org.au

Care and Protection Legal Advice Line

Family Violence Prevention Legal Services Assistance and advice for Aboriginal and Torres Strait Islander victims of family violence Bourke/Brewarrina ph: 6872 2440 Broken Hill ph: (08) 8087 6766 or 1800 812 800 Forbes ph: 6850 1234 or 1800 700 218 Kempsey ph: 6562 5856 Moree ph: 6751 1400 Walgett ph: 6828 3143 Help to represent yourself in court www.localcourt.justice.nsw.gov.au/ Pages/what_to_expect/ representing_yourself.aspx Immigration Advice and Rights Centre (IARC) www.iarc.asn.au Admin ph: 8234 0700 Advice ph: 8234 0799 (Tues and Thurs 2–4 pm) LawAccess NSW www.lawaccess.nsw.gov.au ph: 1300 888 529 Legal Aid NSW www.legalaid.nsw.gov.au For contacts, call LawAccess ph: 1300 888 529 Legal Information Access Centre (State Library) www.legalanswers.sl.nsw.gov.au Wirringa Baiya Aboriginal Women’s Legal Centre www.wirringabaiya.org.au ph: 1800 686 587 or 9569 3847 Women’s Legal Services NSW www.wlsnsw.org.au

Working Women’s Legal Service

Relationships Australia

Macquarie Park ph: 9418 8800 or 1300 364 277 Penrith ph: 4728 4800 or 1300 364 277 Sydney CBD

ph: (02) 8745 6908

ph: 8362 2888 or 1300 364 277

Evening Telephone Advice Service

Wollongong

Available by appointment www. wlsnsw.org.au/evening-telephoneadvice-service

ph: 4221 2000 or 1300 364 277

Interpreter service: 131 450 (ask the interpreter to contact 8745 6900)

Men's Domestic Violence Behaviour Change Programs Programs that comply with the minimum standards Men’s Behaviour Change Network (MBCN) www.mbcn-nsw.net ph: (02) 4624 8700 BaptistCare Bankstown ph: 1300 130 225 or 8713 4333 Campbelltown ph: 1300 130 225 or 4624 8700 Tuggerah ph: 1300 130 225 or 4352 7900 CatholicCare Sydney Fairfield ph: 8723 2222 Hastings Women and Children’s Refuge Port Macquarie ph: 6583 2155 Kempsey Family Support Service Kempsey ph: 6563 1588 or 0437 737 818 Men and Family Centre Lismore

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Westmead ph: 9806 3299 or 1300 364 277

Court Support Women’s Domestic Violence Court Advocacy Services Blue Mountains: 6352 2052 or 0405 901 207 Burwood: 9744 2461 Central Coast: 4321 0099 or 4350 3064 Central West: 6361 3345 Far South Coast: 6492 5002 Far West: (08) 8087 2053 Hunter: 4940 8766 Hunter Valley: 4934 2906 Illawarra: 4229 4604 Macarthur: 4640 7333 Macquarie: 8833 0922 Mid North Coast: 6584 0053 New England: 1800 613 083 or 6761 2434 North Coast: 1800 174 466 or 6650 0302 North West: 1800 004 022 or 6752 4882 North West Sydney: 9831 5482 Northern Rivers: 6621 1044 Northern Sydney: 8425 8707 Riverina: 6964 4804 South Coast: 4423 8507 South Eastern: 6299 3835 South West Sydney: 9601 6988 Southern: 1800 120 320 or 6021 3059

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Southern Sydney: 9589 1200 Sydney: 9287 7505 or 0447 174 698 Wagga Wagga: 6921 6227 Western: 6884 7388 Western Sydney: 4731 5098

Lesbian and gay support

ACON (previously AIDS Council of NSW)

ph: 1800 65 64 63

(Incorporating the Lesbian and Gay Anti-Violence Project)

(Incorporating legal services, including court assistance for Lesbian, Gay, Transgender and Intersex people experiencing domestic and family violence.)

www.acon.org.au ph: 1800 063 060 or 9206 2000 Another Closet: Domestic Violence in Gay and Lesbian Relationships www.anothercloset.com.au

Inner City Legal Centre

www.iclc.org.au ph: 9332 1966 or 1800 244 481

20 Driving and Traffic Law Nic Angelov

Barrister

Contents [20.10]

Introduction

[20.20]

Driver licensing

[20.50]

Offences generally

[20.60]

Penalty notice offences

[20.70]

More serious, including charge only, offences

[20.190]

Penalties tables

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Introduction [20.10]

The laws governing the licensing of drivers and the use of motor vehicles on roads can be found in the road transport legislation. The primary legislation is the Road Transport Act 2013 (NSW) and it associated regulations, which include the Road Rules 2014 (NSW), the Road Transport (General) Regulation 2013 (NSW), the Road Transport (Driver Licensing) Regulation 2008 (NSW), the Road Transport (Vehicle Registration) Regulation 2007 (NSW) and the Motor Vehicles Taxation Act 1988 (NSW). The use of heavy vehicles on roads is regulated by the Heavy Vehicle National Law (NSW) (HVNL). There is also legislation dealing with specific areas of vehicle use such as passenger transport and the tow truck industry. This chapter will focus on

the generally applicable road transport legislation with the driver of a car for private purposes in mind.

Abbreviations Crimes (Sentencing Procedure) Act 1999 CSPA Road Transport Act 2013 RTA Road Rules 2014 RR Road Transport (General) Regulation 2013 RTGR Road Transport (Driver Licensing) Regulation RTDLR 2008 Road Transport (Vehicle Registration) RTVRR Regulation 2007 Motor Vehicles Taxation Act 1988 MVTA Roads and Maritime Services RMS State Debt Recovery Office SDRO

Driver licensing [20.20] Types of licences For car drivers there is a graduated licensing scheme from novice driver to a full licence holder. It is an offence to drive without an appropriate licence (RTA, s 53). Below is a brief overview of the novice driver licences and some of the conditions that are attached to the licences.

Learner licence Learner drivers cannot have any alcohol in their system. A person with a full licence must be seated next to a learner driver when driving. Mobile phone use is banned. The upper speed limit is 90 km/h (and any lower limit must be observed). L plates must be clearly displayed outside on the back and front of the vehicle. A demerit point suspension will be incurred after reaching four or more demerit points during a three-year period.

Provisional P1 licence Provisional P1 drivers cannot have any alcohol in their system. Mobile phone use is

restricted. The upper speed limit is 90 km/h (and any lower limit must be observed). P plates (red P on white background) must be clearly displayed outside on the back and front of the vehicle. P1 drivers are prohibited from driving certain vehicles and there are passenger restrictions. Exemptions from these prohibitions can be sought, for example if employment responsibilities require the driving of a prohibited vehicle or the carrying of more than the number of permissible passengers. A demerit point suspension will be incurred after reaching four or more demerit points. Any speeding offence will incur a licence suspension of at least three months.

Provisional P2 licence Provisional P2 drivers cannot have any alcohol in their system. Mobile phone use is restricted. The upper speed limit is 100 km/h (and any lower limit must be observed). P plates (green P on white background) must be clearly displayed outside on the back and front of the vehicle. P2 drivers are

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prohibited from driving certain vehicles and there are passenger restrictions. Exemptions from these prohibitions can be sought, for example if employment responsibilities require the driving of a prohibited vehicle and the carrying of more than the number of permissible passengers. A demerit point suspension will be incurred after reaching seven or more demerit points. A speeding offence will incur a minimum of four demerit points.

[20.30] Demerit point system The RMS maintains a register of demerit points. It is a program that allocates penalty (demerit) points for a range of driving offences. The points are recorded on a licence holder’s driving record (also known as a traffic record report) as at the date of the offence. The number of demerit points recorded can vary depending on the date the offence is committed (ie double demerit points on public holidays), the area and time of day the offence is committed (a school zone) or the type of licence held (eg for exceeding the speed limit by not more than 10 km/h, an unrestricted licence holder incurs one demerit point or two on public holidays, a P2 licence holder incurs four demerit point for the same offence or eight on public holidays). Once the threshold number of demerit points is reached within a three year period, counting back from the date of the most recent offence, the RMS will suspend the person’s driver licence. Drivers can check their driving record online through the RMS website.

[20.40] Suspension and

cancellation of driver licence Demerit point suspension for unrestricted licence holders The RMS must give a notice of licence suspension to the holder of an unrestricted driver licence who incurs 13 or more demerit points (or in the case of a professional driver 14 or more demerit points) within a three year period (RTA, s 32).

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A professional licence holder is the holder of an unrestricted licence who is a motor vehicle driver that transports goods or an authorised bus, taxi or hire car driver. Driving that is incidental to a person’s primary work (eg tradesperson, vehicle repairer or salesperson) does not qualify a person as a professional driver (RTDLR, cl 120A). The RMS may seek further information (eg a statutory declaration) from a driver before it decides whether to consider the person a professional driver (RTA, s 61). If a person has accumulated exactly 13 points and believes he or she qualifies as a professional driver, that person needs to make contact with the RMS before the suspension period begins and complete a professional driver declaration form. When a person’s driver licence is suspended, all demerit points as at the date of the notice of licence suspension are taken to be deleted (RTA, s 37). As an alternative to serving the suspension the driver can elect to be of good behaviour (RTA, s 36). This is a voluntary option open to the driver. If this election is made, then for 12 months (commencing on the day the suspension would have commenced) the driver must be of good behaviour. If the driver incurs two or more demerit points during the period of good behaviour the driver will be given a notice of suspension for double the period of the initial suspension. There is no application or appeal to a court against the decision to suspend the licence of an unrestricted licence holder. The voluntary option to avoid suspension is electing to be of good behaviour. If that option is taken and the conditions of good behaviour are breached, the driver’s options have been exhausted and the person must serve (the now doubled) period of suspension. For that reason the good behaviour option should be seen as an opportunity to change driving behaviour rather than as a lifeline. If it is treated as the latter, there is a fair chance the driver will incur two or more demerit points within the 12-month period and be placed in a worse position.

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Demerit point suspension for learner or provisional licence holders If the holder of a learner licence or a provisional licence incurs the threshold number of demerit points within the threeyear period the RMS may issue a notice of suspension (RTA, ss 39, 40). The decision to suspend a learner or provisional licence does not have the good behaviour option but it can be appealed to the Local Court (see Appellable decisions below).

Other suspension or cancellation of licence by RMS The RMS may vary, suspend or cancel a person’s driver licence on a number of grounds (RTDLR, cl 55). For example, if a person is not a fit and proper person to hold a drivers licence, has failed a required medical examination or has failed to comply with a condition of the licence. The RMS will also suspend a driver licence for non payment of fines. A driver who speeds more than 45 km/h over the speed limit will be suspended for six months. Speeding over 30 km/h but less than 45 km/h incurs a suspension of thee months. If the matters are dealt with at court and a conviction results, the driver will be disqualified for the same periods (RR, r 102). A licence is automatically cancelled upon a person being disqualified from driving (see section on disqualification).

Accumulation of suspensions If a person commits an offence for which that person will be automatically suspended, such as driving 45 km/h over the limit, and the demerit points incurred for that offence also take the driver over the threshold of demerit points, each suspension will be imposed and served one after the other.

Suspension by police The police can suspend a driver’s licence for up to 14 days if of the opinion the person is an incompetent, reckless or careless driver, or is found under the influence of liquor. The police can recommend to the RMS that the period be increased or the licence be cancelled (RTA, s 223).

A police officer may give a driver an immediate suspension notice in certain circumstances, including if charged for certain offences, such as middle range or high range drink driving, speeding over 45 km/h (or 30 km/h for a learner or provisional licence holder) (RTA, s 224). The suspension remains in place until the charge is dealt with at court. If the driver is convicted, this suspension counts towards the period of disqualification imposed (RTA, s 225; RR, r 10-2). A police suspension is a decision that may be appealed to the Local Court (see below).

Appellable decisions Licences that are suspended or cancelled by RMS decision or an immediate licence suspension by police are appellable decisions (RTA, ss 266–270). The appeal must be lodged within 28 days of being notified of the decision to suspend a licence. In certain cases, once the appeal is filed, there is a stay of the decision until the appeal is heard (RTGR, cl 135). There is no stay on an immediate suspension by police unless the court decides there are exceptional circumstances. Nor is there a stay if the RMS suspends the licence on grounds of medical unfitness or incompetence. Only if there is a stay can the person continue to drive until the matter is heard at court. For the typical application arising from an RMS excessive speeding or novice driver demerit point suspension, there is a stay upon filing the application. The Local Court can set aside the RMS decision (in which case no suspension is served), vary the decision (ie, it can reduce the period of suspension) or dismiss the appeal (which means the RMS decision stands). If the appeal is dismissed, the suspension commences immediately unless otherwise ordered (RTGR, cl 135), so it is prudent for the appellant not to drive to court. The decision on the merits of the appeal is final (RTA, s 270).

Driving while suspended or cancelled offence Driving while suspended or cancelled are serious offences that are dealt with by

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charge at court and carry a maximum penalty of imprisonment as well as disqualification from holding a licence (RTA, s 54).

Offences generally [20.50]

The main criminal sanctions to enforce the safe use of vehicles are available under the Road Rules 2014, the Road Transport Act 2013 and other road transport legislation and under the regulations associated with these Acts. Sanctions relating to heavy vehicles are dealt with under the Heavy Vehicle National Law (NSW). Other specified commercial vehicle use (such as passenger transport and tow trucks) have particular legislation. There are also sanctions in specific contexts covered by other relevant legislation, such as when police are exercising their powers (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)) or vehicle noise and emissions covered by environmental legislation. Commonly encountered words in the various offence provisions are defined in the RTA (for defined terms generally see RTA, s 4). They include:

Road For most offences, an element of the offence is that it is committed on a road, although this is not always the case, for example PCA offences (although in practice this offence

would be difficult to detect other than on a road) or dangerous driving occasioning death or grievous bodily harm. A road is an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles. It generally includes a road related area (RTA, s 5). The definition of a road related area includes a footpath or nature strip adjacent to a road and an area that is not a road that is open to or used by the public for driving, riding or parking vehicles (eg, a shopping centre car park).

Drive The definition of “drive” includes to “be in control of the steering, movement or propulsion of a vehicle, towing a trailer and riding a vehicle”.

Motor vehicle / vehicle A “motor vehicle” is a vehicle that is built to be propelled by a motor that forms part of the vehicle. A “vehicle” is any description of vehicle on wheels or a tracked vehicle (eg a bulldozer), unless used on a railway or tramway.

Penalty notice offences [20.60]

There are specified road transport legislation offences that can be dealt with by way of penalty notice (see RTA, s 195 and RTGR, cl 122 and Sch 5). Breaches of the Road Rules 2014 are typically dealt with by issuing a penalty notice (fine and demerit points where applicable). The Rules deal with the control and right of way of vehicles, including speed limits, making turns, change of direction and stop signals, traffic lights, giving way, stopping and

parking. Many other road transport legislation offences can also be dealt with in the same way. Sometimes the penalty notice will be given to a driver on the spot (eg the driver was pulled over by a police officer who detected the vehicle speeding). With the increasing use of camera detection devices, the fine will be sent to the registered owner of the vehicle. By going to the SDRO website a person can view online the images and other details of the offence.

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The penalty notice will explain available options. Upon receiving a penalty notice a person can:

Pay the fine The fine must be paid within the time allowed in the notice, although the SDRO usually sends a reminder notice. No further proceedings can be brought against any person for the offence once the fine is paid. Payment of the fine is not an admission of liability for the purpose of any civil proceedings. If it was sent to the person as the registered owner of the vehicle and that person was not the driver, the owner must send in the form naming the driver (RTA, s 186). The person has 21 days to supply the name and address. Companies that own vehicles, often multiple vehicles with multiple drivers, need to have a system in place to record vehicle usage as the penalties for corporations for failing to nominate the driver are high and directors or individuals involved in the management of the company can be pursued personally (s 182).

Request a review Requesting a review must be done before the time for payment expires. The relevant instructions and forms can be accessed on the SDRO website. Be aware that the SDRO publishes a document titled “SDRO Review Guidelines” on its website. For some offences leniency will not be considered and for others it will only be considered in certain circumstances. Some reviews require supporting documentation as specified in the guidelines. These guidelines should be read before deciding whether to request a review. If a review is requested, use of the appropriate form and following the instructions is important, otherwise persons may prejudice their chances for a successful review. Unless advised otherwise, the SDRO places a fine on hold until it conducts the review, usually about 20 days. The SDRO states that it tries to achieve consistency in its decision making. This means that unless the case fits the published criteria, it is

unlikely to get a favourable response. If in doubt, a person should seek legal advice. The result of the review will be either that the penalty notice stands, a caution is issued instead (no fine is imposed and no demerit points are recorded, but if it was a demerit point offence, the caution will be recorded on the person’s driving record) or the penalty notice is cancelled (if the penalty notice does not disclose the alleged offence or has been issued in error).

Elect to take it to the Local Court A person may elect to take a penalty notice to court for two reasons. Firstly, the person is not guilty of the offence and intends to plead not guilty and defend the charge. Secondly, the person committed the offence and intends to plead guilty, but seeks the court to impose a lesser penalty, eg a smaller fine, or for the court not to record a conviction (which would have the consequence of the driver not losing demerit points). If the person pleads not guilty the matter will not be heard on the day of the first court date. Instead it will be adjourned to another date (typically within a few months) for a hearing at which the prosecution will call its witnesses and the defendant and his or her witnesses also have the opportunity to give evidence. After hearing the evidence and submissions the magistrate will either find the defendant not guilty, in which case the charge is dismissed, or guilty, in which case a conviction may be recorded and a penalty imposed, although where leniency is warranted the court can proceed to dismiss the charge after a finding of guilty without proceeding to conviction (Crimes (Sentencing Procedure) Act 1999, s 10). If the person pleads guilty, the court will be prepared to hear the defendant’s submissions on the first court date, so he or she should be ready to tender any documents that support submissions for leniency. If no conviction is recorded pursuant to s 10, no demerit points will be recorded on the person’s driving record. The imposition of any other penalty, even if it is a conviction with no fine or a reduced fine, will see a conviction for the offence recorded, court

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costs imposed and the demerit points will be recorded on the person’s driving record.

Important considerations before making a court election There are important considerations before a court election is made, whatever the intention might be in taking it to court. Seek the advice of a practising lawyer and be wary of websites and other forums of dubious authority that purport to offer failsafe advice on beating a traffic charge or argue that a driver should always take a penalty notice to court. Although the penalty notice relates to a criminal offence, payment of the fine treats it essentially as a regulatory, rather than criminal matter. Although the offence is entered on the person’s driving record, a penalty notice is not a criminal charge and there is no recording of a conviction. Payment of the fine ends the matter and the person is not otherwise liable at law. By electing to take the matter to court, the matter will proceed by way of a criminal charge. The person will be sent a court attendance notice. Any result other than acquittal leaves the person exposed to a higher penalty (the maximum penalty available to a court is always higher than the penalty notice amount), court costs, and the matter being entered as a court appearance and conviction.

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Be aware also that courts do not extend leniency merely for the purpose of assisting a driver to avoid a consequence that would result from a conviction, ie the driver wants a s 10 because the recording of demerit points for the offence will lead to suspension of licence. The court will look at the objective seriousness of the offence, the driving and any criminal record, and any mitigating or subjective circumstances, which can include means to pay a fine and need for a licence, before deciding the appropriate penalty.

Failure to respond - enforcement order and action If a person does not take any of the options above the person will be sent an enforcement order. A fine enforcement order can be annulled in certain circumstances. An application will need to be made to the SDRO. A successful annulment will see the matter listed before a Local Court to be dealt with. If annulment is refused, that decision can be appealed to the Local Court. If no action is taken by the person at the enforcement order stage the matter will proceed to enforcement action, which includes suspension of licence, cancellation of registration, and a property seizure order.

More serious, including charge only, offences [20.70]

Some of the more serious traffic offences, many classified as “major offences” under the RTA, are considered too serious to be dealt with by penalty notices. They carry a maximum penalty of imprisonment. These more serious matters are dealt with at court as a criminal charge. All such offences under road transport legislation are summary offences that are dealt with in the Local Court (proceedings can be commenced in the summary jurisdiction of the Supreme Court

but this is rare; it has been used on occasion for heavy vehicle offences). Some offences under the Crimes Act 1900 can be dealt with in the Local Court but others are strictly indictable which means they are dealt with in the District or Supreme Court. Sometimes with road transport legislation offences that can be dealt with by a penalty notice, such as negligent driving or unlicensed driving, police will choose to proceed by way of charge. The police make an assessment of the seriousness of the offence and whether there are associated charges in

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deciding whether to issue a penalty notice or a court attendance notice for such an offence. With a few exceptions a court attendance notice needs to be issued within six months of the date of the offence. Some driving offences are more serious still and are dealt with in the Crimes Act 1900. Of those offences in the Crimes Act 1900, some can be dealt with in the Local Court, others are strictly indictable offences that must be dealt with in the District or Supreme Court. A selection of the more commonly encountered charge offences are dealt with below. Where the matter may also be dealt with by penalty notice, that will be noted.

[20.80] Drink driving Prescribed content of alcohol offences - s 110 RTA Driving with the prescribed concentration of alcohol is an offence. The concentration is expressed as being either the grams of alcohol in 210 litres of breath (this measure is used when the concentration has been obtained using a breath analysis machine) or the grams in 100 millilitres of blood (if the concentration has been obtained by way of a blood test). The concentration is the same whichever method is used. The minimum concentration at which an offence is committed depends on the category of driver. There are generally three categories, an applicable driver licence holder (which would include an unrestricted licence), a novice driver and a special category driver. The definitions can be found at s 107 of the RTA.

General - driver holding unrestricted licence A person holding an unrestricted licence who (i) drives a motor vehicle, or (ii) occupies the driving seat of a motor vehicle and attempts to put the motor vehicle in motion, or (iii) occupies the seat in a motor vehicle next to a learner driver who is driving the vehicle, while there is present in the person’s breath or blood the prescribed concentration of alcohol (PCA) commits an offence.

The offence can be committed in three categories depending on the concentration of alcohol in the person’s system. A person with a concentration of 0.05 or more, but less than 0.08 commits the offence of low range PCA. A person with a concentration of 0.08 or more, but less than 0.15 commits the offence of middle range PCA. A person with a concentration of 0.15 or more commits the offence of high range PCA. The higher the range, the higher the penalties. There is a guideline judgment for sentencing in high range PCA matters: Re AttorneyGeneral’s Application (No 3 of 2002) (NSW) [2004] NSWCCA 303.

Special category drivers A special category driver includes a person who is not authorised to drive (ie because the person’s licence has been suspended or cancelled), or is driving a public passenger vehicle for hire or reward (eg taxi, hire car), a coach, a vehicle that has a GVM over 13.9 tonnes, or a vehicle carrying dangerous goods. A special category driver with a concentration of 0.02 or more, but less than 0.05 commits the offence of special range PCA. A reading of 0.05 or higher would lead to one of the other three charges described above according to the reading.

Novice drivers A novice driver includes someone holding a learner or provisional licence. A novice driver with a concentration of zero or more, but less than 0.02 commits the offence of novice range PCA. A reading of 0.02 or higher would lead to one of the other four charges described above according to the reading. It is a defence to this charge if the defendant proves that the prescribed concentration was not caused by the consumption of an alcoholic beverage (eg the alcohol was in food or medicine) and that if it was consumed through another substance, such as food or medicine, it was not taken for the purpose of consuming alcohol. The one exception where consumption as an alcoholic beverage is permitted is where it was consumed for the purposes of religious observances (ie communion).

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[20.90] Procedure (Schedule 3

RTA) Breath testing A person driving, attempting to drive or sitting next to a learner driver who is driving is required to submit to a breath test if required by a police officer. The breath test is administered with a handheld device. It is an offence to fail or refuse to undergo a breath test.

Breath analysis If the driver fails the breath test, the driver will be arrested and taken to a nearby police station (or a ″booze bus″ if one is present at the scene) and required to submit a breath sample into a breath analysis instrument. If the reading is under the limit, the person will be released. If over the limit, the driver will be charged and given paperwork, including a printout from the breath analysis instrument, and a court attendance notice with a date to appear at court. Refusing or failing to submit to a breath analysis is an offence. The breath analysis instrument allows three attempts. The penalties for this offence are the same as high range PCA, ie the highest available PCA penalty.

Sobriety assessment If the person passes the breath test but the police officer has a reasonable belief the person is under the influence of a drug, the officer can ask the driver to submit to a sobriety assessment at or near the place the breath test took place. There is no formal procedure for a sobriety assessment. It may involve asking the driver to walk in a straight line, or count backwards. Common tests are the “one leg stand”, the “walk and turn” and “horizontal gaze nystagmus” (testing the driver’s eyes for jerkiness when following a moving object). If the driver fails to submit or does not pass the assessment, the driver can be arrested for the purpose of providing a blood or urine sample.

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Accidents - blood and urine test In most circumstances a person over 15 years of age admitted to hospital for examination or treatment after an accident is required to provide a blood sample. Others involved in an accident where a death has occurred or is likely to occur can be arrested for the purpose of providing a blood or urine sample.

When breath testing/analysis or blood/urine sample taking not permitted Breath testing or analysis is not permitted in certain circumstances (RTA, Sch 3 cl 2). For example, it is not permitted at the person’s home (which can include common areas of strata title property, eg the driveway of a block of units), if the person has been admitted to hospital for medical treatment (unless the treating doctor has been advised and has no objection) or if two hours have passed from the event giving rise to the police officer’s entitlement to require a breath test. A blood/urine sample cannot be taken after four hours have passed from the accident or four hours from the time of the event where the person was required to submit to the sobriety assessment.

How much can a driver safely drink? There is no mathematical formula and rates of elimination of alcohol from the body vary from person to person. Factors such as metabolism, age, weight, gender, fatigue and medication can affect how the body will process alcohol. On average, it will take a male about one hour to eliminate each standard drink consumed. For a female, the average is one and a half to two hours to eliminate each standard drink consumed. The gender difference applies even when comparing a woman and man of the same height and weight. Websites such as Drinkwise Australia provide standard drinks calculators. These are educational guides for the reasons stated above. Further, alcohol is often not served in standard measures. A standard drink is one containing 10 grams of alcohol. Some myths include ″high tolerance″ (the body will still

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need the same time to clear alcohol from the system as someone with a lower tolerance), eating before or after drinking (although a wise idea, and although lack of food will cause alcohol to be absorbed faster, food in the stomach will not trap or divert alcohol from entering the body). Be aware that police regularly detect drivers over the limit the morning after a night of drinking, even though the drivers feel fine and think that they have “slept it off”.

When does a driver have a defence? The prosecution is allowed to rely on a certificate that records the result of the breath analysis. That certificate will be taken as proof of the alcohol concentration, unless the driver can prove, on the balance of probabilities, that the result recorded on the certificate is incorrect. A driver should seek legal advice on any possible defences. An example of a circumstance where there might be a defence is if a driver has a borderline reading, particularly if the alcohol in the system is in the absorption stage (ie its presence is rising, not falling at the time of the offence). It may be that the alcohol concentration at the time of the driving is lower than at the time of the breath analysis. This could see a charge downgraded (eg high range to middle range) or a finding that a person has committed no offence (eg low range to under the limit). The onus is on the driver to prove the actual reading. This would typically require expert pharmacological evidence.

[20.100] Illicit drug offences -

RTA, s 111 Prescribed illicit drug - cannabis, methylamphetamine (speed), ecstasy A person who (i) drives a motor vehicle, or (ii) occupies the driving seat of a motor vehicle and attempts to put the motor vehicle in motion, or (iii) occupies the seat in a motor vehicle next to a learner driver who is driving the vehicle, while there is present in the person’s oral fluid, blood or urine any prescribed illicit drug commits an offence.

The RTA prescribes the following drugs: cannabis, methylamphetamine and ecstasy. The offence is committed simply by having the illicit drug present in the driver’s bodily system. There is no requirement to prove the driver was under its influence. The NSW Centre for Road Safety website states that the length of time illicit drugs can be detected by an oral fluid test depends on the amount taken, frequency of use and other factors that vary between individuals. Cannabis can typically be detected up to 12 hours after use and stimulants for one or two days. However, a number of cases have been before the courts where the driver had consumed cannabis days or even a week before detection by an oral fluid test. Drivers who use an illicit drug need to be aware that the drug consumed may stay in their system for some time and that days (perhaps even many days) later they can be charged with this offence.

Morphine or cocaine A person who (i) drives a motor vehicle, or (ii) occupies the driving seat of a motor vehicle and attempts to put the motor vehicle in motion, or (iii) occupies the seat in a motor vehicle next to a learner driver who is driving the vehicle, while there is present in the person’s blood or urine any morphine or cocaine commits an offence. It is a defence to this offence if the presence of morphine was caused by the consumption of a substance for medicinal purposes (ie, is prescribed and taken in accordance with the prescription or an overthe-counter codeine-based product taken according to the manufacturer’s instructions).

Procedure (Sch 3 RTA) Oral fluid testing A person driving, attempting to drive or sitting next to a learner driver who is driving is required to submit to a breath test if required by a police officer. It is an offence to fail or refuse to undergo an oral fluid test. Police conduct Mobile Drug Testing (MDT) similar to Random Breath Testing for alcohol. Oral fluid analysis If the test indicates the presence of a prescribed illicit drug, the driver will be

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arrested and taken to a nearby police station and required to supply another oral fluid sample which will used for the purpose of conducting an oral fluid analysis. Refusing or failing to submit a sample is an offence. When oral fluid testing/sample or blood/urine taking not permitted Oral fluid testing/sample taking is not permitted in certain circumstances (RTA, Sch 3, cl 2). For example, it is not permitted at the person’s home (which can include common areas of strata title property, eg the driveway of a block of units), if the person has been admitted to hospital for medical treatment (unless the treating doctor has been advised and has no objection) or if two hours have passed from the event giving rise to the police officer’s entitlement to require an oral fluid test. A blood/urine sample cannot be taken after four hours from the time of the event that required the person to submit to an oral fluid test. Driving under the influence of alcohol or any other drug - RTA, s 112 In some cases a PCA or illicit drug charge cannot be laid because, for any number of reasons, a breath or blood analysis or oral fluid or urine test could not be undertaken, or the drug in question is not of a category covered by the specific drug charge. A person who (i) drives a motor vehicle, or (ii) occupies the driving seat of a motor vehicle and attempts to put the motor vehicle in motion, or (iii) occupies the seat in a motor vehicle next to a learner driver who is driving the vehicle, while under the influence of alcohol or any other drug commits an offence. The expression “under the influence” is not defined in the RTA but it has been considered by courts over many years. If the result of the consumption of the alcohol or drug is that the driver’s mental or physical faculties are so affected as to no longer be in a normal condition, that would be sufficient to prove this element of the offence. The quantity of substance consumed is not relevant. There is no requirement to prove

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the driver is under the influence to the extent of being “drunk” or “stoned”. A drug is defined to include prohibited drugs within the meaning of the Drug Misuse and Trafficking Act 1985 (NSW) and substances listed in Schedule 3 of the RTGR. It includes drugs such as amphetamines, cannabis, barbituates, heroin and sedatives such as Serapax and Valium. The prosecution usually relies on circumstantial evidence. That evidence is usually given by a police officer who has made observations of the driver, such as smelling alcohol or cannabis on the driver’s breath, observing glazed eyes, a staggering gait and slurred speech. In addition, the officer may have made observations about the manner of driving, although as with PCA offences the driver may not have exhibited any adverse driving behaviour and was stopped by police at random. The penalties for a person who commits this offence by either driving a motor vehicle, or occupying the driving seat of a motor vehicle and attempting to put the motor vehicle in motion are the same as for a middle range PCA.

[20.110] Manner of driving

offences - RTA Street/drag racing - RTA, ss 115, 116 Taking part in a race between vehicles on a road is an offence (RTA, s 115). Racing would typically be evidenced by observations of vehicles on a road accelerating and jostling for position, changing lanes without indicating, trying to get around one another and travelling at speeds well in excess of the speed limit. Upon conviction the person will be automatically disqualified from holding a driver licence for 12 months, although the section provides for the court ordering a shorter or longer period if it thinks fit. Other conduct associated with drag racing, such as causing the vehicle to undergo a sustained loss of traction, putting oil on the road beneath a vehicle’s tyre, or even participating in a group activity involving such conduct or photographing or filming it is an offence (RTA, s 116). For those

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categories involving the driver committing an offence, the driver upon conviction is automatically disqualified from holding a driver licence for 12 months. A burnout (s 116(1)) can be dealt with by way of penalty notice.

Negligent driving - RTA, s 117(1)(c) (can be dealt with by penalty notice) It is an offence to drive a motor vehicle on a road negligently (RTA, s 117(1)). The offence carries higher maximum penalties if the negligent driving occasions grievous bodily harm or death. Negligence is not defined in the RTA. The courts have held that negligent driving is established where the person drives a motor vehicle in a manner departing from the standard of care for other users of the road to be expected of the ordinary driver in the circumstances. The section provides that grievous bodily harm includes any permanent or serious disfigurement. In considering whether an offence has been committed, s 117(3) requires the court to have regard to all the circumstances of the case, including the nature, condition and use of the road, the amount of traffic that was on the road or might reasonably be expected to be on the road and any obstructions or hazards on the road.

Driving furiously, recklessly or at a speed or in a manner dangerous to the public - RTA, s 117(2) Driving a motor vehicle on a road furiously, recklessly, or at a speed or in a manner dangerous to the public is an offence (RTA, s 117(2)). Each of these four descriptors is a separate charge. The most common charges are either drive in a manner dangerous or drive at a speed dangerous to the public. “Manner” is a broad term that can encompass all aspects of driving, including the other three categories of this charge. For example, if a person was speeding in a manner dangerous, the police could choose to charge that person with speed manner dangerous or drive manner dangerous. Furious driving has been found to be driving of the type that endangers the life or

limb of a passenger or any person who might be expected to be on the road. Reckless driving has often been described by contrasting it to negligent driving. A negligent driver might neglect his or her duty as a driver by being forgetful or inattentive, whereas a reckless driver knowingly disregards his or her duties as a driver, or drives in way that creates a serious and obvious risk to others without giving any thought to the risk. Driving at a speed dangerous to the public needs to be considered in the circumstances. Whether it is dangerous must be judged objectively. It must in reality, not speculatively, be actually or potentially a danger to persons on or in the vicinity of the road where the driving takes place. The speed limit is only one factor and it is a factor that can point either way. For example, driving at 100 km/h in an 80 km/h speed limit zone on a four-lane divided freeway, although a breach of the road rules against driving over the speed limit, might not be regarded as being objectively dangerous in the sense of constituting a danger to the public in all the circumstances. On the other hand, a driver may be keeping within the speed limit but still be driving at a dangerous speed if the particular area of road, for example, a hairpin bend, made it unsafe to travel at the speed limit at that location. Driving in a manner dangerous requires the question of dangerous to be considered as discussed above. It is judged objectively. It must in reality, not speculatively, be actually or potentially a danger to persons on or in the vicinity of the road where the driving takes place. “Manner” includes all matters connected with the management and control of a motor vehicle when it is being driven. As with negligent driving, s 117(3) also applies to these offences (see discussion above). Dangerous driving that occasions death or grievous bodily harm is dealt with under the Crimes Act 1900 (NSW) (see below at [20.120]).

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Menacing driving - RTA, s 118 A person driving a motor vehicle on a road in a manner that menaces another person with the intention of menacing the other person commits an offence. The driver also commits an offence if the driver ought to have known the other person might be menaced (RTA, s 118). The menace can be a threat of personal injury or damage to property and the other person or property does not need to be on the road. A person cannot be convicted of both this charge and a charge under s 117 of the RTA if the offence arises out of a single incident. An example of menacing driving could include tailgating or approaching the rear of another vehicle at high speed with either lights glaring or loud sounding of the horn. There are two similar offences, s 11H of the Summary Offences Act 1988 (NSW) (intimidatory use of vehicles) and s 51A of the Crimes Act 1900 (predatory driving).

Failing to stop and assist after an impact causing injury - RTA, s 146 If a vehicle driven by a person is involved in an impact occasioning death or injury to another person, and knows or ought reasonably to know that the vehicle has been involved in such an impact, and fails to stop and give any assistance that may be necessary and that is in the person’s power to give, that person commits an offence. A driver could be “involved” in an impact even if the driver’s vehicle has not directly been physically impacted, as the concept of involvement includes a connection or association with an accident. If the driver is also injured, that may be a circumstance where the person is not in a position to render any assistance to another. There are two similar offences, r 287 of the Road Rules 2014 (duties of a driver involved in a crash) and s 52AB of the Crimes Act 1900 (failing to stop and assist after vehicle impact causing death or grievous bodily harm).

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[20.120] Dangerous driving

and other major offences under the Crimes Act 1900 Predatory driving - s 51A A driver of a vehicle who, while in pursuit of or travelling near another vehicle engages in a course of conduct that causes or threatens an impact involving another vehicle and intends by that course of conduct to cause a person in the other vehicle actual bodily harm is guilty of an offence (s 51A).

Police pursuits (Skye's Law) - s 51B The driver of a vehicle who knows, ought reasonably to know or has reasonable grounds to suspect that police officers are in pursuit of the vehicle and that the driver is required to stop the vehicle, and who does not stop the vehicle, and who then drives the vehicle recklessly or at a speed or in a manner dangerous to others, commits an offence (s 51B).

Dangerous driving occasioning death or grievous bodily harm - s 52A If the vehicle driven by the person is involved in an impact (i) occasioning the death of another person, or (ii) occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle: under the influence of intoxicating liquor or of a drug, or at a speed dangerous to another person or persons, or in a manner dangerous to another person or persons, the driver commits an offence (ss 52A(1) and 52A(3)). It is an aggravated form of the above offences if at the time of the impact the person had the prescribed concentration of alcohol present, was travelling more than 45 km/h over the speed limit, was driving to escape pursuit by a police officer or whose ability to drive was substantially impaired by a drug other than alcohol or a combination of drugs. There is a guideline judgment for sentencing offenders under this section, R v Whyte [2002] NSWCCA 343.

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Fail to stop and assist after vehicle impact causing death or grievous bodily harm - s 52AB An offence is committed where a vehicle being driven by the person is involved in an impact (i) occasioning the death of another person or (ii) occasioning grievous bodily harm to another person, and the person knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning the death of, or grievous bodily harm to, another person, and the person fails to stop and give any assistance that may be necessary and that is in his or her power to give (ss 52AB(1) and (2) respectively).

Furious driving - s 53 A person in charge of a vehicle, who, by wanton or furious riding, or driving, or racing, or other misconduct, or by wilful neglect, does or causes to be done to any person any bodily harm is guilty of an offence. “Wanton” means an unrestrained disregard for the consequences of one’s actions. Wilful neglect requires a conscious breach of the necessary standard of care.

Other Other offences under the Crimes Act 1900 that might be committed by someone driving a vehicle include murder (s 18), manslaughter (s 18), wounding or grievous bodily harm with intent (s 33), reckless grievous bodily harm or wounding (s 35) and causing grievous bodily harm (s 54) and such offences, if they involve a motor vehicle driven by the offender, are considered “major offences” under the RTA.

[20.130] Repeat offending Repeat offending - generally Many road transport legislation offence provisions carry a higher penalty if the driver commits the same offence a second or subsequent time. The terms “first offence” and “second or subsequent offence” are defined in s 9 of the RTA.

Repeat offending - major offences Some offences that a driver can be charged with are classified as “major offences”. Major offences are defined in s 4 of the RTA. Repeat offending for major offences gives rise to longer disqualification. For example, having committed one major offence, if a driver then commits a second or further major offence within five years, the driver is liable to longer automatic and minimum disqualification periods. Repeat offending for major offences can also give rise to a further disqualification period on top of an existing disqualification by way of a habitual traffic offender declaration. Where a person commits three relevant offences (the definition of which includes major offences) within a five year period, a habitual traffic offender declaration will be made.

[20.140] Disqualification General power to disqualify Subject to any mandatory disqualification provisions, a court that convicts a person of an offence against the road transport legislation may, at the time of the conviction, order the disqualification of the person from holding a driver licence for such period as the court specifies (RTA, s 204).

Mandatory disqualification A driver is subject to mandatory disqualification if convicted of an offence against s 53 (unlicensed driving), s 54 (disqualified, suspended, cancelled driving), s 115 (racing etc) or s 205 (certain major offences). Section 205 deals with disqualification for certain major offences for an automatic period (or for a minimum period). The periods of disqualification differ depending on whether or not the person has previous convictions for a major offence during the period five years before the conviction. If there is such a conviction, higher automatic and minimum periods apply. Once the driver has been convicted, a disqualification is imposed for the automatic period, without the need for any order by the court. The automatic period is not a maximum and a court may impose a disqualification higher

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than the automatic period. If it thinks fit, the court can reduce the disqualification to a shorter period, but not shorter than the minimum period specified. The disqualification is of the person, not the licence (unlike a suspension or cancellation which operates on the licence). The consequences for any licence held by the disqualified person is that it is automatically cancelled. If it is not already in the possession of the police (for example, it was seized by police at the time of the offence) it must be surrendered to the court. At the end of the disqualification period, the driver will need to apply for a new licence. Disqualification follows only upon conviction. If the person is found guilty but the court does not proceed to convict (CSPA, s 10), the person is not disqualified from holding a driver licence. Section 203 of the RTA provides that s 10 is not applicable in certain circumstances. If a person who is appearing before the court for an applicable offence has within the previous five years received a s 10 for another applicable offence, s 10 is not available to the court as a sentencing option. Applicable offences include PCA offences (RTA, s 110) and driving furiously or recklessly or at a speed or in a manner dangerous (RTA, s 117(2)). If the drivers licence was immediately suspended, the period of that suspension must be taken into account by the court when making the disqualification order (RTA, s 225).

Driving while disqualified - offence Driving while disqualified is a serious offence that is dealt with by charge at court and carries a maximum penalty of imprisonment as well as further disqualification from holding a licence (RTA, s 54). Because a licence is automatically cancelled upon disqualification, a person who drives after a disqualification ends, but before the person obtains a licence, will be charged with driving while cancelled.

Alternative to disqualification for drink driving offences - Mandatory Alcohol Interlock Program – RTA, ss 208-215B The Alcohol Interlock Program as a voluntary option for drink driving offenders was

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available from 2003. In 2015, the interlock program became mandatory for certain offenders (exemptions may be granted in limited circumstances) and is known as the Mandatory Alcohol Interlock Program (MAIP). The mandatory interlock order applies to a person convicted of a “mandatory interlock offence” (see RTA, ss 208 and 209) such as a person convicted of a high range, repeat or other serious drink driving offence. A habitual traffic offender (see below) is not entitled to participate. When ordered to participate in the MAIP, the person has a period of disqualification imposed. Depending on the offence, the disqualification compliance period (ie, the disqualification that must be served before the driver can obtain the interlock licence) can be from one to 12 months. Thereafter the person is required to have an alcohol interlock device, with the minimum interlock periods varying from 12 to 48 months (see table at s 211 for the periods applicable to each offence). This is in addition to any other penalty for the offence. An exemption must be sought at the time of sentencing. The RMS has no power to exempt a participant after an order has been made. The court may only make an exemption order if the offender “proves to the court’s satisfaction” that the offender: • does not have access to a vehicle in which to install an interlock device • has a medical condition diagnosed by a medical practitioner that prevents the offender from providing a sufficient sample of breath to operate an interlock device, and it is not reasonably practicable for an interlock device to be modified to enable the offender to operate the device (s 212). The legislation does not allow exemptions solely based on certain grounds (eg financial grounds) (s 212(5)). An exempted driver serves the disqualification order made pursuant to s 205 and the RMS will also require the person to complete a drink driver rehabilitation program before applying for a licence. An offender exempted from the MAIP whose circumstances change (eg obtains access to a vehicle) can choose to enter the

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program at a later time by contacting the RMS directly. An application to a court is not required (s 213). The interlock is an electronic breath testing device connected to the ignition. Unless the driver passes the breath test, the vehicle will not start. Failed attempts to start are recorded and the data is monitored. Repeat fail attempts can result in counselling or cancellation of the program. Further information can be obtained from the Mandatory Alcohol Interlock Program Participant Guide available on the RMS website.

[20.150] Habitual traffic

offenders A person who is convicted of a relevant offence and in the period before that conviction has also been convicted of at least two other relevant offences committed on different occasions is declared to be an habitual traffic offender. The declaration arises once the criteria in the section are met, no order of the court is required (RTA, s 217). A “relevant offence” includes a major offence, drive while never licensed, drive while disqualified, drive while suspended (unless for fine default) and drive while cancelled. If a matter is dealt with under s 10 of the CSPA it counts as if it were a conviction for the purposes of this provision (RTA, s 216). The consequence of the declaration is disqualification for five years from holding a driver licence. The court may order a longer period, including disqualification for life. If it determines five years is disproportionate and unjust, having regard to the person’s driving record and special circumstances of the case, it may reduce the period of disqualification (but not shorter than two years) (s 219). A habitual offender disqualification is in addition to any other period of disqualification. For example, a person whose relevant offence in five years is a middle range PCA for which the person is disqualified for three years will not commence the habitual offender disqualification

until the PCA disqualification has been served, ie the person is disqualified for eight years.

Quashing an habitual traffic offender order The declaration of a person as an habitual traffic offender may be quashed by a court that convicts the person of a relevant offence (at the time of the conviction or at a later time) if it determines that the disqualification imposed by the declaration is a disproportionate and unjust consequence having regard to the total driving record of the person and the special circumstances of the case. The section places no limit on the number of applications that may be made, although if the declaration was not quashed at the time the person was being sentenced for the relevant offence, there would be little utility in making another application until the disqualifications imposed for each offence were served (ie, the person has served all disqualifications other than the habitual offender disqualifications).

[20.160] Other sanctions A court that convicts a person can order compensation for an expense incurred as a consequence of the offence (RTA, s 227). Sanctions can also be imposed concerning vehicles (RTA, ss 236 – 255). A vehicle can be impounded and even forfeited if a person is found guilty of certain offences, known as sanctionable offences, for a second time within a five year period. Sanctionable offences include high range speeding (travelling 45 km/h or over the speed limit but not a camera detected offence), racing (RTA, s 115), drag racing (RTA, s 116(2)) and police pursuits (Crimes Act 1900, s 51B). Only if a court finds “extreme hardship” will be occasioned might the court commute the forfeiture to a period of impounding. Financial loss, difficulty in carrying out employment or in travelling to the place of employment or study does not constitute extreme hardship (RTA, s 246).

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[20.170] Information that

must be given to police on request Road transport legislation has specific exemptions to the general right to remain silent when questioned by the police. In the following instances information must be provided and it is an offence if the provisions are not complied with. A driver has to exchange particulars (driver’s name and address, vehicle owner’s name and address, vehicle registration number) when involved in an accident. The required particulars must also be given to a police officer in certain circumstances, including if requested by the police officer (RR, r 287). Authorised officers exercising their powers under the road transport legislation can request drivers to produce their driver licence and state name and home address (RTA, s 175). The same request can be made of a passenger (s 176). An owner of a vehicle or a person having custody of it, where a driver is alleged to have committed an offence against the road transport legislation, must if required immediately, give an authorised officer the name and home address of the driver and any other information that could lead to the identification of the driver (s 177).

[20.180] Driver education

programs There are driver education programs that can be completed before sentencing or as part of a sentence. The interlock program has been discussed above at [20.140].

Traffic offenders intervention program A person appearing before the court pleading guilty to a traffic offence can seek to be

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referred to this program before being sentenced. The case will then be adjourned for sufficient time to allow the course to be completed. Often it will be of benefit to enrol before the first court date so that the driver knows the end date of the course and the case can be adjourned to after that date. The Local Court website provides a list (Traffic Offenders Intervention Program Register) of approved course providers. Some providers offer the course over about six weeks and others have a one day course. There is no guarantee that successful completion of the program will lead to leniency (and in some cases the driver’s offending may be so persistent that the court finds that there is no benefit in referring the person to the program). As a general proposition, successful completion demonstrates that the driver has the motivation to change his or her driving behaviour and will be less likely to commit a similar offence in the future. Those factors usually point towards leniency being exercised (in some contexts that may mean a successful s 10 application or an otherwise lesser penalty). More information and a list of program providers can be found at the Local Court link on the Department of Justice website.

Sober Driver Program The Sober Driver Program is for offenders who are convicted of two or more drink driving offences within a five year period. It is a nine week educational program delivered by Community Corrections (Probation and Parole Service). Attendance is usually a condition of a good behaviour bond imposed by the court. More information can be found in the Compendium of Correctional Programs in NSW on the Corrective Services NSW website.

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Penalties tables [20.190] Selected penalties

under Road Transport Legislation Licence offences (RTA, Part 3.4)

Offence

Section 49(1)(a) and (b)

Max penalty 1st offence 20 penalty units

Max penalty 2nd offence -

Disqualification Disqualification 1st offence 2nd offence No automatic or minimum period; general power to disqualify under s 204(1) RTA

Obtain/attempt to obtain or possess/renew licence by false statement Unlawful possession of driver licence or fake driver licence Alter licence to deceive

50(a) and (b)

20 penalty units

-

No automatic or minimum period; general power to disqualify under s 204(1) RTA

51(1)

20 penalty units

-

51(2)

20 penalty units

-

51(3) Forge or fraudulently alter/use or fraudulently lend/allow other to use licence 52(2) Fail/refuse to provide signature specimen seized suspected unlawful licence 53(1) Unlicensed driver

20 penalty units

-

No automatic or minimum period; general power to disqualify under s 204(1) RTA No automatic or minimum period; general power to disqualify under s 204(1) RTA No automatic or minimum period; general power to disqualify under s 204(1) RTA

20 penalty units

-

No automatic or minimum period; general power to disqualify under s 204(1) RTA

20 Penalty units

-

No automatic or minimum period; general power to disqualify under s 204(1) RTA

Produce altered licence

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Offence

Section

Never licensed driver (or unlicensed driver who has not been licensed for 5 years or more Drive, or make application for licence, while disqualified Drive, or make application for licence, while licence suspended (other than for non-payment of fine) Drive, or make application for licence, after licence refused or cancelled (other than for non-payment of fine) Drive, or make application for licence, after licence cancelled or suspended (for nonpayment of fine)

53(3) and (5)

54(1)(a) and (b)

54(3)(a) and (b)

701

Max penalty 1st offence 20 penalty units

Max penalty 2nd offence 30 penalty units and/or 18 months imprisonment

Disqualification Disqualification 1st offence 2nd offence No automatic or 3 years s 53(4) minimum period; general power to disqualify under s 204(1) RTA

30 penalty units and/or 18 months imprisonment 30 penalty units and/or 18 months imprisonment

50 penalty units and/or 2 years imprisonment

12 months automatic s 54(8) and (9)(a)

2 years automatic s 54(8) and (9)(b)

50 penalty units and/or 2 years imprisonment

12 months automatic s 54(8) and (9)(a)

2 years automatic s 54(8) and (9)(b)

54(4)(a) and (b)

30 penalty units and/or 18 months imprisonment

50 penalty units and/or 2 years imprisonment

Subsection 4(a): 12 months automatic s 54(8) and (9)(a)

Subsection 4(a): 2 years automatic s 54(8) and (9)(b)

54(5)(a) and (b)

30 penalty units and/or 18 months imprisonment

50 penalty units and/or 2 years imprisonment

3 months automatic s 54(8) and (9)(a) Court must take into account s 54(6) - effect on employment and ability to pay fine

2 years automatic s 54(8) and (9)(b) Court must take into account s 54(6) effect on employment and ability to pay fine

Max penalty 1st offence 20 penalty units

Max penalty 2nd offence -

Disqualification Disqualification 1st offence 2nd offence No automatic or minimum period; general power to disqualify under s 204(1) RTA

Registration offences (Part 4.2)

Offence

Section

Use unregistered 68(1) RTA registrable vehicle

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Offence

Section

Use, or cause or permit or suffer other to use, uninsured vehicle

7(1) MV(TPI)A

Max penalty 1st offence 5 penalty units

Max penalty 2nd offence -

Disqualification Disqualification 1st offence 2nd offence -

Disqualification if no major offence in previous 5 years minimum and automatic 6 months automatic 3 months minimum s 205(2)(a)

Disqualification if major offence in previous 5 years minimum and automatic 12 months automatic 6 months minimum s 205(3)(a)

Alcohol and drug offences (Part 5.1)

Offence (M = major offence)

Section RTA

Max penalty 1st offence

Max penalty 2nd or subsequent offence

Novice driver drive or attempt to drive with novice range PCA (over zero, less than 0.02) M Special category driver drive or attempt to drive or sit next to learner driver with special range PCA (over 0.02, less than 0.05) M Drive or attempt to drive or sit next to learner driver with low range PCA (over 0.05, less than 0.08) M (a) or (b) Drive or attempt to drive or sit next to learner driver with middle range PCA (over 0.08, less than 0.15) M (a) or (b)

110(1)

10 penalty units

20 penalty units

110(2)

10 penalty units

20 penalty units

6 months automatic 3 months minimum s 205(2)(a)

12 months automatic 6 months minimum s 205(3)(a)

110(3)

10 penalty units

20 penalty units

6 months automatic 3 months minimum s 205(2)(a)

12 months automatic 6 months minimum s 205(3)(a)

110(4)

20 penalty units 30 penalty units and/or 9 months and/or imprisonment 12 months imprisonment

12 months automatic 6 months minimum s 205(2)(b)

3 years automatic 12 months minimum s 205(3)(b)

20 Driving and Traffic Law

Offence (M = major offence)

Section RTA

Max penalty 1st offence

Max penalty 2nd or subsequent offence

Drive or attempt to drive or sit next to learner driver with high range PCA (over 0.15) M (a) or (b) Drive or attempt to drive or sit next to learner driver with prescribed illicit drug M Drive or attempt to drive or sit next to learner driver with morphine or cocaine M Drive or attempt to drive or sit next to learner driver of vehicle while under the influence of alcohol or other drug M (1) (a) or (b) Fail to comply with request or signal by police officer to stop

110(5)

30 penalty units and/or 18 months imprisonment

50 penalty units and/or 2 years imprisonment

111(1)

10 penalty units

111(3)

703

Disqualification if no major offence in previous 5 years minimum and automatic 3 years automatic 12 months minimum s 205(2)(d)

Disqualification if major offence in previous 5 years minimum and automatic 5 years automatic 2 years minimum s 205(3)(d)

20 penalty units

6 months automatic 3 months minimum s 205(2)(a)

12 months automatic 6 months minimum s 205(3)(a)

10 penalty units

20 penalty units

6 months automatic 3 months minimum s 205(2)(a)

12 months automatic 6 months minimum s 205(3)(a)

112

Drive/attempt: 20 penalty units and/or 9 months imprisonment Sit next to learner: 20 penalty units

Drive/attempt: 30 penalty units and/or 12 months imprisonment Sit next to learner: -

Subs (1): 12 months automatic 6 months minimum s 205(2)(b)

Subs (1): 3 years automatic 12 months minimum s 205(3)(b)

Sch 3 cl 6

10 penalty units

-

10 penalty units

-

No automatic or minimum period; general power to disqualify under s 204(1) RTA No automatic or minimum period; general power to disqualify under s 204(1) RTA

30 penalty units and/or 18 months imprisonment

50 penalty units and/or 2 years imprisonment

Refuse or fail to Sch 3 cl 16(1)(a)(c)(d) submit to breath/oral fluid test, sobriety assessment Refuse or fail to Sch 3 cl 16(1)(b) submit to breath analysis M

3 years automatic 12 months minimum s 205(2)(d)

5 years automatic 2 years minimum s 205(3)(d)

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Offence (M = major offence)

Section RTA

Max penalty 1st offence

Max penalty 2nd or subsequent offence

Refuse or fail to submit to taking of blood/oral fluid/urine sample M

Sch 3 cl 17(1)

Blood sample following arrest (Sch 3 Cl 9) or fluid sample: 30 penalty units Any other case: 30 penalty units and/or 18 mths imprisonment

Prevent sample Sch 3 cl 17(2) taker from taking blood sample under Sch 3 cl 11 (Person other than secondary participant in accident) M Prevent sample Sch 3 cl 17(3) taker from taking blood sample under Sch 3 cl 11 (Secondary participant in accident) M Sch 3 cl 18(1) Wilful introduction or alteration of concentration or amount of alcohol or other drugs (Person other than secondary participant in accident) M

30 penalty units and/or 18 months imprisonment

Blood sample following arrest (Sch 3 Cl 9) or fluid sample: 50 penalty units and/or 18 months imprisonment Any other case: 50 penalty units and/or 2 years imprisonment 50 penalty units and/or 2 years imprisonment

Disqualification if no major offence in previous 5 years minimum and automatic 3 years automatic 6 months minimum s 205(2)(c)

Disqualification if major offence in previous 5 years minimum and automatic 5 years automatic 12 months minimum s 205(3)(c)

3 years automatic 12 months minimum s 205(2)(d)

5 years automatic 2 years minimum s 205(3)(d)

30 penalty units

-

3 years automatic 12 months minimum s 205(2)(d)

5 years automatic 2 years minimum s 205(3)(d)

subclause (1)(a), (b), (e), (f) or (g): 30 penalty units and/or 18 months imprisonment subclause (1)(c) or (d): 30 penalty units

subclause (1)(a), (b), (e), (f) or (g): 50 penalty units and/or 2 years imprisonment subclause (1)(c) or (d): 50 penalty units

3 years automatic 6 months minimum s 205(2)(c)

5 years automatic 12 months minimum s 205(3)(c)

20 Driving and Traffic Law

Offence (M = major offence)

Section RTA

Max penalty 1st offence

Max penalty 2nd or subsequent offence

Wilful introduction or alteration of concentration or amount of alcohol or other drugs (secondary participant in accident) M Hinder or obstruct police officer (oral fluid test or sample) or sample taker (blood or urine) Sample taker refuse or fail to take sample

Sch 3 cl 18(2)

30 penalty units

-

Sch 3 cl 19(1) & (2)

20 penalty units

-

No automatic or minimum period; general power to disqualify under s 204(1) RTA

Sch 3 cl 20(1)

20 penalty units

-

Destroy or interfere or tamper with sample

Sch 3 cl 28

20 penalty units

-

Fail to comply with sample handling procedures

Sch 3 cl 29

20 penalty units

-

Sch 3 cl 30 Intentional or reckless use of sample for non-drug testing purposes

30 penalty units

-

No automatic or minimum period; general power to disqualify under s 204(1) RTA No automatic or minimum period; general power to disqualify under s 204(1) RTA No automatic or minimum period; general power to disqualify under s 204(1) RTA No automatic or minimum period; general power to disqualify under s 204(1) RTA

Disqualification if no major offence in previous 5 years minimum and automatic 3 years automatic 6 months minimum s 205(2)(c)

705

Disqualification if major offence in previous 5 years minimum and automatic 5 years automatic 12 months minimum s 205(3)(c)

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Speeding and other manner of driving offences (Part 5.2)

Offence (M = major offence)

Section RTA

Max penalty 1st offence

Organise or promote or take part in race etc

115(1)

30 penalty units and 12 months automatic disqualification (if in relation to a motor vehicle or trailer), discretion to reduce or increase (subs (4))

Cause vehicle to 116(1) undergo sustained loss of traction

Max penalty 2nd offence

Disqualification if no major offence in previous 5 years minimum and Automatic See subs (4)

Disqualification if major offence in previous 5 years minimum and Automatic See subs (4)

3 years automatic 12 months minimum s 205(2)(d) 3 years automatic 12 months minimum s 205(2)(d)

5 years automatic 2 years minimum s 205(3)(d) 5 years automatic 2 years minimum s 205(3)(d)

30 penalty units and/or 9 months imprisonment and 12 months automatic disqualification (if in relation to a motor vehicle or trailer), discretion to reduce or increase (subs (4)) 10 penalty units No automatic or minimum period; general power to disqualify under s 204(1) RTA 30 penalty units 30 penalty units See subs (7) See subs (7) and if 2(a)(b)(c) and/or 9 months or (d): 12 months imprisonment automatic and if 2(a)(b)(c) (subs (7)) or (d): 12 months automatic (subs (7)) 5 penalty units No automatic or minimum period; general power to disqualify under s 204(1) RTA

Drag racing (various sub-categories)

116(2)(a) to (g)

Drag racing associated conduct prescribed by statutory rules Negligent driving occasioning death M

116(4)

117(1)(a)

30 penalty units and/or 18 months imprisonment

Negligent driving occasioning grievous bodily harm M

117(1)(b)

20 penalty units 30 penalty units and/or 9 months and/or imprisonment 12 months imprisonment

50 penalty units and/or 2 years imprisonment

20 Driving and Traffic Law

Offence (M = major offence)

Section RTA

Max penalty 1st offence

Max penalty 2nd offence

Negligent driving

117(1)(c)

10 penalty units

-

Drive furiously or 117(2) recklessly or at a speed or in a manner dangerous to the public M Menacing driving 118(1) with intent to menace another person M Menacing driving 118(2) where driver ought to have known that the other person might be menaced M

20 penalty units 30 penalty units and/or 9 months and/or imprisonment 12 months imprisonment

30 penalty units and/or 18 months imprisonment

50 penalty units and/or 2 years imprisonment

20 penalty units and/or 12 months imprisonment

30 penalty units and/or 18 months imprisonment

Max penalty 1st offence 30 penalty units and/or 18 months imprisonment

Max penalty 2nd offence 50 penalty units and/or 2 years imprisonment

Disqualification if no major offence in previous 5 years minimum and Automatic No automatic or minimum period; general power to disqualify under s 204(1) 3 years automatic 12 months minimum s 205(2)(d)

5 years automatic 2 years minimum s 205(3)(d)

3 years automatic 12 months minimum s 205(2)(d) 3 years automatic 12 months minimum s 205(2)(d)

5 years automatic 2 years minimum s 205(3)(d) 5 years automatic 2 years minimum s 205(3)(d)

707

Disqualification if major offence in previous 5 years minimum and Automatic -

Vehicle Use and Traffic Safety (Part 5.4)

Offence

Section

Knowingly fail to 146(1) stop and give assistance following impact causing death or injury

Disqualification Disqualification 1st offence 2nd offence No automatic or minimum period; general power to disqualify under s 204(1) RTA

ID offences (Part 7.2)

Offence

Section

Driver refuse to produce licence, state name or home address to authorised officer

175(1)

Max penalty 1st offence 20 penalty units

Max penalty 2nd offence -

Disqualification 1st offence No automatic or minimum period; general power to disqualify under s 204(1) RTA

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Offence

Section

Passenger of learner 176(1) driver fail/refuse to produce licence, state name or home address to authorised officer 177(1)(a) Responsible person/custodian of vehicle fail/refuse to supply name and home address of driver Other person fails to 177(1)(b) give information that may ID driver

178(2)

Failure of charged person to produce licence to court

Max penalty 1st offence 20 penalty units

Max penalty 2nd offence -

Disqualification 1st offence No automatic or minimum period; general power to disqualify under s 204(1) RTA

20 penalty units

-

No automatic or minimum period; general power to disqualify under s 204(1) RTA

20 penalty units

-

20 penalty units

-

No automatic or minimum period; general power to disqualify under s 204(1) RTA No automatic or minimum period; general power to disqualify under s 204(1) RTA

Road Rule Speeding offences that carry disqualification (RR, 10-2 and RTA, s 59)

Offence Exceed speed limit by more than 45 kph

Rule 10-2(5)

Max penalty 23 penalty units (34 penalty units for heavy vehicle or coach)

Exceed speed limit by more than 30 kph

10-2(5)

20 penalty units

Disqualification 6 months automatic (less can be imposed only to the extent suspension is taken into account) r 10-2(3)(b) and (4) 3 months automatic r 10-2(5)(b)

Crimes Act 1900 (Part 3 offences against the person)

Offence (M = major offence)

Section

Murder (involving motor vehicle) M

18/19A

Max penalty 1st offence (jurisdictional limit if summary disposal available) Life

Max penalty 2nd offence (jurisdictional limit if summary disposal available)

Disqualification if no major offence in previous 5 years minimum and Automatic 3 years automatic 12 months minimum s 205(2)(d)

Disqualification if major offence in previous 5 years minimum and Automatic 5 years automatic 2 years minimum s 205(3)(d)

20 Driving and Traffic Law

Offence (M = major offence)

Section

Manslaughter (involving motor vehicle) M

18/24

Predatory driving 51A(1) M

Police pursuit does not stop and then drives recklessly or at speed or in manner dangerous M Dangerous driving occasioning death Aggravated dangerous driving occasioning death Dangerous driving occasioning grievous bodily harm Aggravated dangerous driving occasioning grievous bodily harm Fail to stop and assist after impact causing death M

Max penalty 1st offence (jurisdictional limit if summary disposal available) 25 years

Max penalty 2nd offence (jurisdictional limit if summary disposal available) -

5 years (18 mths) -

Disqualification if no major offence in previous 5 years minimum and Automatic 3 years automatic 12 months minimum s 205(2)(d) 3 years automatic 12 months minimum s 205(2)(d) 3 years automatic 12 months minimum s 205(2)(d)

709

Disqualification if major offence in previous 5 years minimum and Automatic 5 years automatic 2 years minimum s 205(3)(d) 5 years automatic 2 years minimum s 205(3)(d) 5 years automatic 2 years minimum s 205(3)(d)

51B(1)

3 years

5 years

52A(1)

10 years

-

52A(2)

14 years

-

52A(3)

7 years (2 years)

-

No automatic or minimum period; general power to disqualify under s 204(1) RTA

52A(4)

11 years (2 years)

-

No automatic or minimum period; general power to disqualify under s 204(1) RTA

52AB(1)

10 years (18 mths)

-

3 years automatic 12 months minimum s 205(2)(d)

No automatic or minimum period; general power to disqualify under s 204(1) RTA No automatic or minimum period; general power to disqualify under s 204(1) RTA

5 years automatic 2 years minimum s 205(3)(d)

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Offence (M = major offence)

Section

Fail to stop and assist after impact causing grievous bodily harm M Cause bodily harm by furious etc driving M

52AB(2)

Max penalty 1st offence (jurisdictional limit if summary disposal available) 7 years (18 mths)

53

2 years (12 mths) -

Cause grievous bodily harm by unlawful or negligent act/omission (involving motor vehicle) M

54

2 years (12 months)

Max penalty 2nd offence (jurisdictional limit if summary disposal available) -

-

Disqualification if no major offence in previous 5 years minimum and Automatic 3 years automatic 12 months minimum s 205(2)(d)

Disqualification if major offence in previous 5 years minimum and Automatic 5 years automatic 2 years minimum s 205(3)(d)

3 years automatic 12 months minimum s 205(2)(d) 3 years automatic 12 months minimum s 205(2)(d)

5 years automatic 2 years minimum s 205(3)(d) 5 years automatic 2 years minimum s 205(3)(d)

“Major Offence” Table (RTA, s 4)

Act Crimes Act 1900 Road Transport Act 2013 Other

Offence (including an offence of aiding, abetting, counselling or procuring, or being an accessory before the fact) ss 18 (murder or manslaughter), 33, 35, 53, 54, involving motor vehicle driven by offender, ss 51A, 51B or 52AB ss 110(1), (2), (3)(a) or (b), (4)(a) or (b), 5(a) or (b), s 111, 112(1)(a) or (b), s 117(1) (occasioning death or grievous bodily harm), 117(2), 118, s 146, Sch 3 cll 16(1)(b), 17 or 18 Any other crime or offence that, at the time it was committed, was a major offence for the purposes of the RTA, the Road Transport (General) Act 2005, the Road Transport (General) Act 1999 or the Traffic Act 1909

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Habitual Traffic Offenders - relevant offences table - RTA, s 216

Act Crimes Act 1900 Road Transport Act 2013 Road Rules 2014 Interstate laws

Offence of which convicted (for NSW offences includes any offence dealt with under CSPA, s 10) A “major offence” (see Major Offences Table) A “major offence” (see Major Offences Table) s 53(3) or corresponding former provision s 54(1) (3) or (4) or corresponding former provision r 10-2 (being a “prescribed speeding offence” pursuant to RTA, s 4(1) and RT(G)R, cl 142 An offence of which a person has been convicted by a court in another State or Territory that would be an offence of the kind specified above if it had been committed in NSW.

Demerit point suspension of licence - unrestricted licence holder - RTA, s 32

Number of demerit points incurred within the previous three years 13 (or 14 in the case of a professional driver) to 15 16 to 19 20 or more

Period of licence suspension 3 months 4 months 5 months

Threshold for licence suspension for learner and provisional drivers - RTA, s 39

Licence

Learner or P1 P2

Threshold number of demerit Period of licence suspension points incurred within the previous three years 4 or more demerit points See RTA, s 40, no period specified. Generally 3 months. 7 or more demerit points See RTA, s 40, no period specified. Generally 3 months.

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Contact points [20.200]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au. NSW Civil and Administrative Tribunal

ph: 1300 138 118

www.drinkwise.org.au ph: (03) 9682 8641

www.ncat.nsw.gov.au

www.police.nsw.gov.au

National Heavy Vehicle Regulator

ph: 1300 006 228

ph: 131 444

www.nhvr.gov.au

NSW Department of Justice

ph: 1300 696 487

The online gateway to law and justice information in NSW

Personal Property Securities Register www.ppsr.gov.au

Drinkwise Australia

NSW Centre for Road Safety www.roadsafety.transport.nsw. gov.au

www.justice.nsw.gov.au

NSW Police Force

NSW Office of State Revenue State Debt Recovery

ph: 1300 007 777 (National Service Centre) Roads and Maritime Services www.rms.nsw.gov.au

www.sdro.nsw.gov.au

ph: 13 22 13

8688 7777

21 Drug Offences Steve Bolt

Solicitor

Contents [21.10]

Legislation

[21.210]

Penalties

[21.40]

Offences

[21.230]

[21.160]

Police search powers

Diversion from the criminal justice system

[21.200]

Bail

[21.260]

Confiscation of proceeds of crime

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Legislation [21.10]

In NSW, drug use is regulated by both state and federal laws.

[21.20] The Drug Misuse and

Trafficking Act Most drug charges are laid under the Drug Misuse and Trafficking Act 1985 (NSW), which creates offences for: • drug use • drug possession • supply and trafficking (with the seriousness of the offence depending on the quantities) • cultivation • manufacture • aiding and abetting • possession of drug-use implements.

The drugs “prohibited” by the Act are listed in a schedule. They include the common street drugs – cannabis (marijuana), heroin, ice, ecstasy, amphetamines, LSD, cocaine, methadone – and many others.

[21.30] The Commonwealth

Criminal Code The Commonwealth Criminal Code is a federal law that aims, among other things, to prevent the import and export of “border controlled” drugs. The range of border controlled drugs is similar to that in the Drug Misuse and Trafficking Act. Criminal Code offences include dealing with imported drugs after they have been brought into the country.

Offences [21.40] Possession Possession of a prohibited drug is an offence under s 10 of the Drug Misuse and Trafficking Act. To prove possession, the prosecution must show beyond reasonable doubt that: • illegal drugs were in a person’s “custody or control”, and • the person knew that this was the case.

things in it. If a person knows that there are drugs in their house, but someone else has control of them (ie, the person does not own the drugs or have any right to use them), they are not guilty of possession. Momentary custody or control A person can be found guilty even if their custody or control was only momentary; for example, by taking a joint passed to them.

What is custody or control?

Knowledge but no control

Custody means immediate physical possession, such as a person having something in their pockets. Control refers to the right to do something with the drug – for example, to keep, consume or share it.

A guest at a party left marijuana in a bathroom cupboard. During a raid some time later, a resident of the house told police that he knew the drugs were there and that he had intended to dump them. He was found not guilty of possession because he had laid no claim to the drugs and had exercised no control over them. Knowledge that the drugs were there was not enough to constitute an offence (R v Solway (1984) 11 A Crim R 449).

Proving custody and control The police must prove that the person actually had control over drugs found, for example, in their car or house. The fact that a person owns or rents a house, or owns a car, does not necessarily mean that they own

Proving knowledge The prosecution must prove that the person knew they had something in their physical

21 Drug Offences

custody or under their control that was, or was likely to be, a prohibited drug. The legal test for the prosecution is not what a reasonable person might or should think in the circumstances. The actual knowledge of the accused person must be proved, but knowledge can be inferred from the circumstances in which the drugs were found. If someone is apprehended with drugs on them, a court would probably reasonably infer knowledge and control of the drugs. It would be difficult for the person to escape the inference that they knew what was in their bag or sock or pocket. Similarly, where drugs are stored in a private part of a house (say, a person’s bedroom) it is open to be inferred that the person had possession of the drugs.

Shared houses When drugs are found in a place that is accessible to a number of people (such as the living room of a shared house), it may not be inferred that any one person has possession of them. The drugs could belong to anyone with access to the room, so that it could be difficult for the police to prove the guilt of any particular person beyond reasonable doubt. If none of the residents makes an admission to the police that the drugs are theirs (and none make a statement that the drugs are someone else’s),and in the absence any other evidence, it is likely that no-one will be convicted. The prosecution must rule out all other reasonable explanations. If there is the possibility of several people having access to the drugs, there is room for reasonable doubt about whether the drugs are possessed by the accused person. If a number of people are charged with shared possession of drugs, the prosecution must prove in each case that the person charged had possession. Whose drugs? A man lived with his girlfriend, his mother, his brother and another couple in a three-bedroom house. The police found marijuana inside the lounge in the living area, a room to which all the occupants had regular

715

access. The man's conviction was overturned on appeal. The Court of Criminal Appeal said that it was necessary to prove that he had the drugs in his exclusive physical control, and that this was difficult because of the large number of people having equally free access to the room in which they were found (R v Fillipetti (1984) 13 A Crim R 335).

[21.50] Use Using a prohibited drug, also known as self-administration, is an offence under s 12 of the Drug Misuse and Trafficking Act. The police must prove that the substance consumed was a prohibited drug. Obviously they cannot analyse the substance if it has been completely consumed, and blood tests can only be taken by a doctor after arrest. So for most convictions they must rely on admissions made by the accused. It is also an offence to administer drugs to someone else, for example by injecting them or spiking their drink (s 13), or to allow someone to administer drugs to you (s 14).

Prescription drugs It is legal to possess and use some drugs, like methadone and benzodiazepines (such as Serapax and Valium), if they have been prescribed by a doctor. It is an offence to possess or use these drugs without a prescription.

Medicinal cannabis The NSW government is conducting a number of clinical trials to examine the effectiveness of cannabis for certain conditions, and has signaled that it will legislate to allow medicinal cannabis in some way after the trials. But medicinal cannabis has not been legalised in NSW. The federal government has legislated to create a federal structure for state or territories who want to introduce lawful medicinal cannabis use and supply. But that legislation does not legalise medicinal use of cannabis. It is not a defence to a charge of possession of cannabis (or self-administration or

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cultivation of cannabis) that the person used the cannabis for a legitimate medicinal reason. However, motivation can be a relevant issue to be taken into account in sentencing. Many magistrates will apply leniency in cases involving people with genuine medical conditions. In appropriate cases, charges involving medicinal cannabis could be dismissed without conviction.

Methadone It is an offence to inject methadone. Methadone is legally prescribed subject to conditions on quantity and the “purpose” of the prescription, which must be according to “recognised therapeutic standards” (Poisons and Therapeutic Goods Regulation 2008, cl 79). The “purpose” specified in methadone prescriptions is oral dose. Administration by any other method means the methadone is

not lawfully prescribed under s 12(2) of the Drug Misuse and Trafficking Act and is illegal.

Injecting rooms The NSW government has permitted the establishment of one licensed medically supervised injecting centre in Kings Cross, Sydney. The centre’s licence is issued under s 36E of the Act. It is lawful for a person to use or possess a small quantity of a prohibited drug while in the injecting centre (s 36N). Police guidelines also encourage the exercise of discretion to not arrest or charge a person who is on their way to or from, or in the vicinity of, the injecting centre, with possession offences. Supply offences are policed. It is an offence for anyone except the operators of the licensed injecting centre to “advertise or hold out in any way” that their premises are available for the administration of a prohibited drug (s 18A).

Drugs and driving Driving under the influence It is an offence under s 111 of the Road Transport Act 2013 to drive under the influence of a drug or alcohol. Establishing this offence requires proof beyond reasonable doubt that the driver was intoxicated to some degree by the drug or alcohol. Since the introduction of breathalysers and random breath testing for alcohol, drink driving offences are now commonly charged as “prescribed concentration of alcohol” offences. This in effect bypasses any need to prove intoxication – the presence of the alcohol in a person's system is sufficient evidence for the offence to be proved - so charges of driving under the influence of alcohol are rare. Charges of driving under the influence of drugs are less rare. Random drug testing Most common is the charge of driving with the presence of THC (the psychoactive ingredient of cannabis), methamphetamines and ecstasy in the driver's saliva. Police have the power to randomly stop drivers and take saliva swabs (an “oral fluid test”) to test for the presence of those drugs. If the first swab gives a positive result, the driver is arrested and taken to a specially equipped bus or a police station for a second saliva sample to be taken. If the second test is positive, the driver is banned from driving for 24 hours. If it negative, the driver is free to go. But either way the second sample is sent to the laboratory for analysis. If the

laboratory detects the presence of the drug, the driver will be sent a court attendance notice. It is important to note that the offence is to drive with any amount of THC, methamphetamine or ecstasy present in saliva. It is not part of the offence that the police have to prove any degree of impairment of the driver's capacity to drive. The testing devices are able to detect very small quantities of drugs, so that with THC in particular, a driver might test positive several days after consuming the cannabis when the effect has fully worn off. Depending on the driver’s record, the court could be prepared in those cases to dismiss the charge without recording a conviction, and therefore not be required to impose the mandatory minimum three month licence disqualification. It is also an offence to drive under the influence of morphine or cocaine, but the presence of these substances is not tested for by saliva swab. As with the similar law in relation to random alcohol testing, it is an offence to: • wilfully refuse to provide a saliva sample, and • consume a drug after driving and before undergoing a test. Defence of honest and reasonable mistake The defence of honest and reasonable mistake of fact is available and could be applied in appropriate cases to dismiss the charge. The driver would need to establish that they had an honestly held belief that they did not have the prescribed drug present in their saliva and that there was a reasonable basis for having that belief.

21 Drug Offences

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within which drugs could be detected “depends on the amount taken, frequency of use of the drug, and other factors that vary between individuals”. The website goes on to say that the saliva test would “typically” detect THC for “up to 12 hours after use” and methamphetamine and MDMA for “one or two days” after use.

Once the defence is raised, the onus is on the prosecution to prove (beyond reasonable doubt) that the driver did not have such a belief or that it was not reasonably held. In a February 2016 case, a Lismore magistrate dismissed a case against a driver who had tested positive to THC and who gave evidence that he had not consumed cannabis for nine days before the driving. He also gave evidence that he had been told by a police officer administering the saliva swab test on a previous occasion, that the test would detect THC up to a week after consumption. The court was satisfied on the evidence on those issues and dismissed the charge on the basis that the driver had an honest and reasonable belief in a relevant fact. (The DPP is considering an appeal at the time of writing.) In response to the case, a number of government statements confirmed the information on the NSW Centre for Road Safety website that the period of time

On conviction, there is a minimum licence disqualification period of three months. The “automatic” period of disqualification is six months. If it is the second serious driving offence in the previous five years, the automatic disqualification period is 12 months, with a six month minimum period.

[21.60] Drug equipment

Synthetic drugs

It is an offence to possess equipment with the intention of using it to consume drugs (Drug Misuse and Trafficking Act, s 11). The use must be future use. Evidence that the equipment has been used in the past is not relevant or sufficient to prove the charge (Erickson v Pittard [1976] 2 NSWLR 528). The prosecution must show that the equipment was possessed by the accused. The law is the same as for possession of drugs – there must be knowledge and custody or control.

Injecting equipment It is not an offence to possess a needle or syringe, whether it has been used or not (s 11(1A)). It is (technically) an offence to possess other injecting equipment, such as tourniquets, spoons and swabs. In practice possession of this equipment is never prosecuted.

Sale of bongs and pipes It is an offence to sell, supply or display for sale a bong or ice pipe, or the component parts of a bong or pipe, whether or not the bong or pipe was intended to be used to administer a prohibited drug (s 11A).

Penalties The maximum penalty for driving under the influence of THC, methamphetamine or ecstasy is a $1100 fine for a first offence, and $2200 for a second or subsequent offence.

“Synthetic” drugs are, or are at least marketed as, chemically different but with similar effects to better known illicit drugs. A number of synthetic drugs are listed, by their market names, on Schedule 9 of the Poisons List. It is an offence under s 25B of the Drug Misuse and Trafficking Act 1985 to possess, manufacture, produce or supply a substance listed on Schedule 9 of the Poisons List. This list is published on the NSW Department of Health website - www.health.nsw.gov.au/ pharmaceutical/Documents/poisons-listalpha.pdf. The maximum penalties for offences involving synthetics are generally less than for comparable offences involving prohibited drugs. There are no categories of offence based on quantity, so the maximum penalty is the same whether the offence involves a substantial amount or a smaller amount.

[21.70] Supply Supply is very broadly defined (s 3) to include not only selling or giving away drugs but also simply agreeing to supply them, or having drugs in possession for the purpose of supply.

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There is also deemed supply – possessing certain quantities of drugs which are deemed to be for the purpose of supply (see Deemed supply at [21.80]). A person can be charged with supply if they tell police they intended to sell even a small quantity of drugs found in their possession, or even that they intended to share drugs in their possession with a friend. They are also guilty of supply if they simply offer to supply a drug, even if they have no hope, or no intention, of fulfilling the offer.

What if it isn't really a drug? If a person offers a substance to someone and says it is a drug to persuade that person to buy or take it, they are guilty of supplying the drug whether the substance is actually the drug it is represented to be or not (s 40). A person who offers to supply someone with heroin when all they have is icing sugar is considered guilty of supplying heroin. This is the case whether they have made a genuine mistake or are deliberately attempting to cheat the buyer. For possession and use offences the court must be satisfied that the substance is in fact a prohibited drug.

powder that is 10% heroin and 90% glucose is treated as one gram of pure heroin (s 4). Possession but not supply A woman was found with “deemed supply” quantities of cannabis and cocaine in her bedroom. She told police that her sister had given them to her to look after, and that if the sister had not picked them up the next day she would have disposed of them. She was found guilty of possession, but not supply – because she could prove that she was not in possession of the drugs for the purposes of supply (R v Carey (1990) 20 NSWLR 292).

[21.90] Ongoing dealing Section 25A of the Drug Misuse and Trafficking Act creates a special offence of supplying drugs on an ongoing basis. The offence involves the supply of a prohibited drug (except cannabis) on three separate occasions within a 30-day period. The acts of supply must be for some financial or other material reward. They do not all have to involve the same type of drug. A charge of ongoing dealing could be laid where an undercover police officer (see Undercover police at [21.150]) buys drugs from the same street dealer on three different days. The police are not obliged to arrest the dealer immediately after the first sale.

[21.80] Deemed supply

Penalty

Anybody found by a court to be in possession of a “traffickable quantity” of a drug is presumed to be a supplier, unless they can prove the possession was for reasons other than supply – for example, that the drug was intended for personal use, or disposal as waste (s 29). The traffickable quantity varies from one drug to another, and in many cases is not very large. Some traffickable quantities are: • cannabis (leaf or heads) – 300 grams • heroin – 3 grams • amphetamine – 3 grams • ecstasy – 3 grams or 15 tablets • LSD – 0.003 grams or 15 tablets. Purity does not matter for this purpose – only weight. Under the Act, one gram of a

The maximum penalty for ongoing dealing is a $385,000 fine and 20 years’ jail, regardless of the weight of the drug supplied or the value of the transactions. This is equivalent to the maximum penalty for the supply of a commercial quantity of drugs (250 grams of heroin or amphetamine, or 500 grams of ecstasy). The NSW Court of Criminal Appeal has ruled that a sentence for this offence of four-and-a-half years (with a minimum term of two-and-a-half years) is not excessive, even if the amount of drug supplied was only small and the supplier was motivated by their own addiction rather than greed (Smiroldo [2000] NSWCCA 120).

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Which court? This offence is classed as wholly indictable, which means it must be finalised in the District Court rather than the Local Court. A person convicted of an offence under this section (and other indictable offences) is not eligible to be dealt with by a drug court (see Drug courts at [21.250]).

[21.100] Large-scale supply Higher penalties apply for charges involving the supply of larger amounts of drugs.

Trafficking offence categories The Act divides trafficking offences into: • indictable quantities • commercial quantities • large commercial quantities. As with deemed supply, proof of possession of the relevant quantity is sufficient to establish that a person is guilty of that particular trafficking offence, unless the person can prove that the possession was for a reason other than supply. This is obviously more difficult the larger the quantity. The following table shows the scheduled quantities.

cannabis leaf/heads heroin amphetamine ecstasy LSD

indictable

commercial

1 kg

25 kg

large commercial 100 kg

5g 5g

250 g 250 g

1 kg 1 kg

5 g/ 25 tabs .005 g/ 25tabs

0.5 kg

2 kg

0.5 g

2g

Penalties The maximum penalty for dealing with an indictable quantity of a drug is a $220,000 fine and 15 years’ imprisonment (10 years for cannabis). For a quantity of drugs in the commercial range, the maximum penalty is a $385,000 fine and 20 years’ jail (15 years for cannabis). For a large commercial quantity, fines of $550,000 and life imprisonment (20 years for cannabis) can be imposed.

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[21.110] Offences involving

prohibited plants Under s 23 of the Drug Misuse and Trafficking Act, it is an offence to: • cultivate • knowingly take part in the cultivation of • possess • supply a prohibited plant (for example, cannabis).

Cultivation Cultivation is defined to include sowing seed, planting, tending, nurturing or harvesting (s 3). Watering a plant, shading it from the sun, picking the heads off a friend’s plant, even watering ungerminated seeds, all come within the definition.

Possession Possession of plants is also an offence under s 23, carrying the same maximum penalty as cultivation. There may be no evidence of any act of cultivation, but evidence of possession of the plants, in which case that should be the charge laid. Proof of knowledge and custody or control of the plants is required for conviction (see What is custody or control? at [21.40]).

Quantities The penalty categories for cultivating cannabis depend on the number of plants, not their gender or size. Cultivating 100 seedlings that can fit into a baking tray is charged in the same way as cultivating 100 mature female plants. Having 250 seedlings results in a more serious charge than having five big plants, even though the weight of the big plants may be many times greater. Higher penalties apply to offences involving the cultivation, supply and possession of a “commercial quantity” of prohibited plants.

Hydroponic cultivation Section 23(1A) prohibits the “cultivation by enhanced indoor means” of five or more plants for a commercial purpose.

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Offences under this section are wholly indictable, so they must be finalised within the District Court. Note that the offence of (outdoor) cultivation of cannabis in s 23(1) does not involve any requirement to prove a commercial purpose.

summarily (s 30(3)). It is $220,000 or 10 years if the offence is dealt with on indictment (s 32(1)(h)).

“Cultivation by enhanced indoor means”

Commercial quantities For cultivation of 50 or more hydroponic plants, the maximum penalty is also $385, 000 and 15 years’ imprisonment (s 33(2)(b)).

Section 3 defines “cultivation by enhanced indoor means” as cultivation: (a) that occurs inside a building or structure, and (b) that involves any one or more of the following: (i) the nurture of the plant in nutrient-enriched water (with or without mechanical support), (ii) the application of an artificial source of light or heat, (iii) suspending the plant's roots and spraying them with nutrient solution. Cultivation for a commercial purpose Under s 23(6), cultivating plants for a commercial purpose means cultivating them with the intention of selling them, or in the belief that someone else so intends.

Offence categories There are now two entries for cannabis as “prohibited plants” in the Schedule (“cannabis cultivated by enhanced indoor means” and “cannabis cultivated by any other means”). The relevant offence categories in the Schedule are as follows: small

indoor 5 plants outdoor 5 plants

indictable

commercial

50 plants 50 plants

50 plants 250 plants

large commercial 200 plants 1,000 plants

Penalties Less than a “small quantity” Cultivation of less than a “small quantity” of hydroponic plants (ie, less than five plants) is treated in the same way as cultivation of outdoor cannabis plants. The maximum penalty is $5500 and two years’ imprisonment if the offence is dealt with

Small quantities The maximum penalty for the cultivation of five to 49 hydroponic plants is $385,000 and 15 years’ imprisonment (s 33(2)(b)).

Large commercial quantities For cultivation of 200 or more hydroponic plants, a “large commercial quantity”, the maximum penalty is $550,000 and 20 years’ imprisonment (s 33(3)(b)). Exposing a child to indoor cultivation Section 23A(1) makes it an offence to: • cultivate “a plant” (note the singular) by enhanced indoor means, and • “expose a child” to the cultivation process or to substances stored for use in cultivation. The maximum penalty for this offence where it involves one to four plants is a fine of $11,000 and two years’ imprisonment if it is dealt with summarily, or a $264,000 fine and 12 years’ imprisonment if it is heard on indictment. The maximum penalty where the offence involves five to 199 plants is a $462,000 fine and 18 years’ imprisonment. The maximum penalty where there are 200 or more plants is a $660,000 fine and 24 years’ imprisonment. These offences are wholly indictable. It is a defence if the accused can prove that the exposure did not endanger the health and safety of the child. A child is a person under 16 for the purposes of these provisions.

Defences to cultivation It is a defence to a charge of cultivation of a prohibited plant if the accused can establish that they did not know the plant was a prohibited plant. The accused must inform the court if they propose to give such evidence (s 23(4)(a)(i)). The onus of proof is on the accused (s 40A(2)).

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The prosecution may rebut the accused’s evidence by bringing, with leave of the court, evidence of any previous convictions (s 23(5)).

[21.130] “Knowingly taking

[21.120] Manufacture Under s 24, it is an offence to manufacture, or to take part in the manufacture of, a prohibited drug.

It is an offence to “knowingly take part in” the supply, cultivation, or manufacture of a prohibited drug or plant (Drug Misuse and Trafficking Act, ss 23, 24, 25).

Penalties

“Taking part”

The maximum penalty depends on the quantity involved, with the same penalties applying as for supply offences involving the same amounts. Indictable quantities The maximum penalty for manufacturing an indictable quantity of a drug is a $220,000 fine and 15 years’ imprisonment. Commercial quantities For manufacturing a quantity of drugs in the commercial range, the maximum penalty is a $385,000 fine and 20 years’ jail. Large commercial quantities For manufacture of a large commercial quantity, the maximum penalty is a fine of $550,000 and life imprisonment.

Possession of precursors It is an offence under s 24A to possess a “precursor” intended to be used in the manufacture of a prohibited drug. Substances defined as precursors are listed in Schs 1 and 2 of the Drug Misuse and Trafficking Regulation 2011 (NSW). Legitimate uses The Regulation also provides that records must be kept of any storage or supply of precursors for legitimate uses, including an end user certificate that includes the name and address, and proof of identity, of the end user. Penalty The maximum penalty for this offence is a $220,000 fine and/or 10 years’ imprisonment.

part in” cultivation, manufacture or supply

A person “takes part in” manufacture, cultivation or supply if they: • take, or participate in, any step in the process of manufacture, cultivation or supply, or • cause such a step to be taken, or • provide or arrange finance for such a step, or • provide the premises in which such a step is taken, or • “suffer” or “permit” such a step to be taken in premises owned, leased, occupied or managed by them (s 6). A person may be taking part in supply, for example, if they arrange or provide finance, or provide premises, or allow their premises to be used for selling, distributing or growing drugs. They may also be doing it if they make a phone call to arrange a meeting, or allow their house to be used for a meeting, where supplying drugs is discussed.

Knowing The participation must be done “knowingly”. Proof of suspicion that somebody else might be involved in drug offences is not proof of knowledge, but knowledge may be inferred if someone shuts their eyes to suspicious circumstances (R v Thomas (1976) 63 Cr App R 65). Similarly, the word “permit” means that the owner or controller of premises knew, or had grounds for reasonable suspicion, that the premises would be used by someone for the unlawful purpose, and was unwilling to take reasonable measures to prevent it (Sweet v Parsley [1970] AC 132 at 165).

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[21.140] Drug premises Drug premises are premises used for the supply or manufacture of prohibited drugs or the commercial indoor cultivation of cannabis.

Offences It is an offence for a person: • to be found on or entering or leaving drug premises • to allow property owned or occupied by them to be used as drug premises • to organise or conduct drug premises • to assist in the conduct of drug premises (for example, as a lookout or door attendant). Any place where there are five or more indoor cannabis plants being grown for profit is capable of being a drug premises, exposing occupants and visitors to prosecution for offences such as entering or being on drug premises. Proving the case A court must be satisfied beyond reasonable doubt that premises are drug premises before finding a person guilty of these offences.

The prosecution does not have to prove that drugs were found on the premises or in the possession of any person. The court can have regard to matters such as: • evidence of any obstruction of or resistance to a police search • the physical security of doors and entrances • the type of lighting employed • electricity consumption, exhaust fans and fertilisers • any documents, firearms or large sums of money found • the presence of drug-affected people.

[21.150] Importing and

exporting It is an offence to import, or try to import, “border controlled” drugs (Commonwealth Criminal Code, para 307.1). The prosecution must prove that the accused intended to import the substance. In other words, a person should be acquitted if they did not realise that they were carrying drugs (R v He Kaw Teh (1985) 157 CLR 523).

Undercover police Police investigations into drug offences commonly involve the use of undercover officers who either offer a degree of encouragement to people to commit an offence, or participate in criminal activity, or both. There is no substantive defence of entrapment in Australian law (Ridgeway (1995) 184 CLR 19).

ally evidence obtained by undercover police agents in the course of their participation in a drug importation was admissible, the degree of police involvement in the criminal activity in that particular case was excessive (and so the resulting evidence obtained was inadmissible).

The fact that drugs are supplied to an undercover police officer who encourages the supplier to break the law is not a mitigating circumstance in sentencing (Chan [1999] NSWCCA 103).

In response to this decision, both NSW and federal governments passed legislation to make otherwise unlawful conduct by police (such as participating in the supply of prohibited drugs) legal, provided it is authorised as part of a controlled operation.

In Ridgeway, the High Court ruled that although gener-

Police search powers [21.160]

Police have some powers to search people and property, and seize articles such as drugs for evidence, but their

powers are not unlimited. There are different rules for personal searches, and searches of houses or land.

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[21.170] Personal searches The police can search a person without arresting them under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 21. This section gives police the power to “stop, search and detain” anyone who they “reasonably suspect” might be in possession of drugs. Search of vehicles Police can search a vehicle if they have a similar reasonable suspicion under s 36 of the Act.

Objecting to a search If police want to search you, the appropriate thing to do is to say clearly that you do not want to be searched, and that you want that written down – so that the police cannot claim later that the search was with your consent. If police insist, it is better not to resist, to avoid being charged with resisting or hindering police, even if nothing is found.

Search after arrest The police have the right to search a person after arresting them (s 23).

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Women should only be searched by a woman police officer. If no female officer is available, however, the police can request “any female” to conduct the search under their direction. A police officer above the rank of sergeant can request that a doctor examine a person in custody – if such an examination is relevant to the charge – without the person’s consent.

Sniffer dogs Police use specially trained dogs to detect prohibited drugs. This practice has raised questions about whether the activity of sniffer dogs itself amounts to a search. The situation has been clarified by both legislation and a NSW Supreme Court decision. Under legislation Under s 148 of the Law Enforcement (Powers and Responsibilities) Act 2002, police can use sniffer dogs without a warrant for “general drug detection”, which is defined to mean using a dog to detect the potential presence of illicit drugs by smell, before the police conduct any actual search of the person or their belongings.

Sniffer dogs and warrants Police can use a dog to assist with general drug detection without a warrant (s 148), in relation to a person who is at, entering or leaving: • premises licensed for the consumption of liquor sold there (not including a restaurant or dining room) • a public place being used for “a sporting event, concert or other artistic performance, dance party, parade or other entertainment”

• a train, bus or light rail vehicle, on a prescribed route, or a station, platform or stop. In other circumstances – for example, in a public street – police can only use drug detection dogs to search people or vehicles with a warrant issued under s 149 of the Act. A police officer is authorised to use a dog for general drug detection only as provided under the Act (s 147).

In the Supreme Court In DPP v Darby [2002] NSWSC 115, the defendant was searched outside a nightclub after a sniffer dog had indicated to police that he was in possession of prohibited drugs. The court ruled that the sniffer dog’s activity did not amount to a search. It found that the dog’s reaction was a basis for forming a suspicion by the police, just as information from another officer, or from a

member of the public, or an officer’s own perceptions (for example, of a strong odour of cannabis) might be a basis for an officer to form a suspicion. Darby applied a 1998 South Australian Supreme Court decision – Questions of Law Reserved (No 3 of 1998) (1998) 71 SASR 223 – which came to a similar conclusion. In that case, the court decided that a dog sniffing a suitcase in the luggage compartment of a

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bus was not conducting a search. Special leave to appeal this decision was refused by the High Court (Hoare v The Queen (1999) 197 CLR 682).

Police directions to suspected suppliers or purchasers Police can legally give a “reasonable direction” to a person in a public place who they believe on reasonable grounds is supplying, or soliciting supply of, or purchasing prohibited drugs. The direction must be “reasonable in the circumstances for the purpose of stopping” the supply or purchase. It is an offence to fail to comply with the direction without reasonable excuse (Law Enforcement (Police Powers and Responsibilities) Act 2002, s 197).

Personal searches by customs officers People coming into Australia must answer questions from a customs officer about prohibited drugs. Luggage can be inspected even where there is no reason to suspect that it might contain drugs. Types of search There are two types of personal searches available under the Customs Act 1901 (Cth) in relation to a person suspected of carrying prohibited imports: frisk searches and external searches. A frisk search is a quick feel of a person’s outer garments, including any clothing voluntarily removed. An external search involves a search of a person’s body (but not body cavities) and any of their clothing. If a person refuses a frisk or an external search, the customs or police officer may apply to a specially authorised customs officer or a magistrate for an order that an external search be carried out. Detention and search If a customs or police officer suspects on reasonable grounds that a person is carrying prohibited imports, they may be detained and searched. The search must be conducted as soon as practicable by an officer of the same sex, and appropriate arrangements must be made for privacy.

If internal concealment is suspected People reasonably suspected of internally concealing a suspicious substance may be detained by a customs officer or police officer. The chief executive officer of customs or a police officer must then seek a detention order (up to 48 hours, but renewable) from a judge or magistrate. If the person detained does not consent to an internal search, the customs or police officer must apply to a judge for an order for a medical practitioner to carry out the search.

[21.180] Search warrants Searches of houses and land To enter a person’s home (or any other private property) without an invitation, police must have a search warrant. Generally, police and members of the public are presumed to be impliedly invited to the front door of premises, but if asked to leave by an occupier, they must leave – and get a warrant if they want to return. To obtain a search warrant, police must swear on oath to an authorised officer that they have reasonable suspicion of a crime being committed on those premises, and the basis for that suspicion (Law Enforcement (Powers and Responsibilities) Act 2002, ss 47, 48). Police can also enter a property without invitation in an emergency, such as chasing an escaping suspect or where an assault is apparently occurring on the premises. When police are at the premises When police go to premises with a search warrant they must produce an occupier’s notice, otherwise they do not have the right to enter. It is an offence to obstruct or delay police entry, or give an alarm. A person should not resist a police officer who appears at their door with a search warrant; to do so is an offence (s 52). Police powers The police can use as much force as is reasonably necessary to conduct the search, which can mean pulling out drawers (and ceilings).

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Search warrants also give police the right to search a person found in or on the premises if they have a reasonable suspicion that the person has the thing mentioned in the warrant (s 50). If police reasonably suspect that a property is drug premises, they can get a warrant that allows them to cross property owned by others, break open doors and windows and do other “necessary” acts to gain entry.

Customs warrants and writs of assurance Wide powers are given to customs officers in possession of a writ of assistance (issued by a Supreme Court judge), and customs and police officers in possession of a customs warrant. These are general warrants; they last for periods of time and are not confined to the investigation of a specific set of circumstances. Those in possession of these warrants can, at any time, enter and search any premises, including houses, in which

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drugs are suspected to be. They do not have to show reasonable suspicion, and may use force.

Seeking the proceeds of crime Search warrants can also be issued under the legislation dealing with the confiscation of proceeds of crime. They can, for example, cover documents that can assist in tracking down property that is drug-derived or which belongs to those who are reasonably suspected of drug-related activities.

[21.190] Evidence from illegal

searches Evidence obtained through illegal police searches (or other unlawful or improper means) is not admissible, unless the magistrate or judge uses their discretion to allow it. The prosecution must establish the desirability of admitting the evidence (Evidence Act 1995 (Cth), s 138).

Detection by helicopter Where a police helicopter detects cannabis plants from the air and police then enter the property without a warrant, the evidence obtained may not be admissible. In Nicholson & Curran (unreported, District Court Inverell, 25 March 1999) the discretion was exercised to not admit evidence of cultivation obtained from such a raid,

resulting in the conviction being quashed. In subsequent civil proceedings, the same appellants and 22 of their fellow residents at the Wytaliba community were awarded a total of over $1 million in damages for the police trespass (Curran v Walsh unreported, District Court, 17 October 2000).

Bail [21.200] Assessment of risk Under the Bail Act 2013 (NSW), for most offences, the primary consideration in deciding whether bail should be granted is whether the alleged offender represents an “unacceptable risk” of either failing to attend court or committing serious offences or endangering victims, witnesses or others while on bail. If the risk is considered unacceptable, the decision maker (ie, the police, or if bail is refused by the police, the court) must refuse bail. If the bail decision maker determines

that there is no unacceptable risk, then bail must be granted without conditions, or, if the bail decision maker has “concerns” about bail, they can grant bail with conditions that address those concerns. For serious offences, such as offences involving the possession, cultivation, supply or manufacture of commercial quantities of prohibited drugs, the defendant must “show cause” why bail should be granted. If the defendant can show cause, the bail decision maker must then still consider whether

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there is an unacceptable risk, and if not, whether any bail conditions are necessary.

Penalties [21.210] The figures The tables below show the types of penalties imposed by Local Courts and District and Supreme Courts in 2014 (the most recent figures available) for the most common types of drug offences. Of course, every case

is different, but these tables give a general idea of the likely penalty for particular offences. Where a person has been convicted of more than one offence, the penalty shown is that imposed for the most serious offence.

Local Court penalties penalty fine prison suspended sentence community service bond no conviction recorded conviction but no other penalty total

possession and use 5190 101 50 26 737 2451 297

supply 23 171 129 83 264 33 1

cultivation/ manufacture 279 21 33 19 251 155 12

8852

704

770

supply 323 161 8 38

cultivation/ manufacture 101 26 1 7 – 135

importation – 102 4

Higher Court penalties penalty fine prison suspended sentence community service bond no conviction recorded total

530

[21.220] Summary Most offences involve small quantities of drugs and are dealt with in the Local Courts where the jurisdictional limit (for a single offence) is an $11,000 fine and two years’

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imprisonment, even if the maximum penalty set out in the Drug Misuse and Trafficking Act is higher. The following conclusions are based on these 2014 statistics: • for possession, by far the most common drug charge, about 60% of guilty defen-

21 Drug Offences

dants received a fine and about 25% had no conviction recorded • small-scale supply convictions in the Local Court usually attract either good behaviour bonds, prison sentences or suspended prison sentences • for larger supply cases, 60% of defendants are sentenced to prison, and about 30% get a suspended prison sentence • for cannabis cultivation cases dealt with summarily in the Local Court, the most common penalties are fines or good behaviour bonds. For larger scale cases in

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the District Court, the most likely outcomes are prison and suspended prison sentences. Pleas and previous record A plea of guilty for dealing or trafficking offences carries less weight than is usually the case for other offences, but still attracts a discount on sentence. Similarly, having no previous record carries less weight than usual in sentencing for dealing offences.

Diversion from the criminal justice system [21.230]

There are some programs that aim to divert some minor drug offenders from the criminal justice system (through cautioning), and to encourage drug dependent offenders into treatment programs (through drug courts).

[21.240] Cannabis cautioning NSW police have an official discretion to caution adults for minor cannabis offences, and to caution people under 18 for minor offences involving any prohibited drug.

For adults The official police guidelines recommend that police officers use their discretion to issue an official caution, rather than charge a person over 18 who is found: • in possession of up to 15 grams of cannabis, or • using cannabis, or • in possession of smoking implements (a pipe or bong). There is no need for the police to weigh the drug, as long as they are satisfied that the amount involved is under the 15 gram limit. The cautioning scheme for adults does not include cultivation of cannabis, even for small numbers of plants.

Guidelines The guidelines provide that to qualify for a caution the person must: • admit the offence • have no criminal history for drug offences (including possession), sexual assault or other offences involving violence • have received no more than two cannabis cautions previously • establish their identity (normal checks on identity will be carried out) • satisfy the police that the cannabis is for personal use only • have no other charges that must be determined in court anyway. (For example, if the police find a few grams of cannabis in the pocket of a person charged with stealing, both the theft charge and the drug possession charge will go to court.) As well, there is an overriding discretion in the hands of police. So even if these guidelines are satisfied, the police can still decide to prosecute. Procedure Cannabis cautions to adults are issued on the spot. The police will give the person a cannabis cautioning notice, a pamphlet about the legal status of cannabis and information on the health consequences of

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cannabis use. Their name and address will be recorded on the police computer system. If an adult receives a second cannabis caution, they are referred to a compulsory drug education session.

police officer or someone else (such as a drug and alcohol worker). Only three juvenile cautions can be issued to a young person. Cautions are discretionary.

For people under 18

Warnings For young people, warnings can also be used. A warning is less formal than a caution, and is issued on the spot by a police officer. The young person does not have to admit guilt, but they must supply their name and address.

For people under 18, the discretion to not prosecute applies to cannabis cultivation, and to minor offences involving other drugs as well as cannabis. For young people, the drug cautioning system is part of a range of alternative systems under the Young Offenders Act 1997 (NSW) to divert young people from courts and prisons. Those alternatives are formal police cautions, warnings and youth justice conferences (where the offender and the victim meet to discuss the impact of the offence and determine an outcome plan). Conferences for drug offences are rare, and are only used where there is another offence which is to be dealt with at a conference. What offences can be dealt with? The following drug offences can be dealt with under the Young Offenders Act 1997: • possession of 15 grams of cannabis or less • possession of smoking implements • cultivation of no more than five cannabis plants • possession of no more than one gram of heroin, cocaine or amphetamine • possession of no more than 0.0008 grams of LSD • possession of no more than 0.25 grams of ecstasy • use of a prohibited drug. As for adults, the police must accept that the drugs are for personal use rather than supply, the young person must admit the offence, and there must be no other offences committed or suspected that would require the person to go to court anyway. The person has the right to obtain legal advice before making an admission of guilt. Procedures A juvenile caution is not administered on the spot, but a week or so later at a police station or another place (for example, a youth centre). The caution can be given by a

[21.250] Drug courts There are presently two separate types of drug court in NSW: • the Drug Courts at Parramatta, Toronto on the Central Coast and in central Sydney • the Local Court MERIT scheme. The Youth Drug and Alcohol Court was discontinued in 2012 for budgetary reasons.

The Drug Court The Drug Court’s statutory object is to reduce drug-related criminal activity by diverting drug-dependent offenders to rehabilitation programs. It is a sentencing court, with the jurisdiction of both the Local Court and the District Court. Offenders are referred to the Drug Court by other courts (from the Court’s respective catchment areas in western Sydney and the Central Coast). Who is eligible? To be eligible to be dealt with by the Drug Court, an offender must: • be apparently dependent on a prohibited drug (not alcohol) • plead guilty, and • have been charged with an offence which is “highly likely” in the circumstances (for example, the offender’s prior record) to result in their imprisonment. A person is not eligible for sentencing by the Drug Court if they are charged with: • an indictable offence under the Drug Misuse and Trafficking Act which cannot be dealt with summarily (for example, supply of a commercial quantity of a prohibited drug), or

21 Drug Offences

• an offence involving “violent conduct” or sexual assault. Alternatives to punishment The Drug Court can, instead of imposing a punishment, require an offender to participate in an ongoing rehabilitation program, under court supervision. Unlike a conventional court, the Drug Court encourages a collaborative involvement of judge, defence lawyer, prosecutor and clinical staff in determining how a matter is dealt with. Typical program orders include attendance at counselling or other therapy sessions, and regular drug testing. The court can also impose conventional punishments. Action by the court The offender must agree to the program of treatment and conditions proposed by the court. The conditions of a person’s program can be varied by the court. As well as determining a program for the offender, the Drug Court must also impose a penalty for the offence, but it immediately suspends the sentence. If the offender satisfactorily completes the program, that will be taken into account in determining the final sentence, such as a good behaviour bond. The final sentence cannot be higher than the original suspended sentence.

The MERIT scheme The Local Court program for diversion to treatment is called MERIT (Magistrates’ Early Referral Into Treatment). MERIT is available at most NSW Local Courts. The scheme allows for a case to be adjourned, generally for three months, while the defendant undertakes drug rehabilitation. Suitable MERIT candidates are not required to enter a plea to the charges before being accepted into the program.

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MERIT participants are granted bail, generally for three months, with attendance at MERIT program activities being a condition of bail. Generally, they will be required to attend court several times after commencing treatment to have their progress monitored. Failure to attend a MERIT program activity is reported to the court, but is not treated as a breach of bail conditions. Who can participate? Potential candidates for participation in the MERIT program must: • be suitable for release on bail • be over 18 • not be charged with assault, sexual assault or a wholly indictable offence • have a demonstrable and treatable illicit drug problem • be assessed by a court-based clinician as suitable for the program • be approved for participation by the magistrate. Participation is voluntary. A person assessed as suitable can elect not to participate, and instead have their matter referred back to the Local Court for determination or sentencing. Treatment Suitable candidates who choose to participate are offered drug treatment considered appropriate to their situation, including medically supervised detoxification, home detoxification, methadone or other pharmacotherapy, residential rehabilitation, and/or counselling. Completion of program Satisfactory completion of the program will be reported to the court and will be taken into account in determining the penalty. Failure to respond to treatment, or to undertake treatment, does not result in any punishment, or any additional penalty for the offence charged.

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Confiscation of proceeds of crime [21.260] Legislation There is both NSW and federal legislation that can be used to seize assets obtained through serious drug offences, and other offences. Some of these laws apply only after a person is convicted of an offence. Some apply without a conviction, or even without a criminal charge being laid. These confiscation laws do not apply to minor drug offences, such as use and possession, and small-scale dealing. The Acts that come into operation after conviction are the: • Confiscation of Proceeds of Crime Act 1989 (NSW) • Proceeds of Crime Act 1987 (Cth). The Acts that apply regardless of conviction are the: • Criminal Assets Recovery Act 1990 (NSW) • Customs Act 1901 (Cth), ss 229A and 243B.

How cases proceed Cases run under these laws are civil, not criminal actions. This means that a person does not get a criminal record if the court orders forfeiture of their property, or the payment of a monetary penalty. It also means that the court must only be satisfied on the balance of probabilities (not beyond reasonable doubt) that the property in question is tainted. NSW cases are conducted in the Supreme Court, with proceedings brought by the NSW Crime Commission. Federal cases are run in the Federal Court.

[21.270] Forfeiture after

conviction NSW legislation Under the Confiscation of Proceeds of Crime Act 1989, a person convicted of a serious drug offence is liable to have orders made that “tainted” property be forfeited (or an equivalent money value paid) to the state, in addition to any criminal penalty such as a fine or imprisonment.

Tainted property Tainted property is property used in connection with an offence (for example, a car or a boat), or which was derived from the commission of an offence. The connection between the property and the crime must be actual, but not necessarily substantial (R v Haddad (1989) 16 NSWLR 476).

Restraining orders can be obtained at short notice to ensure that assets are not disposed of. The burden in such cases is on the convicted person to prove that there is no connection between criminal activity and the property (DPP v Jeffery (1992) 58 A Crim R 310).

Federal legislation The Proceeds of Crime Act 1987 is the equivalent federal legislation. It applies where the person has been convicted of a federal offence (such as importing or conspiring to import drugs), and it allows the court to seize property or require payment of a money amount.

[21.280] Forfeiture without

conviction NSW legislation The Criminal Assets Recovery Act 1990 allows for the confiscation of property where the court believes that it is more likely than not that a person has engaged in “serious crime-related activity”, including a drug trafficking offence and a second or subsequent offence of allowing premises to be used for drug premises (s 6(2)). A “drug trafficking offence” is any offence of cultivation, supply or manufacture of a prohibited drug or plant, regardless of quantity (s 6(3)). How property is confiscated Property may be confiscated under the Criminal Assets Recovery Act 1990 if the Supreme Court makes a finding, on the balance of probabilities, that the defendant

21 Drug Offences

was involved in serious crime-related activities. It does not matter that the defendant was acquitted of criminal charges, or even whether the defendant was ever charged. Orders can be made: • to stop any dealings with targeted property • for forfeiture of assets to the state, and • for payment to the state of the proceeds of drug-related activity. Time limits The court can only make an order within six years of the person engaging in the drugrelated activity.

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Federal legislation The Customs Act 1901 provisions (ss 229A, 243B) apply where the Federal Court is satisfied, on the balance of probabilities, that money or assets are the proceeds of drug importing, even if the person has not been convicted or charged. The court may consider the seriousness of the offence and any hardship likely to be caused.

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Contact points [21.290]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au. See also Contact points for:

Legal Aid

• Chapter 4, Assistance with Legal Problems

ph: 4959 8345 (Hunter), 9685 8020 (Parramatta) or 9685 8012 (Sydney)

• Chapter 7, Children and Young People

Lifeline

• Chapter 14, Criminal Law

ph: 13 11 14 (24 hrs)

www.lifeline.org.au

Alcohol and Drugs Information Service (24hr) ph: 9361 8000 or toll free for country areas on1800 422 599 Drugs and Alcohol Specialist Advisory Service (24hr) ph: 9361 8006 (Sydney) and toll-free for country areas 1800 023 687

Alcohol and Drug Foundation NSW

Nar-Anon Family Groups (Australia) Inc

www.adfnsw.org.au

www.naranon.com.au

ph: 9660 5818

ph: 8004 1214

Alcohol and Drug Information Service (ADIS) - St Vincent’s Hospital

ph: 4782 9222 or 1300 368 186

Narcotics Anonymous Australia www.na.org.au

NSW Users and AIDS Association Inc (NUAA)

Public Information Committee

www.nuaa.org.au

ph: 1300 652 820

ph: 1800 644 413 or 8354 7300

NSW Help Lines

Odyssey House

Byron Bay

www.odysseyhouse.com.au

ph: 6680 7280

ph: 9281 5144

Central Coast

Odyssey House also has centres for assessment, referral and after care, and a main treatment facility.

www.svhs.org.au ph: 9361 8000 Director of Public Prosecutions, Office of www.odpp.nsw.gov.au ph: 9285 8606 (Head office) Witness Assistance Service www.odpp.nsw.gov.au/witnessassistance-service ph: 1800 814 534 Drug Court of NSW www.drugcourt.justice.nsw.gov.au Hunter Registry ph: 4935 8338 Paramatta Registry ph: 8688 4525 Sydney Registry ph: 9287 7305

ph: 4325 0524 Coffs Coast NSW ph: 0459 432 270 Hunter Valley ph: 4969 6767 South Coast NSW ph: 0433 833 946 Sydney ph: 9519 6200 Mental Health and Drug and Alcohol Office NSW www.health.nsw.gov.au/ mentalhealth ph: 9391 9000

Family Drug Support (24hr)

Ted Noffs Foundation www.noffs.org.au ph: 1800 151 045 or 9305 6600 The Wayside Chapel www.thewaysidechapel.com ph: 9581 9100 Offers advice and counselling, a refuge and a detoxification centre. We Help Ourselves (WHOS) www.whos.com.au

22 Employment Bridget Akers Solicitor, Legal Aid NSW Larissa Andelman Barrister Hana Marjanac Solicitor, Legal Aid NSW Margaret McCabe Solicitor, Legal Aid NSW Brianna Terry Solicitor, Legal Aid NSW

Contents [22.20] [22.60]

The concept of employment The regulation of workplace relations

[22.80]

Minimum standards and the safety net

[22.130] [22.170] [22.190]

Remuneration Third Parties Termination

[22.240]

Unfair Dismissal

[22.260]

Protection of Employees

[22.290]

Other discrimination laws

[22.300]

Registered industrial organisations

[22.320]

Safety

[22.340]

Children

[22.350]

The Public Sector

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[22.10] Introduction This chapter deals with federal and state industrial laws as well as laws about discrimination and health and safety that apply to workplaces in NSW. There is also discussion of the common law relating to contracts of employment. The vast majority of employees and employers are now covered by federal laws. Employees employed by the NSW Government and local councils are mostly covered

by NSW laws. However there is still some overlap of both the federal and state laws applying to employees and employers, particularly in the area of discrimination. The current system under the Fair Work Act 2009 (Cth), became fully operational in 2010. Also with effect from 1 January 2010, NSW referred its power in regard to industrial relations to the Commonwealth, meaning the whole of the private sector is regulated by the Fair Work Act.

The concept of employment [22.20] The employment

relationship and contracts Before considering the federal and state workplace relations systems it is important to understand the nature of the employment relationship and contracts of employment. Employment is based on a contractual relationship between an employer and an employee where there is an agreement to work in return for wages or salary. Over time employment has come to be regulated by a large body of legislation. Much of this legislation establishes minimum wages and entitlements. A contractual term which purports to be an agreement to provide less than the legal minimum is of no effect. Despite the regulated nature of employment, the contract for service remains at the heart of the employment relationship. A contract of employment may be written, oral (ie, a spoken agreement), or partly written and partly oral. A letter of appointment may also constitute an employment contract. A written contract of employment seldom (if ever) contains exhaustive provisions about every aspect of the employment relationship. Terms may be incorporated into the contract through documents such as workplace codes of conduct and company policies. In addition to the express terms of the contract, terms may be implied where necessary.

Three relevant High Court of Australia decisions about contract of employment are the following: • Byrne v Australian Airlines Ltd [1995] HCA 24 • Visscher v Giudice [2009] HCA 34 • Commonwealth Bank of Australia v Barker [2014] HCA 32.

[22.30] Independent

contractors The employment relationship is one in which an employee serves the employer. This is to be contrasted with a “contract for services” provided by an independent contractor. The rights and obligations that attach to the employment relationship do not usually apply when an independent contractor is providing their services. Although discrimination, health and safety and the Fair Work Act general protections provisions do apply to independent contractors. Consequently, there are often legal disputes as to whether a person is an employee or a contractor. The following table contrasts the characteristics of employees from independent contractors.

22 Employment

Characteristic A written contract is in place describing the worker as a contractor, subcontractor or independent contractor The worker is controlled in the way they work The worker is treated like an employee at work The worker is required to wear a specific uniform The worker supplies their own tools and materials The worker is paid for each task completed The worker is paid a wage calculated on an hourly rate The worker is paid when on annual leave or if absent on sick leave Income tax is withheld from payments to the worker The worker uses an ABN and renders invoices for payment The worker runs their own business, earning a profit and building “good will” with a customer base The worker is able to work with any number of customers or clients The worker can delegate their work to employees or subcontractors of the worker

It is usually the case that no single characteristic determines the nature of the work relationship. An important consideration is the right to control the person in regard to key aspects of the work. All of the characteristics must be taken into account. Employees are sometimes required to work as independent contractors yet really are employees. Such situations are often referred to as “sham arrangements”. Part 3-1, Div 6 of the Fair Work Act makes sham arrangements unlawful. A relevant High Court decision distinguishing between independent contractors and employees is Hollis v Vabu Pty Ltd [2001] HCA 44. The Independent Contractors Act 2006 (Cth) gives the Federal Court of Australia and the Federal Circuit Court of Australia jurisdiction to provide a remedy to independent contractors in circumstances where the services contract is unfair, harsh, unconscionable, unjust, against the public interest or designed to avoid the provisions of the Fair Work Act (Cth).

[22.40] Volunteers Volunteering is not employment, even

Employee

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Contractor Likely

Likely Likely Likely Likely Likely Likely Likely Likely Likely Likely Likely Likely

though work may be performed. Volunteers are not usually paid for work at all. There is a clear understanding by everyone concerned – the organisation and the person doing the work – that the work is performed as a gift to the organisation. Sometimes, organisations might pay the costs of some incidental expenses incurred by the volunteer (eg transport costs) – but this will not mean that the volunteer is an employee. Also, work experience students, who work with an employer during their studies (eg a student placement), are usually volunteers, and do not expect payment. The rights and obligations that attach to the employment relationship as well as employment legislation, do not usually apply when a volunteer is gifting their services. Although some discrimination and health and safety laws do apply. Internships are not paid because the intern, and not the host, is the beneficiary of the arrangement. Interns who are in reality performing unpaid work should contact the Fair Work Ombudsman about recovering unpaid wages and entitlements from the employer.

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[22.50] Types of employment Employment may be permanent full time, permanent part-time or casual. Employment may also take place pursuant to a fixed term contract.

Permanent full-time An employee who works full time is usually contracted to work 38 hours a week, or more on an ongoing (open ended) contract. Full time employees receive: • paid leave (personal carer’s leave, holiday pay, sick leave and so on) • minimum notice requirements if employment is terminated • redundancy pay in the case of redundancy if the employer has 15 employees or more and there has been service for one year or more.

Permanent part-time Part-time employees usually work less than 38 hours a week on an ongoing (open ended) contract. The work hours of a parttime employee are usually regular, with little change from week to week. Part-time employees receive all of the entitlements of a full-time employee, such as parenting leave, annual leave and notice, but on a pro-rata basis.

Casual employment Casual employees are hired to work irregularly. That means that there is no expectation or certainty of ongoing work, fixed shifts or hours. Technically, casual employees are hired only from the start of their work day or shift, to the end of their work day or shift. Casual employees are not entitled to: • paid leave (personal carer’s leave, holiday pay, sick leave and so on) • minimum notice requirements, if employment is terminated, or redundancy pay. Casual employees are generally paid at a higher hourly rate than comparable parttime or full-time employees. This is referred to as a casual loading and under most awards it is a 25% uplift on the applicable hourly rate. Many employers and employees misunderstand the nature of casual employment.

An employee can be a casual employee despite working regular hours if he or she is engaged as a casual and paid a casual loading. If you are unsure of your employment status you should speak to your union or a lawyer. Many modern awards provide an option for conversion from casual to permanent employment.

Fixed term contracts of employment Employers and employees may agree upon a contract for a fixed period of time or for a specific project, in which case the contract will stipulate the length of the employment and/or the end date. Employment will come to an end at the expiry of the fixed term without the need for the employer or the employee to give notice of termination. Employment under a fixed term contract can be full time or part time. As well as having an end date, a fixed term contract may contain provisions for early termination (before the end date) by either party giving notice of termination.

Labour hire arrangements and recruitment agencies A labour hire arrangement involves a firm (“A”) that employs workers. “A” then dispatches the workers to undertake work for a client organisation (“B”). “B” pays fees to “A” for this service. The workers remain employees of “A”, who is responsible for the payment of wages to the workers and the provision of most other employee entitlements to the workers. The workers may be permanent or casual employees of “A”. It is increasingly the case that employers in the position of “A” treat their employees as casual. It can also be the case that the workers are treated as independent contractors and are therefore neither employees of “A” or “B”. The employees of “A” are often referred to as “agency” or “labour hire workers”. The advantages for “B” in the labour hire arrangement are that it is able to access labour and services only when needed and

22 Employment

may avoid some of the costs and liability associated with outright employment of workers. Labour hire workers may not have the same protections under the Fair Work Act as other employees because they are not employed by the enterprise where they perform work. Courts may be prepared to look behind these arrangements where it is a sham arrangement or there is evidence of privity of contract or control between the labour hire workers and the host. However, the full bench of the Fair Work Commission rejected the concept of joint employment in Australia in FF Group Pty Ltd v Tooheys Pty Ltd [2013] FWCFB 9605. Labour hire workers may be permanent or casual employees of “A”.

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Labour hire arrangements are to be distinguished from recruitment services. A recruitment agent (sometimes referred to as a “head hunter”) finds and introduces workers as prospective employees to a client organisation, with the intention that a worker will eventually take up employment with the client organisation. When this occurs the agent receives a fee from the client organisation. At no time does the agent employ the worker. It is illegal in NSW under s 49 of the Fair Trading Act 1987 (NSW) for a person to demand or receive a fee from a worker seeking employment. In other words, a recruitment agent or a labour hire organisation must not charge a worker a fee for placing the worker in employment.

The regulation of workplace relations [22.60] National and NSW

systems Most employers and employees in NSW are now under the national system. All constitutional corporations and other private sector employers are covered, including partnerships and sole traders. However, public sector and local government employers (and their employees) are regulated by the NSW system though there are some exceptions. Whether an employer or employee is regulated by the national or NSW system, turns on whether the employer is considered to be a “national system employer”. National system employers are: • “constitutional corporations”, ie, corporations (including foreign corporations) engaged in trading and financial activities • the Commonwealth and Commonwealth authorities (eg the Australian Public Service) • employers of flight crew officers, maritime employees and waterside employees involved in “constitutional trade or commerce” • bodies corporate incorporated in a territory

• other persons who carry on commercial, governmental or other activities in the territories; and • other employers who are regulated by the national system as a consequence of NSW referring its industrial relations powers to the Commonwealth. This last category is significant, as it resulted in the remainder of the private sector employers (including sole traders and partnerships) moving to the national system.

[22.70] Overview of national

workplace relations system Relevant legislation Fair Work Act 2009 (Cth) regulates most employment arrangements in Australia. The Act has many functions including: setting out the National Employment Standards (NES); providing remedies for unfair dismissal, general protections and bullying claims; creation of the Fair Work Ombudsman and the Fair Work Commission, the small claims process, civil penalty regime and enforcement generally and providing resolution for industrial disputes; passage of industrial instruments such as modern

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awards, minimum wage orders and enterprise agreements and the Fair Work Regulations 2009 (Cth) – these Regulations accompany the Fair Work Act. Importantly, the Regulations provide the mechanism for setting the high income threshold, describe the form and content of employee records, and provide a non-exhaustive definition of serious misconduct. Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (and its Regulations) deals with the transition from Workplace Relations Act 1996 to the Fair Work Act. This Act can be important for the transitional arrangements between the old State and Modern Awards. Work Health and Safety Act 2011 (Cth) – this Act provides a national framework for worker and workplace health and safety. Work Health and Safety Act 2011 (NSW) – adopts the Commonwealth legislation in NSW. Fair Work (State Declarations — employer not to be national system employer) Endorsement 2014 (No. 1) – lists certain employers declared by a state law not to be a national system employer. Fair Work Commission Rules 2013 – these Rules set out the practice and procedure to be followed by the Fair Work Commission, the national workplace relations tribunal. Independent Contractors Act 2006 (Cth) – this Act removes many independent contracting arrangements from the control of state and territory employment laws and places them under the regulation of the Commonwealth. This Act allows the court to review or vary unjust or unfair service contracts. Industrial Relations (Commonwealth Powers) Act 2009 (NSW) - this Act in effect referred the NSW Parliament’s industrial relations powers over private sector employers and their employees to the Federal Parliament.

Non-excluded state laws Though most employment arrangements are now regulated by Commonwealth law, some NSW laws endure. Section 27 of the Fair Work Act sets out NSW legislation that is not excluded by the Fair Work Act. This includes:

• • • • • •

• • • • • • • • •

Anti-Discrimination Act 1977 (NSW) workers compensation laws work, health and safety matters relating to outworkers child labour training arrangements (but not so as to override terms and conditions provided for in the National Employment Standards or a modern award) long service leave (for most employees) leave for victims of crime attendance for service on a jury emergency service duties declaration and prescription of the dates of public holidays provision of essential services or situations of emergency workplace surveillance business trading hours claims for the enforcement of contracts of employment.

Three bodies involved in the national system Three bodies are pivotal to the national system: The Fair Work Commission (FWC); the courts, which now have special Fair Work divisions and small claims procedures; and the Fair Work Ombudsman (FWO). The Fair Work Commission The Fair Work Commission (FWC) is the national workplace relations tribunal. It is an independent statutory body. Applicants can apply to the FWC to deal with certain matters such as an unfair dismissal application, general protections application or bullying complaint. An employer may also use the FWC. For example, to reduce the amount of redundancy pay owing to an employee. The FWC exercises a range of functions, such as dealing with: • unfair dismissal applications, including conducting conciliations and arbitrations • general protections termination of employment applications, including conducting conciliations (and arbitrating where there is agreement between the parties for an arbitration) • bullying complaints • the making and amending of modern awards

22 Employment

• disputes about a matter in a modern award or in an enterprise agreement • conducting annual wage reviews and setting national minimum wages • industrial action (such as strikes by employees and lock outs by employers) and authorising, suspending or terminating industrial action • right of entry disputes • equal remuneration orders • making determinations, such as workplace determinations where parties are unable to come to agreement, and • registering enterprise agreements. Fair Work Ombudsman The Fair Work Ombudsman (FWO) is an agency also created under the Fair Work Act (Cth) that provides a free service assisting employees, employers and contractors by: • assisting to identify and calculate the proper wages and entitlements payable • providing information about workplace rights and responsibilities • investigating complaints, generally in response to a request by an employee or employer, and • enforcing compliance with workplace laws by, among other methods, commencing legal proceedings on a party’s behalf. The FWO is separate from the FWC and makes decisions independently of the government and any other person. Federal Court of Australia and Federal Circuit Court of Australia: Fair Work Division There are specialist Fair Work divisions in the Federal Court of Australia and the Federal Circuit Court of Australia.

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In some circumstances, applicants must go through the FWC before taking their complaint to court. For example, an employee with a general protections complaint involving a dismissal. These applications must be commenced in the FWC and if not resolved at conciliation, the FWC must issue a certificate stating that attempts to resolve the dispute have failed, for the court to accept the application. In other circumstances, the applicant goes directly to court. For example, where an employee sues to recover wages and/or entitlements from the employer. The courts can order a variety of remedies, such as compensation, reinstatement of employees, payment of fines, and injunctions to stop or prevent a person from contravening a law such as the Fair Work Act or the Fair Work Regulations. For example, the Courts can impose a penalty (civil penalty) where certain provisions of the Fair Work Act have been breached. A small claims option is available for underpayment claims in the Federal Circuit Court. The amount claimed must not be more than $20,000. Small claims proceedings are fairly informal and faster, and lawyers are typically not present. The small claims procedure uses a simplified Court application form. Section 548 of the Fair Work Act sets out the small claims procedures. Penalties are not available in the small claims jurisdiction. Employment claims can be heard in NSW courts. The Chief Industrial Magistrates Court (CIM) is a specialist employment jurisdiction within the Local Court of NSW. The CIM can deal with wage and entitlement claims and also has a small claims process for amounts less than $20,000.

Minimum standards and the safety net [22.80] The purpose of

legislation Federal legislation and, where applicable, state legislation is capable of overruling all other terms of the employment contract. For

example, regardless of what the parties agree, an employee must be paid at least the minimum wage outlined in the relevant award, or must be paid the national minimum wage. National system legislation (mostly the Fair Work Act and Fair Work Regulations

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2009) sets out minimum terms and conditions of employment in a so-called “safety net” for employees. The safety net comprises: • the national minimum wage • the National Employment Standards (NES) • modern awards, and • national minimum wage orders. The national minimum wage for national system employees, who are not covered by an award or agreement, is reviewed and set annually (along with modern award wages) by the Minimum Wage Panel of the FWC. There are lower minimum rates for juniors, trainees and employees with a disability. Employers cannot pay less than the national minimum wage, but can pay more. As at 1 July 2016, the national minimum wage was $17.70 per hour or $672.70 per week for a 38 hour week. The NES apply to all national system employees and cannot be overridden by any instrument, although terms and conditions supplementary to the NES are permissible. For example, a contract can provide an employee with more annual leave days than required in the NES, but the contract cannot restrict the employee’s annual leave to less days per year than required in the NES. In addition to the NES, various legally binding industrial instruments may govern the employment relationship: a modern award may apply, or the parties may have decided to deviate from the terms of the modern award by making an enterprise agreement, or the parties may have failed to agree on the terms of the enterprise agreement and the FWC may have intervened and made a workplace determination.

•

•

[22.90] The National

Employment Standards The NES are 10 minimum terms and conditions of employment that apply to all National System employees in Australia (although not all entitlements apply to casual employees). The NES can be summarised as follows: • maximum weekly hours of work – 38 hours for a full-time employee. The

•

•

employee may refuse to work unreasonable additional hours written requests for flexible working arrangements. An employee can request a flexible work arrangement if they have at least 12 months continuous service and are: – a parent or carer of a child who is school aged or younger – a carer under the Carers (Recognition) Act 2010 (Cth) – an employee with a disability – 55 years or older, or – experiencing domestic violence (or caring for/supporting an immediate family member, or household member, who is experiencing domestic violence). The employer may only refuse the request on reasonable business grounds. Reasonable business grounds are set out in the Fair Work Act. If the employer rejects the request, the employer must provide the employee with a written response within 21 days of the written request setting out reasons for the refusal; parental leave and related entitlements – up to 12 months unpaid leave for the parent and her or his spouse or de facto partner, (which is also available where a child under 16 is adopted). The employee must have completed at least 12 months of continuous service whether permanent or casual. There is also a right to request an additional 12 months unpaid leave, a right to transfer to a safe job in appropriate cases or to take no safe job leave, consultation requirements, a return to work guarantee and unpaid pre-adoption leave. Employees who have taken leave don’t have to wait another 12 months before they can take another period of leave with the same employer annual leave – four weeks paid leave per year, five weeks of paid leave for certain shift working employees. Annual leave is cumulative personal/carer’s leave and compassionate leave – 10 days paid personal/carer’s leave (which is available on a pro-rata basis for part-time employees), two days unpaid carer’s leave, and two days paid

22 Employment

compassionate leave. Personal leave is cumulative • community service leave – unpaid leave for matters such as voluntary emergency service and jury service (the employee is entitled to be paid the shortfall of any jury service pay for up to 10 days of jury service) • long service leave – employees with certain existing arrangements are entitled to long service leave on that basis. A national long service leave standard is to be developed. In NSW the Long Service Leave Act 1955 (NSW) still applies to most employees, pending federal legislation of a national standard • public holidays – a paid day off, unless reasonably requested to work. Public holidays may be substituted for another day in a modern award or an enterprise agreement • notice of termination and redundancy pay – up to five weeks minimum notice of termination and up to 16 weeks redundancy pay. Redundancy provisions do not apply where there are less than 15 employees employed at the time of the redundancy or completion of less than 12 months service (notice and redundancy pay is discussed in more detail at [22.190]) • Fair Work Information Statement – prepared and published by the FWO which must be provided by employers to all new employees before or as soon as practicable after the employee has commenced employment. For the full text of the NES, see Pt 2-2 of the Fair Work Act (Cth) or for detailed fact sheets on each NES provision, go to the FWO website www.fairwork.gov.au. Contraventions of an NES provision may result in the employer being ordered to pay a penalty on top of any other orders the court may make, including payment of moneys due to the employee.

[22.100] Modern awards Minimum employment standards in Australian workplaces have traditionally been included in awards. Awards are enforceable documents containing the minimum terms

741

and conditions applicable to employees who are covered by the awards. Since 2010, “modern awards” have replaced “premodern awards” and now cover most workplaces. Modern awards are industry or occupation-based, rather than relating to a particular employer or organisation, as the goal is one minimum standard for employers and employees in the same industry or occupation across Australia. Modern awards must be reviewed, and where necessary varied, every four years by the FWC, and they may only deal with the following 10 subject matters: • minimum wages and skill-based classifications and career structures and incentive-based payments • type of employment, eg full time, casual • arrangements for when work is performed, including rostering, etc • overtime rates • penalty rates • annualised wage arrangements • allowances • leave • superannuation; and • procedures for consultation, representation and dispute settlement.

How to find which modern award applies The Fair Work Ombudsman website provides information and tools to search for modern awards: www.fairwork.gov.au/awards-andagreements/awards Modern awards may not apply to highincome employees, especially those employed as senior managers and professionals.

Safety net contractual entitlements Where an employer contracts to pay wages and provide entitlements that are above the minimum standards set out in the relevant modern award and the National Employment Standards, the payment and provision of the higher contracted wages and entitlements are enforceable under the Fair Work Act. For example, the relevant modern award may establish an employee’s minimum

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hourly rate at $20. However, the employer may enter into a contract with the employee for an hourly rate of $25 per hour. If the employer subsequently fails to pay the employee $25 per hour then the employer will have contravened the Fair Work Act. The employer will not be able to assert that it was only ever obliged to pay $20 per hour. The statutory protection of these contractual rights is set out in ss 541–543 of the Fair Work Act.

[22.110] Enterprise

agreements What is an enterprise agreement and what are the benefits? Modern awards are part of the “safety net” for employees. The intention is to set a minimum standard in order to protect those who may not be in a position to bargain for better pay rates and conditions. When employers and employees wish to agree on better conditions, or exchange an increase in one benefit for the relinquishing of another, they may make an enterprise agreement, which is an enforceable document that will prevail over a modern award. In order to be enforceable, enterprise agreements must be approved by the FWC and pass the “better off overall test” (BOOT) to ensure that employees are not worse off than they would be under the modern award. An enterprise agreement must not contravene the NES but may include terms supplementary to the NES. Enterprise agreements are made at the enterprise level, that is, they apply to employees of a particular business (or businesses).

Once a draft agreement is finalised, an application is made to the FWC for approval of the agreement. In granting approval, the FWC must consider certain requirements, such as that genuine agreement is present, and the “better off overall test” must in most cases also be satisfied. Different procedures are in place depending on the type of enterprise agreement. The three types are: • single-enterprise agreements (a single employer or a situation such as a joint enterprise) • multi-enterprise agreements (two or more employers that are not single interest employers) • “greenfields” agreements (where one or more employers are proposing to establish an enterprise and have not yet engaged employees). Greenfields agreements are agreed between employers and the relevant union.

How to find an enterprise agreement Registered enterprise agreements, variations and terminations of enterprise agreements can be found on the FWC website: www.fwc.gov.au/awards-andagreements/agreements/find-agreement

[22.120] Workplace

determinations A workplace determination is an industrial instrument that functions similarly to an enterprise agreement, that is, it will prevail over the relevant modern award. In contrast to an enterprise agreement, it is created by a determination made by the FWC in a situation where parties are unable to reach agreement.

22 Employment

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Remuneration [22.130] Payment of wages

and salary Employees are entitled to be paid remuneration for their work in money, rather than goods or services. Employees should check their modern award or enterprise agreement to find out their rate of pay based on the relevant classification and also if they are entitled to other amounts, such as overtime; penalty rates (eg for working on weekends); casual or part time loadings (an extra percentage paid to compensate for the casual employee’s lack of entitlements such as annual leave); or allowances (eg where the employee works with dangerous chemicals, or uses their car for work purposes).

How to calculate pay The Fair Work Ombudsman website provides various pay tools, to assist in finding the applicable pay rates for employees, or to calculate an employee’s weekly pay. See www.fairwork.gov.au/pay.

All work must be paid work Employees should be paid in full for work performed. There must be at least a monthly payment. A trial or probation period in a new workplace takes place within the employment relationship and therefore all wages and entitlements should be paid. An employee should also be paid for the time spent in meetings and travelling (except where the travel is from home to work and home again). An employee should also be paid for time spent in training on premises and off premises where the employer has organised or required the employee to attend training. Generally, a full-time or part-time apprentice or trainee should be paid for time spent attending any training or assessment related to their traineeship.

Deductions from employee's pay An employer is permitted to make deductions from an employee’s pay in certain limited circumstances, but does not have a general right to make deductions. For example, it is highly unlikely that an employer will ever have the right to deduct money from an employee’s wages where there have been breakages or where a customer has left without paying their bill. Employees should check their modern award or enterprise agreement, and any other written agreement, for any mention of deductions. Generally, even where deductions are permitted by law, the deduction must be authorised in writing by the employee for the employee’s benefit and must be reasonable. See s 324 of the Fair Work Act.

Pay slips, cash and records Employers must issue pay slips to each employee within one working day of pay day. The Fair Work Ombudsman has made available online pay slip templates to assist employers in providing pay slips that contain all the necessary legal requirements. The obligation to provide a pay slip is a strict legal obligation, which means there is no legitimate excuse for an employer not to provide pay slips. An employer that does not provide pay slips is in breach of the Fair Work Act and Regulation and a court could impose penalties for those breaches. The obligation to provide a pay slip is set out in s 536 of the Fair Work Act. A pay slip must include the following information: • name of the employee • name of employer and ABN • the period to which the pay slip relates • an hourly rate of pay for ordinary hours worked (if there is one), the amount, the number of hours worked, the amount of the payment • an annual rate (if there is one) at the latest date to which the payment relates • the date on which payment was made, for the period on the pay slip

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• the net and gross amount of the payment • any amount that is a bonus, loading, allowance, penalty rate, incentive payment or other separate entitlement • any deductions made • superannuation contributions – the amount paid or the amount the employer is liable to make in relation to the period to which the pay slip relates • name and number of the superannuation fund. It is not illegal for an employee to be paid cash in hand - but the employee must be given a pay slip, and tax must be withheld (deducted) from gross wages and remitted to the Australian Taxation Office (ATO) by the employer. If an employee receives cash without a pay slip there is a real risk that the employer may not be complying with relevant laws and obligations. For example, the employer may not be remitting tax to the ATO or contributing superannuation. If a dispute arises between an employer and an employee and there are no pay slips it may be difficult for the employer or employee to provide evidence of relevant events, or evidence that an employment relationship existed. The employer must keep accurate employee records for seven years. The records that an employer must keep are: • the employee’s personal details and certain information about their employment • gross pay and deductions • bonuses, loadings, penalty rate payments, other allowances • overtime records • records regarding an agreement about averaging work hours • leave records • records of superannuation contributions. Where a business is transferred to a new employer, the old employer must transfer the employee records to the new employer. Section 535 of the Fair Work Act and reg 3.42 of the Fair Work Regulations 2009 give employees or ex-employees the right to inspect and copy their employee records. An employer must provide the documents within 14 days from the request. An employer who refuses to make the records available or does not provide them within

the specified time without a reasonable explanation may be penalised by a court.

[22.140] Superannuation Workers who earn $450 or more per month (before tax) are entitled to superannuation contributions, provided they are aged 18 or over. If they are under 18 and working more than 30 hours per week they are also entitled to superannuation. Independent contractors who mainly provide their intellectual or physical labour are entitled to superannuation contributions. Also, overseas students and workers on any other type of visa are entitled to superannuation and can apply for these funds when they exit Australia. The employer (or principal in the case of a contractor) must contribute 9.50% of wages/ salary to a superannuation fund. The employer is required to forward the superannuation contributions to a superannuation fund that complies with the relevant legislation – generally all “industry super funds” are complying funds. Some Awards have default industry super funds where an employee hasn’t elected a fund. The Australian Taxation Office (ATO) administers the statutory superannuation scheme whereby employers make contributions for employees. In the event that superannuation is not contributed on behalf of the employee, the Australian Taxation Office will impose a “charge” on the employer and in effect collect the unpaid superannuation contributions for the employee. Employees should regularly check their superannuation statements to ensure that superannuation contributions are being made. Most superannuation funds facilitate member access to statements online through the fund’s website. More information about superannuation can be obtained on the website of the ATO. Complaints about a failure by an employer to make superannuation contributions should be made to the ATO. www.ato.gov.au/super.

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[22.150] Suspension and stand

down Generally, an employer cannot “stand down” or “suspend” an employee without pay. There are some exceptions to this rule. An employee can be suspended or stood down without pay where there is: • industrial action (for example a strike or a lock-out) • a breakdown of equipment – if the employer cannot be reasonably held responsible for the breakdown • a stoppage of work for any cause for which the employer cannot reasonably be held responsible. A contract of employment or an enterprise agreement may also contain stand down provisions. In practice, the situations in which an employer may lawfully stand down employees without pay are quite limited, eg during a natural disaster. Employees cannot be stood down just because there is not enough work or because of a decline in the employer’s business. If the employer no longer wishes to pay the employee then the appropriate course may be to terminate the employment of the employee. Employees cannot be stood down while on leave. An employee cannot be suspended without pay for misconduct or wrongdoing, although they may be suspended with pay and be directed not to attend the workplace and to await further instructions from the employer. It is relatively common for employees to be suspended on pay while an investigation takes place into misconduct alleged against the employee. Section 70 of the Government Sector Employment Act 2013 (NSW) entitles a NSW government sector agency to suspend an employee in specific circumstance and on specific terms. Similar provisions exist for Australian public sector employers.

[22.160] Insolvency or

bankruptcy of an employer The law of corporate insolvency and personal bankruptcy is technically complex in

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the way it deals with amounts owed to employees of the insolvent corporation or bankrupt person. The liquidation or bankruptcy of the employer will often result in the dismissal of employees on the basis of redundancy. Consequently, employees will become entitled to notice and if eligible, redundancy payments in addition to any wages, leave, superannuation and other amounts already owing. Generally, the relevant legislation gives some priority to the payment of employee creditors from the available remaining assets of the employer (if any). The Fair Entitlements Guarantee (FEG) is an Australian Government safety net scheme established to pay out some employee entitlements where they were not paid because of the liquidation or bankruptcy. To obtain assistance from FEG, there must be a liquidation event (ie, the employer has entered liquidation or bankruptcy). In order to access the FEG scheme, the FEG claim must be made no later than 12 months after the termination of employment, or the date of the insolvency event (whichever is later). FEG applies to five categories of employee entitlements: • unpaid wages • annual leave • long service leave • notice, up to five weeks pay, and • redundancy pay up to a maximum of four weeks per completed year of service (and pro rata for less than a full years service). In calculating all entitlements under FEG, a maximum rate wage is used. If the employee earns more than this rate, FEG assistance will be calculated as if the employee earned only the maximum wage. The maximum wage is indexed every financial year. As at 1 July 2016 the maximum wage is $2,451 per week. A person will not be eligible for FEG assistance if they are an “excluded employee” (including company directors and their relatives), a contractor, or are owed money that is not an eligible employee entitlement. More information is available on the FEG website:

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www.employment.gov.au/fairentitlements-guarantee-feg.

Third parties [22.170] Liability to third

parties Under the Employees’ Liability Act 1991 (NSW) employees are entitled to be indemnified by their employer for torts committed by the employee in the course of their employment. Also, the employee is not liable to indemnify the employer. For example, an employee who is negligent and causes a car accident while on duty may seek indemnity from their employer if the employee is sued for compensation by the other driver. The employer cannot require the employee to pay for the damage. However, this rule does not apply where the conduct of the employee was: • serious and wilful misconduct, or • did not occur in the course of, and did not arise out of the employment of the employee. Mere negligence is not serious and wilful misconduct. At common law an employer is usually vicariously liable for the conduct of employees. Again, for such liability to arise the conduct must have occurred in the course of employment. The Law Reform (Vicarious Liability Act) 1983 (NSW) enshrines this principle by making an employer liable where the employee commits a tort: • in the course of the service of the employee • incidental to the service of the employee • incidental to the carrying on of the business of the employer.

In light of s 324 of the Fair Work Act regarding permitted deductions from wages, it is unlawful for an employer to deduct from an employee’s wages compensation and costs in connection with a tort committed by the employee. This prohibition also includes the deduction of any excess that might arise for payment under an insurance policy. Where a NSW public servant has engaged or is alleged to have engaged in tortious conduct, s 5 of the Crown Proceedings Act 1988 (NSW) nominates the State of New South Wales as the defendant to claims against the Crown.

[22.180] Liability of third

parties A third party such as a director, manager or an advisor may be liable for the employer’s contraventions of the Fair Work Act in circumstances where the person (including a corporation) was “involved with” the contravention. Section 550 of the Fair Work Act is the basis of this potential liability of third parties. On the basis of s 550, an employee may claim the underpayment of the wages and entitlements from the third person as well as from the employer. The employee may also seek the imposition of a penalty on the third person as well as the employer. Where an employer is insolvent or bankrupt this option may allow the employee to recover money from the third person directly.

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Termination [22.190] Types of termination

of employment Employment can be terminated by either the employer or the employee, or may come to an end at the completion of a task or the expiry of a fixed contractual period. The reason for the termination of employment is critical in determining the obligations and entitlements of employers and employees. It may be difficult for the parties in an employment relationship to say exactly how the employment relationship was terminated. This can be even more challenging for a court or tribunal to determine. Section 117 of the Fair Work Act requires the employer to give an employee written notice of the day of termination prior to termination. Where an employee resigns, there may be issues of constructive dismissal (ie that the employee was forced to resign). Where an employer makes an employee redundant, there may be a question as to whether the redundancy was genuine – if it was not, the employee may challenge the decision. An employer intending to dismiss an employee must follow certain procedures, but is justified in dismissing an employee without notice (summary dismissal) in certain circumstances. Where a dismissal at the initiative of the employer is not in accordance with the law, the employee may have a claim under the unfair dismissal, general protections, or unlawful termination provi-

sions of the Fair Work Act, or a claim under anti-discrimination or workers compensation legislation. Either party may have repudiated the contract, such as where an employer fails to pay wages, or an employee fails to turn up for work. Which party repudiated first? This situation highlights the importance of the timing of events surrounding termination, and of keeping records of the events as they unfold. The date of termination is also crucial for working out time limits for making a claim, whether a minimum employment period (a necessary element for making an unfair dismissal claim) has been satisfied, and amounts of money payable as final pay. An important High Court decision on the repudiation of the contract of employment is Visscher v Giudice [2009] HCA 34.

[22.200] Termination by the

employer Notice and payment in lieu of notice In most instances employers are required to give permanent employees notice that their employment will be terminated in advance, or pay the employee in lieu of providing actual notice. Payment in lieu of notice is at the full rate of pay for the hours the employee would have worked had their employment continued to the end of the notice period. Section 117 of the Fair Work Act sets out the minimum periods of notice as follows:

Period

1 2 3 4

Employee’s period of continuous service with the employer at the end of the day the notice is given Not more than 1 year More than 1 year but not more than 3 years More than 3 years but not more than 5 years More than 5 years

Period 1 week 2 weeks 3 weeks 4 weeks

The notice period is increased by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.

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An employee may be entitled to a longer notice period under an award, enterprise agreement or contract. Under the NES, certain employees are not required to be given notice of termination, such as employees employed for a specified time or task and casual employees.

Where notice is not required The only situation where a permanent employee is not entitled to notice (or payment in lieu) is where the employee’s serious misconduct entitled the employer to instantly or summarily dismiss the employee. Summary dismissal Summary dismissal is the instant dismissal of an employee without notice or payment in lieu of notice – typically the employee is told to leave the workplace immediately, sometimes without even the opportunity to collect their personal possessions. The usual reason is an allegation of serious misconduct. The Fair Work Act and Regulations contain a definition of serious misconduct (see s 12 of the Fair Work Act and regulation 1.07). Employers should take care to ensure their reasons for, and conduct surrounding, summary dismissal are justifiable, particularly in light of unfair dismissal rights of employees. Summary dismissal can also affect an employee’s entitlement to long service leave. An employee with between five and 10 years of service who is dismissed

for any reason other than serious and wilful misconduct is entitled to pro rata long service leave. An employee who is dismissed after 10 years of service is entitled to any accrued long service leave regardless of the reason for their dismissal.

Inadequate notice from the employer An employee who is dismissed without proper notice may take legal action in the Federal Circuit Court or the Federal Court to recover money owed by the employer. This usually amounts to the wages that would otherwise have been earned during the notice period. There is a six-year time limit to commence proceedings in court.

Redundancy Where an employee is terminated by an employer because the employee’s job is no longer required to be done by anyone (except where this is due to the ordinary and customary turnover of labour) or there has been a restructure of the workforce, or because the employer has become insolvent or bankrupt, the employee is generally entitled to redundancy pay at the rates set out in the NES in s 119 of the Fair Work Act as follows:

Redundancy pay period Employee’s period of continuous service with the employer on termination 1 2 3 4 5 6 7 8 9 10

At least 1 year but less than 2 years At least 2 years but less than 3 years At least 3 years but less than 4 years At least 4 years but less than 5 years At least 5 years but less than 6 years At least 6 years but less than 7 years At least 7 years but less than 8 years At least 8 years but less than 9 years At least 9 years but less than 10 years At least 10 years

Redundancy pay period 4 weeks 6 weeks 7 weeks 8 weeks 10 weeks 11 weeks 13 weeks 14 weeks 16 weeks 12 weeks

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An employee may be entitled to a higher redundancy payment under an award, enterprise agreement or contract. Certain employees are not entitled to redundancy pay, such as casual employees, apprentices, or those employed by a small business employer (who employs fewer than 15 employees including the employees of any associated entities. All permanent employees and casuals employed on a regular and systematic basis are counted). An employer may apply under s 120 of the Fair Work Act to the FWC to reduce the amount of redundancy pay owing to an employee where the employer has found other acceptable employment for the employee or cannot pay the amount. Genuine redundancies are excluded from the unfair dismissal provisions of the Fair Work Act, see Unfair Dismissal below.

Common law claim for wrongful termination If an employee is dismissed prior to the end of a fixed term contract, or is dismissed where there is an ongoing contract, there may be a claim for damages based on the notice specified in the contract, or “reasonable notice” where there is no reference to notice in the contract. This applies whether or not the contract is in writing. The question of what is reasonable will depend on numerous circumstances such as length of service, age, seniority and salary. The damages claim is limited to the salary the employee would have earned had notice been given, taking into account whether the employee had earned wages after the dismissal. A common law contract can be terminated without notice by an employer where there is serious misconduct.

[22.210] Termination by the

employee An employee can resign from employment with notice in accordance with their modern award, enterprise agreement or employment contract. They may also resign without notice where there are sufficient grounds.

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Such grounds include where an employer has, by their conduct, repudiated the contract, such as where an employer has failed to pay wages or where a worker is directed to carry out dangerous work without the necessary safety procedures and equipment. Where an employee is forced to resign due to the employer’s conduct, this is known as “constructive dismissal” and it can give rise to the right to make a claim against the employer in the same way as other wrongful or unfair dismissals. Employees should be aware that some conduct of the employer will not be sufficient to repudiate the contract, and if the employee mistakenly assumes that the contract has been repudiated and acts upon this, then the employee will be taken to have repudiated the contract, not the employer.

Inadequate notice from the employee If an employee leaves without giving proper notice, the employer may be permitted by a modern award, enterprise agreement or contract of employment to deduct from the employee’s termination pay an amount equivalent to the wages that would have been earned in the notice period. However, the employee must be paid the full balance of any other money owed. Must employees give reasons? An employee is not obliged to give reasons for resignation. However, to be entitled to a pro rata long service payment on termination (under the Long Service Leave Act 1955 (NSW)), an employee with five to ten years' service must give a reason establishing that it was necessary for them to resign because of ill-health, or some pressing domestic or other necessity.

[22.220] Other termination

payments Termination pay should include wages owing, but also other payments such as untaken annual leave, loadings and long service leave.

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The actual amount owed may be in dispute, because entitlements can depend on the reason for the termination. Employees are legally entitled to a written notice of termination and a proper written breakdown of their termination pay. An employee or a person acting on the employee’s behalf can require the employer to make employee records available during employment or following termination of employment. See s 535 of the Fair Work Act and reg 3.42 of the Fair Work Regulations 2009. “Employee record” is defined in s 12 of the Fair Work Act.

[22.230] References and

separation certificates Employers do not have to give work references. However, it is common practice for employers to voluntarily provide at least a documentary statement certifying that the employee was employed between certain dates and indicating the employee’s job title. If employment is terminated, an employment separation certificate (in the form provided by Centrelink) must usually be obtained if the employee wishes to claim social security benefits. The employer must provide this on request. If the employer refuses to provide a separation certificate the former employee should inform Centrelink.

Unfair Dismissal [22.240]

Employment legislation throughout Australia has long contained provisions protecting workers against harsh and unfair dismissal. Accompanying the legislative provision is a large body of case law that aids in the interpretation of such provisions. The Fair Work Act contains protections against unfair dismissal in Pt 3-2 that are consistent with the historical development of unfair dismissal laws in Australia. Section 381(2) encapsulates the ethos of the unfair dismissal provisions, namely: “a fair go all round” for employees and employers. This expression was used by Justice Sheldon in Re Loty and Holloway v AWU [1971] AR (NSW) 95.

[22.250] Protections from

unfair dismissal Who can make an unfair dismissal claim? To be eligible to make an unfair dismissal claim, an employee must meet all of the following criteria:

• the employee was dismissed (in some instances a forced resignation or a demotion is considered a dismissal, see below) • the employee has completed the minimum employment period of: six months if employer is not a small business, or 12 months if employer is a small business • if the employee was a casual he/she must have been engaged on a regular and systematic basis for the minimum employment period and have a reasonable expectation of ongoing work • the employee earned less than the High Income Threshold ($138,900 from 1 July 2016, indexed annually), or the employee

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is covered by an award or enterprise agreement. Small business is defined in s 23 of the Fair Work Act as an employer that employs less than 15 employees including the employees of any associated entities. All permanent employees and casuals employed on a regular and systematic basis are counted.

Meaning of “dismissed” An employee has been dismissed if their employment has been terminated at the employer’s initiative or if the employee was forced to resign because of the conduct or course of conduct engaged in by the employer. The following events are not considered to be a dismissal: • the end of a fixed term contract • the end of a task based contract where the task is completed • the end of a seasonal contract when the season finishes • the end of the training arrangement, where employment was to be for the duration of the training period • demotion without a significant reduction in remuneration or duties.

Lodging the claim and time limits Applications must be filed with the Fair Work Commission (FWC). Applications must be filed within 21 days of the dismissal taking effect. The FWC has discretion to accept late applications, although it strictly enforces the time limit and only allows extensions of time in exceptional circumstances. Application forms are available from the FWC Registries or on the FWC website. The application must be filed by ordinary mail, online, email, fax or in person in the Registry. Great care must be taken in deciding whether to make an unfair dismissal or a general protections claim, as the FWC will usually not entertain an application to amend where it is made after 21 days from the dismissal. (General protections claims are discussed at [22.280]).

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Fees In the FWC there is a $69.60 filing fee (as at 1 July 2016), which must be paid except if the fee has been waived in cases of serious financial hardship. The FWC has a standard fee waiver application.

What is an unfair dismissal? A person has been unfairly dismissed if the FWC is satisfied that: • the person has been dismissed, and • the dismissal was harsh, unjust or unreasonable, and • the dismissal was not consistent with the Small Business Fair Dismissal Code (in the case of a small business employer who employs less than 15 employees), and • the dismissal was not a case of genuine redundancy.

Harsh, unreasonable or unjust dismissal A dismissal is unfair if it is harsh, unreasonable or unjust. In determining claims for unfair dismissal, the FWC will generally consider whether: • there was a valid reason for dismissal, related to the employee’s capacity or conduct • the employee was notified of that reason • the employee was given an opportunity to respond to any reason related to their work performance or conduct, ie afforded procedural fairness • the employee unreasonably refused to allow the employee to have a support person to assist at discussions relating to dismissal • the employee was given a warning of unsatisfactory performance before termination • organisational matters such as size of business, whether there is dedicated human resource management. Before an unfair dismissal hearing the parties should prepare to make submissions to the FWC on each of the above matters. The FWC will also take into account any other matters it considers relevant.

Small Business Fair Dismissal Code A Small Business Fair Dismissal Code applies under s 388 of the Fair Work Act.

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A small business employer is an employer with less than 15 employees based on a head count (this includes all permanent employees and casuals employed on a regular and systematic basis). Associated entities are treated as one entity (see s 23 of the Fair Work Act). The Fair Work Ombudsman (FWO) has created a checklist to make it easier for small business employers to comply with the Small Business Fair Dismissal Code. If a small business employer has dismissed an employee without notice — ie, with immediate effect — on the ground that the employee has committed serious misconduct that falls within the definition in reg 1.07 of the Fair Work Regulations, then it is necessary for the FWC to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code. In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element. The relevant case is Ryman v Thrash Pty Ltd [2015] FWCFB 5264 [41]. The Code states that if an employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal for serious misconduct such as theft, fraud, violence and serious breaches of occupational health and safety, summary dismissal may be justified without the employee being given an opportunity to respond to the allegation. If there is other conduct that is not serious misconduct the employer must give the employee a reason why she or he is at risk of being dismissed.

Genuine redundancy The dismissal is a case of genuine redundancy if: • the employer no longer requires the person’s job to be performed by anyone because of operational requirements of the employer’s enterprise, and • the employer has complied with any obligation in an award or enterprise agreement about consultation, and • it was not reasonable in all the circumstances for the employee to be redeployed within the employer’s or an associated entity’s enterprise.

Conciliation Most applications proceed firstly to telephone conciliation.

Settlement of the claim The most common form of settlement is financial compensation. Reinstatement is the primary remedy, but it is often the case the employee does not seek it or the employer refuses it. Other outcomes include: • reinstatement or re-employment with or without back-pay • retrospective resignation (where the employee is allowed to resign rather than be dismissed) • a reference or a statement of service. Settlements are invariably made without admissions of liability, and usually contain confidentiality provisions and nondisparagement obligations. Parties usually execute “terms of settlement” or a “deed of release” on settlement of an employee’s claim. Settlement agreements usually (although not always) prevent the employee from continuing or commencing further legal proceedings against the employer in relation to matters arising out of their employment, except for workers compensation personal injury claims and claims under superannuation legislation.

Jurisdictional issues If jurisdictional arguments are raised that the employee is not eligible to make a claim, the FWC can deal with the argument by

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way of arbitration before or after conducting a conciliation, or as part of the substantive arbitration.

Hearing If the matter is not settled by conciliation and is not discontinued, it is listed for hearing. During the hearing, the FWC hears evidence from both parties, and submissions on the law. The FWC is not bound by formal rules of evidence. If a party fails to attend a scheduled listing, the matter may be decided in their absence (an ex parte hearing). The civil standard of proof applies; that is, proof on the balance of probabilities.

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Costs Parties usually pay their own legal costs (if any). Orders for costs are available only if the application or response is vexatious, without reasonable cause or without reasonable prospects of success; or either party acts unreasonably. Costs can be claimed against lawyers or paid agents where there were no prospects of success and they encouraged the person to start, respond to, or continue the proceedings or if the lawyer or paid agent took an unreasonable act or omission and costs were incurred as a result. It is unusual for the FWC to order costs.

Appeals

Remedies If the applicant establishes a case of harsh, unreasonable or unjust dismissal, the FWC may order: • reinstatement to the person’s former position • re-employment in another position • compensation up to a maximum of 26 weeks pay. Orders for reinstatement and re-employment can be made together with orders for lost wages and continuity of service. The majority of cases where the applicant is successful result in an order for compensation. In assessing compensation, the Commission must consider whether the employee has made reasonable attempts to find another job, and what they would have earned if they had done so.

Representation A person may be represented by a legal practitioner only with the permission of the FWC, (see s 596 of the Fair Work Act).

If either party is dissatisfied with the decision of the FWC, they may appeal the decision with the permission of the Fair Work Commission. There is a 21-day time limit to lodge an appeal, unless an extension is granted. The FWC must grant permission to appeal if it is satisfied that it is in the public interest to do so. Grounds for appeal are error of law or significant error of fact.

More information The FWC website at www.fwc.gov.au has a number of documents that provide information about unfair dismissal proceedings, including fact sheets, practice notes and an Unfair Dismissals Bench Book. The LawAccess NSW website at www.lawaccess.nsw. gov.au also provides information and step by step guides.

Claims for underpayment Where there are underpayments, it is common for there to be a settlement of the underpayment claim as well as the unfair dismissal. However, the FWC cannot determine an underpayments claim. The Federal Circuit Court, Federal Court or Chief Industrial Magistrates Court can determine claims of underpayments. There is a six-year

time limit. Section 548 of the Fair Work Act provides for a simple small claims procedure for employee entitlements in the Federal Circuit Court, where up to $20,000 can be claimed. Information about making a small claim is available at the website of the Fair Work Ombudsman: www.fairwork.gov.au.

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Protection of employees [22.260] “General protections”

in the Fair Work Act The “general protections” are provisions of the Fair Work Act that deal with a range of related protections for most employees and employers. They also protect prospective employees and employers, independent contractors and those they contract with, and unions. Even third persons are protected where action has been taken against a third person because of the conduct of another. The general protections protect: • workplace rights (eg protection against being dismissed for asking for pay slips) • temporary absence due to illness or injury • the right to engage in industrial activities (eg by ensuring that employees are free to join a union) • against workplace discrimination (eg where an employee is denied training opportunities because of, for example, being pregnant or having a disability), and • against sham arrangements (where an employer hires a person as an independent contractor when it is actually an employment relationship). Three of the key protections are considered in more detail below. The general protections protect against “adverse action” being taken against a person. Adverse action includes: • dismissing an employee • altering the position of an employee to the employee’s prejudice • discriminating between the employee and other employees • discriminating against a prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee • refusing to employ a person • terminating an independent contractor’s contract

• altering the position of an independent contractor to her or his prejudice • refusing to engage an independent contractor, and • taking unauthorised industrial action against an employer. Threatening and organising adverse action are also covered by the protections.

Workplace rights In summary, this protection prohibits a person (eg an employer) taking adverse action against another person (eg an employee) because that person (the employee) has a workplace right. The term “workplace right” includes many employment rights, such as a right under a modern award or other industrial instrument, the right to participate in industrial action or a hearing held by the FWC, and even the right to make a complaint or inquiry in relation to one’s employment (such as the right to complain to an employer or to the FWO about under payment of wages). Accordingly, where (for example) an employer cuts an employee’s hours because the employee called the FWO and complained about underpayment of wages, the employee would have a claim under the general protections.

Protection from workplace discrimination This protection prohibits an employer taking adverse action against a person who is an employee, or prospective employee, because of the person’s: • race • colour • sex • sexual orientation • age • physical or mental disability • marital status • family or carer’s responsibilities • pregnancy.

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There are certain exceptions to this protection, such as where the employer’s action was taken because of the inherent requirements of the job. Due to the operation of s 351(2)(a) of the Fair Work Act, NSW employees who claim to have been terminated because of their religion, political opinion or social origin must bring their claim under s 772 rather than s 351: see McIntyre v Special Broadcasting Services Corporation [2015] FWC 6768.

Temporary absence due to illness or injury This protection prohibits an employer dismissing an employee because the employee is temporarily absent from work due to illness or injury, where the employee has provided a medical certificate and has not had more than three months of unpaid sick leave in the last year. This protection does not prohibit an employer from dismissing a person who is temporarily absent due to illness or injury – it merely prohibits an employer from dismissing a person because of those circumstances.

Onus Once the employee proves the facts which provide the basis for the employer’s alleged misconduct, the onus in general protections matters is on the employer to prove that the adverse action they took was not because of any of the prohibited reasons discussed above.

[22.270] Unlawful termination The unlawful termination provisions in the Fair Work Act also apply to most employees. Many of the provisions restate the general protections, eg an employee cannot be terminated for being temporarily absent from work due to illness. Importantly, where based on the relevant facts a claim can be made both under the general protections provisions and the unlawful termination provisions, the person must apply under the general protections provisions. (See s 723 of the Fair Work Act).

755

Under the unlawful termination provisions, an employer must not terminate an employee for any of these reasons: • the employee was temporarily absent from work because of illness or injury • union membership or non-membership, or being involved in trade union activities outside working hours • seeking to be, or being, a representative of employees • making a complaint about an employer or being involved in complaint proceedings where it is alleged that the employer has contravened the law • race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin (as with the general protections there are exceptions, eg where the reason is based on the requirements of the job) • absence from work due to maternity or parental leave, and • reasonable temporary absence from work for voluntary emergency management activities.

Onus The onus in an unlawful termination matter is on the employer to prove that the adverse action taken was not as a result of any of the prohibited reasons above.

[22.280] Enforcement of the

general protections and unlawful termination provisions A person alleging a contravention of the general protections that has led to a termination of employment, or an unlawful termination, must apply to the FWC within 21 days of the dismissal taking effect, unless the person seeks an injunction. In the case of an injunction, an application can be made directly to the Federal Court or the Federal Circuit Court. Great care must be taken in deciding whether to make a general protections claim (in the case of a dismissal) or an unfair

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dismissal claim, as the FWC will usually not entertain an application to amend where it is made after 21 days from the dismissal. Application forms are available from the FWC Registries or on the FWC website. The application must be filed by ordinary mail, email, fax or in person in the Registry. Where a contravention of general protections does not result in dismissal, a person has six years from the date of the contravention to make a claim to a Federal Court or Federal Circuit Court. The limitation period is found in s 544 of the Fair Work Act (it is still possible to firstly make an application to the FWC before making a claim in the courts). An allegation of a contravention of the general protections, or unlawful termination, is usually dealt with by the FWC through a conference. If the matter is not resolved at a conference the FWC will issue a certificate in matters involving a dismissal. The applicant then has 14 days to make an application to the Federal Court or Federal Circuit Court. The Federal Court and the Federal Circuit Court have identical jurisdictions in regards to enforcing the general protections. The Federal Court can hear appeals from the Federal Circuit Court.

If the parties agree, the general protections application can be dealt with by the FWC in a consent arbitration hearing. This may lead to a quicker and cheaper remedy, however the FWC has no power to award penalties. It is limited to granting reinstatement and/or compensation. The remedies available from the Federal Court and the Federal Circuit Court are: • compensation for loss suffered because of the contravention including economic and non-economic loss • reinstatement • an injunction to stop or remedy the effects of the contravention or threatened contravention • penalties - a maximum $54,000 for a body corporate and $10,800 for an individual.

More information The FWC website at www.fwc.gov.au has a number of documents that provide in depth information about general protections proceedings, including fact sheets, practice notes and a General Protections Benchbook.

Other discrimination laws [22.290] Unlawful

discrimination This part deals very briefly with discrimination laws other than the general protections found in the Fair Work Act. Discrimination at work occurs when factors unrelated to a person’s ability to do the job are used to treat that person differently in determining whether, for example, they should be hired, promoted or dismissed. Anti-discrimination laws apply to employees and employers, but also to commission agents and contract employees. They extend to a wide range of employmentrelated situations, including discrimination

by private employment agencies, trade unions and qualifying bodies such as licensing boards.

Federal anti-discrimination law Federal legislation prohibits discrimination in employment on grounds including race, sex, pregnancy, sexual orientation, gender identity, intersex status, marital or relationship status, disability, family responsibilities, age, religion, political opinion, trade union activity and criminal record. Federal discrimination law also prohibits offensive behavior based on race, colour or national or ethnic origin and sexual harassment. Complaints about breaches of federal discrimination laws can be made to the Australian Human Rights Commission. Generally com-

22 Employment

plaints must be made within 12 months from when the discriminatory conduct took place.

NSW anti-discrimination law NSW legislation prohibits discrimination in employment on grounds including race, sex (including pregnancy), transgender status, marital or domestic status, disability, carer’s responsibilities, homosexuality and age. NSW discrimination law also prohibits vilification on the grounds of race, transgender status, homosexuality, HIV/AIDS status and sexual harassment. Complaints about breaches of State discrimination laws can be made to the Anti-Discrimination Board of NSW. Generally complaints must be made within 12 months from when the discriminatory conduct took place.

757

Choosing a jurisdiction Because there are overlapping federal and state discrimination laws, employees need good advice about the most appropriate agency with which to lodge a discrimination claim. This is very important, because it may not be possible to transfer a complaint from one agency to another. Also, it is usually not possible to make multiple discrimination claims arising from the same event. The choice of jurisdiction will depend on the circumstances of the case and the remedy the person is seeking. Information about commencing proceedings is available from the Australian Human Rights Commission, the NSW Anti-Discrimination Board, unions, LawAccess NSW, Legal Aid NSW and Community Legal Centres

State and federal anti-discrimination legislation is discussed in detail in Chapter 17, Discrimination.

Registered industrial organisations [22.300]

The Fair Work (Registered Organisations) Act 2009 (Cth) regulates the operation of registered organisations representing the interests of employees and employers. Generally unions represent member workers and employer associations represent member employers.

[22.310] Unions Unions are legally registered organisations representing the interests of employees working in the same or related industries or occupations. In NSW there is a union for most occupations. Someone who is unsure of what union they can join should contact Unions NSW: www.unionsnsw.org.au. All employees in Australia are entitled to be union members unless excluded through union rules. No person can be forced to become, or remain, a union member.

Industrial rights and contraventions The general protections in the Fair Work Act protect certain union related industrial activities. It is a contravention of the Fair Work Act general protections to take adverse action against an employee or prospective employee because the person: • is or was a union official, or some other elected representative of employees • is or is not a union member. The Federal Court and the Federal Circuit Court can make a wide range of orders to enforce the provisions concerning victimisation on these grounds. It is also a contravention for a union to seek bargaining service fees.

Union structure The structures and policy-making procedures of most unions follow similar patterns: • the elected executive generally manages the union’s activities and implements policy

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• the general secretary or president has overall responsibility for the union’s affairs • organisers and industrial officers are responsible for recruitment of members and general industrial matters • members elect their own local representatives (workplace delegates).

Union rules Unions are subject to their own internal rules dealing with such matters as: • eligibility • conditions of membership • resignation • expulsion.

Fees Employees may arrange for union fees to be automatically deducted from their wages. However, unions recommend that employees pay their union fees by direct debit. In this way employees may keep their union membership confidential from their employer if the employee chooses. Union fees are tax deductible.

Dealing with workplace problems A member of a union who has a problem in the workplace should either contact their workplace union delegate or contact the union office directly.

Membership rights Unions are democratic organisations. Members have rights to participate and be involved in the work of their union in numerous ways such as voting and seeking election for office. A member of a union is also entitled to access information, records and documents such as: • union rules (as varied from time to time) • financial records • union books (see s 280 of the Fair Work (Registered Organisations) Act 2009 (Cth)) A member who makes certain disclosures may be protected by Pt 4A “Protection of Whistle Blowers” of the Fair Work (Registered Organisations) Act 2009 (Cth) which also contains an entitlement not to be victimised and provision for compensation.

Safety [22.320] Health and safety at

work Many NSW statutes, regulations and codes of conduct deal with health and safety requirements at work. In July 2008 an agreement was made between the Commonwealth and all states and territories (except Western Australia) to implement harmonised work health and safety laws. The Work Health and Safety Act 2011 (Cth) came into effect on 1 January 2012 and replaced the occupational health and safety laws in NSW. More detailed information about work health and safety laws is available from SafeWork NSW.

Employers' responsibilities Generally, employers must ensure the health, safety and welfare of their employees by:

• providing and maintaining a safe workplace, facilities, plant and work systems • ensuring the safe use, handling, storage and transport of equipment or substances • providing proper information, instruction, training and supervision.

Employees' responsibilities Employees also have responsibilities to take reasonable care for the health and safety of people at the workplace, and must cooperate with initiatives designed to ensure safety at work. Failure to do so may be a breach of legislation.

If an injury or illness occurs An employee who suffers a work-related injury or illness should, as soon as possible: • notify the employer (or former employer) • see a doctor and get a SafeWork NSW medical certificate, and

22 Employment

• complete an employee’s compensation claim form and submit it with the SafeWork NSW medical certificate to either the employer or the employer’s compensation insurer.

759

Who is covered?

It is illegal to victimise or dismiss an employee for: • raising a health and safety complaint • being on a health and safety committee. See Pt 6 of the Work Health and Safety Act which deals with discriminatory, coercive and misleading conduct. It will also be a breach of the Fair Work Act general protections to take adverse action against an employee for making a safetyrelated notification or complaint, or for making a workers compensation claim.

The conduct must occur at work. Employees covered by a corporation or the Commonwealth Government as well as some maritime employees are covered by the laws. Employees employed by non-corporations, NSW public sector and local government employees are not covered. The definition of “worker” for the purposes of the anti-bullying laws is broad and mirrors that contained in the Work Health and Safety Act. Worker includes any individual who does work such as employees, contractors, subcontractors, volunteers (though not those volunteering in “whole volunteer organisations”) or students on placement. There are notable exceptions such as defence force personnel.

Ceasing work

What is bullying?

Victimisation

A worker has a right to cease or refuse to undertake work if they have a reasonable concern that doing the work would expose them to a serious risk to their health and safety, or if directed to cease unsafe work by a health and safety representative. If work is stopped because of a health and safety issue, employees should be prepared to (for example) move to a safe place and perform other suitable work if required.

[22.330] Bullying and

harassment On 1 January 2014, a new “bullying” jurisdiction commenced in the FWC. The new laws allow an employee or a group of employees who have been bullied at work to apply to the FWC for an order for the bullying to stop. A bullying complaint can be made even where an employee has made or proposes to make other complaints such as a workers compensation claim, discrimination or general protections claim. The anti-bullying laws are set out in Pt 6.4B of the Fair Work Act. The laws only apply to bullying conduct that occurred at work after 1 January 2014. Applications for “Bullying Stop Orders” are made using Form 72 on the FWC website.

Bullying is defined in s 789FD of the Fair Work Act as “repeated”, “unreasonable” conduct on the part of an individual or group, towards an employee or a group of employees, and that the bullying behaviour creates a risk to health and safety. Examples of bullying behaviour are aggressive or intimidating conduct, belittling or humiliating comments, malicious gossip, practical jokes, initiation rites, victimisation, exclusion from work events, and unreasonable work expectations. The test for “unreasonable” is an objective test. That is, would a reasonable person think it unreasonable in the circumstances? It need not be the same kind of bullying conduct in each instance in order for it to be considered “repeated”. Also, there need not be evidence of actual harm to the worker or employees as a result of bullying, rather there must be evidence of a “real” risk to health and safety. For these laws to apply, the bullying behaviour must happen at work. The term “at work” is not defined in the bullying laws but the term has been given a broader meaning in the Work Health and Safety Act. It attaches to work activity rather than a particular workplace or premises though it is not confined to work activity and so

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might include bullying conduct during meal breaks, travel time etc. Importantly, “reasonable management action” that is carried out in a “reasonable” manner is not bullying (see s 789FD(2) of the Fair Work Act). Examples of management action are performance appraisal and performance management, misconduct investigations and counselling for misconduct, and denying a worker a benefit. Again, what is “reasonable” will be an objective test determined by the facts that apply before, during and after the management action. Given this low threshold, management action that is less than best practice may still be “reasonable” in all the circumstances.

The role of the Fair Work Commission The FWC will start to process a Bullying Stop application within 14 days of filing. No time limit applies to making an application to the FWC. The FWC will notify the employer and any individual who may be identified by the applicant as a “bully” in the application. The FWC has the power to dismiss an application for a range of reasons such as want of jurisdiction or the application is defective or vexatious. The application fee is $69.60 (as at 1 July 2016). The filing fee can be waived in circumstances of financial hardship – the form for fee waiver is also available on the FWC website. The FWC will inform itself of the stop bullying claim by either a conference or by way of hearing through receiving the evidence of witnesses, documentary evidence, submissions, research etc. The rules of evidence do not apply. The FWC proceedings will generally be held in private. The FWC also has powers to

make orders about confidentiality, deidentifying parties, who may or may not attend the conciliation conference or hearing, and prohibit publication of reasons for the decision etc. Given the sensitive nature of some of these bullying applications, conciliation conferences may provide an effective and appropriate forum for employees to have their bullying complaints dealt with externally.

Remedy If the FWC finds that an employee or group of employees have been bullied and that there is a risk that the bullying will continue, then the Commission has broad powers to make orders for the bullying to stop. If orders are to be made the FWC must have regard to any other investigation or process and the outcome of that process. Examples of the orders that can be made are: • that an individual or group stop bullying behaviour • a review of, or compliance with, a bullying policy • that anti-bullying training be provided and so on. The FWC cannot make orders for compensation or reinstatement (in response to this type of application). Orders can be made against the applicant, the applicant’s employer or any other individual identified in the bullying stop application. NSW public sector and local government employees who experience bullying at work can avail themselves of the protections within the Work Health and Safety Act. All employees can complain to SafeWork NSW about bullying and harassment and SafeWork NSW may investigate the complaint. However, SafeWork NSW does not have powers to make orders in the way that the FWC does.

22 Employment

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Children [22.340] Employment of

children The Children and Young Persons (Care and Protection) Act 1998 (NSW) and the Children and Young Persons (Care and Protection) (Child Employment) Regulation 2015 (NSW) regulate the employment of children under 16 years of age for all types of modelling, and children under 15 years of age for entertainment, exhibition, still photography or door-to-door sales work. The Industrial Relations (Child Employment) Act 2006 may also be relevant in NSW to the extent that it deals with times at which (or periods during which) a child may be employed. For further information on the regulation of child employment, contact the Children's Guardian or visit its website at www.kidsguardian.nsw.gov.au.

Working with Children Check Clearances People who work or volunteer in child related work require a Working with Children Check Clearance (WWCC). A WWCC is issued by the Office of the Children’s Guardian (Children’s Guardian). The Children’s Guardian administers the Child Protection (Working with Children) Act 2012 (NSW) (the Act). The purpose of the Act is to identify persons who pose a risk to children. Section 4 of the identifies that the paramount consideration when making a decision under the Act is “the safety, welfare and well-being of children and, in particular, protecting them from child abuse”. Once the Children’s Guardian receives an application, a criminal record and database check is completed to identify whether the applicant has been charged or convicted of either a Schedule 1 or Schedule 2 offence

under the Child Protection (Working with Children) Act 2012. Findings of misconduct by a reporting body and notifications made by the NSW Ombudsman are also considered. If no relevant offences or triggers are identified then the clearance will be granted. If a Schedule 1 trigger is identified, then the Children’s Guardian will perform a risk assessment to determine if the applicant poses a risk to the safety of children. The applicant may be asked to provide further information during this process and should consider obtaining legal advice before doing so. If an unacceptable risk is identified by the Children’s Guardian then the applicant will be disqualified from working with children and a bar imposed. If a Schedule 2 offence is identified then the person will be automatically disqualified from working with children and a bar imposed. The Children’s Guardian may also impose an interim bar, which prevents the applicant from working with children while it is making its final determination. If an interim bar is still in place after six months, an appeal can be made to the NSW Civil and Administrative Tribunal (NCAT) to lift the interim bar. Both a clearance and a bar last five years. If an applicant is refused a WWCC clearance or a clearance is cancelled, they may generally appeal that decision to NCAT within 28 days. NCAT may overturn the Children’s Guardian decision by making an enabling order if it forms the view that the applicant is not a risk to children, which allows the applicant to obtain a WWCC clearance. Under s 26, people with certain convictions are not entitled to appeal. For more information, see www.kidsguardian. nsw.gov.au/working-with-children/ working-with-children-check.

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The public sector [22.350] Public sector

employment Public sector employees are employed by one of the three levels of government. The major relevant legislation is the: • Public Service Act 1999 (Cth) and the Fair Work Act – in the case of public servants employed by the Australian Government • Government Sector Employment Act 2013 (NSW) and the Industrial Relations Act 1996 (NSW) - in the case of public servants employed by the NSW Government • Ch 11 of the Local Government Act 1993 (NSW) and the Industrial Relations Act 1996 (NSW) – in the case of local government employees in NSW. In addition to the above legislation, numerous other statutes, regulations, statutory instruments, and industrial instruments apply. For example, in the case of NSW public servants there are a number of key awards made by the Industrial Relations Commission of NSW, which include the: • Crown Employees (Public Service Conditions of Employment) Award 2009

• Crown Employees (Public Sector – Salaries 2008) Award. The Industrial Relations Commission of NSW has power to hear disputes involving NSW public sector and local government employees. This includes jurisdiction to hear unfair dismissal claims and victimisation claims, both of which have a 21 day time limit. Public sector employees may have additional options that are not outlined here, and should seek legal advice about their particular circumstances. More information is available on the Industrial Relations Commission of NSW website: www.irc.justice.nsw.gov.au. More information is available about the law as it relates to NSW public service employment at the website of the NSW Public Service Commission: www.psc.nsw.gov.au. More information is available about the law as it relates to (federal) Australian Public Service employment at the website of the Australian Public Service Commission: www.apsc.gov.au.

22 Employment

763

Contact Points [22.360]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au. Anti-Discrimination Board of NSW

Children’s Guardian, Office of

www.irc.justice.nsw.gov.au

www.kidsguardian.nsw.gov.au

ph: 9258 0866

www.antidiscrimination.justice. nsw.gov.au

ph: 8219 3600

LawAccess NSW

Comcare Australia

www.lawaccess.nsw.gov.au

www.comcare.gov.au

1300 888 529

ph: 1300 366 979

Legal Aid NSW

NSW OHS Unit

www.legalaid.nsw.gov.au

ph: 1300 366 979

ph: 9219 5000

Community legal centres

NSW Industrial Relations

A list of community legal centres is in the Contact points for Chapter 4, Assistance with Legal Problems.

www.industrialrelations.nsw. gov.au

ph: 1800 670 812 or 9268 5544 Newcastle ph: 4903 5300 Wollongong ph: 4267 6200 Australian Council of Trade Unions www.actu.org.au ph: 1300 362 223 or (03) 9664 7333 Australian Human Rights Commission

Fair Work Commission

www.humanrights.gov.au

ph: 1300 799 675

ph: 9284 9600

Fair Work Ombudsman

Complaints

www.fairwork.gov.au

[email protected]

ph: 13 13 94

ph: 1300 656 419

Federal Court of Australia

Australian Public Service Commission (APSC)

www.fedcourt.gov.au

www.apsc.gov.au

Federal Circuit Court

ph: 8239 5300

www.federalcircuitcourt.gov.au

Australian Unions

ph: 9230 8567

www.australianunions.org.au

Industrial Relations Commission (NSW)

ph: 1300 3486 466

www.fwc.gov.au

Registry ph: 9230 8567

(including Industrial Registry)

ph: 131 628 Public Service Commission www.psc.nsw.gov.au ph: 9272 6000 SafeWork NSW www.safework.nsw.gov.au ph: 13 10 50 State Insurance Regulatory Authority (SIRA) www.sira.nsw.gov.au Unions NSW www.unionsnsw.org.au ph: 9881 5999 Workers Compensation Commission www.wcc.nsw.gov.au ph: 1300 368 040

23 Environment and Planning Graeme Wiffen

Ian Ratcliff Formerly of the School of Law, Macquarie University

Contents [23.20]

Planning controls

[23.360]

Heritage protection

[23.30]

Environmental planning instruments Development consent under Parts 4 and 4.1 of the Act

[23.370]

Heritage laws

[23.400] [23.570]

Heritage in NSW Pollution

Environmental assessment under Parts 5 and 5.1 of the Act

[23.580]

Pollution regulation

[23.630] [23.650]

Offences and enforcement Taking action

[23.660]

Strategies for action

[23.700]

Going to court

[23.100] [23.240] [23.290]

Threatened species conservation

[23.320]

Federal legislation

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[23.10]

This chapter looks at various aspects of our environment and the laws relating to it: how land use is planned and controlled, how heritage is recognised and

protected, the laws relating to pollution, and what a person can do if they want to take action on an environmental issue.

Planning controls [23.20]

The usual aim of land use planning controls is to try to find a balance between competing interests in land. This can be very difficult. There may be competing environmental and developmental interests to resolve, or competing local and state interests – and because land use planning affects people’s lives in a very direct way, passions often run high. Planning in NSW reflects these tensions. The main Act dealing with land use planning in NSW is the Environmental Planning and Assessment Act 1979 (NSW), which imposes planning controls at two levels.

The first level is a broad “forward planning” level driven by environmental planning instruments (EPIs). EPIs set out the general planning requirements for the area they apply to. The second level is a site-specific level, at which development consent or some other type of approval may be required for a particular development. This is often referred to as development assessment or development control.

Environmental planning instruments [23.30]

Environmental planning instruments (EPIs) are dealt with in Pt 3 of the Environmental Planning and Assessment Act. They set out the general planning requirements for the area they apply to. People need to know what these requirements are if, for example, they are buying or selling land, having a dispute with a neighbour, trying to stop a development from going ahead or planning their own development proposal.

[23.40] Types of EPIs There are two types of EPIs: • state environmental planning policies (SEPPs), and • local environment plans (LEPs). SEPPs and LEPs can apply to the same piece of land. Until 2009, there was also an EPI called a Regional Environmental Plan. These are no longer made and existing REPs have either been repealed or changed into SEPPs. REPs have also been replaced by “regional

strategies” that have no legal force but are intended to set the agenda for planning decisions in regional areas.

If there is inconsistency Where there is inconsistency, a SEPP prevails over a LEP. SEPPs can also amend the provisions of a LEP. The provisions of EPIs are legally binding on government and developers in relation to the land to which they apply. Environmental shorthand • DA: development application • EIS: environmental impact statement • OEH: Office of Environment and Heritage, (formerly known as the Department of Environment, Climate Change and Water and incorporating the National Parks and Wildlife Service) • EPA: Environment Protection Authority • EPI: environmental planning instrument • LEP: local environmental plan • SEPP: state environmental planning policy • DCP: development control plan

23 Environment and Planning

[23.50] State environmental

planning policies State environmental planning policies (SEPPs) set out the planning controls that

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the Minister for Planning believes are of state or regional significance. They are prepared by the Department of Planning and Environment at the direction of the minister.

Examples of SEPPs Some SEPPs are: • SEPP 1, which allows for a relaxation of development standards, such as height restrictions. A developer may be able to get consent even though some standards set by an EPI are not met, as long as its objectives are met • SEPP 14, which provides protection for coastal wetlands • SEPP 19, which provides protection for urban bushland • SEPP 26, which seeks to protect coastal rainforest • SEPP 33, which regulates hazardous and offensive development • SEPP 44, which seeks to protect koala habitat • SEPP 55, which regulates the remediation of contaminated land • SEPP 71, which regulates coastal development

[23.60] Local environment

plans LEPs are generally prepared by local councils. However, the minister can also direct the Department of Planning and Environment or a Joint Regional Planning Panel to make a LEP in certain circumstances. LEPs are approved by the Minister for Planning, and may apply to all or part of the land under a council’s control. They are the main instruments used to control development in a local area. LEPs may be affected by SEPPs; it is always necessary to check any SEPP that may be relevant.

What LEPs do LEPs divide land into different zones and indicate what types of development are allowed in each zone.

• SEPP (Housing for Seniors or People with a Disability) 2004, which aims to increase the supply of housing for older people and people with disabilities SEPP (Infrastructure) 2007, which expands the areas in which particular classes of infrastructure development can occur, with or without development consent • SEPP (Mining, Petroleum Production and Extractive Industries) 2007, which contains particular rules for assessing the development of those resources SEPP (Exempt and Complying Development Codes) 2008, which aims to provide streamlined assessment processes for development that complies with specified development standards. SEPPs often operate by changing the application of a LEP – for example, by removing development restrictions or imposing consent requirements that do not exist under the LEP.

Spot rezoning If a LEP prohibits development in a particular area, developers sometimes ask councils to rezone the relevant site to allow the development to go ahead. This is called spot rezoning.

Reserving land for public purposes An EPI can reserve land for public use such as a park, road or school. Public land owned or managed by a local council must be classified as either community land or operational land under the Local Government Act 1993 (NSW). Community land is ordinarily land open to the public, such as a park, bushland reserve or sportsground, while operational land may be held by the council as an asset or used for other purposes such as a works depot or garage. A council must make a plan of management for every piece of community land in its area. If an EPI reserves privately owned land, that land must be kept or acquired for the reserved purpose, and the EPI must state:

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• which public authority must acquire it • how the owner can take action to have it acquired. The acquisition value of the land is based on what the land would be worth if it were not reserved.

[23.70] Making EPIs Because EPIs establish principles and legal rules for future development, it is important that the community is aware of proposals to create or amend them. The procedure for making EPIs varies slightly between SEPPs on the one hand, and LEPs on the other. The details of these procedures are found in Pt 3 of the Environmental Planning and Assessment Act and Pt 2 of the Environmental Planning and Assessment Regulation 2000 (NSW). Standardising LEPs From 31 March 2006, LEPs were required to be prepared in accordance with the Standard Instrument (Local Environmental Plans) Order 2006 (NSW). This document prescribes the form and content of LEPs throughout NSW. The standard LEP instrument contains standard definitions, zones, clauses, land use table and format that all local councils in NSW are required to adopt in a new principal LEP for their entire local government area. The standard LEP includes mandatory and optional provisions. All LEPs must incorporate the mandatory provisions before they can be publicly exhibited or recommended for gazettal.

SEPPS SEPPs can be prepared by the Minister for Planning and approved by the Governor without being advertised or being put out for public comment. The minister may provide for public participation, but is not obliged to do so. When they take effect SEPPs take effect when they are published on the NSW legislation website (www. legislation.nsw.gov.au).

LEPS When a draft LEP is being prepared, a number of additional steps must be taken.

The procedures for LEPs were changed in July 2009 and the following summary relates to any LEP proposed after that date. Planning proposal The local council or other relevant planning authority must first prepare a planning proposal that explains the intended effect of the proposed LEP and sets out the justification for making it. This will include the objectives, an explanation of the provisions in the proposed LEP, draft maps and the proposed community consultation process. Gateway determination The planning proposal will be sent to the Minister for Planning. The minister will decide at this stage whether the LEP should proceed and what the environmental assessment and community consultation process will be for the LEP (if any). Community consultation If the minister decides that there should be some form of community consultation, the planning proposal must be made publicly available. A summary of the detailed provisions can be published, if this provides sufficient detail for the purpose of community consultation. There is no minimum period specified for community consultation. This will depend on the decision of the minister. During the consultation period, members of the public can make a written submission to the planning authority. Public hearings At the discretion of the relevant planning authority, the community consultation period for LEPs may be followed by a public hearing. The planning authority only has to consider holding a public hearing if a person requests it in their submission. Consideration of public submissions The planning authority will consider any public submissions and any report from a public hearing. It may decide to make changes, based on those submissions or other factors, and the draft LEP may then be submitted to the minister for approval.

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When they take effect LEPs take effect when they are published on the NSW legislation website (www. legislation.nsw.gov.au).

Procedural appeals must be commenced within three months of the EPI being published on the NSW legislation website (www.legislation.nsw.gov.au).

Making a submission

[23.80] Finding out which EPIs

There is no particular format for public submissions about EPIs; a letter setting out a person's point of view will do. See Taking action at [23.650] for hints on organising and setting out such a letter.

Appeals Appeals on the merits It is not possible to appeal the making of an EPI on the merits (or facts). For example, a member of the public has no right of appeal against the content of an EPI on the basis that it provides inadequate environmental protection. Nor can a developer appeal on the facts against a decision to refuse an application for a spot rezoning. Procedural appeals Under s 123 of the Environmental Planning and Assessment Act it is possible for any person to mount a procedural appeal against an EPI. This is called seeking judicial review; it challenges the validity of the EPI on the basis that there has been a breach of the requirements that apply to the making of the EPI.

apply To find out which planning instruments apply to a particular piece of land, a person can apply to the local council for a section 149 certificate (so called because they are described in s 149 of the Environmental Planning and Assessment Act). Councils will charge a fee to provide this certificate. Further details, or information about larger areas, can be obtained from the council, which should keep a copy of all relevant current EPIs and development control plans (DCPs) (see Other planning instruments at [23.90]). The council should also have a master map showing current zonings and other controls. These are all available for public inspection at council premises during business hours. The full text of most environmental planning instruments and their maps is available online at www. legislation.nsw.gov.au. Most councils' LEPs and DCPs are also available on their websites.

Uses of public land People are sometimes concerned when a council leases out part of a park to a private entity. On the other hand, a community group or sporting club may wish to lease an area of public land.

This classification is important as it determines the degree of difficulty with which land may be taken from public use by sale, leasing or other means.

Community and operational land

Community land may not be sold, nor may it be leased or licensed for more than 21 years.

Under the Local Government Act 1993 (NSW), land under the “care, control and management” of a council must be classified as either community or operational land. (There are a number of exceptions to this, including public roads and land regulated by the Crown Lands Act 1989 (NSW).) Community land (for example, a public park) has to be kept for use by the general public, while operational land (for example, land held as an investment, or a council works depot) does not.

Restrictions on use of community land

It may only be leased or licensed for more than five years if public notice of the proposed lease or licence is given and, where objections are received, the Minister for Local Government gives consent. No such restrictions apply to operational land. Reclassification of community land Community land may be reclassified as operational land by a LEP or, rarely, by council resolution. In either case public notice must be given and a public hearing held into the proposed reclassification.

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Management of community land The use and management of community land must be regulated by a plan of management. Until a plan of management is adopted, the nature and use of the land may not change. The plan of management must categorise relevant areas of the land under categories such as bushland, park and “general community use”. Core objectives are set out for the management of each category of land, and a plan of management can set

[23.90] Other planning

further objectives for particular areas of land. The plan of management is also required to set out performance standards for the management of the land, and the means by which these standards can be achieved. Community land must be used and managed in accordance with the plan of management that applies to it. Under the Local Government Act, anyone can bring an action to enforce provisions of the plan.

Ministerial directions

There are a number of other types of planning instruments. For example, some councils still use planning scheme ordinances and interim development orders, which were local planning instruments in force before the Environmental Planning and Assessment Act was passed in 1979. These are known as deemed EPIs, and are legally binding instruments.

The Minister for Planning can direct a council under s 117 of the Environmental Planning and Assessment Act to prepare a draft LEP to include provisions that give effect to state planning aims, principles and policies. Councils are required to consider and give effect to the minister’s directions when preparing a draft LEP. There is a standard set of s 117 directions that are published on the Department of Planning and Environment’s website (www.planning. nsw.gov.au).

Development control plans

State of the environment reports

Development control plans (DCPs) are planning documents that deal with the matters raised in LEPs, but in more detail. They are not EPIs. They are used as a guide to the application of LEPs. They are not legally binding, but they must be taken into account when a development application is being considered. DCPs often set out development standards and restrictions that development must comply with, such as restrictions on the height of buildings, floor space ratios, building setbacks, minimum block sizes, vegetation clearance, or development on a foreshore or in a heritage area. They may also identify when development is required to be advertised or notified. DCPs are usually made by councils without the involvement of the Department of Planning and Environment. However, the Minister for Planning can direct a local council to make, amend or revoke a DCP. The procedures for making them are set out in Pt 3 of the Environmental Planning and Assessment Regulation 2000 (NSW).

The Local Government Act requires councils to prepare annual state of the environment reports, which must address various environmental issues. These often come in a “state–pressure–response” format, citing the state of the environment, the pressures on the environment, and management responses to the pressures.

instruments Deemed EPIs

Plans of management The Local Government Act requires a plan of management for most public reserves controlled by councils. The plan sets out a framework for activities on the land, and governs the leasing and licensing of the land (see Uses of public land at [23.80]). Strategic plans The Department of Planning and Environment has introduced a number of strategic plans that councils are required to implement when preparing draft LEPs. They include the Sydney Metropolitan Strategy, which covers Sydney, the Central Coast and the Hunter, as well as regional strategies for other parts of NSW.

23 Environment and Planning

Councils are also required to create their own strategic plans to implement state and regional planning priorities in their local areas.

Existing uses If land is being used for a particular purpose and that use becomes prohibited under an EPI, the use can usually continue, subject to some restrictions.

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Existing use rights attach to the land and not the owner, and so may pass from one owner to another. If a use is abandoned for a continuous period of 12 months, it lapses (although this presumption can be overridden in some circumstances), and the land can then only be used in the ways permitted by the new EPI.

Development consent under Parts 4 and 4.1 of the Act [23.100]

Development consent is an approval allowing development to be carried out on land.

[23.110] Consent authorities The body responsible for giving development consent is often the local council. However, the Minister for Planning, the Planning Assessment Commission or the Joint Regional Planning Panel will sometimes be the consent authority (see State significant development at [23.150]). What is development? Development is defined as: • the use of land • the carrying out of work • the erection or demolition of buildings • the subdivision of land • anything else regulated by an EPI.

[23.120] Is development

consent needed? To find out whether a development requires consent, it is necessary to check all the relevant EPIs, particularly LEPs. As already mentioned, LEPs generally divide land into different zones and indicate what types of development are allowed in each. They usually divide development into three broad categories: • development permitted without consent (ie, it does not require planning approval under Pt 4 of the Act) • development permitted with consent (ie, development that does require planning approval under Pt 4 of the Act) • prohibited development (ie, development that is not permitted under any circumstances, but see box below).

The minister's power to approve prohibited development An EPI can provide that specified types of development are prohibited in particular zones. Local councils, as consent authorities, cannot approve prohibited development. However, the Minister for Planning can approve a state significant development proposal that is not wholly prohibited by a LEP.

Remaining major project applications that were the subject of a concept plan and do not lie within a sensitive environmental area and critical infrastructure applications can also be approved even if they are prohibited under a LEP (see State significant development at [23.150]).

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[23.130] Development

permitted without consent Not all development requires consent. An EPI can provide that some types of development do not require consent (although other types of approval may be required, such as a construction certificate and an occupation certificate for a residential building). There is also a category of development called exempt development.

Exempt development Exempt development is minor development that has minimal environmental impact.

Examples include non-structural alterations to buildings, and structures like clothes lines, pergolas, boundary fences and flag poles. The SEPP (Exempt and Complying Development Codes), which came into force on 27 February 2009, defines exempt development by reference to a code, and applies statewide. There are some exceptions; for example, development will not be “exempt” if it is located in an environmentally sensitive area, including the foreshore and scenic protection areas.

Complying development Complying development is routine development that is certified in accordance with specified, predetermined development standards, and is approved with the issue of a complying development certificate. It can be certified by either a council or an accredited certifier. As with exempt development, there is a SEPP that defines complying development. The SEPP (Exempt and Complying Development Codes), which came into force on 27 February 2009, defines complying development by reference to various complying development codes and overrides any equivalent provisions in LEPs. Complying development was introduced to facilitate faster assessment, so councils and accredited certifiers cannot refuse to issue a complying development certificate if the proposed development complies with the relevant development standards, and they have only seven days from the day they receive an application for complying development to make their decision. There is no requirement for the public to be notified of an application for complying development, unless a

[23.140] Development

permitted with consent An EPI can provide that specified types of development need consent. However, within the broad category of “development permitted with consent” there are several overlapping classifications. These classifications determine things like: • who the consent authority is • whether environmental impact assessment is necessary

development control plan (see Development control plans at [23.90]) requires it. There is no right of merits appeal from a council or accredited certifier's decision, or failure to make a decision, about an application for complying development. The requirements concerning complying development are set out in Div 3 of Pt 4 of the Environmental Planning and Assessment Act and Pt 7 of the Environmental Planning and Assessment Regulation. Accredited certifiers The Building Professionals Act 2005 (NSW) establishes the scheme that regulates accredited certifiers. They are accredited by the Building Professionals Board. Anyone dissatisfied with the work of a private certifier can complain to the board, which can investigate and take appropriate disciplinary action against the private certifier, which can include a requirement to pay compensation of up to $20,000.

• whether the public has rights of participation and appeal • time frames for decisions. Other decision-making bodies Amendments to the Environmental Planning and Assessment Act in 2008 introduced a number of new decisionmaking bodies into the development assessment process: • The Planning Assessment Commission (PAC), which is appointed by the minister, determines most major

23 Environment and Planning

projects, advises the minister, and may be appointed by the minister to take over a council's planning functions. • Joint Regional Planning Panels (JRPPs), which are made up of a mixture of ministerial and local council appointees, and have a similar role, but determine specified “regionally significant” proposals as set out in a SEPP. In particular, JRPPs determine many designated development applications. • Independent Hearing and Assessment Panels (IHAPs), which are appointed by local councils, and can be set up to assess relevant aspects of a development proposal.

Classifications or categories of development The Environmental Planning and Assessment Act has become more complicated over time. There are now over 10 categories of development. As well as the categories of exempt and complying development main classifications to be aware of are: • local development and state significant development • designated development and advertised development • development requiring concurrence • integrated development. These classifications are discussed below. In addition, there is a class of development called state significant infrastructure which falls under Pt 5.1 of the Act.

[23.150] Local development

and state significant development Development permitted with consent may be: • local development under Pt 4 of the Environmental Planning and Assessment Act, or • state significant development under Pt 4.1 of the Act.

Local development Most development falls into the local development category – for example, subdivisions and many commercial developments. Local councils are usually the consent authority for local development. An excep-

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tion to this is complying development, which can be approved by an accredited private certifier.

State significant development The category of state significant development, for which the Minister for Planning is the consent authority, has been the subject of various amendments. In 2005, it was replaced with a new category of development called major projects and critical infrastructure. These amendments introduced Pt 3A to the Act and a SEPP that defined the relevant classes of development. However, in 2011 the new government removed Pt 3A and re-introduced the category of state significant development. A Planning Assessment Commission (PAC) was established in 2008 and is the consent authority for matters delegated to it by the minister. While the delegations have varied over time, at the time of writing, the PAC has been made the consent authority for most state significant development. Less contentious development may be determined by department officers. State significant development For the most part, state significant development is defined by the terms of a SEPP (at the time of writing the SEPP (State and Regional Development) 2011). The Minister can also declare development to be state significant on the advice of the Planning Assessment Commission (PAC). This is done by publishing an order in the NSW Government Gazette. The types of development that fall within this category are usually: • commercial developments • large-scale tourist developments • specified projects on state significant sites, or • activities that have significant environmental and social impacts, such as hospitals, large-scale mining and extractive industries, and industrial projects. State significant sites The State and Regional development SEPP also identifies state significant sites, such as the Sydney Opera House. Part 4.1 applies to any development on these sites.

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Effect of EPIs Unlike the rules applying to major projects under Pt 3A, if a development or activity is declared by the Minister or identified in the State and Regional Development SEPP as state significant development, EPIs will generally still apply to the development. However, the Minister or the Minister’s delegate can approve the development even if part (but not all) of it is otherwise prohibited by an EPI. Environmental impact assessment The same environmental assessment requirements apply to state significant development as for local, “designated” development (see Designated development at [23. 160]). Applicants must apply to the Department of Planning and Environment for a list of requirements that sets out what matters must be addressed by an Environmental Impact Statement (EIS). The department consults with the relevant council and other state agencies before finalising these requirements. The EIS will be placed on public exhibition together with the application and any other accompanying documents. State significant developments are evaluated against the matters set out in s 79C of the Act (see The consent authority’s evaluation at [23.190]). Requirement for other approvals Under the provisions of Pt 4, applicants for integrated development must obtain additional approvals under other legislation (see Integrated development at [23.180]). Many of those approvals are not required for state significant development. Once state significant development is approved by the minister, there is little another authority can do to prevent it from being carried out. If an approved development does require another approval such as an aquaculture permit, mining lease or environment protection licence under other legislation, the relevant authority cannot refuse to give its approval. Concept plans Under Pt 3A, the proponent of a major project could submit a concept plan for the

project. The purpose of the concept plan was to outline the development options for the project. A concept plan was not required to include a detailed description of the project. Concept plans are not a feature of the state significant development or infrastructure processes. Public exhibition requirements State significant development applications and any accompanying documents must be made publicly available for at least 30 days. They can be found on the website of the Department of Planning and Environment at www.planning.nsw.gov.au. During the submission period, any person may make a written submission to the Department of Planning and Environment in relation to the application. Planning Assessment Commission As noted above, the Planning Assessment Commission (PAC) is (as delegate for the minister) the decision maker for most state significant development. The PAC is appointed by the minister and may have different members looking at different development applications. The PAC will generally receive an assessment report and recommendations from the department. As a matter of practice, the PAC will often hold a public meeting before determining an application. In some prescribed circumstances, the PAC is required to also hold a more formal hearing.

[23.160] Designated and

advertised development Development permitted with consent may also be either designated development or advertised development.

Designated development Designated developments are generally developments with high environmental impact, and for that reason they are accompanied by environmental impact assessment obligations and public participation rights, just like state significant development at [23.150]). Schedule 3 to the Environmental Planning and Assessment Regulation lists types of development that are designated.

23 Environment and Planning

Examples of designated development are cattle feedlots, chemical industries, quarries, mines, waste management facilities and marinas. Often, large scale “designated” development will be declared state significant development and therefore follow the latter’s assessment process. Not all development that might be expected to be on the list is there; for example, large subdivisions, shopping centres, sports stadiums and tourist resorts are not included. Some, but not all, of these types of development will fall within the category of State significant development. Specified types of designated development applications are determined by JRPPs, including certain extractive industries, marinas and waste management facilities. Environmental impact assessment An application for designated development must be accompanied by an environmental impact statement compiled in accordance with Sch 2 to the regulation.. Advertising and notice requirements An application for designated development must be advertised in a newspaper circulated in the locality on at least two occasions, and written notice of the application must be given to: • owners or occupiers of adjoining land • people whose use and enjoyment of their land may be detrimentally affected if it proceeds • any public authorities that may have an interest in the application. A notice must also be placed at the site of the proposed development. Public exhibition requirements Applications for designated development must be placed on public exhibition for at least 30 days. See Public notification and submissions at [23.190] for more about this.

Advertised development The Regulation identifies the following as advertised development: • certain types of integrated development called nominated integrated development (see Integrated development at [23.180]) • development identified as advertised de-

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velopment in an EPI or development control plan (called other advertised development) • development on land that is, or is part of, critical habitat, or development that is likely to significantly affect threatened species, populations or ecological communities, or their habitats (called threatened species development). Advertising, notice and exhibition requirements The same advertising, notice and exhibition requirements apply to advertised as to designated development (see Designated development above), except that “other advertised development” only needs to be placed on exhibition for 14 days. Environmental impact assessment There is also no requirement for the submission of an environmental impact statement in relation to advertised development, although the application must be accompanied by a statement of environmental effects, which may be prepared by the applicant or by a consultant acting on their behalf. The statement must indicate: • the environmental impacts of the development • how the impacts have been identified, and • the steps that will be taken to protect the environment or to lessen harm to it. Environmental factors must be taken into account by the consent authority, where relevant, under s 79C (see The consent authority’s evaluation at [23.190].)

Other development Notification requirements Councils do not need to notify people of development that is neither designated nor advertised, unless an applicable development control plan contains provisions requiring notification and/or advertising. The courts have also held that if a council has a policy of notifying neighbours about such development and continuously applies the policy, neighbours have a legitimate and legally enforceable expectation that they will be notified.

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Environmental impact assessment There is no requirement for an environmental impact statement in relation to development that is neither designated nor advertised, although a statement of environmental effects must accompany the application. Environmental factors must be taken into account by the consent authority, where relevant, under s 79C of the Act (see The consent authority’s evaluation at [23. 190]).

[23.170] Development

requiring concurrence Another classification in the “development permitted with consent” category is development that requires the concurrence, or agreement, of another authority before consent can be granted. For example, development likely to significantly affect a threatened species under the Threatened Species Conservation Act 1995 (NSW) requires concurrence from the Chief Executive Officer of the OEH, and must be accompanied by a species impact statement. If the concurrence authority refuses concurrence, the relevant consent authority must refuse development consent. If a concurrence authority grants concurrence with conditions, any development consent granted must contain those conditions.

Exception for minister as consent authority There is an exception if the consent authority is a minister. In this case, if a concurrence requirement applies, the minister does not have to obtain the agreement of the concurrence authority, but merely consult the Minister for the Environment.

environment protection licence from the EPA under pollution legislation, or a heritage approval under the Heritage Act 1977 (NSW). In many cases, designated development will also be integrated development. The integrated development procedure set out in Pt 4 of the Act and Div 3 of Pt 6 of the Regulation attempts to integrate the procedures that apply to the grant of development consents and these other approvals. The result is quite complex. When a consent authority receives an application for integrated development, it must refer the application to any relevant approval bodies, such as the EPA or Roads and Maritime Services or the Department of Primary Industries. Each approval body must provide “general terms of approval” to the consent authority, and any development consent it grants must be consistent with those terms. If the body refuses approval If an approval body refuses to grant approval, the consent authority must refuse to grant development consent. If the body does not respond If an approval body fails to inform the consent authority whether it will grant approval, the consent authority may go ahead and decide whether or not to grant development consent. If consent is granted under these circumstances, and the applicant seeks approval from the approval body within three years of the consent date, the approval body must grant the approval, and the approval must be consistent with the development consent.

[23.190] The development

[23.180] Integrated

consent process

development

The main steps in the grant of development consent are set out below. It is not possible to go into all the detail of the procedure here; the Act and the Regulation should be consulted as well.

Development in the final category, integrated development, needs not only development consent but also one or more governmental approvals set out in s 91 of the Environmental Planning and Assessment Act, such as an

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Complying development What follows does not include the procedure relevant to complying development (see Complying development at [23.130]).

Lodgment of the development application The applicant must determine who the consent authority is, and submit a development application (DA) to that authority, accompanied by the relevant fee. The Regulation sets out the prescribed content of forms and fees for the different types of applications. The consent authority's response The consent authority must notify the applicant that it has received the DA, and can request additional information. The consent authority can set a reasonable period by which the additional information must be provided. Amending the application The DA can be amended by the applicant at any time before the decision is made. Is an environmental impact statement needed? If the DA is for designated development, it must be accompanied by an environmental impact statement (see Designated development at [23.160]). Does the DA affect critical habitat or threatened species? If the DA is for development on critical habitat or for development which is likely to significantly affect a species listed under the Threatened Species Conservation Act (see Threatened species conservation at [23.290]), it must also be accompanied by a species impact statement prepared in accordance with Div 2 of Pt 6 of the Threatened Species Conservation Act. However, there is now a procedure called “biobanking”, by which a developer can “offset” its impacts on threatened species by taking conservation actions on another property. If this procedure is followed, no species impact statement is needed.

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Public notification and submissions Who can make a submission? Anyone can make a submission to a consent authority about a DA. There are special processes in relation to some categories of development that give the public additional rights. State significant development Public exhibition requirements for state significant development are described at [23.150]. Anyone can make a submission to the Department of Planning and Environment in relation to an application for a state significant development during the 30-day submission period. Submissions that object to the development must set out the grounds for objection. Designated development If the application is for designated development, it must be advertised and put on exhibition for 30 days (see Designated development at [23.160]). Anyone can make a submission about it to the council during this period. Submissions that object to the development must set out the grounds for objection. Advertised development Similar provisions apply to advertised development. Other development If the DA is for development that is neither designated nor advertised, public notification may or may not be required (see Other development at [23.160]).

Consultation with other authorities Development requiring concurrence If the DA requires the concurrence of another authority (see Development requiring concurrence at [23.170]), the consent authority must send a copy to the concurrence authority within 14 days of receiving it. If there is a public exhibition period, the consent authority must also, at the close of the exhibition period, immediately send the concurrence authority copies of all public submissions received. The concurrence authority may request further information about the development.

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The concurrence authority must give the consent authority its decision: • within 40 days of the day it received the DA, or • if the DA was publicly advertised, within 21 days of receiving the public submissions. Integrated development Similar procedures apply to integrated development. If the DA requires an approval listed in s 91 of the Act, the consent authority must send a copy of it to the approval authority within 14 days of receiving it. If there is a public exhibition period, the consent authority must also, at the close of the exhibition period, immediately send the approval authority copies of all submissions received. The approval authority may request further information about the development. The approval authority must give the consent authority its decision and any “general terms of approval”: • within 40 days of the day it received the application, or • if the application was publicly advertised, within 21 days of receiving the public submissions.

The consent authority's evaluation What the consent authority must consider The consent authority must take a number of matters into account when deciding whether or not to grant development consent to an application made under Pt 4 of the Environmental Planning and Assessment Act. The relevant matters are set out in s 79C of the Act. They are: • the provisions of: – any EPI – any draft EPI that is or has been placed on public exhibition and details of which have been notified to the consent authority – any development control plan (as long as it is not more onerous than the relevant EPI) – any planning agreement or draft planning agreement with the developer

– the regulations (where they prescribe matters to be taken into account) that apply to the land to which the application relates, and – any coastal zone management plan • the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality • the suitability of the site for the development • any submissions made in accordance with the Act or the Regulation • the public interest. The Land and Environment Court has determined that the public interest would include the principles of ecologically sustainable development, where relevant: BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 and, in relation to state significant development, Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty Ltd and Minister for Planning [2016] NSWLEC 6. If any factor is not considered Failure to consider any of these matters may be grounds for a procedural appeal against the decision (that is, judicial review), and the decision may consequently be declared invalid. Major projects and critical infrastructure The matters set out in s 79C do not apply to the minister’s determination of an application for the approval of a major project, concept plan or critical infrastructure under Pt 3A. This process has now been replaced by the state significant development process (see State significant development at [23.150]). However, at the time of writing, a small number of projects are still being assessed under the Pt 3A procedures. How the factors are weighed The matters in s 79 must all be considered where relevant. However, there is nothing in the legislation to indicate what weight should be given to each factor. For example, a decision-maker may decide that conservation should be given less weight than other considerations.

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There is also no rule to say that if the development would have a negative impact in relation to any particular factor, consent must be denied. The rule is simply that all the factors must be considered by the decision-maker where they are relevant.

The consent authority's decision The consent authority's options The consent authority can either grant or refuse development consent. If it grants consent, it can do so unconditionally or with conditions. A council is under no obligation to follow the recommendations of its own planning officers; nor is it bound by its own policies or codes, which have persuasive force rather than the force of law. However, those policies and codes should be taken into consideration by the council as relevant matters for determining whether to consent to or refuse a DA. Section 79C guidelines The Department of Planning and Environment provides a Register of Development Assessment Guidelines on its website which can provide guidance for both the preparation and assessment of various types of development.

When a consent authority must refuse A consent authority must refuse consent if the proposed development would lead to a breach of an EPI or the Act, except that under SEPP 1 a development standard in a LEP may be overridden if the council believes compliance is unreasonable or unnecessary. When a consent authority cannot refuse Neither councils nor Joint Regional Planning Panels can refuse applications from public authorities, unless they have the written approval of the minister. They can simply negotiate on conditions of approval. Consent with conditions A consent authority may attach conditions to an approval. Where it does, these must relate to the matters listed for consideration in s 79C or the matters set out in s 80A. For example, conditions may:

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• limit the life of a consent • require the demolition of a building or work • require the carrying out of works • require the dedication of land free of cost or the payment of a monetary contribution to the consent authority, or both. Granting deferred commencement The consent authority can also grant deferred commencement consent. In this case it agrees to grant the development consent, but the consent does not operate until the developer satisfies the consent authority that specified conditions have been met. Consent for staged development Development consents can also be given for staged development. In this case consent may be given for part of a development, with a further part or parts to be considered under another application; or, if the application for staged development provides the necessary detail to allow consent to be given for future stages, consent may be granted for those stages without the need for further consent. Time limits The consent authority has 40 days from the day it received the application to make a decision about it, or 60 days if the application is for: • designated development • integrated development • development requiring concurrence. The consent authority has 90 days to make a decision about a state significant development. There are some exceptions to these limits, which are set out in cl 113 of the Environmental Planning and Assessment Regulation. If a decision is not made within the time limit If the consent authority does not make a decision within the time specified, the application is considered to have been refused (this is called a deemed refusal), and the applicant can appeal to the Land and Environment Court.

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However, even if an appeal is made, there is nothing to stop a consent authority making its decision after the periods have elapsed. Notification requirements After it has made its decision, the consent authority must notify the applicant of its decision in writing. Where the consent is for designated development and some types of state significant development, the consent authority must also: • provide written notification of its decision to anyone who made a written submission about the application, and • tell them that they have the right to appeal against the decision. This is a right of appeal on the merits (see Appeals at [23.210]). People who have made submissions about development applications for advertised development also have the right to be notified of the consent authority’s decision, but have no right of merits appeal against the decision.

When development consent lapses A consent operates from: • the date noted on the conditions of consent, or • if there was an appeal, the date of the appeal decision. Development consents are usually granted for an indefinite period, and unless the consent has lapsed, any future purchaser of the land can act on the conditions of consent. Generally, a consent lapses if a development is not commenced within five years. Some EPIs may prohibit development that is not commenced within one year. Getting an extension If a commencement time limit of less than five years is set, the developer can apply to the consent authority for an extension of one year, but this must be done before the consent expires. Orders that work be completed The consent authority can also order that work be completed within a reasonable time, even if it was begun

within the period required.

Modification of consent A developer can apply for a consent to be modified. A consent authority can agree to this if it is satisfied that the modified development is substantially the same as that originally proposed. If the consent was for state significant, designated or advertised development If the original development was a state significant, designated or advertised development, the consent authority must publish notice of the application for modification in a local newspaper, and it must be put on public exhibition for at least 14 days. Making a submission Anyone can make a submission to the consent authority about the application to modify a consent during the exhibition period. Major projects, concept plans and state significant infrastructure Modifications of major project approval, concept plans and now state significant infrastructure are not limited to those where the modified development is substantially the same as, or consistent with, the original approval. Any environmental assessment or public exhibition requirements are subject to the Director-General’s discretion, although applications must be published on the Department of Planning and Environment’s website.

[23.200] Reviews A developer which has its application for consent refused may seek merits review of that decision by the council within six months of receiving notification of the decision, or otherwise before any appeal is determined by the Land and Environment Court. This right does not apply to complying, designated or integrated development. The review application has to be publicly notified for a period of at least 14 days, or in

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accordance with a DCP, and anyone can make a submission within the specified time. A developer can also request a review of a decision to reject an application without determining it.

[23.210] Appeals There are generally two types of appeals available in relation to development consents: merits appeals and procedural appeals.

Merits appeals Merits appeals are appeals on the facts – for example, on issues such as whether the development provides enough environmental protection. They are only available in limited circumstances in relation to development consents. Merits appeals involve a rehearing of the application, and are brought in Class 1 of the Land and Environment Court’s jurisdiction. The preliminary conference The first step in Class 1 proceedings is a preliminary conference presided over by a commissioner (a technical expert who is not a judge). The purpose of the conference is to try to get the parties to reach an agreement without going to a hearing. If agreement is not reached, anything said at the conference is not admissible at the hearing. The hearing The Chief Judge of the Land and Environment Court decides whether the proceedings should be heard and determined by a judge or a commissioner. In practice, most merit appeals are dealt with by a commissioner. However, objector appeals

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are often heard by a judge with the assistance of a commissioner. Proceedings for merits appeals are fairly informal. Legal representation is allowed but is not essential. The rules of evidence (for example, the rule against hearsay), which often restrict the sort of information a court can hear, do not apply. What the court can do The court hears all the evidence, including new evidence, then decides whether consent should be given. Among other things, it can: • make a decision even where the concurrence of a concurrence authority has not been obtained • override conditions imposed by a concurrence body. Costs In merits appeals, each party generally pays its own costs, but the court can still make an order that one party pays the other party’s legal costs if that is fair and reasonable in the circumstances. Appeals from decisions in merits appeals If a judge or commissioner of the Land and Environment Court has decided to approve or reject a development application, there is no further merits appeal available to the developer, the consent authority or objectors. However, a party to proceedings may appeal a decision of a commissioner on the basis that a legal error was made in determining the appeal. Such appeals are heard by a judge of the Land and Environment Court. If a judge made the decision and it appears that a legal error was made in determining the appeal, a party to the proceedings may appeal to the Court of Appeal.

Appeal on the merits – developers and objectors Merits hearings against development consents are available to developers and objectors in the circumstances discussed below. Appeals brought by developers If a DA is rejected, or there are conditions of consent

that are unacceptable to the developer, the developer can bring a merits appeal within six months of receiving notification of the decision. A merits appeal is also available to the developer if there is a deemed refusal (see If a decision is not made within the time limit at [23.190]).

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Merits appeals are also available to the developer in relation to refusals of applications for major projects and concept plans, provided the project is not a critical infrastructure project and has not been the subject of a review by the Planning Assessment Commission. Such appeals must be commenced within three months of receiving notice of the minister's determination. There is no merit appeal right for designated developments or state significant development if the Planning Assessment Commission has held a public hearing. Rights of third parties The public does not have a general right to appear and be heard at a developer appeal. The developer brings its case against the consent authority. However, if the consent authority defends the appeal but does not raise evidence about a matter relevant to the proceedings, a third party can seek leave to join the proceedings to raise the evidence (Land and Environment Court Act 1979 (NSW), s 39A). The consent authority can also call evidence from people who objected to the development, and sometimes asks those people to give oral evidence in court or at a site view. Rights of objectors If the developer is appealing against a consent authority's decision in relation to an application for designated

development or some types of state significant development, any member of the public who objected to the original application has special rights at the hearing. The objector can have their own legal representative present, and can lead evidence, rather than relying on the consent authority to ask them to present evidence. The objector can also make their own submissions to the court.

Procedural appeals

Time limits Procedural appeals must be brought within three months of the consent authority publishing a notice in a newspaper of its decision to grant consent. If the consent authority does not publish a notice of decision there is also a limit of three months from the date of the decision, although the court does have a discretion to extend this time limit.

Procedural appeals (also called judicial reviews) are concerned only with the decisionmaking procedure. The court cannot decide on the merits of a decision. This means it is not able to consider whether the decision is desirable or acceptable, but only whether the proper decision-making process was followed. Procedural appeals are brought in Class 4 of the Land and Environment Court’s jurisdiction, and are heard by a judge. Appeals in relation to an error of law If there has been a flaw in the decisionmaking process (an error of law), anyone can bring proceedings to challenge the validity of the consent. Appeals in relation to a breach of the Act If the development consent decision-making process set out in the Environmental Planning and Assessment Act has not been followed, there will have been a breach of the Act. Section 123 gives anyone the right to bring proceedings to enforce the provisions of the Act, or restrain a breach of it.

Appeals brought by objectors Any person who made a written submission to the consent authority during the exhibition period of an application for designated development is known as an objector. Objectors have a right of merits appeal against a development consent if the consent is for designated development or if the approval is for a state significant development or major project which would have been designated development if Pt 4 of the Act applied. The appeal must be commenced within 28 days of receiving notice of the decision of the council or the minister. There is no provision for an extension of time to appeal. There is no right of merits appeal against an approval for a concept plan or if the application was the subject of a review or public hearing by the Planning Assessment Commission, even if the proposal would have been designated development.

Costs In procedural appeals, the loser must generally pay the winner’s legal costs. Possible grounds for appeal A development consent could be challenged for not complying with the requirements of the Environmental Planning and Assessment Act and Regulations on a number of grounds, including that: • the application was not properly advertised • relevant people were not properly notified • there was no environmental impact statement, or no species impact statement • the development is in a zone where developments of that type are prohibited

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• the development fails to meet the relevant zoning objectives • the development is contrary to a SEPP • irrelevant considerations were taken into account, or relevant considerations were not taken into account (such as a factor listed in s 79C of the Act). However, the courts impose a high standard of proof on anyone seeking to overturn decisions on this basis.

[23.220] Enforcing

development consents Enforcement under criminal law It is a criminal offence to develop without consent, or to breach a development consent or its conditions. The Act has three tiers of penalties (see Pt 6, Div 4). For the most serious, intentional breaches, the penalties can be as high as $5 million for corporations or $1 million for individuals. The usual prosecutor is the regulatory authority, such as the local council. Only in extreme cases, however, are the Act and development consents enforced by resort to the criminal law. It is difficult to prove criminal charges; civil action is far more common.

Civil action Councils can issue an order under Div 2A of Pt 6 of the Act requiring a person to comply with a development consent. Civil enforcement action can also be taken under s 123 of the Act to: • stop a breach of a development consent • stop development that does not have development consent. Section 123 of the Act gives anyone the right to bring proceedings to enforce the provisions of the Act or restrain a breach of it (see Appeals in relation to a breach of the Act at [23.210]). Breaching development consent or approval, and developing without consent or approval where it is required, are both breaches of the Act. Who can take action? Civil enforcement action can be taken by the consent authority (either the local council or the minister), but if the council or the

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minister refuses to act, an individual can take action in Class 4 of the Land and Environment Court’s jurisdiction.

Enforcement orders Councils have the power to make enforcement orders in some circumstances as an alternative to criminal and civil court proceedings. The Minister or the DirectorGeneral can likewise issue orders in relation to state significant infrastructure or major projects. What can council orders cover? The orders can cover a range of matters, such as orders to demolish a building, repair or make structural alterations, take actions for fire safety, remove an advertising structure or change the use of a premises. It is an offence not to comply with an order. Failure to comply If someone fails to carry out work under an order, the council can enter the property and carry out the work. Appeal A person on whom an order is served may appeal to the Land and Environment Court within 28 days after the order has been served. The court may revoke, modify or replace the order or otherwise determine the appeal as it thinks fit.

[23.230] Part 4A certificates Part 4A creates four certificates that are integrally connected with building and subdivision: • compliance certificates certify that building or subdivision work has been completed as specified, or that a building or proposed building has a specified classification under the Building Code of Australia • construction certificates certify that work completed in accordance with specified plans and specifications will comply with the requirements of relevant Regulations and the Building Code of Australia • occupation certificates authorise the occupation and use of new buildings, or changes of use for existing buildings

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• subdivision certificates authorise the registration of a plan of subdivision under Div 3 of Pt 23 of the Conveyancing Act 1919 (NSW). It is usually necessary to obtain one or more of these certificates before a development can be finalised. For example: • a construction certificate is necessary before a building can be erected or land subdivided in accordance with a development consent

• an occupation certificate is necessary before a new building can be used or occupied, and before there can be a change in use for an existing building • a plan of subdivision cannot be registered in accordance with the requirements of the Conveyancing Act until a subdivision certificate has been issued.

Environmental assessment under Parts 5 and 5.1 of the Act [23.240]

Not all land use regulation falls within Pt 4 of the Environmental Planning and Assessment Act 1979. Where development consent is not required under an EPI, the activity may still require assessment and approval under Pt 5 or 5.1.

[23.250] The purpose of Part 5 Part 5 of the Act is intended as an environmental safety net; its purpose is to ensure that even where development consent is not necessary, an adequate level of environmental assessment is undertaken in relation to new development. Part 5 is particularly important in the context of activities undertaken by government agencies and statutory authorities, which may not require development consent.

[23.260] What Part 5 does Essentially, Pt 5 requires government departments, public authorities and local councils (determining authorities) to make environmental assessments when they consider either carrying out, or granting approval for, an activity (Pt 5 defines “activity” in similar terms to the definition of “development” in Pt 4).

What the authority must consider The determining authority must “examine and take into account to the fullest extent

possible all matters affecting or likely to affect the environment by reason of that activity”. The authority must then decide whether the activity is likely to significantly affect the environment. Clause 228 of the Regulation spells out the factors to be considered. A preliminary report may be prepared for activities that have complex environmental impacts to determine whether an environmental impact statement is required. This is known as a review of environmental factors.

If there may be a significant impact If the determining authority decides that the activity is likely to significantly affect the environment, it must require an environmental impact statement to be prepared, and consider it before deciding whether to undertake the activity or grant approval for it. If the determining authority (excepting councils and county councils) is the proponent, the activity may be state significant infrastructure (see below) and will have to follow that particular process.

State significant infrastructure Pt 5.1 deals with state significant infrastructure, which may consist of • infrastructure

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• development proposed by a public authority (other than councils or county councils) that is likely to have a significant impact on the environment, or • specified development on specified land. The SEPP (State and Regional Development) 2011 sets out in more detail what classes of development will follow the state significant infrastructure assessment process. The Minister for Planning can also issue an order that a specific development will follow this procedure. The minister can also declare such development to be “critical”. This is development which, in the opinion of the minister, is essential for the state for economic, environmental or social reasons. The Minister for Planning is the consent authority for state significant infrastructure. Environmental assessment The Director General will inform the proponent what the environmental assessment requirements for the project are, after consulting with relevant agencies about key issues. The proponent will have to prepare an Environmental Impact Statement to address these requirements. Public participation The EIS must be exhibited to the public for at least 30 days. Any person can make submissions to the Department of Planning and Environment during that time. A copy of the submissions, or a report that sets out the issues raised by the public, is then sent to the proponent so that it can respond to the issues or make any appropriate changes. As a result of those changes, a document called a preferred infrastructure report may be prepared by the proponent. The Director General of the Department of Planning and Environment can decide whether or not the changes are so significant that this report should also be made available to the public. Approval of state significant infrastructure Once the environmental assessment process has been completed, the Director General is required to prepare a report to the minister, which the minister will use to decide whether to approve the development. The minister is not required to specifically consider the list of matters set out in s 79C

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(see What the consent authority must consider at [23.190]). Nor must the minister apply the terms of SEPPs or LEPs in making a decision to approve the development. As with state significant development and major projects (see Local development and state significant development at [23.150]), once state significant infrastructure has been approved by the minister, it will not require many of the other, usual environmental approvals. Those that are still required must be consistent with the minister’s approval. The approval may be modified without the minister’s approval as long as the modified proposal is consistent with the approved proposal. Other modifications require the minister’s consent.

[23.270] Environmental impact

statements Who prepares the statement? The environmental impact statement is usually prepared by the proponent (the person or body proposing the activity). In some cases, the determining authority is the proponent. For example, the Department of Primary Industries: Forestry Corporation of NSW is both proponent and determining authority in relation to the roads, tracks and trails it constructs in state forests to facilitate logging.

What must the statement include? An environmental impact statement must include: • an analysis of any feasible alternative • a detailed description of the likely impacts on the environment • the justification for the development, having regard to the principles of ecologically sustainable development. It must be prepared in accordance with any guidelines in force under cl 230 of the Regulation or, if no guidelines are in force, the requirements of Sch 2 to the Regulation.

Advertisement and exhibition requirements The statement must be advertised in both a statewide and a local newspaper on at least two occasions.

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It must be put on public exhibition for at least 30 days, and public submissions must be called for. Anyone can make a submission during this time. The determining authority must take all public submissions into account when deciding whether to undertake the activity or grant approval for it. Threatened species and habitat An activity that is likely to significantly affect a threatened species, population or ecological community, or its habitat, or is to be carried out on land that is critical habitat (see Threatened species conservation at [23. 290]) requires a species impact statement, and must not be approved without the concurrence of the Chief Executive Officer of the OEH).

tion requirements were not met with regard to an environmental impact statement). Procedural appeals are heard by a judge in Class 4 of the Land and Environment Court’s jurisdiction. Court proceedings challenging the validity of critical state significant infrastructure approvals, or proceedings seeking to enforce those approvals, can generally only be begun with the minister’s approval.

Time limits Challenges to state significant infrastructure must be begun within three months after public notice of the decision has been given. There is no statutory time limit on bringing an appeal to restrain a breach of the Act, but as with all legal appeals, it is best to move quickly; an undue delay could see the case rejected on discretionary grounds.

[23.280] Appeals

What the court will consider

There is no right of merits appeal in relation to Pt 5 or Pt 5.1 of the Act. That is, it is not possible to appeal on the facts. However, it is possible to appeal on procedural grounds, arguing that incorrect process has been followed (for example, that public notifica-

Note that in deciding whether an environmental impact statement is adequate, the court will ask whether it “substantially complies”. The fact that it does not cover every possible topic and explore every avenue does not make it invalid.

Development not caught by Part 5 Some development proposals may still escape Pt 5. For example, no approval may be required – although this is unlikely if the development involves a substantial environmental impact. Other proposals may not be covered by Pt 5 because they do not fall within the meaning of “activity” as defined in the Act. For example, it has been held that the spraying of a noxious weed with the chemical 2,4-D, by a

county council to which the task of eradicating noxious plants had been delegated, was not an “activity” within the limited meaning given to that term in the Act. Finally, legislation sometimes exempts particular types of activities or development from Pt 5. For example, renewals of pollution approvals are exempt from Pt 5, as is exempt development under Pt 4.

Threatened species conservation [23.290]

The Threatened Species Conservation Act (NSW) applies to all plants and animals native to NSW. It allows threatened species to be listed and protected. Threatened species include: • endangered species, populations and ecological communities

• vulnerable species and ecological communities • critically endangered species and ecological communities. Fish and marine vegetation are the subject of similar provisions in the Fisheries Management Act 1994 (NSW).

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New biodiversity conservation legislation At the time of writing, the NSW government has provided a draft Biodiversity Conservation Bill for public consultation as part of its “new approach to land management and conservation in NSW”. This proposed legislation would replace the Threatened Species Conservation Act and parts of the National Parks and Wildlife Act 1974 (NSW). The government is proposing to commence the new legislation in 2017. Further information can be found at www.landmanagement.nsw.gov.au and critical analysis of the proposals can be found on the EDO website.

[23.300] What the Act does Listing endangered populations and threatening processes The Act allows for “endangered populations” of any plant or animal and for “endangered ecological communities” to be listed and protected. Key threatening processes can also be listed. Nominations for listing are considered by a scientific committee, and anyone can nominate a species, population, community or threatening process for consideration. What is the response to listing? Recovery plans can be prepared for threatened species. Threat abatement plans can be prepared for key threatening processes. Relevant ministers and public authorities have an obligation to take appropriate action to implement these plans. Priority action statements set out the strategies, priorities and timetables for recovery of threatened species, populations and communities, and management of key threatening processes.

Identifying critical habitat The critical habitat of an endangered species, population or ecological community may be identified by the Director-General of the Premier and Cabinet (effectively through the OEH) and declared by the Minister for the Environment. Critical habitat must be identified in the relevant EPI as soon as practical.

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When licences are required It is necessary to obtain a licence from the Director-General of the OEH for certain types of activities that affect the environment. Licences are required for activities that: • “harm” (for animals) or “pick” (for plants) a threatened species, population or ecological community • damage its habitat, or • damage critical habitat. This is the case even if development consent or approval under the Environmental Planning and Assessment Act is not required.

Other conservation measures The Threatened Species Conservation Act also provides for other measures that may be taken to conserve threatened species, including stop work orders. When stop work orders may not be made Stop work orders may not be made in relation to works essential for the carrying out of a development consent or an approved Pt 5 activity under the Environmental Planning and Assessment Act, or clearing under a Property Vegetation Plan.

Biobanking The Threatened Species Conservation Act has established a biodiversity banking and offsets scheme. Under this scheme, landowners can make agreements with the Minister for the Environment to protect the biodiversity values on their land in return for “credits”. The biobanking agreement contains ongoing management obligations. The credits can then be purchased and “retired” by a developer who wishes to offset the damage caused to similar biodiversity values elsewhere.

Biodiversity certification The Minister may confer biodiversity certification on specified land. The effect of doing so is that the environmental assessment processes under the Environmental Planning and Assessment Act will not include any assessment of the impact of a relevant project on the land on biodiversity values,

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and the project will be taken not to significantly affect any threatened species, population or endangered ecological community. Biodiversity certification may be granted only if there is a biodiversity conservation strategy in place, which sets out what conservation measures will be implemented for the purpose of maintaining or improving biodiversity values. Such measures might include, for example, planning controls, conservation agreements, biodiversity certification agreements which are made between the minister and another person, and/or use of the biobanking mechanism described above. Biodiversity certification applications can only be made by planning authorities (such as local councils). Applications must be publicly notified and the public will have at least 30 days to provide written submissions about such a proposal. In deciding whether to grant biodiversity certification, an assessment must be made in accordance with a biodiversity assessment methodology, to determine whether the overall effect will be to improve or maintain biodiversity values. The minister can only confer certification if that is the overall effect. The methodology is available on the OEH website at www.environment.nsw.gov. au/biocertification.

In conferring certification, the minister may set out requirements for the implementation of conservation measures. These measures can be enforced by the minister if they are not being complied with.

[23.310] Development and

activity approvals What the authority must consider In deciding whether the development or activity is likely to significantly affect a threatened species (in which case a species impact statement will be required – see Threatened species and habitat at [23.270]), the consent authority or determining authority must consider the matters set out in s 5A of the Environmental Planning and Assessment Act (the seven part test). No such assessment is required if the developer has obtained a biobanking statement under the biobanking scheme.

Requirement for concurrence Neither the consent authority nor the determining authority can approve the application or activity without the concurrence of the Director-General of the Department of Premier and Cabinet (effectively through the OEH).

If the authority is a minister If the consent authority or the determining authority is a minister, the minister need only consult with the Minis-

ter for the Environment, and does not need to obtain concurrence from the Director-General.

Federal legislation [23.320]

A development or activity may require approval from the federal Minister for the Environment, in addition to an approval under NSW law. In this case, the environmental impacts of the development or activity will need to be assessed in accordance with the provisions of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The Act applies to:

• “matters of significance”

national

environmental

• actions to be carried out by the Commonwealth, or on Commonwealth land. Under the Act, it is necessary to obtain an approval from the federal minister to carry out a controlled action.

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[23.330] What is a controlled

action? “Actions” are defined to include such things as a project, a development, an undertaking, an activity, or an alteration to one of these things. A decision by government to give approval for an action, or make a grant of funding, is not an action. “Controlled actions” include: • actions likely to have a “significant impact” on a “matter of national environmental significance” (see below) • actions likely to have a significant impact on the environment of Commonwealth land, even if the action occurs outside Commonwealth land, and • actions by the Commonwealth government or a Commonwealth agency likely to have a significant impact on the environment. What is a significant impact? Guidelines on what is a significant impact can be found on the Department of the Environment website: www. environment.gov.au/epbc/publications.

Matters of national environmental significance The following are currently defined as “matters of national environmental significance”: • world heritage properties • national heritage places • wetlands of international importance under the Ramsar Convention • nationally listed threatened species and ecological communities • nationally listed migratory species • activities relating to nuclear energy, including uranium mining • the Commonwealth marine environment • the Great Barrier Reef Marine Park • water resources, in relation to coal seam gas and large coal mining developments. Additional matters of national environmental significance may be added without the agreement of the states, after consultation, and the list must be reviewed every five

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years to determine whether further matters should be added (but not deleted).

[23.340] When is approval

required? An action determined by the federal Minister for the Environment to be a “controlled action” (see What is a controlled action? at [23.330]) requires the minister’s approval before it can be carried out. The minister decides whether approval is required for a particular action when it is referred to the minister, or the minister calls it in for assessment. If the minister decides that an action does not need approval under the Environment Protection and Biodiversity Conservation Act, only state or territory approvals may be required.

Penalties There are significant penalties for undertaking a controlled action without approval. The maximum penalty for an individual is $550,000; for a body corporate it is $5. 5 million. Certain offences are also punishable with up to seven years’ jail.

Exceptions Some matters are exempt from the approval requirements, even if they have a significant impact on a matter of national environmental significance. The exceptions are: • logging of forests in areas covered by a regional forest agreement • actions in the Great Barrier Reef Marine Park that have been approved under the Great Barrier Reef Marine Park Act 1975 (Cth) • actions exempted by a ministerial declaration • actions that have been approved in accordance with an approval under a bilateral agreement (At the time of writing, the Australian government is considering a draft approval bilateral agreement as part of its commitment to a “One Stop Shop” for environmental approvals.) • actions that will occur in accordance with

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an endorsed strategic policy, plan or program.

[23.350] The assessment and

approval process The process of assessment and approval of an action is initiated by a referral to the federal Minister for the Environment from one of a number of sources: • The person or organisation proposing to take the action has a duty to refer it to the minister for a decision as to whether it is a controlled action requiring assessment and approval. • A state or territory government, agency or local council with responsibilities relating to the proposal can refer it to the minister. • The minister may request the person or organisation to refer the proposal. If no referral is made within the set time, the minister can deem the action to be referred. • A Commonwealth agency or minister with responsibilities relating to the proposed action can refer it to the minister. Unacceptable actions The minister can decide within 20 days of receiving a referral that an action would clearly have unacceptable impacts on a matter of national environmental significance. This means that the minister does not need to further consider the matter and the proponent cannot go ahead with the action.

The assessment process After referral, the minister decides what level of assessment is required for the action. There are four possible levels of assessment: • assessment on preliminary documentation – the proponent seeks comments from the public on preliminary information that the minister believes on reasonable grounds will give the information necessary to make an informed decision • public environment report – the proponent prepares a report following guidelines provided by the minister. Comments are invited which are given to the minister,

and the Secretary of the Department of the Environment reports to the minister • environmental impact statement – this follows a process similar to the public environment report process, but usually examines the activity in more detail • public inquiry – this is undertaken by a commissioner appointed by the minister, who provides a report to the minister which is made public. The minister sets the terms of reference for the inquiry. Public comment requirements A draft of the environmental impact statement or the completed public environment report must ordinarily be released for public comment, and advertised. At least 20 business days must be allowed for written comments to be made, and these comments must be passed on by the proponent to the Department of the Environment. Following the receipt of public submissions, any draft environmental impact statement must be revised, taking into account the comments received.

The minister's decision Within 30 days of receiving the results of an environmental assessment (or 40 days of receiving the report of a public inquiry), the minister must decide whether to grant an approval, and what conditions, if any, to attach to it. Restrictions on the minister's decision In granting an approval or imposing conditions on an approval relating to world heritage sites, national heritage places, Ramsar wetlands, threatened species or ecological communities or migratory species, the minister cannot act inconsistently with Australia’s obligations under the relevant international conventions, and must not grant an approval that is inconsistent with a recovery plan or a threat abatement plan. There are direct prohibitions on approving nuclear power plants or enriching or reprocessing facilities.

Delegation of federal planning powers Under the Environment Protection and Biodiversity Conservation Act, the Commonwealth

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can also enter into bilateral agreements with states and territories by which the Commonwealth can: • delegate its assessment processes and approval powers to the state or territory government, or • accredit a state assessment process on a one-off basis. Bilateral agreements The Commonwealth has entered into a number of bilateral assessment agreements, including an agreement with NSW. This covers environmental assessment under Pts 4 and 5.1 of the Environmental Planning and Assessment Act (NSW), including state significant development and infrastructure, as well as the remaining Pt 3A projects. If an action has been assessed using one of these procedures, the Commonwealth will not need to carry out its own environmental assessment, as long as the NSW assessment covered the relevant Commonwealth matters.

Public inquiries and appeals The Environment Protection and Biodiversity Conservation Act does not allow members of the public to demand an inquiry, and very few have been held. Unlike the NSW Environmental Planning and Assessment Act, the Environment Protection and Biodiversity Conservation Act does not provide “open standing” rights to allow any person to appeal against decisions under the Act.

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Interested persons and organisations The Environment Protection and Biodiversity Conservation Act allows some interested persons and organisations to bring proceedings to enforce its provisions. A person or organisation is “interested” if: • the person or organisation’s interests have been affected by the action or the decision, or • the person or organisation has been engaged in activities for protecting, conserving or researching the environment at any time in the previous two years and, in the case of an organisation, the organisation’s objects or purposes include protecting, conserving or researching the environment. Bringing legal proceedings In bringing legal proceedings under the Act, interested persons or organisations can seek injunctions and orders to repair or mitigate damage to the environment. Proceedings brought under the Act are commenced in the Federal Court. Merits appeals may be brought in the Administrative Appeals Tribunal in relation to the grant of permits and the making of declarations by the minister’s delegate for the international movement of wildlife under Pt 13A of the Act.

Heritage protection [23.360]

This section deals with laws operating in NSW that confer a special protected status on heritage items. “Heritage” covers items with natural and cultural values, and it includes Indigenous heritage. What fits into each heritage category can be contentious.

Schemes that protect natural heritage often merge with environmental considerations in general. This section deals more fully with the protection of items of cultural heritage, which are, broadly, built structures and precincts, and moveable objects and relics.

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Heritage laws [23.370]

While heritage laws operating in NSW cover a broad range of items in both public and private ownership, they are mainly invoked to protect items of cultural heritage in private ownership.

[23.380] Legislation The main heritage legislation in NSW is the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and the Heritage Act 1977 (NSW). The Environmental Planning and Assessment Act (NSW), supplemented by the Local Government Act 1993 (NSW), is also very important for heritage in local areas. Provisions in the National Parks and Wildlife Act 1974 (NSW) are important for the protection of natural heritage in private ownership, historic places and Aboriginal heritage. What is cultural heritage? Defining cultural heritage can be difficult. The first reaction of many people is to think in terms of old buildings. Most statutory definitions in Australia, however, are much broader. For example, the main Commonwealth legislation, the Environment Protection and Biodiversity Conservation Act defines the heritage value of a place as including that its natural or cultural environment has aesthetic, historic, scientific or social significance, or other significance, for current and future generations of Australians (s 528). The idea of valuing items of aesthetic and historic significance is a familiar one, but the concept of the social value of heritage items continues to be an interesting issue in heritage studies.

The major pieces of legislation in Australia largely operate by giving ministers and public servants powers to protect heritage. The legislation’s definitions of heritage are very broad. These definitions, and the structures for public participation that the legislation provides, make it of vital interest not only to people who wish to protect a much-loved historic building but to those who want to protect people’s neighbourhoods, the homes of low income groups, or the wider environment.

[23.390] Public ownership of

heritage The emphasis on private ownership should not be taken as downplaying the importance of items in public ownership, particularly as the state and federal governments are still the largest owners and users of cultural and natural heritage items. Cultural heritage items, like historic schools, railway stations and bridges tend, however, to be held by government under laws relating to property rights, which will not be discussed here. State-owned protected areas and reserves contain a significant part of our natural heritage with items of cultural value, and the most important of the relevant laws are discussed briefly. Heritage legislation places special obligations on public sector owners of heritage, but moves towards smaller government and the privatisation of government businesses, mean that government ownership is no longer the safeguard of cultural heritage properties it once was.

International issues Heritage is a matter of international concern that affects Australia. Australia is a party to many international conventions that relate to conservation, primarily of the natural environment, but also of the cultural heritage.

cultural heritage, or both. (Kakadu, for example, is listed for both its natural and cultural values.) The convention is administered by UNESCO, an agency of the United Nations based in Paris.

The World Heritage Convention

While the convention may not be a law in a domestic sense, the work of UNESCO and its World Heritage

The World Heritage Convention is concerned with the conservation of places that are significant as natural or

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Committee generates international guidelines and expectations, which are reflected in heritage conservation practice in Australia. International agencies UNESCO relies on preliminary assessment work by two international, non-government agencies that assist its World Heritage Committee: • ICOMOS (International Committee on Monuments and Sites) for cultural heritage, and • IUCN (International Union for the Conservation of Nature) for natural heritage.

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Both organisations have active branches in Australia. The World Heritage List The World Heritage List is a list of properties considered to be of “outstanding universal value” under the World Heritage Convention. Sites are listed under the convention according to criteria relating to cultural sites, natural sites and cultural landscapes. There are 19 world heritage sites in Australia; six in NSW, including the Greater Blue Mountains Area and, more recently, the Sydney Opera House.

Heritage in NSW [23.400]

Heritage laws in NSW list heritage items by reference to their national, Commonwealth, state and local significance. Dividing our heritage A competing view, that heritage significance cannot be neatly divided along the lines of Australia's political and administrative divisions, lay behind the idea of Australia's “national estate” embodied in the Register of the National Estate. This was established under the repealed Australian Heritage Commission Act 1975 (Cth), and retained under the Australian Heritage Council Act 2003 (Cth).

[23.410] Heritage lists Heritage laws in NSW protect items entered on a heritage list, with five statutory lists operating in NSW, including the federal lists. The National Trust’s list and other lists are important, but they do not give legal protection.

Why list? Listing is the preferred way of providing protection because it is widely seen as proactive. A listing agency may systematically list items of heritage significance, which are then protected. Until 1998, the Heritage Act 1977 (NSW) relied on conservation orders, generally made when an item or precinct was in danger, and often after considerable time and money had been spent on development plans.

Supporters of listing say that the process gives people advance notice of what is, and is not, available for development.

[23.420] Federal legislation The federal government is an active participant in heritage issues. Constitutional cases since the 1980s have upheld the federal parliament’s power to legislate in matters affecting heritage and the environment. The Environment Protection and Biodiversity Conservation Act, based on these cases, is the Commonwealth’s main environment protection legislation, and also contains its heritage protection laws, protecting places of world, national and Commonwealth significance.

Federal power in heritage matters The power of the federal government to legislate to protect heritage sites of international significance in Australia was recognised in the famous Tasmanian Dams case (Commonwealth v Tasmania (1983) 46 ALR 625). In that case, the High Court recognised the validity of the World Properties Conservation Act 1983, which enabled the federal government to give effect to Australia’s obligations under the World Heritage Convention. The Act was replaced with provisions in the Environment Protection and Biodiversity Conservation Act.

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What does the Act protect? The Environment Protection and Biodiversity Conservation Act protects four main categories of places: • world heritage places • national heritage places • Commonwealth heritage places • places on the List of Overseas Places of Historic Significance to Australia. Sites of world significance World heritage places are: • properties on the World Heritage List, and • properties that the federal minister (currently the Minister for the Environment) declares to be world heritage properties. Properties declared to be world heritage properties These are properties that have been submitted to the World Heritage Committee of UNESCO for consideration, or are seen as likely to have world heritage values (s 14).

How the sites are protected The legislation deals with the protection and management of these sites. Approval requirements No person may take any action likely to impact significantly on the world heritage values of a property without approval (s 12). Management principles and management plans The Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) set out Australian World Heritage Management principles. The minister makes management plans for sites in Commonwealth areas (s 316), and works with the states and territories for other sites (s 320). Management in conjunction with states and territories Most world heritage sites in Australia are managed through agreements between the Commonwealth and the relevant state or territory, usually based on their existing laws, or joint legislation.

[23.430] Sites of national

significance Heritage sites of national, rather than international, significance are listed under • two lists set up by the Environment Protection and Biodiversity Conservation Act, Ch 5: – sites of outstanding national significance on the National Heritage List – significant sites owned by the Commonwealth government on the Commonwealth Heritage List. The legislative scheme for the new lists follows that for world heritage sites (see How the sites are protected at [23.420].

The Register of the National Estate Many readers will be familiar with the Register of the National Estate maintained under the repealed Australian Heritage Commission Act 1975 (Cth). Maintaining the register was the responsibility of the Australian Heritage Council (Australian Heritage Council Act 2003 (Cth)) until February 2012 when references to the Register were deleted from that Act and the Environment Protection and Biodiversity Conservation Act. What protection is provided? Items listed on the Register of the National Estate have no legislative protection.

The National Heritage List The minister may list places on the National Heritage List for their national heritage value (Environment Protection and Biodiversity Conservation Act, Ch 5, Div 1A). Places may also be nominated for listing by the Australian Heritage Council or the public. A place has a national heritage value if it meets one of the criteria set out in the regulations. The minister asks the council for an assessment of the place, and calls for public comment. What protection is provided? The Act provides for the place’s protection and management, to the extent that the Commonwealth’s constitutional powers allow.

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Corporations and the Commonwealth and its agencies must not take action likely to affect significantly the place’s national heritage values. A person may not take such an action: • for the purposes of trade or commerce • where the value is an Indigenous heritage value, or • in an area that Australia has responsibility for under the Biodiversity Convention (Environment Protection and Biodiversity Conservation Act, s 15B). There are civil and criminal penalties (Environment Protection and Biodiversity Conservation Act, ss 15B, 15C). The legislation also sets out exceptions (Environment Protection and Biodiversity Conservation Act, ss 15B(8), 15C(16)). Plans are prepared to protect and manage heritage values.

The Commonwealth Heritage List Where a place has national heritage values, the minister may list it on the Commonwealth Heritage List, if: • the place is in a Commonwealth area, or • it is owned or leased outside the Australian jurisdiction by the Commonwealth or one of its agencies (Environment Protection and Biodiversity Conservation Act, s 341C). A place has a Commonwealth heritage value if it meets one of the criteria set out in the regulations (Environment Protection and Biodiversity Conservation Act, s 341D). Places may also be nominated for listing by the Australian Heritage Council, or the public. The minister asks the council for an assessment of the place, and calls for public comment. What protection is provided? A person must not take an action on Commonwealth land likely to have a significant impact on the environment within Australia (s 26) or on the environment in a Commonwealth Heritage place outside the Australian jurisdiction (s 27B). In this context, “environment” includes heritage values (s 528). Commonwealth agencies make plans to protect and manage the heritage values of

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any Commonwealth Heritage places they own or control (s 341S). The Commonwealth and its agencies must not contravene these plans.

List of Overseas Places of Historic Significance to Australia This list was created in 2006. The minister adds items of outstanding significance to the list after consulting with the Minister for Foreign Affairs (Environment Protection and Biodiversity Conservation Acts 390K).

[23.440] Conservation

agreements with the Commonwealth Under the Environment Protection and Biodiversity Conservation Act, the minister may enter into a conservation agreement with persons with a legal interest in the place to promote the protection and conservation of biodiversity, world heritage and national and Commonwealth heritage values. Agreements are legally binding on the parties, including successors in title to that interest (Ch 5, Pt 14). The Commonwealth may provide financial, technical and other assistance to the person assuming obligations under the agreement (s 306).

[23.450] NSW legislation In NSW places of state and local significance are protected by the Heritage Act, administered by the NSW Heritage Council and the Heritage Office. The council’s powers are largely advisory and recommendatory.

What does the Act protect? The Heritage Act 1977 (NSW) is concerned with environmental heritage, defined as those places, buildings, works, relics, moveable objects and precincts that are of state or local heritage significance (Heritage Act, s 4). The Act defines this significance to include historic, scientific, cultural, social, archaeological, architectural, natural and aesthetic significance.

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Protection under the Act The Act enables the Heritage Council to supervise any changes to an item that is: • subject to an interim heritage order, or • placed on the state Heritage Register. It may also supervise changes approved under other legislation, such as the Local Government Act or the Environmental Planning and Assessment Act. What activities are covered? Activities covered include demolition, alteration, excavation, site development, the display of notices or advertisements, and damage or destruction of vegetation. These changes are prohibited, unless an approval is first obtained, or there is a specific exemption in operation (s 16). Who gives approval? The approval body is: • the Heritage Council, or • the relevant local council if that council has imposed an interim heritage order on the property affected. When is approval likely to be given? Approvals are typically given for such activities as routine maintenance and repair, alterations to the interior of buildings, some changes of use and subdivision. Demolition proposals Applications that would involve demolition must be refused, unless: • the item is dangerous, or • the proposal is to relocate the building (Heritage Act, s 63).

When consultation is required If the approval body believes that approval of an application would materially affect the significance of an item of environmental heritage, it must exhibit the plans and carry out community consultation before reaching a decision (s 61). Appeals Appeals from a decision of the Heritage Council are heard by the minister (s 70), and from a decision of a local council by the Land and Environment Court (s 70A).

Registers kept by the Heritage Council The Heritage Council keeps the state Heritage Register. It also maintains a register of all properties subject to interim conservation orders, and of any orders, notices and any heritage agreements made under the Act. Both registers are available for public inspection (s 22). How to find out if a place is listed Interested people, such as intending purchasers, can find out if land is affected by an interim heritage order or listing on the state Heritage Register by applying for a certificate from the Heritage Council (s 167) or consulting its website.

[23.460] Entry on the state

Heritage Register The minister may direct that an item be listed on, or removed from, the state Heritage Register after receiving a recommendation from the Heritage Council.

Notice, objections and public inquiries The Heritage Council gives affected owners and occupiers written notice of an intention to consider listing, and also advertises its intention in a newspaper circulating in the area. The notice invites submissions.

What the minister may decide The minister may decide: • to list the item • to refer the question to a ministerial review panel, or • to refer the question to the Planning Assessment Commission.

Removing an item from the register The procedure is similar for decisions to remove an item from the register.

What protection does listing give? Items of state or local significance are protected by the Heritage Act when they are listed on the state Heritage Register. The minister may enter into agreements with relevant persons to further this protection. Interim protection While items are being assessed for listing on the state Heritage Register, they may be protected by an interim heritage order.

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[23.470] Making an interim

heritage order

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Court against the order (s 120L). If the owner fails to comply If an owner fails to comply with an order, the Heritage Council may carry out the necessary work on the property at the owner’s expense (s 120K).

An interim heritage order is a temporary protective measure that allows time for a place, building, work, relic, moveable object or precinct to be assessed. The order is made by the minister after receiving advice from the Heritage Council. The minister will make an order if it is considered likely that the heritage item will be found to be of state or local heritage significance (s 24). The minister may also authorise local councils to make interim heritage orders for items of local heritage significance in their areas (s 25). Affected people need not be given notice until after an interim heritage order has been made (s 26). This helps ensure that an item will not be harmed before the order takes effect.

[23.490] If a person breaches

[23.480] Standards for

the Act

maintenance and repair

A person who breaches the Act or the Regulations commits an offence (s 156), punishable in the Local Court, or the Land and Environment Court. Penalties are lower in the Local Court. In some circumstances, prosecutions may be brought by private individuals.

The Heritage Council may endorse a conservation management plan for the heritage place that will govern its care. In addition the Regulations under the Heritage Act set out minimum standards for the maintenance and repair of heritage items. Buildings, works or relics listed on the register, or in a precinct that is listed, must be maintained and repaired to these standards (s 118), and failure to do so is an offence by the owner (s 119).

Heritage Council orders Where the Heritage Council is satisfied that a heritage item is not being maintained to at least the minimum standards required by the conservation management plan or the regulations, it may order the owner to take, or refrain from taking, some specified action (s 120). The owner is entitled: • to be given notice of the order • to be given the opportunity to make representations (ss 120A, 120B) • to appeal to the Land and Environment

If a person threatens action against a heritage order If somebody threatens to go ahead with a project in defiance of orders made under the Act, or any other provisions, anyone can bring proceedings in the Land and Environment Court for an order to stop them (s 153). If damage has already been done, an order can still be sought to remedy the situation by, for example, restoring a damaged building (s 154).

Orders that can be issued by the minister The minister has other significant powers against an owner of heritage property who has been convicted of an offence involving demolition or damage. The minister can issue an order forbidding: • any development or use of the land for a period of up to 10 years • any development that would exceed the previous building envelope (ss 160–162). The effect of this second order is that a developer who demolishes a heritage item may not build anything bigger on the site, which usually removes the financial incentive for the demolition.

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Penalties The maximum penalty for offences under the Heritage Act is 10,000 penalty units (currently $1,100,000) and six months’ imprisonment (s 157).

[23.500] Heritage agreements The Heritage Act provides for heritage agreements between the owner of an item listed on the state Heritage Register and the minister, who receives advice from the Heritage Council (s 39). Heritage agreements can be registered, after which they run with the land; that is, the agreement binds future owners of the land as well as the owner who entered into the original agreement (s 43). A heritage agreement can cover (s 40): • conservation of the item • financial and other advice required for conservation • review of the valuation of the item, or the land

• restrictions on the use of the item, or the land • carrying out of work, and the standard of the work • restrictions on work that may be carried out • exemptions for specified activities • repayment of any assistance money • public access.

If an agreement is breached The minister may apply to the Land and Environment Court for an injunction to restrain a breach of an agreement (s 44).

Appeal A decision of the minister under the Heritage Act is considered to be a political decision, and is therefore not subject to appeal in the courts. The way the minister arrived at the decision is, however, reviewable by the Supreme Court under a system of review called administrative law (see Chapter 9, Complaints).

What happened to the Regent Theatre? An example of administrative review in the heritage context is the celebrated case of the now demolished Regent Theatre in Sydney's George Street cinema district. The minister revoked a permanent conservation order over the theatre, but the Land and Environment Court declared that invalid. The court decided that the minister had failed to consider relevant information, including the

[23.510] Emergency orders Stop work orders can be made under s 136 of the Heritage Act to protect vulnerable items of the environmental heritage. An order under s 136 is a short term emergency order that takes effect as soon as it is nailed or fixed to the building, work, relic or place that is in danger. The order is made by the minister, or by the chairperson of the Heritage Council, over a building or work that is about to be demolished, or a relic or place that is about to be harmed. Once an order has been made, any activity or work must stop for 40 days.

Commissioner of Inquiry's report. A later decision by the minister to revoke the same permanent conservation order was found to have no procedural flaws (Nettheim v Minister (unreported LEC, 16 August and 21 September 1988; Court of Appeal, 21 October 21 1988)).

What happened to Rose's Emporium? Rose's Emporium had occupied a prominent corner site in the shopping centre of Parramatta Road, Petersham, until it was demolished in the early hours of a Sunday morning in August 1986. The building had been subject to an emergency order. The two defendants argued that they did not know that the order had been gazetted. The Court of Appeal, however, required evidence that this belief was reasonable. In fact, the defendants had deliberately avoided making any further inquiries about the gazettal, even though their suspicions had been aroused. Two people were found guilty of demolishing the building contrary to the order, and each fined $4,000. The building, of course, was lost forever (Caralis v Smyth (1988) 65 LGRA 303).

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[23.520] Financial assistance

to owners The minister, advised by the Heritage Council, may make grants or loans to promote and assist the conservation of items of the environmental heritage (s 106).

Where there is a heritage agreement The minister may arrange for the provision of financial, technical and other assistance to the owner of an item or land subject to a heritage agreement (s 45).

Rate and tax relief The owner of a property that is subject to the protective provisions of the Act may seek a reduction in property rates and state taxes under the Act (ss 123–128).

[23.530] Under the

Environmental Planning and Assessment Act It is becoming apparent that the most commonly used legislative instruments for preserving most items of heritage significance in private hands are environmental planning instruments under the Environmental Planning and Assessment Act (NSW). The Heritage Act now makes statutory provision for the connections between the two Acts that has been developing since 1985, when the minister issued a direction under s 117 of the Environmental Planning and Assessment Act to local councils that, unless a special case is made out, all draft local environment plans should include heritage provisions for: • land on which a building, work or relic is situated, or which comprises a building, work, relic or place, of historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance • areas of ecological significance.

Heritage provisions of an EPI The heritage provisions of an environmental planning instrument typically call for devel-

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opment consent for certain activities, including demolition and the alteration of listed heritage items. The instrument may set out procedures for public consultation. It may also require the council or other consent authority to take into account heritage factors when considering an application to carry out development on land in the vicinity of a heritage item. Standardised heritage provisions are being implemented in current moves for the reform of NSW planning laws.

Integrated development Some integrated development applications require heritage approvals under the Heritage Act as well as approval from other consent authorities (see Integrated development at [23.180]).

Local heritage studies Many councils have commissioned heritage studies of their areas as part of the preparation of a new draft local environment plan, and have incorporated heritage protection provisions in the final document including, in many cases, a list of heritage items in the council area.

Heritage Council policy The Heritage Council has decided that it will not recommend the listing of an item of envir-onmental heritage if it is otherwise adequately protected; for example, by a planning instrument. The Heritage Council provides funding for heritage studies and may subsidise the employment of heritage planners to assist councils in their responsibilities for heritage. What happens when heritage protection is left to the planning system? While this system alerts councils to heritage issues, it does so only as one of many factors that councils must consider. Even if the council is constrained by its environmental planning instrument to give more weight to heritage than to other issues, its decisions can be appealed to the Land and Environment Court. Thus, there is an argument that the preservation of a heritage item, seemingly paramount under the Heritage Act, is downgraded under the Environmental Planning

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and Assessment Act system, which uses lists of heritage items, often attached as a schedule to the planning instrument. The fact that a building or place is not listed does not mean that it has no heritage significance. Appreciation of heritage significance changes over time, and it should be remembered that one of the criteria for heritage is an item's social significance. Communities are only now beginning to recognise that preserving individual items in a landscape does not necessarily preserve what they value in their area. It may not be possible to put their “sense of place” on a list, and it may require much more subtle responses than identifying a few major physical features. Under the Local Government Act A local council may be able to take heritage issues into account even when the subject matter of the decision has not been included in an instrument under the Environmental Planning and Assessment Act. Section 89 of the Local Government Act requires councils to seek to give effect to an applicant's interests to the extent that they are compatible with the public interest. The matters that the council must consider in relation to the public interest include “any items of cultural and heritage significance which might be affected” (s 89(3)(c)).

[23.540] The National Parks

and Wildlife Act The National Parks and Wildlife Act 1974 (NSW) is extremely important in heritage preservation, not only for items of natural heritage but also for cultural and Aboriginal heritage. The main protection the Act provides is preservation of heritage through public ownership.

Specially protected areas Under the Act, land can be set aside for conservation purposes under many categories (s 30A), including: • national parks (s 33) • historic sites (including the site of events) (s 33) • state conservation areas (s 47B) • nature reserves (s 49) and karst conservation reserves (s 58K)

• regional parks (s 47O) • wild rivers (s 61). Classifications applying to private land A number of other classifications may be applied to privately owned land as well as Crown land: • Aboriginal places (places of “special significance with respect to Aboriginal culture”) (s 84) • Aboriginal areas (s 62(4)) • wildlife refuges (s 68).

Interim protection orders The Chief Executive of the Office of Environment and Heritage may issue interim protection orders under the Act to protect land of natural, scientific or cultural significance, or where action is threatened in relation to fauna or native plants (ss 91A, 91B). Interim protection orders last for a maximum of two years (s 91D). Interim protection orders were introduced in 1987. The first, made in 1988 to protect a colony of koalas near Campbelltown, was replaced by a conservation agreement with the owner of the property. Other orders relate to the protection of rare plants near Faulconbridge, a rare bird habitat and Antarctic beech community near Dorrigo, and a koala colony near Grafton.

Permanent protection There is no provision for permanent orders. Permanent protection depends on: • a conservation agreement under the Act • an environmental planning instrument, or • invoking the Heritage Act.

[23.550] The Wilderness Act Under the Wilderness Act 1987 (NSW), wilderness areas can be created on public land, or, with the agreement of the owner, on private land, to provide opportunities for solitude and self-reliant recreation.

[23.560] The Forestry Act Flora reserves may be set aside in state forests under the Forestry Act 2012 (NSW) to preserve native flora (s 16).

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Competing values The extent to which these different areas are managed for heritage conservation purposes varies. In national parks, for example, there is a constant tension between conservation and the need to provide opportunities for recreation. In other areas there may be a tension between different heritage purposes. Natural areas may be reserved for

what are really cultural reasons, such as the inspirational value of tall mountains and spectacular views. Yet it may be important to preserve areas that are not considered beautiful. The preservation of “smelly” swamps and “boring” scrub is extraordinarily important, for example, for maintaining biodiversity.

Pollution [23.570]

The Protection of the Environment Operations Act 1997 (NSW) came into force on 1 July 1999. It consolidated older

Acts dealing with air, water and other pollution, noise, regulation of waste and other environmental offences.

Pollution regulation [23.580] Protection of

environment policies The Protection of the Environment Operations Act provides for the making of protection of the environment policies, designed to guide public authorities in carrying out activities and making decisions that affect the environment.

What the policies may do Protection of the environment policies may: • set environmental standards or goals • set guidelines and programs for achieving those standards or goals • establish ways of measuring whether the standards or goals have been achieved. The policies may be made to cover a particular geographical area, activity or pollutant.

Can the policies be enforced? The policies are largely advisory, and they do not create criminal offences or allow civil penalties. The Act simply requires that they be taken into account by the EPA, councils and other regulatory authorities when licensing pollution-generating activities.

One of the criticisms of the policies is that because they are not legally enforceable they will have limited effectiveness.

[23.590] Pollution licences Schedule of activities requiring a licence The Protection of the Environment Operations Act provides a single Schedule of activities that require a licence from the EPA. The EPA has sole responsibility for licensing: • scheduled activities under the Act, and • non-scheduled activities in a local authority area (for water pollution).

Licences to control water pollution The Act makes it an offence to pollute waters. However, it provides a defence if the polluting activity complies with either a licence or a regulation that controls the way in which the activity may be carried out.

Licences issued in perpetuity Licences remain in force until they are suspended, revoked or surrendered.

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The EPA has the power to amend, revoke or suspend licences at any time due to unsatisfactory performance, and licences are to be reviewed every five years.

Rights of appeal An applicant or licence holder has 21 days to appeal to the Land and Environment Court against a decision to refuse, revoke or suspend a licence, or against the conditions imposed on a licence.

[23.600] Licences and

planning approvals Where development consent is required for a proposal that also requires a pollution licence (known as an environment protection licence), the development is integrated development (see Integrated development at [23.180]) or it may be a state significant development or infrastructure (see State significant development at [23.150] and State significant infrastructure at [23.260]).

[23.610] Environment

protection notices Under the Act, three types of notice can be issued to polluters. These are: • clean-up notices, requiring specified action to deal with a spill or unlawful disposal of waste • prevention notices, requiring specified measures to achieve improved environmental outcomes from an activity (generally these are operational measures – for example, the repair of equipment) • prohibition notices, requiring, in exceptional circumstances, the cessation of an activity. Again, there are rights of appeal to the Land and Environment Court against such notices.

[23.620] Regulatory powers

under the Act Who has responsibility? The Act divides responsibility for overseeing its regulatory functions mainly between the EPA and councils. Essentially, the EPA is responsible for regulating activities listed in the schedule to the Act and activities carried out by the government or public authorities (including local councils). Local councils are responsible for most other activities. Roads and Maritime Services is responsible for the non-scheduled activities of certain vessels in NSW waters and the Marine Parks Authority is responsible for some non-scheduled activities within marine parks. Issuing environment protection notices The EPA is the “appropriate regulatory authority” for issuing notices, such as clean-up and prevention notices, for all premises with a pollution licence, and those operated by councils and government agencies. Councils are the “appropriate regulatory authority” for issuing notices relating to pollution from other premises. As explained above, Roads and Maritime Services or the Marine Parks Authority may be the “appropriate regulatory authority” in their areas of responsibility. Issuing notices in emergencies The EPA can issue clean-up notices in emergencies even if a council is the appropriate authority. Other powers under the Act The EPA (and a council, if it is the appropriate authority) can require information to be provided, enter premises (not homes), ask questions and bring court proceedings.

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Offences and enforcement [23.630] Offences Offences under the Protection of the Environment Operations Act (NSW) are classified as tier 1, tier 2 and tier 3.

Tier 1 offences The most serious offences (tier 1) are offences where a person wilfully or negligently, in a manner that harms or is likely to harm the environment: • disposes of waste • causes anything to leak, spill or otherwise escape • causes a controlled substance (as defined in the Ozone Protection Act 1989 (NSW)) to be emitted in contravention of the regulations under that Act. Tier 1 offences are punishable with fines of up to $5 million for corporations, and $1 million and jail terms of up to seven years for individuals.

Tier 2 offences Tier 2 offences are all offences that are not tier 1 or 3. They include breaches relating to air pollution, polluting waters without a licence, noise pollution, offences in relation to transport and disposal of waste and the failure to notify non-trivial pollution events to the appropriate regulatory authority. Tier 2 offences can result in fines of up to $1 million and $120,000 per day for corporations and $250,000 and $60,000 per day for individuals.

Tier 3 offences Tier 3 offences listed in the Protection of the Environment (General) Regulation 2009 (NSW) can be dealt with by on-the-spot fines (known as “penalty notices”). They are likely to include less serious offences. At the time of writing, fines varied between $400

and $5,000 for a corporation or between $60 and $1,500 for an individual, depending on the type of offence.

[23.640] Enforcement Under the Protection of the Environment Operations Act a number of sentencing options are available to a court in dealing with polluters. These include: • imposing a fine or, for certain offences, a prison sentence • ordering the offender to take steps to prevent or control harm to the environment arising from their offence, or to prevent a recurrence • requiring an offender to publish the facts of the offence and of the orders made, and/or notify people aggrieved or affected by the offence of those facts and orders • requiring an offender to perform an environmental service; for example, a project to restore or enhance the environment in a public place or for the public benefit • allowing a court to impose, in addition to a fine, a penalty equal to the estimated value of any financial benefit the offender has gained as a result of committing the offence.

Civil enforcement As well as criminal proceedings by the EPA or local councils, any person can bring proceedings in the Land and Environment Court to remedy or restrain a breach of the Act, including breaches of pollution licences. In addition, any person can bring proceedings in the court to remedy or restrain a breach of any other Act or regulations, if that breach is resulting in harm to the environment.

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Taking action [23.650]

Our legal and political systems enable the community to participate in and influence decisions made by governments and local authorities. Unfortunately, people are often not taught the basic skills needed to take action, and they can find it difficult to know how to have a say in decisions affecting their communities.

This section looks at some of the things you can do to protect your local environment. You don’t have to be a lawyer to take action, although the law is one of the powerful tools available. For explanations of legal terms, authorities and legislation referred to in this section, see earlier sections of this chapter.

Strategies for action [23.660] Getting information Knowledge is power. You need to know the facts and issues involved when taking action on the environment, whether the campaign concerns a development proposal or ongoing pollution. Getting information requires some work. What information do you need? The following paragraphs will give you an idea of what you might need and where you might be able to get it.

Freedom of information laws The Government Information (Public Access) Act 2009 (NSW) gives people a legally enforceable right of access to information held by many state government departments and agencies and other authorities, including local councils (see Chapter 25, Freedom of Information). There is a presumption that information should be released unless there is an overriding public interest against it. Approaching the agency You should contact the relevant body and ask to speak with their Right to Information officer. Know what you want Try to establish the types of documents held so that you can accurately describe what you want. It is important to limit the size of your application – for example, by specify-

ing documents from a particular time period – to avoid unnecessary expense. Costs The application fee is $30 and there are usually search and processing fees ($30 per hour) and charges for photocopying. These fees may be reduced by up to 50% for pensioners, full time students, non-profit organisations or where you can show that the information is of special benefit to the public generally. There is also a general discretion to waive or reduce fees. What documents can't be obtained? Some documents cannot be accessed through the Act. These include: • cabinet documents • information regarding the location of certain critical habitat, threatened species, populations, ecological communities or Aboriginal objects in certain circumstances • some material relating to legal advice. Access may also be refused to other documents such as: • departmental internal working documents • business and personal records. However, this will be weighed against the public interest in releasing them in the circumstances of the case.

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Review and appeal If you are denied access to documents for any reason, you can ask for a review of the decision. The review costs a further $40. Appeal If you are still unhappy, you can appeal to: • the Office of the Information Commissioner • the NSW Civil and Administrative Tribunal (NCAT). Information held by federal agencies Similar provisions apply under the Freedom of Information Act 1982 (Cth) for access to information held by federal bodies. Information from private agencies Information from private agencies can only be obtained by subpoena once legal pro-

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ceedings are under way (see Chapter 1, About the Legal System).

Keeping records It is important to start a campaign file and keep a record of all your communications. Keep copies of any letters and submissions you send, and record details of all phone conversations relating to the matter, noting the date, the time, who you spoke to and details of the conversation. These records may be very useful later in the campaign if, for example, you need to establish that you have been treated unfairly by a department or have been given misleading information.

What information do you need? Depending on the campaign, you may need some or all of the following.

graphs and statements of witnesses, recording unlawful conduct or showing environmental harm.

The relevant legislation

Any related submissions of conservation organisations and other groups

For example, the Environmental Planning and Assessment Act. Information on the development application and development consent Development applications and a register of all development consents and complying development certificates must be available for public inspection at local councils (Environmental Planning and Assessment Act, s 100). This should include any environmental impact statement. Any reports or minutes of meetings held by the local council and its committees Council meetings are generally open to the public. The business papers often include important reports prepared by council officers, which can give the history of the matter and the particular officer's appraisal of the issue. Reports or letters of any agencies consulted by the council or the developer These agencies may include the EPA, Sydney Water, the Office of Water and the Department of Primary Industries. If you cannot obtain a copy of a document from the council, request one from the agency itself. First make telephone inquiries to the agency to work out which reports are the most important for your purposes. Written advice from someone with expertise on the environmental harm you are concerned about If the action involves an existing development or offence, you may also be able to get evidence such as photo-

Contact these groups directly to find out what action they are taking and what information they have. A map of the area This should indicate any environmental features that may be of concern. The local environmental plan applicable to the site and any relevant zoning details Your local council has this information. It can tell you if a development is permissible and whether development consent is required. You should also check any regional or state environmental plans with the council. EPIs (environmental planning instruments) are available online at www.legislation.nsw.gov.au, and LEPs (local environmental plans) are available from council chambers, council libraries and most council websites. Company searches These show the directors of a company, the registered address, accounts, shareholders and other details. They are available from the Australian Securities and Investments Commission. Property title searches These show the ownership of land, boundaries, mortgages and so on. This information is available at the NSW Land and Property Information. Title searches can be done online at www.lpi.nsw.gov.au. Phone your local council first to get identification details for the site.

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Any environment protection licences and approvals issued for the development Environment protection licences can be searched for and viewed at www.epa.nsw.gov.au/prpoeo/index.htm. Development consents granted by council can be viewed at council chambers, and sometimes on the council's website. A register of approved state significant devel-

opment and major projects can be viewed at www. majorprojects.planning.nsw.gov.au/page/ determinations. The Planning Assessment Commission has a register of projects on its website at www.pac. nsw.gov.au and similarly the Joint Regional Planning Panels have a development register on their website at www.jrpp.nsw.gov.au.

[23.670] Getting public

• who the ministers involved in the decision are • who the shadow minister is • whether there are any relevant caucus or backbench committees • if there are any parliamentary committees • whether there are any independents, and their attitudes • who your local councillors are, and their attitudes.

support The aim of this step is to let people know about the issue and what needs to be done about it. See How to get people involved at [23.680] for some ideas.

[23.680] Getting the message

across

Write a submission

Identifying key decision-makers You should find out who the key decisionmakers are and who you need to persuade or lobby on the issue. Use the phone book, call Parliament House, or look up the NSW Government Directory available online at www.service.nsw.gov.au/nswgovdirectory, or the Local Government Directory available on the Office of Local Government’s website at www.olg.nsw.gov.au as a starting point to find out: • who your member of parliament is

Now you need to write a submission outlining the issues you are concerned about. This should be based on the information you have gathered and, if possible, should provide alternatives and solutions to the problem. Ask for a response. If the matter relates to a proposed development the consent authority will usually call for submissions as a part of the approval process, and you will need to lodge your submission with the council or the Department of Planning and Environment by a given date.

How to get people involved Here are a few suggestions for what you can do.

Letterbox your street

Produce a fact sheet

Letterbox your street with the fact sheet, and consider organising a public meeting to discuss the issue if there appears to be good local support for the campaign.

Produce a simple and accurate fact sheet using the information you have gathered for your campaign. Get in touch with local, state and national conservation groups. They may already have produced information which could be useful to you. Join forces with another group You may get more public support by joining forces with an existing group rather than setting up your own. Incorporate On the other hand, it may help to incorporate as a separate group to provide a focus for a particular issue or location. Incorporation is a formal legal procedure, which would give your group a separate legal identity and allow it to take court proceedings in its own name (see Chapter 8, Community Organisations).

Use the media Keep the media informed by sending out media releases, which should be short (under one page) summaries of current issues or events. Put them out before an event, if possible, and include contact numbers for further information. Check newspapers, TV and radio to identify relevant journalists and program producers, and make personal contact with them. A media release addressed to a particular journalist or producer is more likely to be read. Radio and television For radio and television interviews, it is important to decide beforehand what you are going to say and

23 Environment and Planning

807

condense it into about three sentences. You will rarely get the chance to make more than two or three points.

In a short “grab” for television and radio news, you can make only one point.

Formats for submissions Submissions can be more or less detailed depending on the issue and the amount of information you have gathered. If your submission is long, it is important to organise your material carefully so that it is easy to follow. You could consider the following format: • a table of contents, including headings and subheadings • a summary and recommendations • a detailed report • a conclusion.

If you are not sure, ask a lawyer to check your publication first. (See Chapter 31, Media Law, for information on defamation laws.)

Get your public meeting approved

Check your material Make sure that someone checks your draft submission for missing information or arguments. Check the accuracy of your facts, and be careful about any defamatory statements about people or organisations. You should get legal advice if you think there could be a problem. Avoid misleading, ambiguous, exaggerated or emotive statements, and check that your recommendations and objections are clear.

A public meeting of five or more people may constitute an unlawful assembly under the Crimes Act 1900 (NSW), s 545C(3). It need only be three or more people under the common law. One way to avoid a charge of unlawful assembly is to notify the Police Commissioner of your intention to hold a public assembly under the Summary Offences Act 1988 (NSW). Permission should be sought from the Traffic Services Sergeant of the police branch in the region. The notification must be in writing and must be on a specified form headed “Schedule 1 – Notice of Intention to Hold a Public Assembly”. The form is available in Sch 1 of the Summary Offences Regulation 2005 at www.legislation.nsw.gov.au. You must give it to a member of the police force at least seven days before the date proposed for the public assembly (Summary Offences Act 1988, s 23).

Talk to decision-makers

Non-violent protest

Try to get appointments with the relevant decision-makers, to put your views in person. It may help to go with other interested people in a small delegation. Be prepared about what you want to say. Dress appropriately, and give the person a copy of your written submission.

Many people may wish to engage in a form of non-violent protest if they become frustrated with letter writing, lobbying and the legal process.

Defamation and safe speech Don’t say or write anything defamatory that may trigger a legal action against you or your group. Ensure that your letters, media releases, flyers, television or radio interviews do not contain any defamatory statements.

Planning Plan your action first. Planning should include training activists in non-violent behaviour and organising legal support in case people are arrested. Find out about the range of laws, such as summary offences law, commonly used against demonstrators (see Get your public meeting approved above).

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Send letters! You should also send letters to key people. Your letter should give the full title and office of the person you are writing to; for example, The Hon Robert Stokes MP, Minister for Planning. (The NSW Parliament's website (www.parliament.nsw.gov.au) has up-to-date details of the names and addresses of all members of parliament.) Your letter should clearly state: • what you are writing about (it's a good idea to put a heading at the top of your letter – for example, “Proposal for a new sand mine at Blue Pool, Newcastle”) • where the problem is (sometimes quite well known local environments are not known to government decision-makers. Include an accurate description of the site, such as a street address) • who the proponent is (that is, who is proposing the development. Your letter should be clear about who is the decision-maker and who is the developer. This can be confusing if the developer is also the government body making the decision) • why you are writing. Your letter should make it clear just what it is that you want the recipient to do. Be courteous, and remember that emotive language is unlikely to be productive. Careful reasoning and the calm presentation of evidence are more likely to convince your reader. Make sure your letter asks a substantial question. That will greatly increase your chances of getting a reply.

[23.690] Getting early legal

advice Community legal centres Preliminary legal advice can generally be obtained free of charge from community legal centres. See the Contact points for Chapter 4, Assistance with Legal Problems for a comprehensive list of these.

EDO NSW EDO NSW is a community legal centre specialising in public interest environmental

law and policy. It has full-time lawyers who will give initial legal advice on environmental matters over the telephone, and will provide advice and representation to individuals and community groups in matters involving a public interest environmental issue.

Obtain advice quickly Obtain the advice of a lawyer or expert as soon as an issue arises. Delay in seeking legal advice, particularly once a decision has been made, can prejudice court cases – there are strict deadlines for starting these actions. The developer’s financial investment may be put at risk if you delay. If the development has already commenced, the court may be reluctant to issue a restraining order stopping the project.

Finding a specialist lawyer To find a specialist environmental lawyer, contact: • groups who have been involved in legal cases relating to the environment, who may have recommendations • EDO NSW • LawAccess NSW • the Environment and Planning Law Association, for the names of private specialist lawyers in NSW • the Law Society of NSW – ask for the Pro Bono Scheme Coordinator. This scheme may provide assistance for groups that do not qualify for legal aid but are unable to fund legal representation. More generally, the NSW Law Society also runs a Solicitor Referral Service • the Public Interest Advocacy Centre, which also provides a public interest pro bono scheme and can give advice and assistance. See Contact points at [23.730] for how to get in touch.

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Going to court [23.700] Challenging a

development consent Time limits Challenges to the granting of a development consent including for state significant development and infrastructure, major project approval or complying development certificate under the Environmental Planning and Assessment Act must be commenced in the Land and Environment Court within three months of the date on which the consent or certificate is advertised in the public notice section of a local newspaper. You can find out from the council (in the case of local development) or the other relevant consent authority (Minister for Planning, Planning Assessment Commission or Joint Regional Planning Panel) the date of the notice of determination. If no notice is given (if it is not compulsory to advertise them), you must still commence the action within three months of the decision. Objectors in designated development proceedings have only 28 days from the notification of the council’s decision on the development to appeal to the Land and Environment Court (see Designated development at [23.160] for what this is).

[23.710] Getting illegal work

stopped If work is proceeding on a site without development consent or in breach of development consent conditions, and the local council does not act to enforce the conditions of consent, it may be necessary to obtain an urgent injunction (restraining order) from the Land and Environment Court. Once substantial work has been done on a development or it is already completed, it becomes much more difficult to obtain these orders.

The time and money already spent by a developer on a particular activity or development and any delay by the objector is taken into account by the court in deciding whether or not to grant an injunction.

[23.720] The Land and

Environment Court The Land and Environment Court is, in some respects, less formal than other courts.

Legal and other representation In development appeals on the merits (including designated development appeals by objectors) you do not need to be represented by a lawyer. If you choose to be represented, it may be by an expert who does not have legal qualifications (for example, a planner). However, such an “agent” can only appear on your behalf if the court agrees that it is in your best interests. Development appeals are brought in the Class 1 division of the Land and Environment Court. While the rules of evidence do not always apply in these appeals, in practice, there is no substitute for legal knowledge and experience when appealing a decision in court. Merits appeals may be heard by a commissioner or a judge. Commissioners are not usually judges, but will have expertise in a particular area, such as planning or engineering. Challenges to the legality of planning decisions and civil actions to enforce planning or pollution laws are brought in the Class 4 division of the court. These proceedings are heard by a judge, and the rules of evidence apply. It is advisable to be represented by a lawyer in these proceedings.

Costs Paying for legal and expert advice Get quotes from lawyers and experts about fees and costs before engaging them.

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Legal aid Legal aid is no longer available for any environmental cases in NSW. If you are awarded costs If you win and obtain an order for costs against the losing party, you may still have to cover the difference between the amount allowed by the court and any higher amount that you have agreed to pay your lawyer.

Who pays if you lose? Merits appeals In the Land and Environment Court, each party usually pays their own costs in merits appeals (Class 1 appeals). However, the decision whether to award costs is still a matter within the discretion of the court. In these appeals, the court reconsiders the original decision.

(Class 4 applications), the loser usually pays the winner’s costs. The loser-pays rule is a considerable disincentive. Many people could raise the money to pay for their own lawyers and witnesses. However, the possibility that, if they lose, they may have to pay the unknown costs of the other side, is too great a risk. Public interest costs orders In 2007, the Land and Environment Court Rules 2007 gave the court a specific power to decide not to make an order for costs against a losing party if it is satisfied that the proceedings have been taken in the public interest. However, in deciding whether or not to apply this rule, the court has decided that there must be something more than merely a public interest nature to the proceedings. This has limited the utility of the rule as an incentive to take actions in the public interest.

If unnecessary expense is caused In merits appeals, the court may make an exception to the usual costs orders where unnecessary evidence has been given. For example, an objector to a designated development may indicate that particular issues are going to be raised, leading the developer to obtain expert evidence to address those issues. If the objector then does not proceed with these issues, the developer may seek a special costs order making the objector liable for the costs unnecessarily incurred in obtaining the evidence.

Procedural appeals In challenges in which the legality, rather than the desirability, of a decision is challenged, or where action is taken to enforce environmental or planning laws

Maximum costs orders There is also a specific power for the court to make an order that the maximum costs that can be recovered by one party against another is a set amount. A person would usually seek such an order at the beginning of the proceedings on the basis that the order is reasonably necessary for the proceedings to continue. In the case of Blue Mountains Conservation Society Inc v Delta Electricity [2009] NSWLEC 150, the Land and Environment Court made such an order, partly on the basis that the proceedings were commenced in the public interest. This decision was upheld by the NSW Court of Appeal. However, there is no guarantee that a person can obtain a maximum (also known as a protective) costs order, as the court also considers other factors when deciding whether to make such an order.

23 Environment and Planning

811

Winning the campaign Environmental issues are seldom won in a single battle. Sometimes campaigns fail in the short term but have long-term success. In other cases, a successful legal challenge might stop a development in the short term to ensure that legal processes are followed, only to have the decision maker correct the legal defect and make exactly the same decision. Often developments that appear to have been stopped resurface in a slightly modified form.

Even if benefits are not seen in the short term, however, campaigning has an important development role, both for the campaigners and the decision-makers. Campaigners learn more about the decision-making process, the workings of governments and bureaucracy. Communities become more aware, and may become more involved on the next occasion. Decision-makers can learn the value of consulting earlier, and may take a more enlightened approach in assessing development applications.

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Contact points [23.730]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au.

Legislation

ph: 8898 6500

Australasian Legal Information Institute (AustLII) www.austlii.edu.au

Conservation and industry groups

Legislation NSW (a NSW Government service) www.legislation.nsw.gov.au

Australian Centre for Climate and Environmental Law

Courts, Tribunals and legal services Community Justice Centres www.cjc.nsw.gov.au ph: 1800 990 777 For contact details for other Community Justice Centres, see Contact points for Chapter 18, Dispute Resolution. EDO NSW www.edonsw.org.au ph: 1800 626 239 or 9262 6989 Northern Rivers office ph: 1800 626 239 or 6621 1033 Land and Environment Court, NSW www.lec.justice.nsw.gov.au

www.sydney.edu.au/law/accel ph: 9351 2222 Australian Conservation Foundation (ACF) www.acfonline.org.au ph: 1800 223 669 or (03) 9345 1111 Australian Institute of Architects (NSW Chapter) www.architecture.com.au ph: 9246 4055 Environment & Planning Law Association (NSW) www.epla.org.au ph: 8227 9600 Friends of the Earth www.foe.org.au ph: (03) 9419 8700 Greenpeace Australia Pacific www.greenpeace.org/australia/en

ph: 9113 8200 Law and Justice Foundation of NSW

ph: 1800 815 151 Local Government NSW www.lgnsw.org.au

www.lawfoundation.net.au

ph: 9242 4000 National Parks Association of NSW (NPA)

ph: 8227 3200 NSW Civil and Administrative Tribunal (NCAT) www.ncat.nsw.gov.au ph: 1300 006 228 or 1300 00 NCAT Public Interest Advocacy Centre www.piac.asn.au

ph: 9258 0123 Nature Conservation Council of NSW www.nccnsw.org.au ph: 9516 1488 Total Environment Centre www.tec.org.au ph: 9211 5022 Wilderness Society www.wilderness.org.au ph: 9282 9553 (Sydney) or 9045 0601 (Newcastle)

Government departments and agencies Australian Heritage Council www.environment.gov.au/ heritage/organisations/australianheritage-council ph: 6274 1111 Australian Securities and Investments Commission (ASIC) www.asic.gov.au ph: 1300 300 630 Environment, Department of the (Cth) www.environment.gov.au ph: 1800 803 772 or 6274 1111

www.npansw.org.au

Environment and Heritage, NSW Office of (incorporating the National Parks and Wildlife Service)

ph: 9299 0000

www.environment.nsw.gov.au

National Trust of Australia (NSW) www.nationaltrust.com.au

Pollution reporting, environment information and publication requests ph: 131 555 or 9995 5555

23 Environment and Planning

Beachwatch and Harbourwatch daily bulletins ph: 1800 036 677 EPA (Environment Protection Authority) www.epa.nsw.gov.au ph: 131 555 or 9995 5555 Local Government, NSW Office of www.olg.nsw.gov.au ph: 4428 4100 Sydney office ph: 9289 4000 National Parks and Wildlife Service www.nationalparks.nsw.gov.au

ph: 13000 72757 or 9995 6500 NSW Department of Primary Industries Water

Heritage Branch

www.water.nsw.gov.au

ph: 9995 5000

ph: 1800 353 104 Algal alert information ph: 1800 999 457 Water licensing and management enquiries, driller’s licences, and searches

Primary Industries, Department of

ph:1800 353 104 Planning and Environment, Department of www.planning.nsw.gov.au Information centre ph: 9228 6333 or 1330 305 695

Other useful resources [23.740]

813

Williams, Peter et al (2016) The Environmental Law Handbook: Planning and Land Use in NSW, 6th ed, Thomson Reuters Lyster, Rosemary et al (2016) Environmental and Planning Law in NSW, 4th ed, The Federation Press

www.environment.nsw.gov.au/ topics/heritage

www.dpi.nsw.gov.au ph: 6391 3100 RMS (Roads and Maritime Services – incorporating the RTA and NSW Maritime) www.rms.nsw.gov.au/maritime (for maritime matters) general enquiries: 13 22 13 maritime products and boating concerns: 13 12 56

24 Family Law Sally Cole Legal Aid NSW Child Support Service Carolyn Jones Women’s Legal Service NSW Mari Vagg Women’s Legal Service NSW

Contents [24.10]

Marriage, separation and divorce

[24.450]

[24.20]

Marriage

[24.110]

Divorce

[24.490] [24.550]

[24.240]

Property and maintenance – marriage

[24.560]

Rights and responsibilities under the Act

[24.240]

Legislation

[24.600]

[24.260]

Property division after marriage breakdown

If parents can reach agreement

[24.630]

Family dispute resolution

[24.300]

Agreements and consent orders Maintenance

[24.650]

Parenting orders

[24.670]

What the court must consider

[24.700]

Family violence

[24.350]

Property and maintenance – de facto relationships

[24.710]

Applications for parenting orders

[24.350]

Legislation

[24.720]

Enforcing parenting orders

[24.390]

Property

[24.730]

Variation of parenting orders

[24.400]

Agreements and consent orders

[24.750]

Relocation

[24.410]

Maintenance

[24.760]

Parental abduction of children

[24.420]

NSW Property (Relationships) Act 1984

[24.320]

Other issues in de facto relationships Child support Children

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Marriage, separation and divorce [24.10]

The law regulating marriage in Australia is the federal Marriage Act 1961. The Act sets out who can marry, who can perform a marriage ceremony, and how, where and when marriage ceremonies can be performed.

Separation and divorce, including property distribution and issues concerning children, are covered by the federal Family Law Act 1975.

Marriage [24.20] Who may marry? Age limits Both men and women can marry at 18. People under 18 In special circumstances, a person who is under 18 but over 16 may marry with the authorisation of the court. The consent of the person’s parents or guardians is also generally required, but the court may dispense with this in some cases (Marriage Act, ss 12, 13).

• a celebrant from the Registry of Births, Deaths and Marriages • a private celebrant (these are listed in the telephone directory). Religious celebrants are authorised under the rules of the particular religion.

Same-sex relationships

Fees The Registry of Births, Deaths and Marriages charges between $412 and $521, dependent on the time and day of the week of the ceremony. Private civil celebrants also charge fees. Celebrants of religious marriages usually receive a donation.

The law only recognises marriage between people of different sexes.

Time and place

The law dealing with the relationships of lesbians and gay men is discussed in Chapter 34, Same-sex Couples and their Families.

[24.30] Procedure Australian law recognises civil, religious and foreign marriages.

Marriage celebrants A person who performs a marriage ceremony is called the marriage celebrant. Civil marriages can be conducted by:

A marriage can take place anywhere and at any time as long as basic legal requirements are met.

Notice of intention to marry A Notice of Intended Marriage form must be completed and given to the celebrant at least one month before the marriage. The Notice of Intended Marriage form is available from any Registry of Births, Deaths and Marriages or Service NSW Centre. Both parties in the presence of an authorised celebrant or other “approved person” (such as a justice of the peace or a solicitor) must sign the notice.

24 Family Law

Documents required The marriage celebrant must also be given: • the parties’ birth certificates or passports • statutory declarations as to the parties’ current marital status • if one of the parties has been married before, either: – a final divorce order (previously called a decree absolute), or – the former spouse’s death certificate (s 42(10)). Fee There is a notice of intended marriage fee of $159.

[24.40] Marriage certificates A marriage certificate is proof of the marriage. The certificate is required for various purposes, including: • obtaining passports and visas • proving next of kin status for probate purposes • changing the name on bank accounts, if the person changed their name • in any application by a married person under the Family Law Act. Marriage certificates are prepared on the day of the marriage by the marriage celebrant.

Signatures required

817

[24.50] Foreign marriages Marriages performed overseas Most marriages performed overseas are recognised in Australia as valid marriages if they were made according to the other country’s laws (for exceptions, see Marriage Act, s 88D).

Marriages performed in Australia under foreign law Marriages performed in Australia according to another country’s laws are generally valid if: • they are made in the presence of consular or diplomatic staff from the foreign country • they observe Australian laws about age and prohibited relationships (s 55). Prohibited relationships A prohibited relationship is a relationship between: • a brother and sister (including halfbrothers and half-sisters) • a person and their ancestor or descendant, including adopted as well as natural children. Cousins can marry.

Polygamous marriages

The certificate must be forwarded to the Registry of Births, Deaths and Marriages within 14 days (Marriage Act, s 50(4)).

Polygamous marriages (marriages that permit a person to have more than one husband or wife) are not valid if made in Australia (ss 23, 23B). However, a party to a polygamous marriage entered into outside Australia may make applications to the Family Court, such as for divorce, property settlement, parenting orders or injunctions (Family Law Act, s 6).

Copies of the marriage certificate

Change of name

Three copies of the marriage certificate are usually made immediately after the ceremony so that the parties can have their own copy. Marriage certificates should be kept in a safe place with birth certificates, wills and other important documents.

There is no legal requirement for either party to change their name on marriage. Although women often adopt a new surname, they may choose to continue using their own name after marriage, or hyphenate names with their spouse.

The certificate is signed by: • the parties to the marriage • the celebrant • two witnesses, who must be 18 or over.

Lodging the certificate

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[24.60] Property and debts

[24.70] Sexual relations

Married people are treated as individuals if they buy property or incur debts in their sole name.

Sexual offences within marriage

Property owned before marriage Property belonging to a person before marriage remains their individual property after the marriage ceremony. This includes furniture, bank accounts, vehicles and household goods. A person may transfer property from their sole name to joint ownership with their spouse without incurring stamp duty on the transfer. However, there is no legal requirement to transfer property into joint names.

Property acquired after marriage Property acquired while a person is married generally belongs to the person in whose name it was bought, or who paid for it (but see What property is considered? at [24.280]).

Jointly owned property Married people commonly buy homes, units or land in their joint names. For more about the law of owning property with another person (as joint tenants or tenants in common), see [24.280] and Chapter 27, Housing. Loan security Property belonging to either or both parties may be used as security for either or both for a mortgage or loan.

Debts Debts acquired in one party’s name are the responsibility of that person. The person’s husband or wife has no legal responsibility for the debt. If the marriage breaks down If the marriage breaks down, a court can, under the Family Law Act, look behind the parties' legal ownership of property and make orders to transfer property or debt from one spouse to the other on the basis of what is fair in the circumstances.

Marriage does not give a husband or wife a legal right to sexual intercourse with their spouse. A husband or wife can be convicted of any of the categories of sexual assault on their spouse (Crimes Act 1900 (NSW), s 61T – see Chapter 35, Sexual Offences).

Contraception Contraception is legal in Australia, and advice can generally be obtained free from family planning clinics, or from family doctors and gynaecologists (see Family Planning NSW in Contact points at [24.780]).

[24.80] Abortion The laws on abortion differ between states.

When abortion is legal in NSW Since 1971, the law in NSW is that abortion is legally available under certain conditions. It is lawful for a medical practitioner to terminate a pregnancy if they are satisfied that it is necessary to prevent serious damage to a woman’s physical or mental health, which includes social and economic pressures. This means that if a woman believes that in her circumstances at the time she could not cope with having a baby and bringing up a child, she may lawfully terminate the pregnancy.

Abortion services In NSW, abortion services are offered mostly by private clinics with limited public provision. Costs will vary according to gestation and provider. Medicare rebates are available, but there may be additional out of pocket expenses. Specialised clinics There are clinics set up to provide counselling, pregnancy tests and terminations. Anything told to them is confidential. A referral from a doctor is not required. Most clinics offer a choice of surgical abortion up to the twelfth week of pregnancy or medical abortion for early

24 Family Law

pregnancies up to 63 days gestation. The medications for medical abortion are often referred to as RU486. Some clinics also provide surgical abortions after 12 weeks. Medical practitioners The Department of Health requires doctors to be registered with MS Health before they can prescribe medications for medical abortions. Some doctors may also provide a referral to a gynaecologist, for a surgical abortion in a hospital. Telemedicine In NSW, medical abortions for pregnancies up to 63 days gestation can be arranged through a telephone consultation home medical termination of pregnancy service. No referral is required. After the initial telephone call the patient is referred for an ultrasound and pathology test in their local area and then has a consultation with a medical doctor and a clinical psychologist over the telephone or a service like Skype. If a medical abortion is considered appropriate, medications are mailed to the patient and they have a home based medical abortion with follow up and support, see the Tabbot Foundation www.tabbot.com.au.

Public hospitals Some public hospitals provide abortions. Eligibility and referral requirements vary from one hospital to another.

[24.90] Wills and estates Effect of marriage on a will Marriage has the effect of revoking any will made before marriage, unless the will was made in anticipation of the marriage. If a new will is not made To avoid legal problems, people should make new wills after marriage to make sure their intentions are expressed. When a person dies without leaving a will (intestate), the intestacy can cause problems for the surviving spouse, who must apply to the Probate Division of the Supreme Court for letters of administration, and appointment as executor of the estate (discussed in Chapter 40, Wills, Estates and Funerals).

819

Intestacy and spouses, including domestic partnerships The Succession Act 2006 (NSW) makes provision for the entitlements of spouses in cases of intestacy. A spouse is defined as a person who was married or in a domestic partnership. A domestic partnership includes a registered relationship within the meaning of the Relationships Register Act 2010 (NSW) or a de facto relationship in existence continuously for at least two years or which has resulted in the birth of a child. However, to avoid problems, people living in de facto relationships are strongly advised to make wills in favour of each other, if this is the desired arrangement, especially if other possible beneficiaries are alive such as an estranged former spouse or children from a former marriage.

Real estate owned as joint tenants Most couples (both married and de facto) hold real estate as joint tenants. This means that the real estate automatically goes to the surviving spouse on the death of the other spouse without probate. The surviving spouse cannot inherit if they murdered their spouse.

Effect of divorce on a will Divorce does not automatically revoke a will made during marriage. However, when a divorce becomes final, any gift willed to the ex-spouse is revoked unless the ex-spouse can prove that the deceased person still wanted the gift to go to them. To avoid problems it is best to make a new will after divorce. For more information on wills and estates and on the rules about who inherits property when there is no will or when a will is invalid, see Chapter 40, Wills, Estates and Funerals.

[24.100] Breakdown of

marriage Marriage may be dissolved either by divorce or, in very limited circumstances, by nullity (see Nullity at [24.130]). Most dissolutions today are by divorce.

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The Family Law Act The federal Family Law Act deals with: • divorce and nullity • property division and spouse maintenance for married and de facto couples • issues concerning where children will live and who has responsibility for them if their parents are not in a relationship. The policy objective of the Family Law Act is to help people separate safely and with as little antagonism as possible and to encourage them to reach agreement about their children, finances and property.

• married • in a de facto relationship • in a same-sex relationship • in no relationship. Parents are covered by the Act even if they have never lived together or had any dealings with each other apart from that which gave rise to their parenthood. Parenting after separation is discussed in detail under the heading Children at [24.550].

Parents and the Family Law Act The Act covers all parents, whether they are or were:

Divorce [24.110] The effect of divorce Divorce breaks the legal bonds of marriage between a couple. It does not deal with other matters such as: • maintenance • the division of property • where children will live • who will be responsible for children’s care. Generally, it is a good idea to resolve these matters before applying for a divorce. If there is a dispute about them, a separate application must be made to the court (see Property division after marriage breakdown at [24.260], Maintenance at [24.320] and Children at [24.550]).

[24.120] Grounds for divorce The only ground for divorce is “irretrievable breakdown of the marriage”. The court will not consider accusations of fault, such as adultery, cruelty and desertion.

[24.130] Proving irretrievable

breakdown The irretrievable breakdown of a marriage is considered to have occurred when: • the parties have lived separately and

apart for at least 12 months • there is no reasonable likelihood of them getting back together (Family Law Act, s 48). The 12-month separation period must be complete before an application can be signed.

The 12-month separation period The required 12-month period of separation begins on the day after at least one of the parties considers the marriage to be over and communicates this to the other. Separation is a question of fact to be determined in each case. Resuming cohabitation The parties may resume their marital relationship after the separation has commenced, and continue to live as husband and wife for one period of up to three months without having to start the whole separation period again (Family Law Act, s 50). The separation period resumes if and when the parties separate again. Isolated acts of sexual intercourse do not break the separation period (Feltus (1977) FLC 90-212).

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For example … Ken and Alice separated at the beginning of January 2015. At the beginning of March they decided to try again to make their marriage work, and lived together for three months until the end of May. The reconciliation was not a success, and they separated again. As they had already been separated for two months (in January and February), they only had to wait another ten months to reach the 12-month period of separation required for the divorce.

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It helps if the parties can show that they intend to live apart in the near future (an intention to continue living under one roof suggests the possibility of reconciliation). If one party performs household services, such as washing and ironing for the other, they will need to show that this is necessary for the convenience of other people living there. Marriages of short duration

If the parties are living apart for other reasons A period of separation does not automatically begin when the parties are living apart because of imprisonment, illness or a work transfer. In these circumstances, evidence for the court to presume that a qualifying period of separation has begun may include: • one party informing the other that they consider the marriage to be finished, in which case the separation will be considered to have commenced at that point, or • there is evidence via actions, such as, one party living with a new partner, or taking steps to sever financial arrangements.

Couples married for less than two years can get a divorce only if they have seen a counsellor about reconciliation. This is not a difficult requirement. Usually the parties just have to tell the counsellor that they do not think reconciliation is possible. Where counselling can be dispensed with The requirement can be dispensed with in some circumstances; for example, one party cannot be found, or refuses to attend counselling, or if there is a history of violence and abuse and it is not safe to attend counselling (Family Law Act, s 44(1B), (1C)). If a party does attend counselling where there has been violence in the marriage, the counsellor should be told so that separate sessions can be organised.

Separation under one roof

Rights after separation

Former partners can live separately and apart but still live in the same house, for economic or other reasons. It must be shown that at least one of them has left the marriage relationship and that they live independently of each other.

People have various rights, and duties, after separation.

Evidence of separation under one roof As each marriage relationship is different, the facts showing separation under one roof vary from case to case. The spouses should make sure that others know about their decision from the beginning. The court requires evidence from friends, neighbours or relatives (adult children are acceptable) that the parties do not share any of the usual activities of marriage, such as sleeping together, eating together, shopping, cooking or cleaning for each other, or going out together. The case may be strengthened by showing that there were reasons why the parties remained together, such as lack of finances to obtain separate accommodation, or the interests of children.

Children Parents are equally responsible for the care and upbringing of their children until a court orders otherwise (s 61C). In most cases if parents cannot agree about the care of children, they must attend family dispute resolution before they can apply to the court for a parenting order. Children may visit the parent they do not live with, but are not required to spend time with or communicate with the other parent unless there is a court order saying so (see Children at [24.550]). Financial support A person who cannot support themselves or their children can ask the court to order the other party to provide financial support. This can be spouse maintenance, or in more limited circumstances child maintenance (see Property and maintenance – marriage at [24.240]).

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Domestic violence If one party has threatened or assaulted the other party or the children, the Family Court, Federal Circuit Court or a Local Court can make orders to prevent further violence (see Chapter 19, Domestic Violence). Property The couple can make their own arrangements about the division of property (and have them approved by the court if they wish). If the parties cannot agree, either can apply to the court at any time after separation to divide the property. Once they are divorced, the parties have 12 months from the divorce becoming final to apply for property or spousal maintenance orders. After that time the parties need special permission to file an application. Binding financial agreements can be made before or during the marriage, or after breakdown, separation or divorce. Independent legal advice must be obtained. Retrieving personal property If a party who has left cannot get their personal possessions from the house, they can apply to the Local Court for an order that their property be handed over (for ancillary property orders see Chapter 19, Domestic Violence).

Nullity An application for a decree of nullity is an application for an order from the court that a marriage be declared void. This can happen only if: • a party was already married at the time of the ceremony (ie, the marriage was bigamous) • the marriage was within a prohibited relationship (eg, between sister and brother, or parent and child) • there was no consent by one or both parties (eg, there was fraud, duress, mistake or mental incapacity) • the ceremony was invalid (for example, the celebrant was not properly appointed, and both parties knew this (Marriage Act, s 48(3)) • one or both parties were not of marriageable age. Nullity proceedings While divorce proceedings are generally quite simple, nullity proceedings can be very technical, and it is usually best to have legal representation.

Proceedings are begun by filing an application in the Family Court. It must include affidavits setting out the facts and circumstances making the marriage invalid. If this includes an assertion that a ceremony was invalid under the laws of the country where it was performed, the applicant should supply expert evidence of this. Application of the Family Law Act A party to a void marriage will be treated as a spouse for the purpose of property settlements and maintenance awards under the Family Law Act (s 71). Children of the marriage are also covered (s 60F(2)).

[24.140] Applying for divorce Making the application Although the Family Court has jurisdiction to grant divorces it no longer accepts divorce applications, and all applications are filed and heard by the Federal Circuit Court. Parties are encouraged to use an online interactive application for divorce form, which can be accessed via the Federal Circuit Court website (www. federalcircuitcourt.gov.au) and the Commonwealth Courts Portal (www. comcourts.gov.au). An Application for Divorce Kit, which includes the application form, is also available from family law court registries, some Local Courts, legal stationers (the Family Law National Enquiry Centre (1300 352 000) or Live Chat on the Federal Circuit Court website (www.federalcircuitcourt.gov.au). The application for divorce form can be filed by post or in person in any registry that services the Federal Circuit Court at any time after the parties have been separated for more than 12 months.

Who can apply? Either party to the marriage, or both, can apply for divorce. It does not matter who left whom, or whether the other party wants a divorce. For the court to have jurisdiction, either wife or husband must, at the date the application was filed, have been: • an Australian citizen, or • domiciled in Australia (which means they have made a permanent home in Australia – it does not matter if they are living

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overseas temporarily), or • ordinarily resident in Australia, having lived here for 12 months before the application (it does not matter if they are living in Australia temporarily).

[24.150] Joint applications Parties can apply together by both signing the application. Joint applications have some practical benefits. There is no need to go through the legal formalities of serving the documents, and the parties can share the filing fee.

[24.160] Sole applications The applicant completes the application for divorce, a fairly simple form that may be filled in by hand. It must be signed, and sworn or affirmed to be true, in front of a justice of the peace or a solicitor. The applicant must also complete proof of service forms. A Divorce Service Kit can be picked up at the same time as the Application for Divorce Kit (see Making the application at [24.140]). Who can live in the matrimonial home? If a house is jointly owned or leased, both parties are legally entitled to occupy it, and neither may deny the other access. Even if the house is in one party's sole name, they may not be able to throw the other out of the matrimonial home (see Property and maintenance – marriage at [24.240]). If there has been domestic violence in the relationship the victim may be able to get an order excluding the other party from the home (see Chapter 19, Domestic Violence at [19.150] Apprehended Violence Orders).

[24.170] Filing the application The completed application and two photocopies must be taken or sent to the Federal Circuit Court to be filed and stamped with the court seal. The court keeps the original and returns the stamped copies to the applicant. A date for a hearing is stamped or written on the application form by the counter staff. The hearing date is usually about six to eight weeks from when the application is filed.

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Fees A filing fee must be paid when the application is filed. The Federal Circuit Court’s current fee (July 2016) is $865. The fee can be reduced in some cases, for example, if the applicant has a government concession card or can demonstrate financial hardship. An application for reduction of payment form should be filed at the same time as the divorce application. The current reduced fee (July 2016) for divorce is $290.

The marriage certificate The marriage certificate must be filed at the same time as the application as evidence that the couple was legally married. If the original certificate is not available, a full copy must be obtained from the Registry of Births, Deaths and Marriages. If there is no marriage certificate If no marriage certificate was provided at the wedding (because, for example, it took place in a refugee camp), the applicant must file an affidavit giving details of the ceremony, witnesses and vows, or evidence of some kind of promise to love and live with each other to the exclusion of all others. Evidence of overseas marriages All marriages made outside Australia must be evidenced by an official extract from the foreign registry of marriages. If the foreign marriage certificate is not in English, it must be translated by a certified translator and filed at the court along with an affidavit by the translator stating they are competent to make official translations (Family Law Rules 2004 (Cth), r 2.02(4)). The federal Department of Immigration and Border Protection or the Community Relations Commission of NSW will translate marriage certificates into English for a fee. The Multicultural NSW fee is from $77–$117 depending on urgency. If foreign marriage certificates are not available, an affidavit must be filed giving an explanation. If the marriage was invalid in the way it was performed in a foreign country, it may be possible to apply for a decree of nullity rather than a divorce, but the court will

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need expert evidence of what is a valid ceremony in that country (see Nullity at [24.130]).

[24.180] Serving the

application The court keeps the original application and returns two copies. One is for the applicant to keep; the other must be delivered to (served on) the other party (the respondent) together with a pamphlet setting out the effects of divorce (available in a number of languages from family law court registries, the Federal Circuit Court website (www. federalcircuitcourt.gov.au), the Family Court website (www.familycourt.gov.au) or the Family Law National Enquiry Centre (1300 352 000). The respondent must be served at least 28 days before the hearing date (42 days if they are overseas). There are various rules and methods for the service of court documents.

Personal service The respondent can be handed the documents in person by anyone over 18 except the applicant (Federal Circuit Court Rules 2001 (Cth), r 6.07(3)). A friend, a relative or a professional process server can serve the documents without the applicant being present. A private process server or the NSW Office of the Sheriff may charge from $64, depending on the area and the number of attempts they have to make to serve the document. The server should hand the documents directly to the respondent. It is not enough to leave them with someone else who lives or works with the person. Identifying the respondent If the server does not know the respondent, they should identify them by asking for: • their full name • the full name of their spouse • the date and place of marriage. It is a good idea to give the server a photo of the respondent.

If the respondent will not take the documents If the respondent will not accept the documents, they can be put down in the respondent’s presence. The person serving the documents should also say: “Your husband or wife (whichever it is) is seeking a divorce from you. These are the papers and the Federal Circuit Court will hear the application on such-and-such a date.” Proof that the documents were served After the documents have been served the server should fill out an affidavit of service recording the time, date and place of service, and anything relevant that was said. The affidavit must be signed, and sworn or affirmed to be the truth, in front of a justice of the peace or solicitor. It is convenient if the respondent will sign the acknowledgment of service – this is the best proof that they were served. The signed acknowledgment should be attached (annexed) to the affidavit of service. If the respondent refused to sign this form, the applicant can use the affidavit of service as proof that the documents were personally delivered to the respondent. If the applicant recognises the respondent’s signature, they should also complete an affidavit proving signature and sign the affidavit before a justice of the peace or solicitor.

Postal service The applicant can send the documents by ordinary post with an acknowledgment of service for the respondent to sign, and a postage-paid envelope addressed to the applicant so that the form can be returned. This method should not be used if it is unlikely that the respondent will cooperate and sign the acknowledgment. Proof of service When the form is returned, the applicant should complete and sign an affidavit of service by post, including the date on which the papers were sent.

Overseas service If the documents are to be served overseas, the mode of service may depend on:

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• whether Australia has an agreement with the country about civil proceedings, including the service of documents (that is, whether it is a convention country) (Family Law Regulations 1984 (Cth), reg 21AE), and • whether the person is a national of that country. If the country is a convention country If the country is a convention country, the documents may (and in some cases must) be sent to the registrar of the Family Court, who forwards them to the country (regs 21AF, 21AG). This process usually takes about nine months, and it can be expensive because translations must be provided for all documents if the country is not an Englishspeaking country. It is necessary to check with the registrar whether the country is a convention country or not and, if it is, whether other forms of service are permitted. See also the Commonwealth Attorney General’s guide to Serving a Legal Document across International Borders on their website. If the country is not a convention country If the country is not a convention country, service can be either by post or by a process server in that country.

Other types of service The court does not generally grant divorces when one of the parties does not know about the application. However, if the applicant does not know where the respondent is, or has, for some other reason, been unable to serve them, the court can order substituted service, such as advertising in a newspaper or service on a relative.

Dispensing with service Sometimes the court will waive the requirement for service altogether. To have the requirement waived, the applicant must make a separate application asking for an order to dispense with service of the application for divorce. The application should include an affidavit with details of the last contact the applicant had with the respondent, and describing attempts at lo-

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cating them or safety concerns about doing so. The application should emphasise that all avenues of enquiry have been exhausted – the electoral roll, parents, mutual friends, social media, the respondent’s union, their last known address, their last known job, and anything else that has been tried. What enquiries should be made? The court does not usually require applicants to go to great expense in trying to track down respondents, especially if they are not well off. The following (inexpensive) enquiries are often sufficient: • writing to the respondent's family and friends, telling them of the divorce application and asking them for information on the respondent's whereabouts • writing to the respondent's last known employer and asking whether they left a forwarding address.

The application for dispensation of service and the supporting affidavit should be filed with the divorce application.

[24.190] Arrangements for

children The court may not grant a divorce if the parties have not made suitable arrangements for the future care of: • children (under 18) of one or both parties, or • children who lived as part of the family before the parties separated (Family Law Act, s 55A). • the arrangements can be informal and do not need to be made into orders or a parenting plan before a divorce can be granted.

Information required by the court The application for divorce asks for details about children, including: • where and with whom they live (you may need to provide further information about things like whether the home is rented or owned, and what facilities it has, such as the number of bedrooms) • the name of the school they attend, their year level and their progress at school • their general health and any ongoing medical needs • arrangements for their supervision

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• how often they see the parent they don’t live with • how the family is supported financially • the amount of child support being paid. In some circumstances (such as if the other spouse or the children cannot be found), these details are not needed for the divorce to become final.

If the court is not satisfied If the court is not satisfied that proper arrangements have been made, it may adjourn the hearing until a report has been obtained from a family consultant (Family Law Act, s 55A(2). However, usually the court will still grant the divorce. If questions about children or property are not resolved

[24.210] Going to court Who must attend? Neither party needs to go to court for the hearing if: • there are no children of the marriage under 18, or • the application is a joint application. If the application is a sole application and there are children under 18, the applicant must attend the hearing. Respondents do not usually have to attend unless they have filed a response, in which case they must go if they want the court to consider it. In this case, the applicant should go so they can comment on the response.

Legal representation

The divorce order is not a parenting order or a property order. If disputes about children or property are not resolved between the parties, a separate application may have to be made (see Property and maintenance – marriage at [24.240] and Children at [24.550]).

The applicant can either appear in person or be represented in court by a solicitor or barrister. The process is fairly straightforward, and many people go to court without a lawyer. If they are represented, each party must pay their own legal costs.

[24.200] Opposing the divorce

Getting legal advice

A respondent can oppose the divorce, or correct mistakes or misrepresentations on the divorce application, by filing a response within 28 days of being served. There are very limited grounds for opposing a divorce. It is not enough that the respondent does not want a divorce, or loves the other party or wants a reconciliation. The court will grant a divorce once it is satisfied that there is an irretrievable breakdown of marriage as proved by 12 months’ separation. The respondent can delay the divorce by showing that the separation did not occur when the applicant said it did.

Correcting the application without opposing the divorce If there are mistakes or misrepresentations on a divorce application it is a good idea to correct them by filing a response even if you don’t oppose the divorce, as the application is a document that will stay on the court file.

If the divorce is opposed, or involves special circumstances such as separation under one roof, it is wise to seek legal advice. Free legal advice is available from Legal Aid NSW or a community legal centre (see Chapter 4, Assistance with Legal Problems).

The hearing Court lists Divorce hearings are normally listed for a time between 9.30am and 2pm. There is usually a list of cases in the foyer of the court building. Court lists by court location with times and courtroom numbers are also available on the Federal Circuit Court website from late afternoon on the day before the court event (www.federalcircuitcourt. gov.au). Before the hearing At most courts a court officer will collect “appearances” shortly before the start of each list to try to make the lists run

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smoothly, and may briefly explain the procedure to applicants who do not have lawyers. The applicant should arrive at the court early, look for their name on the list, and note the number of the courtroom and the case. They should sit outside the courtroom until the court officer calls the name of the case. When the matter is called the applicant sits at the long table – called the bar table – facing the judicial officer. Court etiquette Judges are addressed as “Your Honour”. Registrars (who usually hear divorce applications) are referred to as “Registrar”. It is customary for anyone entering or leaving the courtroom to make a short bow of the head to the presiding judicial officer as a courtesy.

What happens at the hearing An applicant represented by a lawyer does not usually have to say anything. Otherwise, the judicial officer normally asks applicants to state their name, the name of the respondent and whether there are any children under 18. The judicial officer then reads the papers and may ask a few questions about the separation (particularly if it was a separation under one roof) or arrangements for the children. The applicant should stand whenever the judicial officer speaks directly to them. The hearing only takes a few minutes and often there are 20 or 30 divorce hearings in rapid succession. The court's business The court is only concerned with the narrow factual question of whether the marriage is over as proved by at least 12 months' separation. Unresolved emotional issues are best dealt with during private counselling and not in public in a court.

Witnesses and evidence In divorce proceedings, neither party is usually required to go into the witness box to give evidence. Often the judicial officer just asks questions while the applicant is standing at the bar table, without requiring evidence on oath.

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If there are children under 18 the judicial officer may ask about the children’s welfare, perhaps to clarify whether child support is being paid for their benefit. If the children live with the respondent and the respondent is not present or represented in court, the judicial officer may want to hear about them from the applicant, or someone who has seen them recently if the applicant is not fully aware of their situation. The respondent should be asked to swear an affidavit setting out the arrangements for the children before the hearing. Where there has been a separation under one roof, affidavit evidence explaining the separate arrangements by one or two people who are not parties is usually sufficient. However, the judicial officer may wish to ask them questions, so it is a good idea if the people who made affidavits are in court, if possible. Otherwise, the divorce may be adjourned to a later date. Friends and relatives Parties are free to bring friends and relatives to court if they feel the need for support. Interpreters If the parties do not speak English, the court can arrange an interpreter free of charge if enough notice is given. There is a question on the Application for Divorce form that asks whether an interpreter is required, or a letter can be filed before the hearing. The letter should quote the matter number of the case, and the time and date of the hearing. To be sure an interpreter will be available on the day, notice should be given at least two weeks before the hearing. It is a good idea to check with the court that an interpreter has been arranged a few days before the hearing.

[24.220] The divorce order When the court finds that the separation requirements have been met and a divorce should be granted, it makes a divorce order (previously called a decree nisi) that will come into effect one month after it is made. The court can extend or reduce this time. For example, there may be special circumstances, such as an impending birth where a new partner is the parent, or a prospective spouse’s imminent departure

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overseas (Family Law Act, s 55), that could justify the court in reducing the time in which the order takes effect. The marriage officially comes to an end, and each party is free to remarry, at the end of the one-month period (or other time ordered by the court) from the date of the divorce order. This is a final divorce order (previously called a decree absolute).

Setting a divorce order aside A divorce order can be set aside in certain circumstances, but it is not possible to appeal once the divorce order has come into effect (Family Law Act, ss 55, 57–58).

If the parties reconcile

period before the divorce order comes into effect they can apply to the court to have it rescinded (s 57).

If a party dies The decree will not become final if one party dies (s 55(4)).

[24.230] Appeals Either party may appeal against the terms of a divorce order or a decree of nullity within 28 days after it is made. The divorce order may then not come into effect until one month after the appeal is decided (s 55). To appeal a divorce order made by a Registrar file an Application for Review within 28 days of the making of the order. There is no filing fee.

If the parties become reconciled during the

Property and maintenance – marriage Legislation [24.240] Parties who were

married The Family Court has jurisdiction under Pt VIII of the Family Law Act to settle property and maintenance matters between the parties to a marriage or former marriage. The Federal Circuit Court also has jurisdiction to deal with all property and maintenance matters, except that more complex or lengthy matters may be transferred to the Family Court.

[24.250] Parties who were not

married On 1 March 2009, the Family Law Act was amended to make provision for the regula-

tion of property and maintenance matters between people in de facto relationships (including same-sex couples) (Pt VIIIAB). Further detailed information about financial matters for de facto couples is set out in Property and maintenance – de facto relationships at [24.350]. Important! Contact the Family Court or the Federal Circuit Court, or a solicitor, to find out about the relevant court rules before starting any family law action.

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Property division after marriage breakdown [24.260]

A divorce order does not include the division of the couple’s property.

[24.270] Time limits An application for a division of the matrimonial property can be made at any time after a married couple has separated. However, once the divorce order becomes final, a property application must be made within 12 months. For example, if a divorce order is made in court on 4 July 2015, and it becomes final on 5 August 2015, the property application must be filed before 5 August 2016. The court may allow a person to apply after this time limit if hardship for that party or the children can be established and a reason for the delay is given. This is called granting leave to apply out of time (Family Law Act, s 44).

[24.280] What property is

considered? All property owned by either spouse, with each other or with any other person, is considered for the property settlement. The property the court considers must “arise out of the marital relationship” (s 4). This means that the court cannot make an order if a dispute arises out of a business relationship.

Property the court can deal with Property the court can deal with includes: • property purchased during the marriage • superannuation • gifts and inheritances received by either party • property owned by the parties before the marriage • assets and goodwill that a party has built up in a business • compensation awards

• lottery winnings • redundancy packages. Property in companies or trusts Property in companies or trusts is treated as the property of one spouse for the purposes of the settlement if it appears that that spouse enjoys the benefits of ownership of the company or trust.

Property the court cannot deal with Property that generally cannot be dealt with by the court includes: • future expectations under wills or trusts (except in circumstances where the facts indicate a level of certainty of inheritance or benefit) • long service leave entitlements • actions for personal injury damages (unless the other party nursed the injured spouse through their injuries). All these may be considered financial resources of a party to be taken into account when the court assesses their future needs.

The family home The main item of property owned by most people is a house, flat, or block of land. Houses and land are usually owned in either a single name, or as a joint tenancy or tenancy in common. The manner in which the home is owned will not usually affect the order for property division made by the court, but may have some practical implications for the parties pending a property settlement order. Single ownership Sometimes the house may only be in the husband’s name. This is the least desirable form of ownership for a couple. During the course of the marriage, the house is treated as belonging to the spouse in whose name it stands – that spouse can mortgage or sell it without the other’s agreement. On the

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breakdown of the marriage, however, the court can give the wife all or part of the house even though it was in her husband’s name. Joint tenancy Joint tenancy is the most secure form of ownership for both parties in a marriage or de facto relationship. Each has an equal share in the property. One cannot sell the property without the other’s agreement, and on the death of one of them, the other automatically becomes the owner of the whole property. Ownership passes because of the title; the property never becomes part of the deceased person’s estate. Tenancy in common In this form of ownership each owner has a distinct share in the property. It may be

equal shares, or another proportion. Ownership does not automatically pass to the surviving spouse on the death of the other. Each tenant in common can deal with their share of the property and leave it to whomever they wish in their will. This may be a more appropriate form of ownership when there are children of a previous relationship to consider. Right of occupancy A person is entitled to live in the family home unless there is a court order requiring them to leave, regardless of whose name is on the title.

Exclusive occupancy orders The court can order one party to leave and give exclusive occupancy of the home to the other. In doing so, the court has to consider the needs of both parties, and the needs of the children of the marriage. Exclusive occupancy of the home may be given to one party even if the home is in the other's name. The court may be reluctant to order a party to leave the

Threats to sell If one party threatens to sell, give away or mortgage the home or any other property, the other party can seek a court order (an injunction) to stop them. The court may make an injunction to preserve the property until the final hearing and the making of property settlement orders. A caveat (a warning to potential buyers) can be lodged on the title to stop the property being sold or further mortgaged. The form is lodged with Land & Property Information (formerly the Department of Lands). There is a lodgement fee. However, an entitlement to a property settlement under the Family Law Act is not a caveatable interest in itself, and legal advice should be sought before taking this action because the person lodging the caveat may be liable for compensation for any loss suffered as a result.

home. An exclusive use order can be obtained where there is domestic violence or threats and intimidation of the other spouse or the children. It may be faster and cheaper to apply to the Local Court through state law for a protection order called an apprehended domestic violence order which can include an exclusion order (see Chapter 19, Domestic Violence).

An application to the Family Court or Federal Circuit Court for a property settlement should be filed at this stage, if it has not already been done.

[24.290] Division of property The family law courts can make orders dividing or redistributing property and debt based on s 79 of the Family Law Act, which through case law has been described as a four step process involving: • deciding what property the parties own, and its value (at the hearing date), then • considering what contributions were made by each party in the past and their value as a percentage, then • considering the parties’ present and future needs, including income and earning capacity (actual and potential), the care of

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children, the effect of any order on earning capacity and other financial resources, then • considering whether the proposed division is just and equitable in all the circumstances of the case. The decision of the High Court in Stanford & Stanford (2012) 247 CLR 108; (2012) FLC 93-518 held that the court must be satisfied that it is just and equitable to alter property interests pursuant to s 79(2) before exercising the power in s 79. See also Bevan & Bevan [2013] FLC 93-545.

Contributions in the past The court looks at the history of the marriage and determines how much each party has contributed (directly or indirectly, financially or otherwise) to acquiring, looking after and improving the property. These contributions may be: • property owned at the time of marriage • money contributed before or during the marriage (such as wages, income from a business or investments, or payment of a deposit on a house) • gifts and inheritances to one party • work done on the property (such as building, painting, gardening and renovating) • efforts put into building up and running a business. Help from one spouse’s parents in fixing up the home, or through a gift of money, will generally be considered the contribution of that party. Indirect contributions Indirect contributions to the acquisition of property include such things as paying the day-to-day expenses of the home and family. Homemaker's contributions The court also looks at the contributions made by each party to the welfare of the family. Most importantly, this includes contributions as a home-maker (cooking, washing, shopping, cleaning, entertaining and so on) and, if there are children, as a parent (having and looking after children, and involvement in the children’s schooling, recreation and development).

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These factors may be considered both in their own right and in their effect on the earning capacity and acquisition of assets of the other spouse (eg, by staying at home, the homemaker spouse has freed the other party to go out and obtain assets, income and expertise). In many marriages the contributions of the homemaker are regarded as equal to the contributions of the income earner. This may not be the case if: • the marriage was short, or • the contributions of one party were particularly large. Unilateral disposal of assets In some cases one party may dispose of property unilaterally. This may be “waste” such as in Kowaliw & Kowaliw [1981] FLC 91-092, where the court considered that losses incurred because of the reckless negligence, alcoholism and gambling of one party did not have to be shared by both. It could also be “premature distribution” of an asset such as in Townsend & Townsend [1995] FLC 92-569. Following the decision of the High Court in Stanford referred to above there may be increasing reluctance to include notional property in the asset pool, sometimes referred to as an “add-back”, with suggestions that it is more appropriate to deal with a unilateral disposal of property under s 75(2)(o) or in an assessment of contributions. However, see Vass & Vass [2015] FamCAFC 51 in which the Full Court comments that notional add-backs can still be used.

Kennon adjustment In Kennon & Kennon [1997] FLC 92-757 the Full Court of the Family Court looked at domestic violence and considered the wife's homemaker contributions were increased because her contribution was made more onerous and difficult by the abuse she had suffered at the hands of the husband. The court can take into account the conduct of the parties and in effect penalise one party, but it will usually be difficult to persuade the court to do this.

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Special contributions The court has identified a special contribution, where one of the parties’ contribution in terms of their personal skills is so extraordinary that they should be credited with a higher percentage. This special contribution has so far only been found in cases where there has been financial or professional acumen. There are no reported decisions where the court has found that the contributions of a homemaker were special. The Full Court has commented on the appropriateness of reference to special contributions in the decision of Kane & Kane [2013] FLC 93-569, which held that profitable decisions made by a successful businessman did not amount to special contributions and did not warrant concluding that the husband’s contributions in a 30-year marriage outweighed the non-financial contributions of the wife. See also Hoffman & Hoffman [2014] FLC 93-591 and Fields & Smith [2015] FLC 93-638 which affirm that s 79 does not suggest that one kind of contribution will be more “special” than another kind of contribution.

Needs in the future After deciding what the contributions were, the court considers whether one party has a need for more of the property by looking at the future needs of the parties. The factors the court considers include: • the age and health of the parties • the ability of the parties to support themselves • whether a party is supporting other people, such as children or other relatives • whether a party is being supported by anyone else, like a new partner or parents. For example … James and Carla separated after ten years of marriage. They had little property when they married, but they saved enough out of James' wages to pay off a house. Carla worked at home to look after James and their children, now aged six, eight and nine. The children live with Carla, whose only income is a parenting payment. The court considered that Carla's contributions as homemaker equalled James's financial contributions; ie,

there was a 50–50 contribution to the parties' asset. However, because Carla has to look after young children, has a small income, and has little prospect of ever earning as much money as James, the court made an adjustment in Carla's favour of an additional 10%, so that 60% of the property went to Carla. Many cases are not as simple as this. Parties should seek advice from a lawyer experienced in family property law.

What the court may decide The court must be satisfied that the proposed division of property is just and equitable in all the circumstances of the case. The court has very wide discretion in what it can order, and what it orders will depend on the facts of the case. Possible orders include: • that one party transfer property to the other • payment of a lump sum instead of transfer of property • that one party repay a debt to a third person • that the parties sell an asset and divide the proceeds on a set basis. Debts The court can make orders binding third parties, including creditors of one or both of the parties (Family Law Act, Pt VIIIAA). However, the court will usually exercise this power cautiously and as a last resort. It is always best to ensure that debts are paid out, so no-one is left with a debt that resurfaces years later. It is also important to ensure that guarantees provided by one party for the other are dealt with by the orders.

Pre-action procedures The parties are required to make a genuine effort to settle the matter, including an exchange of documents relating to their financial circumstances and the value of their assets. In many cases they must also attend family dispute resolution before filing an application with the court.

Compulsory conciliation conferences If the parties cannot reach an agreement and proceed to court they will usually have to attend a conciliation conference with a

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registrar of the court to discuss settlement options. Both parties must attend, and may bring a lawyer. Attendance at a conference is not required for consent orders and some interim orders. If a party does not comply If a party does not comply with this requirement, the conference may be adjourned and an order for costs made against them. If agreement is reached If agreement is reached, the registrar may make consent orders at that time to finish the case. If there is no agreement If there is no agreement, the registrar will make directions about the future conduct of the case.

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Dealing with the house If all matrimonial assets are tied up in the house, the court may have no choice but to order its sale. If there are enough other assets or a big superannuation entitlement, the court may give one party the home, particularly if that party is looking after the children. The other party would then get the other assets, including all their superannuation entitlement. One party may be able to renegotiate a mortgage to raise money to pay out the other party and keep the house. In some cases, the court may postpone the sale and let the parent caring for children stay in the house until the children grow up, if this is not too far in the future and the other party has a cash flow or some money to go on with. Generally, the court will only make an order of this kind with the consent of both parties.

Common misconceptions about property entitlements There are many mistaken beliefs about property and financial entitlements on the breakdown of marriage. Some of the more common are discussed below. There's an automatic 50–50 split No. There has never been any automatic 50–50 split of the property. The court considers contributions, needs and what is just in all the circumstances. If I leave, I'll lose my rights No. Each partner in the course of a marriage earns a share in the property, and does not lose it simply because they decide it is no longer possible, or desirable, or safe, to remain in the house. I owned it before we got married, so it's mine The fact that someone owned a piece of property before marriage does not mean they automatically have total rights to it or its money value when the marriage ends. The property will be regarded as a contribution by its owner, but it is assumed that over time both spouses contributed, directly or indirectly, to its maintenance or improvement. The longer the marriage, the less important is pre-marriage ownership. In a marriage that has lasted for less than five years, the original owner is more likely to keep all or most of the value of their initial contribution.

I can keep inheritances and gifts A spouse is not always entitled to keep gifts and inheritances. Gifts are usually seen as a contribution made on behalf of the recipient. As with pre-marital assets, their importance decreases as the marriage goes on. A lump sum inheritance put into the mortgage tends to become part of the matrimonial property (though it will be recognised that that spouse made a bigger financial contribution). A house that is rented out or owned with others and has not had matrimonial money paid for rates or repairs will probably stay with the person who inherited it. If the gift or inheritance was received shortly before separation, the spouse who received it has a good argument for receiving its full value. The court can also consider future inheritances. The factual circumstance would have to be that it was more or less certain that the will and therefore inheritance would not be changed. I worked hard for this business and it's mine People who have worked hard during a marriage to build up a business often do not consider their spouse entitled to a share of it. But when the spouse has answered the phone, arranged work for the business, kept books or entertained business associates, the court will consider these efforts as a contribution to its success. Even if the spouse has never worked in the business, if they have taken on the responsibilities of caring for the house and

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children they will be regarded as having made an indirect contribution by freeing the other spouse to put time and effort into it. If the spouse worked in another job to provide family income when the business was less profitable, this too will be regarded as a contribution. Women always get the best deal What women receive in a division of property must often cover both themselves and their children. The woman may be awarded more than the man in the short term. Studies in Australia and overseas, show that men do better in the long run. Men still often have greater income-earning and borrowing capacity, and if they do

Superannuation Superannuation is often the second most valuable asset in a marriage and the Family Law Act provides that superannuation is to be treated as property. Women often have less superannuation due to factors such as child rearing responsibilities and the gender pay gap. Obtaining information The parties can access all the relevant information from the trustees of the superannuation fund. The court has a Superannuation Information Kit with a form that can be filled out and sent to the trustees. The trustee must then provide the information on the member’s assets in the fund

not have children to care for, they usually recover financially in three to five years. Women and children generally never return to the standard of living they enjoyed before the separation, even if the court gave the woman more of the property. A woman caring for children may not wish or be able to get full-time work. If she was involved in full-time child care during the marriage, she may not have the necessary skills to find a job that pays well. When women do have job skills, careers or equivalent earning capacities to their husbands, and there are no children – which is more likely with younger couples – they do not receive more than men.

to assist the non-member spouse to ascertain their value. The trustee can charge a fee for this. There are protections in the regulations, and the address of the member must not be disclosed. What the court may decide The court has wide discretion when making orders in relation to superannuation. They can split the fund between the parties in any percentage that is just in all the circumstances. They can also leave the superannuation with one spouse and give the other more of the other property, for example, a greater share of the home, though note the decision in Coghlan.

A special species of property The Full Court decision in Coghlan & Coghlan [2005 FLC 93-220 provides that, except in limited circumstances, such as where the superannuation entitlements are minimal, the court should deal with superannuation separately from other property because it is a “special species” of property. That means the court must deal with two separate pools, one of all non-superannuation property and the other of superannuation. The court must be satisfied that it is just and equitable to apply the four-step process to each pool. In Doherty & Doherty [2006] FLC 93-256 the Full Court

confirmed that the mix of superannuation and nonsuperannuation assets to be retained by each party is discretionary. In this case the wife retained the majority of the immediately tangible assets, including the former matrimonial home, while the husband retained nearly all his superannuation. Getting advice The regulations and formulas are complex. It is always best to get a professional to value superannuation. A solicitor or accountant could help with this.

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Agreements and consent orders [24.300]

Under the Family Law Act, parties can make enforceable agreements about: • care of their children • division of their property • spouse maintenance payments • some child support payments.

[24.310] Types of agreements The Act recognises several agreements, including: • binding financial agreements • consent orders.

types

of

Binding financial agreements Binding financial agreements to deal with property upon the breakdown of marriage were introduced to the Family Law Act in 2000. The agreement must be in writing and can be entered into: • before a marriage (s 90B) • during a marriage, either before or after separation, but before divorce (s 90C) • after a divorce order is made (s 90D). What can be included in the agreement? The agreement can deal with: • all or part of the property and financial resources owned by the parties at the time and property they acquire during the marriage • maintenance of the parties (during the marriage or after divorce, or both) • other matters. Any property, financial resources or other matters not dealt with by the agreement remain subject to the provisions of the Family Law Act. It is recommended that a solicitor draft the agreement. Separation declaration Where the agreement is made after separation, a separation declaration signed by at least one of the parties must be attached.

When is an agreement binding? Section 90G sets out when a financial agreement is binding. The requirements are very strict and have been the subject of much litigation, for example, see Hoult & Hoult [2013] FLC 93-546 and Logan & Logan [2013] FLC 93-555. The requirements include: • the agreement is signed by all parties, and • before signing, each party receives independent legal advice about the effect of the agreement on their rights and the advantages and disadvantages of making the agreement, and • each party is given a signed statement by the legal practitioner that this advice was given to them, and • a copy of the signed statement is given to the other party or their legal representative, and • the agreement has not been terminated or set aside by a court. Section 90G has also been amended twice, which means that different requirements for independent legal advice may apply depending on when the agreement was made. The need for greater certainty for financial agreements has resulted in significant reforms being proposed in the Family Law Amendment (Financial Agreements and Other Measures) Bill 2015. Enforcement Section 90G gives the court very wide powers to make any orders it thinks necessary to enforce financial agreements. Recent trend Binding financial agreements appear to be becoming less popular in response to court decisions relating to agreements drafted without proper legal advice and professional negligence. For example, see Thompson & Schacht [2014] NSWCA 247. Termination A binding financial agreement can be terminated at any time by the parties making a new binding financial agreement

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terminating the previous one or by making a termination agreement (s 90J) or by order of the court. Setting aside an agreement Applications to set aside a binding financial agreement must be made to the court. The circumstances under which the court may do so are set out in s 90K. It is expensive and difficult to have a properly executed agreement set aside, and people should think very carefully before entering into one. Changes in circumstances may be difficult to anticipate. For example, pre-marriage agreements may be attractive to parties of second or third marriages who want to protect property for the children of their previous marriage. In doing this, however, they may inadvertently leave a spouse not properly provided for when their circumstances change due to some event such as the birth of a child.

Consent orders Consent orders are orders of the court that are just as binding and enforceable as orders made by the court after a final hearing. The main difference is that consent orders are based on the agreement of the parties. Making consent orders Consent orders can be made by lodging an application for consent orders with the Family Court or Local Court. It is a good idea for parties to have independent legal advice before agreeing to the terms of a consent order application. They must be very careful that the actual terms of the orders are in proper legal form. A Family Court registrar looks at the application and decides whether the consent orders appear to be a fair settlement of the property (or in the best interests of the children, if they include parenting orders). Usually, if both parties have received independent legal advice, the registrar will make the orders. If one or both parties do not have a lawyer, the registrar may require more information about their financial situation or parenting arrangements. Consent orders may also be made at any time during court proceedings when an agreement has been reached. As in other property proceedings, parties have 12 months from the divorce order becoming final to file an application for consent orders.

Changing property orders When may orders be changed? Property orders are considered to be final orders, and the court will only entertain an application to set them aside in very limited circumstances (s 79A), where: • there has been a miscarriage of justice because of “fraud, duress, false evidence, suppression of evidence, or other circumstances” • it is not practical or possible for them to be carried out • one party has defaulted in carrying out their obligations under the order • exceptional circumstances affecting children’s welfare have arisen, and this is causing hardship to the children or the spouse looking after them • a proceeds of crime order has been made against one of the parties or the property of the marriage.

Effect of death on claims and orders If one spouse dies before, during or soon after divorce proceedings, it will have an effect on the division of property. If a party dies before proceedings are begun If one party dies before the other has instituted property proceedings, no property claim may be brought under the Family Law Act. The survivor may be able to claim a legal or equitable interest in the property or assets of the deceased, or make a claim for family provision from their estate (see Chapter 40, Wills, Estates and Funerals). If a party dies before the matter is completed When a property application has been lodged but one party dies before the matter is completed, the proceedings may be continued by or against the deceased’s legal personal representative (the person looking after the estate). If the court decides that property orders are still appropriate, these orders are enforceable against the estate (s 79(8)). If a party dies before orders are carried out If property proceedings are complete, but one party dies before the orders are carried out, they may be enforced against the deceased’s estate.

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Maintenance [24.320]

Maintenance is money paid by one party to a marriage for the financial support of the other party or their children. Spouse maintenance and child support are treated very differently. As a general rule, parents are expected to financially support their children regardless of who the children live with. However, a person is only required to support a former spouse when a particular need can be shown.

[24.330] Spouse maintenance Either spouse may get maintenance from their former spouse provided they can establish the need for support and the ability of the other party to pay. For social and economic reasons, it is usually the woman who requires continuing financial support from her former spouse.

Qualifying for maintenance To qualify for maintenance, a person will have to show that they are unable to support themselves properly because: • they are caring for children under the age of 18, or • they cannot obtain work because of ill health, age or some other adequate reason (such as having no job skills, having been too long out of the workforce or being too close to retirement age) (s 72).

What the court considers In considering the income of a person applying for spousal maintenance, the court may not take into account an income-tested pension or allowance like the parenting payment (s 75(3)). The person applying must also show that the spouse is reasonably able to pay. The court will consider the standard of living that in all the circumstances is reasonable. As with property disputes, maintenance cases are decided on their particular facts, and it is difficult to generalise about how much maintenance will be payable and for how long in normal circumstances. The

court will consider the matters referred to in ss 72 and 75(2) of the Act. See Hall & Hall [2016] HCA 23 for consideration of the meaning of financial resources under s 75(2)(b).

Applying for maintenance If there are divorce proceedings An application for spouse maintenance must be made within 12 months of a divorce becoming final, but it can be applied for immediately on separation through the Local Court, the Federal Circuit Court or the Family Court. Special leave of the court must be sought if the parties have been divorced for more than a year. If there are no other proceedings If there are no court proceedings except spousal maintenance, the application should be lodged in the Federal Circuit Court.

When spouse maintenance orders end A maintenance order for a spouse ceases on their death or their marriage, unless the court makes a continuation order (s 82). Expenses associated with the birth of a child Under s 67B of the Family Law Act, a child's father, who is not married to the child's mother, whether he has ever lived with the mother or not, is liable to contribute to her maintenance for: • two months before the child's birth (or earlier, if she gives up work on medical advice), and • three months after the birth. What expenses are included? Expenses can include: • things for the child (such as clothing, cot and car seat) and • the mother's medical expenses, including surgical, hospital, nursing, pharmaceutical and related costs. Proof of these expenses should generally be retained. If the mother or child dies in circumstances related to the pregnancy or birth, funeral expenses can be claimed. What the court considers The court considers the financial situation of each parent, and any special circumstance that may cause

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injustice or undue hardship. It must disregard the mother's entitlement to any income-tested pension, allowance or benefit, such as the parenting payment (s 67C). Making an application Applications may be made to the Family Court, the Federal Circuit Court or the Local Court at any time during the pregnancy or within 12 months after the birth. Late applications require the special leave of the court.

[24.340] Maintenance for

children over the age of 18 Since the Child Support scheme started in 1989, the court has had a limited role in the financial support of children (see [24.490] Child Support for more information about child support). The court does have jurisdiction under s 66L of the Family Law Act to order maintenance for a “child” over the age of 18 in limited circumstances. The application can be made by a carer or parent, or the child themselves. The court can only order maintenance if it is needed for the child to complete their education, or if it is needed because the child has a physical or mental disability. If satisfied that one or both of

these pre-conditions exist, the court may make an order after considering the “child’s” proper needs and the capacity of the child and each of the parents to contribute to these needs. A child who is studying at university for example, may be assumed to have some capacity to support him or herself via part time or casual work. These applications are usually made in the Federal Circuit Court, and there is a requirement to attempt to resolve the matter via Family Dispute Resolution and obtain a certificate pursuant to s 60I of the Family Law Act prior to proceeding to court (subject to the usual exceptions). If a maintenance order is made by the court, it may be able to be registered for collection with the Department of Human Services: (“Child Support”). Currently, this is only possible if it is an order to pay a carer or parent, and if it provides for the payment of a regular periodic amount. It is advisable to check with Child Support prior to drafting orders to ensure the orders will be registrable.

Property and maintenance – de facto relationships Legislation [24.350]

Part VIIIAB of the Family Law Act regulates financial matters between people in de facto relationships, including same-sex couples who separated on or after 1 March 2009.

[24.360] Time limits Applications for property division or spouse

maintenance must be made within two years of the date the parties to the de facto relationship separated. The court may allow a person to apply after this time limit if hardship for that party or children can be established and a reason for the delay is given. This is called granting leave to apply out of time, Family Law Act, s 44.

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[24.370] What is a de facto

relationship? The Family Law Act (s 4AA) states that a person is in a de facto relationship with another person if: • they are not legally married to each other, and • they are not related by family (child, including adopted child, descendant or parent in common), and • taking into account all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. These circumstances include any of the following, although no particular finding in relation to any of these factors is required to decide that a de facto relationship exists: • how long the relationship lasted • the nature and extent to which the parties lived together • whether or not there was a sexual relationship • the degree of financial dependence or interdependence of the parties and any arrangements for financial support between them • the ownership, use and acquisition of their property • the degree of mutual commitment to a shared life • whether the relationship is or was registered under a prescribed law of a state or territory as a prescribed kind of relationship • the care and support of children • the reputation and public aspects of the relationship. A de facto relationship can exist between two people of different sexes or the same sex, and a person can be in a de facto relationship even if they are legally married to another person or in a de facto relationship with someone else.

[24.380] Who can apply? There are limitations on who may seek a remedy from the court (s 90SB).

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The court can only make orders or declarations if it is satisfied of one of the following: • the total period of the de facto relationship is at least two years, or • there is a child of the de facto relationship, or • there has been a substantial contribution by one party to the de facto relationship and there would be a serious injustice if an order or declaration was not made, or • the relationship is or was registered under a prescribed law of a state or territory. There is also a geographical requirement in s 90SK that must be satisfied: • either or both parties to the de facto relationship lived in the relevant jurisdiction on the date the application was made, and • either: – both parties lived in the relevant jurisdiction for a third of the duration of their relationship, or – the applicant for the declaration or order made substantial contributions in relation to the family or the property in the relevant jurisdiction. The relevant jurisdictions are NSW, Queensland, Victoria, Tasmania, South Australia, the Northern Territory and the ACT (Western Australia is excluded).

Equitable remedies Separated de facto couples who do not qualify to access remedies under the Family Law Act may be able to access equitable remedies available under general common law principles, depending on the circumstances of the case. A remedy based on a constructive trust The High Court’s decision in Baumgartner & Baumgartner [1988] DFC 95-058 imposed a constructive trust on the de facto husband’s property. What this meant was that the husband owned the property not only for himself but also for the benefit of his de facto wife. The court ordered that she was entitled to a share of it because it would be “unconscionable” and an “unjust enrichment” of the husband to do otherwise.

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Applying for an equitable remedy Applications for common law remedies should be made in the Supreme Court. Legal advice should be sought before making a claim.

Time limits Time limits vary, and parties may have to apply for permission to make a late claim.

Property [24.390]

A party to a de facto relationship can seek a declaration or orders from the Family Court or Federal Circuit Court under the Family Law Act relating to the division of property, subject to the conditions about who can apply for such an order or declaration. The matters that the court will take into consideration in deciding to make an order

are the same as those that are considered in a claim between married couples that are separating (see s 90SM). For more details about how the court deals with division of property under the Family Law Act, see Property division after marriage breakdown at [24.260].

Agreements and consent orders [24.400]

De facto couples can make financial agreements under the Family Law Act. The provisions of the Family Law Act that deal with financial agreements between de facto partners generally mirror the provisions of the Family Law Act that regulate

financial agreements between married couples. For more information about financial agreements, see Agreements and consent orders at [24.300].

Maintenance [24.410]

A party to a de facto relationship can claim maintenance under the Family Law Act. To qualify for maintenance a person must show that they are unable to support themselves because: • they are caring for children under the age of 18, or • they cannot obtain work because of ill health, age or some other adequate reason (s 90SF).

A party to a de facto relationship must only maintain the other party to the extent that they are reasonably able to do so. The matters that the court will take into consideration in deciding whether to award maintenance are the same as those that are considered for married couples that are separating (s 90SF(3)). For more information about spouse maintenance provisions under the Family Law Act, see Spouse maintenance at [24.330].

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NSW Property (Relationships) Act 1984 [24.420] De facto and

domestic relationships under the NSW Property (Relationships) Act The Property (Relationships) Act 1984 (NSW) regulates financial matters between de facto couples (including same-sex couples) who separated before 1 March 2009 and people in a domestic relationship (s 5), which includes two adults in a close personal relationship whether related to each other or not, who are living together, one or each of whom gives the other domestic support and personal care. There are also residence requirements (s 15) and other limitations (s 17) on who can apply.

[24.430] Time limits Applications for property division or spouse

maintenance must be made within two years of the date of the relationship breakdown. Leave to apply out of time is discretionary (s 18).

[24.440] Available financial

relief The Property (Relationships) Act 1984 includes provision for the division of property, maintenance and enforceable financial agreements, including domestic relationship agreements and termination agreements. Applications for property settlements are usually made to the District (jurisdictional limit of $250,000) or Supreme Courts. The Local Court can make property orders if: • the property’s value is less than $100,000, or • both parties agree that the application should be heard there.

Other issues in de facto relationships [24.450] Domestic violence

[24.460] Compensation

A person in a de facto relationship or domestic relationship experiencing domestic violence can apply for an apprehended violence order for their protection from the Local Court (see Chapter 19, Domestic Violence). A party to a de facto relationship with proceedings for a parenting matter under the Family Law Act may also apply for similar types of personal protection injunctions under that Act. The Property (Relationships) Act 1984 also enables courts to grant injunctions restraining a party from harassing, molesting or assaulting the other.

If a person is killed at work In NSW, if a person is killed at work, family members who depended on them for support may be able to claim compensation as dependants under the Workers Compensation Act 1987 or Compensation to Relatives Act 1897. Those who can claim include children and de facto partners (including same-sex partners).

If a person is killed or injured in an accident In some cases a de facto partner (including a same-sex partner) may have a claim for compensation where their partner is killed

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or injured in a motor vehicle or other accident (see Chapter 3, Accidents and Compensation).

If a person is a victim of crime Dependants can also apply to Victims Services for victims support where a de facto partner is injured or dies as a result of a criminal act, even if the offender is not caught or brought to trial. Intending applicants should consult a solicitor. Time limits Most applications must be lodged within two years of the date of the incident (see Chapter 39, Victims Support).

[24.470] Superannuation Superannuation fund trustees generally have very wide powers and, depending on the fund, may exercise their discretion in favour of a dependent de facto partner. However, de facto partners are not guaranteed the same rights as married spouses. The best way for a de facto partner to ensure their entitlement under a superannuation scheme is to be nominated by their partner as the beneficiary in the event of the policyholder’s death, though the trustee may not be bound by the nomination (see Chapter 37, Superannuation).

[24.480] Wills and intestacy If a person dies without a will The rules of intestacy (where a person dies without a will) recognise domestic partnerships which include a registered relationship

within the meaning of the Relationships Register Act or a de facto relationship (including same-sex relationships) in existence continuously for at least two years or which has resulted in the birth of a child. Children inherit from their parents whether the parents were married, in a de facto relationship or in no relationship.

Family provision Under the Succession Act 2006, family members can apply for a share of a person’s estate if they were excluded from the will or received an inadequate share. Family members include de facto partners (even ex de facto partners in some cases). If the de facto partner receives a share of the estate in the will, the deceased person’s relatives (such as their legal spouse or children) may apply under the same Act to increase their share. What the court considers The court considers: • the extent of any provision made for the applicant, either before or after the person’s death • any financial or domestic contributions by the applicant to the person’s property or welfare • the applicant’s character and conduct • other circumstances before and after death (s 60). Proceedings under the Act can be expensive. Legal aid may be available in some exceptional cases, and costs usually come out of the estate.

Child support [24.490]

It is an important principle of Australian law that all parents have a legal duty to financially support their children, at least up to the age of 18 and in some circumstances beyond this age. This duty exists irrespective of whether the parents were married or lived together and continues if the parents stop living together. A

parent for child support purposes can include a person in a same-sex relationship. (For further details about laws affecting same-sex couples, see Chapter 34, Same-sex Couples and their Families). If the parents of a child are no longer living together, the money paid by one parent to the other or to the child’s carer to support the child is called “child support”.

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A parent or carer of a child will usually apply to the Department of Human Services (“Child Support”) for an assessment of how much child support should be paid. Applications for child support can be made by calling Child Support on 131 272 or by applying online at www.humanservices.gov. au. Either parent or carer can apply to Child Support for a child support assessment – whether they will be paying or receiving the child support. Child Support uses a mathematical formula to work out how much child support should be paid. A parent or carer can choose to collect the child support themselves, or to ask Child Support to collect this money on their behalf.

Is it compulsory to apply to Child Support for an assessment? It is not compulsory to apply to Child Support for an assessment. Parents who do not receive Family Tax Benefit (FTB) A from Centrelink are free to work out between themselves how much child support should be paid by one parent to the other. Under these arrangements, payments are made directly from one parent to the other with no involvement from any government agencies. If a parent or carer of the child applies to receive more than the minimum FTB A for the child, they will be required to take “reasonable action” to obtain child support from the other parent and this will usually mean applying for an assessment. Centrelink will then assume that the carer is receiving the amount payable under a child support assessment for the purposes of working out how much FTB should be paid to the parent.

Exemptions from the requirement to seek child support If the parent or carer receives more than the minimum amount of FTB A for a child, Centrelink gives them 13 weeks to take reasonable steps to obtain child support from the other parent or the minimum rate FTB A will be paid. It is understood by Centrelink that it not possible to seek child support in every case. In certain

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circumstances, Centrelink will grant an exemption from seeking child support to parents or carers. Exemptions can be granted in a number of circumstances but the most common reasons for obtaining an exemption are: • where the parent or carer fears violence from the other parent if child support is pursued • if the whereabouts of the other parent is unknown, or • if the identity of the other parent cannot be established. Centrelink social workers make decisions about exemptions. Anyone seeking an exemption should make an appointment to see a Centrelink social worker and explain the reason why an exemption is sought. The social worker will make a decision about the exemption and tell the parent/carer if their application for exemption has been successful. A decision by a social worker to refuse a request for an exemption is a reviewable decision that will follow the usual processes. That is, a reconsideration can be sought from another Centrelink officer called an Authorised Review Officer (ARO). If the ARO decision is not acceptable an external appeal is available to the Social Security Appeals Tribunal (SSAT) and then the Administrative Appeals Tribunal (AAT). Legal advice should be sought if it is necessary to seek an external review of a Centrelink decision. Proof of parentage Before Child Support will accept an application for a child support assessment, it requires proof that the person from whom support is sought is a parent of the child. This requirement is usually satisfied in one of the following ways: • the parents were married at the time the child was born, or • the parent’s name appears on the child’s birth certificate, or • the parent acknowledged parentage by completing a legal document such as a statutory declaration, or • a court has found that the person is the child’s parent, or • the person has legally adopted the child, or

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• the couple cohabited at any time during the period beginning 44 weeks and ending 20 weeks prior to the child’s birth. Child Support will usually ask a parent seeking child support to prove they are a parent of the child by providing a copy of the child’s birth certificate. If a parent does not have a copy of the child’s birth certificate, Child Support will also allow the parent to complete a statutory declaration declaring that they are named as parent of the child on the child’s birth certificate. A similar form is available for non-parent carer’s to declare that the child’s parents are named on the child’s birth certificate. (These forms are available on the Child Support website referred to earlier) If a parent or carer cannot prove parentage by one of the ways accepted by Child Support, she or he can to make an application to the Federal Circuit Court or Local Court seeking a declaration under s 106A of the Child Support (Assessment) Act 1989 (Cth) that she or he is entitled to a child support assessment for the child. It is important to seek legal advice before going to court for a child support declaration, and legal aid is usually available to take this court action. Applications under s 106A must be lodged within the time limit prescribed in the court rules (currently 56 days from the day the person receives notice of Child Support’s decision to refuse the application for an assessment). It is also permissible to seek an extension of time from the court. An application for an extension of time should be accompanied by evidence in an affidavit explaining the delay and addressing issues of hardship. An affidavit in support of a declaration under s 106A should also annex the letter from Child Support stating that the application for child support assessment has been refused and a statement explaining why child support is sought from the other parent. It may be necessary to ask the court to order that DNA parentage testing be conducted to help to resolve if the other person is a parent of the child. DNA testing must take place in accordance with the Family Law Regulations 1984 (Cth). It is also important to remember that that the DNA test results alone cannot be used to

obtain a child support assessment. This means that after a positive DNA test report is obtained, the court must still make a declaration under s 106A that the applicant is entitled to a child support assessment for the child. The added benefit for the applicant is that once an s 106A order is provided to Child Support, the child support assessment starts from the date that the relevant application for child support assessment was made. In some cases a child support assessment is issued and the person assessed to pay the costs of the child disputes they are a parent of the child. A person in this situation can lodge an application in the Federal Circuit Court or Local Court seeking a declaration under s 107 of the Child Support (Assessment) Act 1989 that the other person is not entitled to child support because the applicant is not a parent of the child. The court is also required to determine if any child support paid to date should be repaid to the person making the application (s 143 of the Child Support (Assessment) Act 1989). These court applications must be also be lodged within the time limit prescribed in the court rules (56 days from the day the person received notice of the child support assessment), or an extension of time can be sought. A section 107 declaration cannot be sought where the court has previously made a declaration under s 106A. It may be possible to appeal the s 106A declaration or in some limited circumstances seek an order setting aside the previous declaration. Specialist legal advice should be sought.

[24.500] Child support

assessments How do child support assessments work? The amount to be paid in child support depends on the taxable income of both parents, the age of the children, whether the parents have any other children as well as the amount of time each parent spends with the child.

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Child support assessment formula Once proof of parentage is provided, Child Support assesses the amount of child support payable by a parent using a mathematical formula set out in the Child Support (Assessment) Act 1989. The intention of the child support formula is that the amount payable is based on research into the cost of supporting Australian children of different ages and that parents with similar income amounts pay comparable amounts of child support. The Child Support website includes an estimator that parents can use to work out how much child support they are likely to pay or receive. The calculation of child support payments is based on: • the costs of caring for children of different ages (based on Australian research) • the relevant income of each parent • the amount of nights the child spends with each parent • whether either parent has any other dependent children in their care • whether either parent has any other children for whom they pay child support under a child support assessment Child Support can only issue a child support assessment in a case where the child support paying parent lives in Australia or in a country that has an agreement with Australia about the payment of child support.

What do the terms used to calculate child support payments mean? Adjustable taxable income A parent’s income from a broad range of sources including: • most recent taxable income • reportable fringe benefits • foreign income • net rental property losses • some pensions or social security benefits (FTB is excluded). Self Support Amount An amount representing a parent’s basic living expenses, deducted from each parent’s Adjustable Taxable Income. The Self

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Support Amount is the same for each parent and is indexed annually. In 2015 this amount was $23,752. Relevant dependent child amount An amount representing the costs of caring for children (usually only biological or adopted children) in a new family, deducted from the relevant parent’s Adjustable Taxable Income. The costs of a child/children in a new family are calculated in the same way as the costs for children receiving the benefit of child support payments. Child support payments are calculated according to a ten-step process illustrated below. Example Dominique and Peter have a child, Sara, who is nine years old. Sara is in Dominique's care 300 nights per year and Peter's care for 65 nights per year. Dominique's Adjustable Taxable Income is $53,500. Peter's Adjustable Taxable Income is $82,852. Step 1 – Work out each parent's child support income The child support income is each parent's Adjustable Taxable Income less: • the Self Support Amount, and • the Relevant Dependent Amount (if there are children to support from new partnerships).

Dominique Adjustable Taxable Income minus Relevant Support Amount Child support income for Dominique Peter Adjustable Taxable Income minus Relevant Support Amount Child support income for Peter

$53,500 – $23,752 $29,748

$82,852 – $23,752 $59,100

Step 2 – Work out the parents' combined child support income Add each parent's Adjustable Taxable Income together to get a combined child support income:

Child support income for Dominique Child support income for Peter Combined child support income

$29,748 $59,100 $88,848

Step 3 – Work out each parent's income percentage A parent's income percentage represents the share that each parent has in the combined parental resources available to meet the costs of the child.

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Divide each parent's child support income by the combined child support income and convert to a percentage:

Dominique Child support income Combined child support income Dominique’s income percentage Peter Child support income Combined child support income Peter’s income percentage

Dominique’s care percentage (300 ÷ 365)

= 0.8219 = 82%

$29,748 ÷ $88,848 = 0.3348 33.48%

Peter Peter’s care percentage (65 ÷ 365)

= 0.1781 = 18%

Step 5 – Work out each parent's cost percentage

$59,100 ÷ $88,848 = 0.6652 66.52%

Step 4 – Work out each parent's care percentage A parent's care percentage represents the proportion of care that each parent has of each child support child. Divide the number of nights of care a parent will have over a 12-month period by 365 and convert to a percentage:

A parent's cost percentage is the share of a child's costs that a parent incurs through care of the child. It represents the extent to which the parent is taken to have met the costs of the child through caring for the child. A parent's cost percentage is worked out using a table set out in s 55C of the Child Support (Assessment) Act 1989. Dominique's care percentage is between 66–86%. Her cost percentage is 76%. Peter's care percentage is between 14–34%. His cost percentage is 24%.

Dominique

Care percentages, cost percentages and levels of care No. of nights/ year 0–51 52–127 128–175

No. of nights/ fortnight 1 2–4 5–6

Level of care

Care percentage

Nil care Regular care Shared care

0–13% 14–34% 35–47%

176–189 190–237

7 8–9

Shared care Shared care

48–52% 53–65%

238–313 314–365

10–12 13–14

Primary care Sole care

66–86% 87–100%

Step 6 – Work out each parent's child support percentage A parent's child support percentage represents the share of the parent's resources (income percentage) less the share of costs he or she meets directly through caring for the child (cost percentage). A parent, who meets more of the costs through care than their share of resources, has a negative child support percentage and will generally receive child support.

Dominique Income percentage minus Cost percentage

33.48% – 76 %

Cost percentage Nil 24% 25% plus 2% for each percentage point over 35% 50% 51% plus 2% for every percentage point over 53% 76% 100%

Child support percentage Peter Income percentage minus Cost percentage Child support percentage

-42.52% 66.52% – 24% 42.52%

Dominique has 33.48% of the combined child support income but meets 76% of costs directly through care. Dominique must receive some child support from Peter. Peter has 66.52% of combined child support income but only meets 24% of costs directly through care. Peter must pay some child support to Dominique.

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Step 7 – Work out the costs of the child The costs of the child are calculated using the Costs of Children Table set out in Sch. 1 to the Child Support (Assessment) Act 1989. This table sets out the formula to be used to work out the actual costs. The formula takes into account the parents' combined child support income and the number of children being supported. The amounts set out in the Costs of Children Table are indexed each year. Information about costs of children can be found on the Child Support website: Using the Costs of Children Table, the costs of Sara are $13,512. Step 8 – Work out amount of child support payable The amount of child support payable is calculated by multiplying the positive child support percentage by the costs of the child.

Peter Child support percentage 3 Cost of child Annual child support payment

42.52% x $13,512 $5,745

Peter must transfer $5,770 per year ($110.00 per week) in child support payments to Dominique.

Keeping Child Support informed about a parent's circumstances It is important that Child Support has accurate and up-to-date information for each parent’s income and level of care of each child of the assessment. Parents who are paying or receiving child support are obliged to lodge their tax returns on time. Parents on a low income (such as a full Centrelink benefit) should still lodge a tax return with the Australian Taxation Office so that Child Support can obtain the correct income details. However, parents who receive a non-taxable pension or benefit should be careful this is not entered as income on their tax return.

Child Support determinations about each parent's care levels When an application for child support assessment is made, Child Support will make a determination about the level of care that each parent/carer has. Child Support will usually work out the care level for each parent/carer based on the number of nights that the child is likely to be in the care of each parent/carer. Child Support will ask

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for information from each parent/carer about any recent patterns of care for the child to determine the care level for each parent/carer. They may also seek copies of any court documents or agreements that may form the basis of arrangements regarding care and the agreement reached between the parents. If Centrelink makes a decision about care levels for FTB purposes Child Support must use this to determine care levels for a child support assessment (and vice versa). In some cases Child Support can also take into account the number of hours that a person has the child in their care to determine the care level. Child Support may also consider that a child is still in a person’s care even if the child is living out of home, for example in boarding school, or in a hospital. This determination will depend on a number of factors, including the responsibility that a parent/carer has in making decisions for a child or making arrangements for their care. If care arrangements change, a parent should advise Child Support as soon as possible. Child Support will usually only make further changes to the care determination from the date of notification. Once a decision about care levels is made, a parent/ carer who has concerns about the decision can “object” to the decision made by Child Support. See discussion below regarding objections.

Minimum child support payments It is acknowledged that a parent should pay some child support even when their capacity to pay is limited. A minimum child support payment applies for parents who receive income support payments from Centrelink or the Department of Veterans Affairs. The minimum liability is indexed annually and is currently around $8.00 per week. The minimum rate does not apply to a parent who has at least regular care of the child/ ren (ie at least 52 nights of the year). A parent who receives income of less than the equivalent of the minimum annual rate payable may apply to Child Support to have their child support payments reduced to nil. For example, a parent who is incarcerated

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can apply for the minimum payment to be reduced to nil by telephoning Child Support or using the appropriate form on the website.

Fixed annual rate of child support A fixed child support assessment will apply to parents reporting a low taxable income who are not receiving any income support from Centrelink or Veterans Affairs. This amount is also indexed annually and is currently around $25.00 per child per week (capped at three children). Fixed assessments have been introduced to address the issue of parents who deliberately underreport their income to avoid or reduce their child support payments. However, a parent can apply to Child Support to pay the minimum amount of child support if he or she can demonstrate that his or her income is genuinely low.

[24.510] Varying a child

support assessment Estimates In most cases, Child Support will use the most up-to-date taxable income for a parent to determine the amount of child support to be paid. It is acknowledged that a parent’s situation may change and that it should be possible to provide Child Support with more up-to-date income information to be used in the child support assessment. In cases where Child Support has been using the most recent taxable income for a parent and that parent’s income falls by at least 15%, the parent can contact Child Support and make an election to use an income “estimate”. Once a parent estimates their income it is important that they report any income changes to Child Support. This can be done by lodging subsequent estimates (which can be either higher or lower than the original estimate). After the estimate period ends, Child Support will compare the estimate of income of the parent against their actual taxable income. Child Support will charge the parent an “estimate penalty” when the actual income for the estimate period is 110%, or more, of the estimated income.

The estimate penalty is 10% of the difference between the final estimate amount and the child support payable on the adjusted taxable income amount. An estimate penalty is a debt due to Child Support, and not the other parent or carer, and an application can be made to the Child Support to reduce the estimate penalty amount.

Application to exclude income from child support assessments The child support legislation recognises that it can cost a lot for a parent to re-establish themselves following separation. A parent who earns extra money post-separation (for example, from working overtime or a second job) can apply for the extra income to be excluded from their child support assessment. This application can be made over the telephone or by submitting a form. Some things must be satisfied to claim this benefit: • the relationship must have lasted for more than six months and the application must be made within three years of the last separation • the income must be of a different nature from other income earned and must not ordinarily have been expected • the income earned can only reduce the parent’s Adjusted Taxable Income by 30% • a reduction to the assessment usually only comes into effect from the date of application • the application can only cover a period up to three years from the end of the relationship.

Application to change the assessment The intention of the child support legislation is that child support assessments should not otherwise be changed, except if certain special circumstances exist. A parent or carer with a child support assessment may apply to Child Support for a change to their child support assessment if she or he believes that they can satisfy one of the ten special circumstances for a change to the child support assessment. Child Support can make a decision to change assessments from a period of up to 18 months before the application is made

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and can change future assessments as well. Child Support cannot change assessments once the child support assessment ends for a child (for example, when they turn 18). If a parent/carer wants to seek a change to a child support assessment for an earlier period, an application for leave must be made to the Federal Circuit Court or Local Court. The court can only permit a change to a child support assessment for a period up to seven (7) years prior to the application being made. The process for change of assessment requires that the parent complete an “Application for Change of Assessment” form available from Child Support or from the website. The application asks the parent or carer to provide information about their own personal financial circumstances and to explain how they meet one of the ten reasons for change of assessment. This form, and any documents provided with it to prove one of the ten special reasons, will be provided to the other parent or carer. The other parent/carer is then asked to complete a response to the application, which in turn is sent to the applicant for change of assessment. Decisions on “Change of Assessment” applications are made by a Senior Case Officer (SCO) within Child Support. At first, the SCO will telephone the applicant for change of assessment and talk to them about the process. The SCO will make use of an interpreter if necessary to enable them to communicate with a parent or carer. Assuming that the applicant wants to go ahead, the SCO will arrange for the application to be sent to the other person concerned, who will be given an opportunity to respond in writing. The SCO will also make reasonable efforts to talk to the person responding to the application. The applicant will be provided with a copy of any response from the other person and then the SCO will consider all the information provided. The SCO will then determine if the special circumstances of the case justify a change to the child support assessment, and if it is fair to the parties, the

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children and the community to make the change. If all these criteria are met, the SCO is likely to make a change to the child support assessment. This change may start from a period up to 18 months earlier and can continue for as long as the SCO thinks is appropriate, but usually this wouldn’t be more than around two years. Once a change of assessment decision is made, it can usually only be changed via the change of assessment process and only if there is a change of circumstances for the payer, carer or child. The SCO may refuse to make a determination on the basis that the issues are too complex and should be determined by a court. In practice, this rarely happens. It can be beneficial to obtain legal advice before making or responding to a “Change of Assessment” application. A legal representative can help with the application or response but cannot represent a parent/ carer in the “Change of Assessment” process. The ten reasons for change of assessment are: • reason 1 – the parent has high costs of enabling them to spend time with, or communicate with the child the subject of the assessment. • reason 2 – the costs of supporting a child are high due to the child’s special needs. To establish this reason, a parent/carer must show that the child has a medical condition or disability and the parent/ carer has out-of-pocket costs associated with this medical condition or disability (for example out of pocket costs of therapies, medication, orthodontics). • reason 3 – the costs of educating a child are high. This reason is often used if a child is attending a non-government school. To establish this reason, the applicant must be able to show that the child is being educated in a manner intended by both parents by, for example, providing a copy of the application for enrolment to the child’s school signed by both parents. • reason 4 – the child support assessment is unfair because of the child’s income, earning capacity, property or financial resources. An application under this reason will usually not succeed if the child is earning a modest income from part-time

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or casual income, but may be successful if the child has left school and has taken on full time work or an apprenticeship. reason 5 – the child support assessment is unfair because the payer has paid or transferred money, goods or property to the child, the payee, or a third party for the benefit of the child. This reason only applies in very limited circumstances. Usually a non-agency payment claim will be a more appropriate way to address this situation (see below). reason 6 – the carer has high child care costs for a child aged less than 12 years. To establish this reason the carer must be able to show that the out-of-pocket costs of child care are more than 5% of their Adjusted Taxable Income and that the child care costs are necessary, ie to enable the parent to work for example. reason 7 – the parent has high necessary expenses to support themselves. This reason can be used by a parent to claim a reduction in child support to enable them to re-establish themselves following separation or if they are paying joint debts of the relationship prior to a property settlement. This reason can also be used if the parent has an ongoing medical condition or disability and they have high out-of-pocket costs associated with this condition. reason 8(a) – the child support assessment is unfair because of the income, property or financial resources of one or both parents (eg, where one parent is involved in a family business and may declare a low taxable income that results in an unfair child support). reason 8(b) – the child support assessment is unfair because of the earning capacity of one or both parents. This reason targets parents who are found to have deliberately changed their income to either decrease their child support liability or increase their child support entitlement. For this reason to be established, the decision maker must make a finding that the parent has made a decision to change his or her pattern of work (eg, accepted a lower paid position or moved from salaried employment to

self-employment) or not to work despite ample opportunity. A change based on a parents “earning capacity” can only be made if the change to work is not justified by health considerations or caring responsibilities and if the parent has not demonstrated that it was not a major purpose of the change was to affect the child support liability. • reason 9 – the parent’s capacity to support the child is significantly affected by: – their legal duty to maintain another child or person. This would usually only apply in relation to the parent’s spouse in certain limited circumstances, or – their necessary expenses in supporting another child or person they have a legal duty to maintain. This could apply in cases where the parent has another dependent child living with them with special needs or a medical condition and high out-of-pocket expenses in relation to those special needs or medical condition, or – the parent has high costs of enabling them to spend time with, or communicate with, another child or person they have a legal duty to maintain. • reason 10 – the parent’s responsibility to maintain a child who lives with the parent but is not the parent’s biological or adopted child. This reason can only be satisfied in certain limited circumstances including that the parent has re-partnered for a period of at least two years and the legal parents of the resident child are unable to look after the child due to ill health, death, or other caring responsibilities.

After the change of assessment process The SCO must provide the applicant and respondent to the change of assessment process with a written decision.

[24.520] Objections to Child

Support decisions If a parent or carer is unhappy with a decision made by Child Support, including

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a decision made by a SCO in relation to a “Change of Assessment” application in most cases, she or he can apply to Child Support for an internal review of the first decision. This request for an internal review is called an “objection”. An objection must be in writing and in most cases, must be lodged within a time limit of 28 days for Australian cases and 90 days for international cases. An extension of time can be sought. An exception to this time limit exists for objections to decisions about a care percentage. In these cases the time limit does not apply, but if a change is made to the care percentage it will only take effect from the time the objection was lodged. An objection can be lodged about the following decisions: • to accept or to refuse to accept an application for assessment (unless one of the reasons for the decision was based on a presumption of parentage or was that Child Support was not satisfied that a person is a parent of the child. These parentage matters must be determined by a court (see the earlier discussion on s 106A and s 107 declarations • about the details of the assessment, for instance the income used for the paying parent or a care determination • as to the particulars of a notional assessment – this will apply if a limited child support agreement is in place • to make or refuse to make a change to the assessment in response to a “Change of Assessment” application • to accept or refuse to accept a child support agreement • to terminate a limited child support agreement • to refuse to remit an estimate or late payment penalty in whole or part • to accept or refuse to accept an election of a new year-to-date income for an income estimate, and • to determine a new year-to-date income for an income estimate. Objections do not have to be made on a prescribed form but they must be in writing and should make clear reference to the decision that is challenged. The objection

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must also explain the reason why the person lodging the objection considers the original decision to be wrong and should include any additional information relied on to seek a different decision. If an extension of time is sought the objection should also set out the reasons for the delay and any other relevant factors. A decision on the objection will be made by a different officer. A copy of the objection will be provided to the other parent/carer in the child support assessment, and they will be given an opportunity to respond. Child Support has 60 days in which to finalise an objection.

Applications for review to the Administrative Appeals Tribunal (AAT) If either the applicant or respondent to the objection is unhappy with the objection decision, she or he can seek an external review of the objection decision by lodging an application for review with the AAT. An application can be made with the AAT over the telephone or in writing but must be lodged within 28 days of receiving the objection decision. An application for an extension of time can be made. For further information about the application process, see the AAT website (www.aat.gov.au). The AAT is required to provide a review process that is “fair, just, economical, informal and quick”. Once an application is made, Child Support must provide the AAT and each party to the review with a copy of all relevant documents relating to a review of the objection decision. This bundle of documents can be quite substantial, but is important for parties to be aware of the contents so that they can identify relevant material and documents they wish to rely on. The AAT will also give each party the opportunity to provide any additional documents or written submissions. In some cases the AAT may conduct a pre-hearing conference and may direct the parties to provide certain information, including financial statements. This is most common in reviews of “Change of Assessment” decisions. It is most important for parties to comply with any time frames set by the AAT for

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providing evidence and submissions. Failure to comply can result in the AAT refusing to admit evidence, or even the party being removed from the review process. The AAT may also request further information from Child Support or from third parties to assist it with the review of a decision. The AAT will set the matter down for a hearing, which can be in person or over the telephone. In practice many hearings are conducted over the telephone. Hearings are relatively informal, but parties are usually required to give their evidence under oath or affirmation. A party may apply to have a legal (or other) representative make written submissions on their behalf and/or make oral submissions on their behalf at the AAT hearing. However, permission must be granted by the AAT first, and usually the application must be made at least two weeks in advance of the hearing. The AAT must conduct a full merits review of the decision before it, and may either affirm the decision under review, set aside, or vary it. A party to the review may appeal the decision made by the AAT to the Federal Court or the Federal Circuit Court but only on a question of law. The appeal must be filed within 28 days of receiving the AAT decision. An exception to this is where the decision is one about the percentage of care, where 2nd application may be made for review to the AAT. This application must also be made within 28 days. As the AAT provides the last forum for a merits review in most child support matters it is a good idea for clients to obtain legal advice and if necessary assistance and representation. Appeals to the court on a question of law can be difficult and often involve complex legal argument. The Child Support Registrar usually becomes a party to the appeal and may seek costs from another party if that party is unsuccessful. For this reason, parents/carers considering an appeal should seek specialist legal advice. Child support agreements As an alternative to using the child support assessment process, parents are able make their own arrangements for child support

called child support agreements. There are two types of child support agreements: • binding child support agreements, and • limited child support agreements. Binding child support agreements In order to make a binding child support agreement, each party to the agreement must receive independent legal advice before entering into or terminating the agreement and must provide a certificate from a lawyer confirming this advice was provided. A binding agreement can only be set aside by a court if the court is satisfied that “exceptional circumstances” have arisen since the agreement was made that cause hardship to one of the parties to the agreement or the child/ren. A binding child support agreement can also be set aside in cases of fraud, duress, or unconscionable conduct. The amount of child support agreed to be paid under a binding agreement may be more or less than the amount of child support payable according to an administrative assessment. However, if a parent receives FTB A, this amount will continue to be calculated on the basis of the administrative assessment. Needless to say, practitioners providing legal advice and certification in relation to child support agreements, should practice great caution and diligence in advising clients about the impacts on child support, Centrelink payments and about possible changes in circumstances (eg, changes in care arrangements and changes to income) that may affect the agreement in the future. Limited child support agreements The parties to a limited child support agreement do not need to receive legal advice before entering the agreement. It is easier to end a limited child support agreement than a binding child support agreement. An administrative child support assessment must be in place before Child Support will accept a limited agreement. The amount payable under a limited agreement must be equal to or more than the amount payable according to the assessment. Once the agree-

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ment is accepted, Child Support continues to make notional assessments in the same way as it would have issued assessments had the agreement not been made. A limited agreement may be set aside by a subsequent agreement between the parties. Alternatively, an application can be made to the court to set aside the agreement in a case of fraud, duress or unconscionable conduct or where there has been a significant change of circumstances since the agreement was made causing hardship to either of the parties or the child/ren. However, in many cases, a court application can be avoided as there are circumstances in which the limited agreement can be set aside administratively. If a notional assessment amount differs from the previous notional assessment by more than15%, either party to the agreement can terminate the agreement, even if the other party does not agree. It is important to note as well, that a change of assessment can be sought for a notional assessment, which could provide the opportunity to seek an end to the limited child support agreement in these circumstances. Additionally, after three years, limited child support agreements can also be ended by either party for any reason. Centrelink and notional assessments Centrelink will use the notional assessment from Child Support to calculate the rate of FTB A paid to the carer (rather than the amount agreed to under the limited or binding child support agreement). This means that a parent or carer who agrees to less child support than the notional assessment may end up financially disadvantaged as less money will be paid for the child by Centrelink. Agreements made before 1 July 2008 Child support agreements made and accepted before 1 July 2008 are considered to be a special type of agreement called a transitional binding child support agreement. This is the case even if legal advice was not obtained prior to the making of the child support agreement. It is possible to terminate these agreements by a subsequent agreement between the parties. If this is not possible, an application to court to set

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aside the agreement is required. Current law suggests that the court must apply the same law as it does to setting aside binding child support agreements made after 1 July 2008 (see above). Lump sum child support payments Child support is normally paid by periodic amounts, but there are some limited circumstances where it may be appropriate for child support to be paid in a lump sum. This may arise in circumstances where the paying parent is due to receive a one-off amount of money, especially if there have been difficulties with periodic payments in the past. Lump sum child support is also sometimes contemplated by parties when they are making arrangements about property following separation. Provisions for child support to be paid as a lump sum or capitalised amount can be made under either a binding agreement or court order. When a lump sum child support agreement or court order is lodged with Child Support, Child Support makes a notional administrative child support assessment. Each year, child support payable under the notional assessment is deducted from the lump sum until it is exhausted, at which time another notional assessment will be made. As explained above, the notional assessment is also used to calculate any FTB A payments a parent is otherwise entitled to. However, it is most important to note that Child Support cannot register a lump sum amount for collection and therefore cannot enforce payment of a lump sum. If Child Support receives an agreement or order making provision for a lump sum they will assume this amount to have been paid. It is therefore most important to ensure there is adequate security for payment of the lump sum amount if these arrangements are contemplated.

[24.530] When will child

support end? Child support payments will usually end when the child turns 18. A child support assessment will end prior to this in a number of situations, including if the child becomes a member of a couple, is adopted

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by another person or is taken from a parent and placed into permanent care under a child welfare order, or in the unfortunate event that the child dies. If a young person is still engaged in full-time secondary education in the year they turn 18, the parent or carer can apply to Child Support to have the child support assessment continue until the last day of the current school year. The carer parent needs to apply for this extension after the child’s 17th birthday and prior to their 18th birthday. So, for example, if a child will be turning 18 in July in a year that they are completing year 12 at high school, the carer or parent may apply to Child Support for the assessment to continue until the end of that school year. If a child continues in education beyond this, or has a physical or mental disability, it may be possible to seek an order for maintenance from the court. See [24.340] Maintenance for children over the age of 18 for further information.

[24.540] Role of Child Support

in collection of child support payments In addition to working out how much child support should be paid, Child Support collects and enforces periodic child support payments. A periodic payment refers to monetary sums payable under a child support assessment or child support agreement on a regular (usually monthly or weekly) basis. Child Support is unable to collect lump sum amounts of child support or payments to third parties such as schools or health funds. If a parent fails to pay a lump sum or to make a payment to a third party, the parent for whom these lump sum or non-periodic sums are owed must enforce these payments privately. Child Support often encourages parents to arrange child support payments between each other. If a parent thinks this will not work for them, collection by Child Support is likely to be a better option. If a carer or parent opts for private collection and this arrangement breaks down

or they do not receive payments on time and in full, they can ask Child Support to start collecting on their behalf. They can also ask Child Support to collect up to three months of unpaid child support or, in exceptional circumstances, nine months of outstanding child support. Where a case is registered for collection Child Support will try to make an arrangement with the paying parent for them to pay voluntarily. If this is unsuccessful, Child Support may take the following action: • penalties for non-payment – Child Support will impose a financial penalty for non-payment of child support from the date that the child support is due. The purpose of the penalty is to encourage timely payments. The penalty is due to Child Support and is not paid to the carer or parent. An application can be made to Child Support to reduce the penalties payable by a paying parent • automatic withholding from salary or wages – the paying parent’s employer takes some of the parent’s income before paying wages and pays this to Child Support • issuing notices to third parties to pay Child Support – these notices may be against places such as a bank or financial institution or a contractor who owes money to a child support payer • intercepting tax refunds – Child Support will use the funds owed to a child support paying parent by the tax office to satisfy a child support debt • issuing Departure Prohibition Orders (DPO) against parents who have failed to pay child support and are seeking to leave Australia. The DPO can stop the parent from leaving Australia until they pay outstanding child support, or makes a payment arrangement acceptable to Child Support. Parents who are subject to a DPO, should seek immediate legal advice. Parents can apply to Child Support for a Departure Authorisation Certificate (DAC) to be issued to enable them to leave Australia for a prescribed period of time. These will usually only be issued if Child Support is provided with some money towards the debt and is satisfied

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that the person will return to Australia. An attempt to leave Australia in the knowledge that a DPO is in place is a criminal offence that carries a penalty either of payment of a fine or a prison term. Child Support can also take enforcement action in court against a paying parent. The court may make orders about payment of arrears and may also make orders enforcing the debt, including orders about the seizure and sale of assets. Child Support will usually only commence court proceedings where the arrears are significant, and where there are good prospects of success (for example the payer has property in his or her name). Child Support usually also seeks that the paying parent pays their costs of making the application to court, which can amount to thousands of dollars. It is important that a person who owes child support addresses the issue quickly and does their best to avoid court action by negotiating a suitable payment arrangement with Child Support. Under the Child Support (Registration and Collection) Act 1988 (Cth) a payee who is owed child support can initiate enforcement proceedings in court. However, they must formally advise Child Support of their intention to take this action.

Credit of child support payments made directly to a parent or third party Where child support payments are registered for collection by Child Support, it is possible for a parent to make payments directly to the other parent or a third party and to have these payments credited against amounts owing to Child Support. To be credited, the amounts paid must be for an amount owing at the time Child Support has been asked to collect. The parent or carer to whom the child support is owed must also usually agree that it was intended that the payments be paid in lieu of the child support owed. These payments are called Non Agency Payments (NAPs). It is also possible for a person to claim certain payments to third parties, where there is no agreement from the other parent that the payments should be credited against the child support liability. These payments

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are called Prescribed Non Agency Payments (PNAPs). The types of payments that can be claimed as a PNAP are: • child care costs for the child who is the subject of the enforceable maintenance liability • fees charged by a school or preschool for that child (but not for non-compulsory excursions or boarding fees or the like) • amounts payable for uniforms and books prescribed by a school or preschool for that child • fees for essential medical and dental services for that child • the carer’s share of amounts payable for the carer’s home, and • the costs to the carer of obtaining and running a motor vehicle, including repairs and standing costs. Certain criteria must be met before a PNAP can be claimed: • the parent claiming the payment must have less than 14% of care of the child/children • child support has not earlier been paid as a lump sum • the payment can be credited up to 30% of the amount owing in child support that month, provided the remaining 70% of the liability is paid to Child Support.

Bankruptcy and child support Many people who owe child support believe that if they declare themselves bankrupt, their child support debt will disappear. Child support payments survive bankruptcy (although late payment penalties may be extinguished).

Imprisonment for default? It is not permissible under Australian law for a person to be sent to jail for nonpayment of child support alone. However, if a court has been asked to make an order for non-payment of child support and the court has ordered payment, it is possible for a person to be sentenced to a period of imprisonment if the court forms the view that the court order has been intentionally contravened.

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Children [24.550]

The Family Law Act is federal law and is the same for all children in Australia. Part VII of the Family Law Act covers all children, whether their parents were married, in a de facto relationship (including same-sex couples) or never lived together. Issues around care and protection of children are dealt with by state and territory

child protection legislation so are different from state to state (see Chapter 7, Children and Young People). Family law courts cannot make orders about children who are the subject of state care and protection orders without the consent of the Department of Family and Community Services (NSW).

Rights and responsibilities under the Act [24.560]

Australian family law no longer uses terms like “guardianship”, “custody”, “access”, “residence” or “contact”. The Family Law Act now refers to the person a child “lives with”, who they will “spend time with” and “communicate with”. The concept of “guardianship” has been replaced with the concept of “parental responsibility”. The changes were an attempt to move away from the notion that one parent “wins” a child in a custody battle (and that that parent somehow “owns” the child), and to encourage parents to have a more cooperative approach by emphasising the continued responsibility that parents have for their children, even though separated or divorced.

[24.570] Parental

responsibility Parental responsibility is defined in the Family Law Act as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). This definition does not mention “parental rights”. Children have a right to be cared for and a right to have a relationship with both their parents, but parents do not have a right to see children.

Each parent automatically has parental responsibility for the child and may make important decisions about the child’s life unless and until there is a court order (s 61C). If an order for equal shared parental responsibility is made parents must make longterm decisions about their children in consultation with each other.

[24.580] Children's rights The Family Law Act recognises children have rights. Specifically, children have a right to know and be cared for by both parents, and to spend time and communicate with both parents and other significant people on a regular basis. Children also have a right to enjoy their culture. These rights apply except when it would be contrary to a child’s best interests (Family Law Act, s 60B; the United Nations Convention on the Rights of the Child, Article 9.3).

[24.590] Actions by children Children are able to make applications under the Family Law Act; however, this is unusual and the court would normally require an adult be appointed to act as a case guardian on behalf of the child. This means that it would be possible for a child to seek an order allowing them to live

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with a person who is not one of their parents. A number of teenage girls have applied to court for an order to prevent someone from sending them overseas to be married.

The court's welfare jurisdiction The Family Law Courts can supervise the way in which parents exercise authority over their children. This is called the court’s “welfare jurisdiction” and is related to the ancient common law concept of parens patriae, which is still held by the state Supreme Court. Parens patriae means “the parent of the country” and involves the

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Crown assuming responsibility for people who are not able to care for themselves, such as children and the mentally ill. Using the welfare jurisdiction a child might be able to challenge the exercise of parental powers by their parents. The welfare powers under the Family Law Act, s 67ZC have mainly been used in connection with medical treatment, such as hormonal medical treatment of a child in relation to Gender Identity Dysphoria and Disorders of Sexual Development, or sterilisation of a girl with a disability.

If parents can reach agreement [24.600]

Many parents who separate are able to decide between themselves where their children should live without taking the matter to court. Parents can often work out what arrangement will suit their children better than a court can, and a solution reached by agreement is likely to work better for everyone than one imposed by a court. Parents who agree about the arrangements for their children can: • keep it as an informal agreement • make a parenting plan • apply to the court to approve consent orders.

[24.610] Informal agreements Where parents can make their own arrangements about the care of their children the agreement can be informal, and there is no requirement to put it in writing.

[24.620] Parenting plans The family law system encourages parents to reach an agreement without going to court by entering into a parenting plan (s 63B). A parenting plan is an agreement between parents of a child that:

• is in writing • is signed and dated by the parents • deals with parental responsibility, who the child lives with, spends time and communicates with, child support and other issues (s 63C(2)). A parenting plan is not valid unless it was made voluntarily, without any threats, duress or coercion. Parents should only sign a parenting plan after thinking about it carefully, and after seeking advice from a lawyer. They are expected to follow the “best interests of the child” considerations when developing a parenting plan (see [24.670]). Family Relationship Centres can help parents develop parenting plans (see Family Relationship Centres at [24.630]).

Effect of parenting plans Parenting plans are not enforceable. Parenting plans can, however, override an existing court order about children made after 1 July 2006. The existence of a parenting plan will also be taken into account if the matter goes to court later. Parenting plans are recognised by agencies such as Centrelink and Child Support as evidence of care arrangements.

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Family dispute resolution [24.630]

Parents who are having problems reaching an agreement about the care of the children can approach family dispute resolution services to help them sort out their parenting arrangements. Anyone who wishes to make an application to court for parenting orders will be required to attempt family dispute resolution first. There are important exceptions (see [24.640]).

Where to go for family dispute resolution Family dispute resolution can be done through any accredited family dispute resolution practitioner, including Family Relationship Centres.

Family Relationship Centres Family Relationship Centres provide information and referral to help families with their relationships. When families separate, the centres provide information, parenting advice and dispute resolution (mediation) to help them reach agreement on parenting arrangements without going to court. They also refer families to a range of other services that can help. Many of the services are free or are offered on a sliding scale according to level of income. There are 65 Family Relationship Centres nationwide. To find a Family Relationship Centre nearby, you can call the Family Relationships Advice Line or see the Family Relationships Online website (see Contact points at [24. 780]).

[24.640] Dispute resolution

requirements In most cases it is compulsory to attempt family dispute resolution before filing an application to court. An application for a parenting order can only be lodged at court if it is accompanied by a certificate from an accredited family dispute resolution practitioner or an exception applies.

Section 60I certificates A court cannot hear an application for a parenting order unless a certificate from a family dispute resolution practitioner has been filed. The certificate must state that: • the other party did not attend, or • all parties attended and a genuine effort was made to resolve the dispute, or • one party did not make a genuine effort to resolve the dispute, or • the family dispute resolution practitioner decided that family dispute resolution was not appropriate to conduct or continue. If the case goes to court after one of the parties failed to make a genuine effort, it may be taken into account when the judge is deciding whether or not to make a costs order.

Where a certificate is not required Applicants will not need to get a certificate where: • the application is made by consent • the application is in response to the other party’s application • the court is satisfied that there are reasonable grounds to believe there has been or is a risk of child abuse or family violence • the application is about a serious contravention (breach) of parenting orders that were made in the last 12 months • the application is urgent, or • a party is unable to participate; for example, because of a disability, or because there are no services in their area (s 60I(9)). The reasons for not having a certificate must be outlined in an affidavit filed with the application for parenting orders. If there is family violence or child abuse Where an exception is claimed because of family violence or child abuse, the applicant must be referred to a family counsellor or family dispute resolution practitioner to get information about services and options, including alternatives to court action.

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The applicant’s affidavit needs to state that the information was obtained or explain why getting the information would have involved delay that created a risk of child abuse or family violence (s 60J).

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Get legal advice! It is a good idea to get legal advice before going to family dispute resolution and before signing a parenting plan. If an agreement was not reached it is important to get legal advice before filing an application to court.

Parenting orders [24.650]

Parents who need enforceable arrangements about their children need court orders. These can be by consent, or made by the court after a contested hearing.

[24.660] Orders the court can

make The court has very wide powers to make orders relating to parenting of a child (s 65D). Parenting orders can deal with:

• • • •

where the child lives who they spend time with the allocation of parental responsibility how parents should communicate with each other over major long-term issues • communication the child is to have with another person, including by telephone or email • any other aspect of the child’s care, welfare and development.

What the court must consider [24.670] Best interests of the

child The paramount (most important) consideration when making orders about children is the best interests of the child.

What is in the child's best interests? The Family Law Act sets out a list of factors that judges are to consider when making an order about children. These are listed in s 60CC as primary and additional considerations. The factors listed in s 60CC must also be considered when making parenting plans. Primary considerations The primary considerations are: • the benefit to the child of having a meaningful relationship with both parents • the need to protect the child from physical or psychological harm from being

subjected to, or exposed to, abuse, neglect or family violence. Greater weight is to be given to the need to protect the child from harm when deciding what is in the child’s best interest. Additional considerations The additional considerations are: • any views expressed by the child • the nature of the child’s relationship with parents and others, including grandparents • the extent to which each parent has taken, or failed to take, the opportunity: – to participate in making decisions about major long-term issues in relation to the child, and – to spend time with the child, and – to communicate with the child • the extent to which each parent has fulfilled his or her obligations to maintain the child

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• the effect on the child of any changes in the child’s circumstances • the practical difficulties and expense involved in spending time with and communicating with a parent, and the impact on the child of maintaining personal relationships and direct contact regularly with both parents • the capacity of each parent and others to provide for the child’s needs • the maturity, sex, lifestyle and background of the child and parents • the child’s right to enjoy Aboriginal or Torres Strait Islander culture, where relevant • each parent’s attitude to the child and to parenting • any family violence involving the child or a member of the child’s family • any family violence order • the desirability of making the order that is least likely to lead to further proceedings • any other fact or circumstance the court thinks relevant.

The child's views If a child expresses a view about where or with whom they wish to live then the court must consider these views. The importance given to the child’s views will depend on the child’s age and maturity, and the facts of the case. There is no arbitrary age at which a child’s views are suddenly followed. The court acknowledges that teenagers often do what they please regardless of court orders, and an older child may run away from a parent they do not want to stay with. Finding out the child's views Discovering the real views of children can be difficult. Sometimes both parents correctly claim that a child has said they wish to live with them. Children cannot be required to express a view (s 60CE). It is not appropriate to pressure children into a choice between their parents. They may be caught up in a conflict of loyalties, and say to each parent what they think will please or comfort them. Often they only want an end to conflict.

Giving evidence of a child's views To protect children, the Family Law Act prohibits anyone under 18 from giving evidence, in court or on affidavit. Evidence of a child’s views may be presented to the court through: • reports by a family consultant or another court-appointed expert • affidavits containing statements about the child’s views that the child has made to someone else (usually one or both parents) • the independent children’s lawyer, if one has been appointed by the court (see below). In extraordinary circumstances, a child may be a witness if the judge gives special leave.

[24.675] Reports by family

consultants Reports by family consultants can be ordered by the court to assist it in making any decision about children (Family Law Act s 62G). The report can cover any matter that relates to the care, welfare or development of the child, and must include the child’s views unless this is inappropriate because of age or other reason. Family consultants are counselling professionals appointed by and employed by the Family Court to assist judges in children’s cases. Information provided to a family consultant is not confidential or privileged. When do family consultants get involved? A family consultant is likely to be appointed by the court early in the proceedings to assist the parties and the court to resolve issues about children. Effect of a family consultant's report A family report is not binding on the court. After listening to all the evidence and each parent in the witness box, the judge may reach a view opposite to that of the family consultant. The report is only one piece of evidence. It is, however, a very important piece of evidence. Courts rely on the expertise of family consultants. If the report favours one parent, it can be very difficult for the other parent to persuade the court to

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come to a different conclusion. The family consultant can be called to court by either parent’s lawyer and asked to explain the report and be cross-examined, like any other witness. Reports from other experts A court may also order a report from an outside expert. Reports on children prepared by psychologists, psychiatrists or social workers are only accepted by the court if: • it has ordered the report, or • it has given special leave for a parent to submit a report that requires the child to see another specialist (s 102A). An independent children’s lawyer may ask the court to appoint an expert and present a report to the court (s 68M).

The independent children's lawyer The court may decide to appoint an independent children’s lawyer to represent the child’s interests (s 68L). The Full Family Court set out a list of situations in which it would be appropriate to appoint a separate representative for the child (see Re K [1994] FLC 92-461). An independent children’s lawyer will often be appointed when: • there are high levels of hostility and dispute between the parents • there are allegations of abuse or neglect of the child • there are allegations of family violence • one of the parties is not a parent of the child • there is a serious dispute because of a difference in religion or culture between the parents • allegations have been made about the views of the child and the child is mature enough to express their views • the parents or the child have serious mental health issues • there are difficult and complex issues involved in the matter. The role of the independent children's lawyer The independent children’s lawyer’s role is not to act as the child’s legal representative, which means that the child cannot instruct

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the lawyer how to run the case. The independent children’s lawyer should: • form an independent view of what is in the child’s best interests • act in what they believe is in the child’s best interests (s 68LA(2)). The lawyer’s duties include: • arranging for necessary evidence, including expert evidence, to be obtained and put before the court • acting impartially • putting the child’s views before the court • minimising as far as possible the trauma of the proceedings for the child • if it is in the best interests of the child, facilitating a resolution of the matter (s 68LA(5)). Appointing the independent children's lawyer The court makes an order for the appointment of an independent children’s lawyer on its own initiative, or on the application of the child or a parent. Legal Aid NSW is then requested to provide the lawyer (Family Law Rules 2004, r 8.02(2)), and will do so if it is reasonable. Because of funding constraints, Legal Aid NSW has policies that limit both the circumstances where it will act as an independent children’s lawyer and the funds available for each case. In some cases, the parties are required to pay the cost of the independent children’s lawyer.

[24.680] Equal shared parental

responsibility There is a presumption that it is in the best interests of the child for the court to make an order for equal shared parental responsibility. What it is Equal shared parental responsibility means that parents have to consult each other and agree on decisions about “major long-term issues” such as (s 65DAC): • the child’s education (both current and future) • the child’s religious and cultural upbringing • the child’s health • the child’s name

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• changes to the child’s living arrangements that would make it significantly more difficult for the child to spend time with a parent. This does not include a parent’s decision to form a new relationship (s 4). What it is not The Act makes it clear that equal shared parental responsibility does not refer to the amount of time the child spends with each parent. Equal shared parental responsibility is only about major long-term issues, not day-to-day issues such as what the child eats or wears. The person with whom the child is staying at the time would normally make those decisions. Where there is child abuse or family violence The presumption for equal shared parental responsibility does not apply in cases of child abuse or family violence (s 61DA(2)).

Where the presumption can be rebutted The presumption can be rebutted if it can be proved it is not in the best interests of the child for there to be equal shared responsibility. Interim orders When considering making interim orders there are some cases where it may not be appropriate to apply the presumption because there is not enough evidence to make a decision. The presumption does not have to be applied when an interim order is made if it is not appropriate in the circumstances. Siblings The court is reluctant to split up the children in a family – it is not a case of each parent getting some of the children (Mathieson & Mathieson [1977] FLC 90-230). The situation may be different if the children were separated while they were young and have been apart for a long time (Hayman & Hayman [1976] FLC 90-140).

Common misconceptions There are many misconceptions about how the court decides cases involving the care of children. Some of them are discussed below. My ex left the kids, so s/he can't have them This is wrong. A person may have left the children behind for any number of reasons. They may have left in a crisis, or may not have had suitable accommodation for the children. The court will look at whether or not the parent is able to care for the children, regardless of who left the family home. If a parent has been out of the children's life for a long time, they will need to re-establish a relationship with the children before spending lots of time alone with them, especially if the children were young when they left. Women always get the kids Some men believe that they have little chance of obtaining an order for the children to live with them and that the court is biased in favour of women. According to the Court Outcomes Project, the court made orders for shared parental responsibility in 85% of cases. Mothers were given sole parental responsibility in 9.8% of cases, and fathers in 3.4% of cases. (Kaspiew, R., Carson, R., Qu, L., Horsfall, B., Tayton, S., Moore, S. et al. (2015). Court Outcomes Project (Evaluation of the 2012 Family Violence Amendments). Melbourne: Australian Institute of Family Studies.)

The Family Law Act does not prioritise a child’s relationship with either the mother or the father. Judges must consider the importance of a child having a relationship with both parents (s 60CC). Since women generally take most of the responsibility for children's upbringing as primary carers, they often continue in this role after separation. The separation was my ex's fault, so s/he doesn't deserve the kids As with divorce, the question of who was at fault in the breakdown of the marriage is not relevant to a court decision about where children should live unless the parent's behaviour affects the children. The courts consider that people's lives are generally their own business, and that it is usual for separated or divorced people to re-partner. My ex got the kids so I don't have to give her/him anything else Children are not property to be traded. It is the responsibility of parents to support a child unless there is a court order that says otherwise. Property entitlements are decided on the basis of past contributions and future needs. The court will not look favourably on a parent who wants to increase the amount of time a child spends with them so they can pay less child support.

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[24.690] How much time

should children spend with each parent? Orders for a child to spend time and communicate with someone should be tailored to suit the particular circumstances of each family and the child’s best interests. The court will consider the developmental needs of the child. For example, orders to spend time with an infant might involve short, frequent visits. Then, as the child gets older the frequency of the time may decrease but visits might be longer. For school children, the court will normally specify arrangements for weekly or fortnightly visits and also specify what should happen during school holidays, Christmas, birthdays, Mother’s Day, Father’s Day or other special days. Parenting orders will usually set out specific times and places for the child to be picked up and who will do this.

Equal time or substantial and significant time If the court is making a parenting order for equal shared parental responsibility, the court must consider making an order for “equal time” or for “substantial and significant time”, provided it is in the best interests of the child and reasonably practical to do so (s 65DAA). What is “substantial and significant time”? Substantial and significant time is defined (s 65DAA(4)). It should include weekends, weekdays and holidays, and allow for parents to be involved in both the child’s daily routines and special occasions. What is “reasonable practicality”? When deciding whether an arrangement is practical, the court will look at: • how far the parents live from each other • the parents’ ability to carry out an arrangement for equal time or substantial and significant time • the parents’ ability to communicate with

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each other and resolve difficulties that might come up in the future • the impact that the arrangement would have on the child • any other matters as the court considers relevant (s 65DAA(5)). Standard orders There are no standard orders for children after separation. Equal time with each parent is not the default arrangement, nor is alternate weekends and half the school holidays with the father. The court must decide what are the best arrangements for the child using the decision-making pathway outlined in s 65DAA, see [24.670].

Does a child have to spend time with a parent? Parents do not have an automatic right to spend time or communicate with a child. The child, on the other hand, has a right to know and be cared for by both parents. A parent does not have to allow the child to spend time or communicate with the other parent unless there is a court order that requires it. However, spending time and communicating with a child is ordered in most cases, and unless the child is at risk, it is better to facilitate the child’s relationship with the other parent even if there are no court orders. The court may look unfavourably on a parent who has not done this without a very good reason. To prevent parents from feeling like they have to be a “friendly parent” when there is a risk of family violence, the law was changed in 2012 so that the court is no longer required to consider the willingness of a parent to facilitate a relationship with the other parent when determining the best interests of the child. Supervised time with a child Supervised arrangements for spending time with a child are ordered if there is concern that the parent does not have appropriate parenting skills or there is some risk to the

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child’s safety. Supervision can be provided by a children’s contact centre, a family member or another trusted person. The court can stop a parent from spending any time or communicating with a child if there is an unacceptable risk of harm, for example, because the parent has physically or sexually abused the child. Sometimes all contact with a parent is stopped because the level of conflict between the parties is so great that continued contact may cause the child harm. Common misconceptions I am entitled to 50:50 equal time No one has a right to spend time with a child. The court will look at what is in the child's best interests and issues of practicality. For shared care to work there generally needs to be a high level of co-operation between the parents. The types of cases that get to court are often not suitable for a shared care arrangement. Cases that go to court usually involve issues of complexity such as violence, abuse, mental health problems, geographical distance or high levels of conflict. Arrangements for 50:50 time are much more common where parents do not go to court at all, either because of misconceptions about having a “right” to equal time or because the parents’ post-separation relationship is good enough for shared care to work. Shared care works well for some families, allowing children to have a strong relationship with both parents. However, research shows that there are difficulties involved in shared care arrangements that require cooperative parenting. Shared care is also more likely to succeed where practical factors are favourable, including where both parents live very close to each other, fathers have flexible work arrangements, and mothers are in full-time employment. Shared care is less successful and generally inadvisable where the children are very young, where there are high levels of conflict between the parents, or where there are issues of family violence and concerns for the children's safety. The Commonwealth Attorney-General's Department has published reports of research into shared care parenting and family violence in its website: www.ag.gov.au.

Changing a child's name In NSW a child’s name cannot be changed without the consent of both parents, or a court order.

If the parents agree, they should both sign an Application to register a change of name for a child born in NSW form and file it with the NSW Registry of Births, Deaths and Marriages. Application to family law courts or to the District Court NSW If the parents disagree about the name change, either parent may apply to court for permission to change the child’s name. In NSW, the application can be made to either the Federal Circuit Court or to the District Court of NSW. It is not enough to have an order for sole parental responsibility because the rules about birth certificates are covered by NSW law. Even though a child’s name is one of the “major long-term” decisions a parent with sole parental responsibility can make by themselves, a specific court order is required by NSW law (Births, Deaths and Marriages Registration Act 1995 (NSW), s 28). What the court considers The court will decide whether or not to change the child’s name by looking at what is in the best interests of the child. The court should look at things such as: • the short and long term effects of a change • any embarrassment likely to be experienced by the child if his or her name is different from the parent they live with • any confusion of identity which may arise for the child if his or her name is changed or is not changed • the effect a change of name would have on the relationship between the child and the other parent • the amount of time the other parent has spent with the child and is likely to spend in the future • the degree of identification that the child has with each parent • the effect of frequent or random name changes. A child’s name must not be changed unless the child consents to the change, or the child is unable to understand the meaning and implications of the change of name (Births, Deaths and Marriages Registration Act 1995, s 29).

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Evidence required Evidence of why the name change is in the child’s best interest must be provided to the court. This may include, for example, evidence that the child: • wishes to change their name • suffers embarrassment or even a sense of rejection because their surname is different from that of their primary carer • has had no contact with their other parent for a long time.

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Evidence of usage such as school reports, a doctor’s letter or a Medicare card may also be presented to the court. Registering the change If the court grants an order it needs to be given to the NSW Registry of Births, Deaths and Marriages for the change to be made and to get a new birth certificate. In NSW the order must explicitly direct the Registrar to change the register.

Family violence [24.700] Defining family

violence The definition of family violence was expanded in 2012 to include socially and financially controlling behaviour and exposing a child to family violence. The Family Law Act defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person's family, or causes the family member to be fearful. Examples of behaviour that may be family violence include (but are not limited to): • an assault • a sexual assault or other sexually abusive behaviour • stalking • repeated derogatory taunts • intentionally damaging or destroying property • intentionally causing death or injury to an animal • unreasonably denying the family member the financial autonomy that he or she would otherwise have had • unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support • preventing the family member from making or keeping connections with his or her family, friends or culture, or • unlawfully depriving the family member, or any member of the family member's family, of his or her liberty. A child is considered to be “exposed” to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. The legislation provides some examples of situations that may constitute a child being exposed to family violence: • overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family, or • seeing or hearing an assault of a member of the child's family by another member of the child's family, or • comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family, or • cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family, or • being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

Notice of Risk In the Federal Circuit Court, a Notice of Risk must be filed in all cases involving children, whether there is a risk of family violence or not. It covers risk factors in addition to

family violence or child abuse, such as mental ill-health and drug or alcohol abuse. In the Family Court, a Notice of Child Abuse, Family Violence or Risk of Family Violence (Form 4) must be filed in any

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children’s case involving allegations of abuse or violence (ss 67Z, 67ZBA and r 2.04A). Note that this form is not just for allegations of child abuse; it also used to notify the court there is a history of family violence or a risk of family violence to a parent.

Parenting orders and family violence orders Difficulty can arise in family law cases where there is family violence, because the state courts deal with family violence orders (called apprehended violence orders or AVOs in NSW), while family law is dealt with by the Commonwealth courts. Family law orders will override the terms of an AVO that are inconsistent with the parenting order (s 68Q). If the AVO was made first The family law courts are required to ensure that any parenting orders they make do not expose people to family violence. If the court makes a parenting order that is inconsistent with an existing AVO it must: • state in the order that it is inconsistent with the AVO • give a detailed explanation about how contact is to take place • explain the order to everyone affected by it • serve a copy of the order on various named parties, such as the police and the Local Court (s 68P). If the parenting order was made first The Local Court has the power to vary a parenting order when it makes an apprehended violence order (AVO). If the Local Court makes a final AVO it can vary, revive, discharge or suspend a parenting order (s 68R). If the court makes an interim AVO it can vary, revive or suspend the order, but only for a maximum of 21 days (s 68T). This can only happen if the Local Court “has before it material that was not before the court that made the order” (s 68R(3)). The usual matters the court has to take into account in making parenting orders do not apply here. The court has to consider them but is not necessarily bound by them. This is to reflect that these orders will

usually be made on short notice, and with the primary aim of protecting a person from violence.

If sexual abuse is alleged Where there is an allegation of sexual abuse, the family law courts do not need to decide whether or not it has actually occurred. What the court must decide is whether spending time with the parent (supervised or unsupervised) would pose an unacceptable risk to the child of sexual abuse, or of other physical, emotional or psychological harm or disturbance. If the court decides abuse has occurred If the court decides that abuse has occurred, it is on a civil standard of proof – on the balance of probabilities – and based on the rules of evidence (G v M [1995] FLC 92-641). Because of the seriousness of such allegations the court will be very strict in applying the standard of proof (Briginshaw & Briginshaw (1938) 60 CLR 336). If the court cannot reach a decision If the court cannot decide on the evidence whether or not abuse occurred, it must decide whether the risk is acceptable in view of the serious harm caused to a child by sexual abuse (N and S v the Separate Representative [1996] FLC 92-655; B & B [1993] FLC 92-357; C & C [2002] FMCAfam 146). The Magellan Program Many of the cases that the Family Court has to decide at a hearing involve serious allegations of child sexual abuse and serious physical abuse of a child To deal with them, the Family Court has developed the Magellan Program, which requires both intensive management of cases by the court and cooperation from the NSW Department of Family and Community Services. When an application for parenting orders is filed and there are allegations of serious physical and/or sexual abuse the case is given to the Magellan Registrar who considers listing the matter in the Magellan Program. The aim is to deal with these cases quickly, within six months.

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Applications for parenting orders [24.710] Who can apply? Under the Family Law Act, an application for a parenting order can be made by: • either or both the child’s parents, or • the child, or • a grandparent of the child, or • anyone else concerned with the child’s care, welfare or development (s 65C). In practice, most court cases are contested between children’s parents. If parentage of a child is in dispute, the court has the power to make orders for parentage testing (DNA testing). The Family Law Act recognises same-sex couples with children as the legal parents of those children and as parents they can apply for parenting orders. (For more detailed information about same-sex couples and their children, see Chapter 37, Same-sex Couples and their Families.)

Which court? An application concerning children can be made to the Family Court, the Federal Circuit Court or the Local Court. The Family Court deals with cases that have complex facts or raise complex legal issues, such as allegations of serious sexual abuse, severe family violence or mental health issues, international child abduction or special medical procedures. All other cases are normally filed in the Federal Circuit Court. Transfer of proceedings The Local Court can only deal with family law cases if both parties agree. If an application is made in the Local Court, unless both parties consent to the Local Court hearing the case on a final basis, it must be transferred to the Family Court or Federal Circuit Court (s 69N(3)). The Federal Circuit Court and the Family Court can transfer proceedings to each other on the request of a party or the court’s own initiative, however transfer is currently limited at some registries due to congestion.

Proceedings in more than one court? The Family Law Act does not allow a party to start proceedings about the same issues in one court if proceedings have already been started in another.

Before applying to the court Check the pre-action procedures and mandatory dispute resolution requirements Parties should make sure that they comply with, or are exempt from, the requirements before filing an application in court (see Dispute resolution requirements at [24.640]). Check the rules and directions Before making an application to the court it is important to check the court rules and case management directions. These are available on the courts websites or from the registries.

How to apply Both courts use the same Initiating Application form. In the Federal Circuit Court, the applicant must file: • an Initiating Application, and • Notice of Risk, and • a section 60I certificate or seek an exemption from the requirement of attempting family dispute resolution • a supporting affidavit. . In the Family Court, the applicant must file: an Initiating Application, and Notice of Child Abuse, Family Violence or Risk of Family Violence (Form 4), and a section 60I certificate or seek an exemption from the requirement of attempting family dispute resolution, and an affidavit must be filed if seeking interim orders. To seek an exemption from the requirement of attempting family dispute resolution, the applicant must file either: an Affidavit - Non-filing Dispute Resolution Certificate, or

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set out the basis of the exception in an affidavit filed in support of an application. Both courts have filing fees that must be paid when lodging an application. If the matter is urgent If urgent or emergency orders are needed, the case should be commenced in the usual way – by filing an Initiating Application form, unless an application has already been lodged, in which case an Application in a Case should be filed. A supporting affidavit telling the court why the matter is urgent must be filed with interim applications in all family law courts.

Responding to an application A response and an affidavit must be filed within the time set out in the Federal Circuit Court Rules or the Family Court Rules. In the Federal Circuit Court a response and affidavit must be filed and served within 14 days of service of the application or cross-claim to which it relates (subr 4.03(2)) and in the Family Court, a response and all accompanying documents must be filed within seven days of the date for the case assessment conference, procedural hearing or hearing to which the response relates (r 9.08). It is important to attend the first court date because the court can make orders even though one party is absent. If there is no time to get legal advice or file a response, it is best to go to the first court date and ask the court to adjourn the case for a few weeks.

The court process Once an application is filed the court process is governed by procedures and case management rules. The case management process is different in the Family Court and the Federal Circuit Court. Both the courts use a “docket system” where the case is allocated to a particular judge for the duration of the proceedings. Each judge actively manages the cases in their court, so there are different processes in each court registry and even between individual judges within the same registry. Most parenting cases will be conducted according to the principles set out in Divi-

sion 12A for child-related proceedings. This “less adversarial” approach is intended to make the court process more flexible and accessible, especially for self-represented litigants. One feature of this approach is to not require the use of the strict rules of evidence. Some cases, such as those involving international child abduction or allegations of serious physical and/or sexual abuse, are not dealt with using this lessadversarial approach. The first court date Both parties must attend court on the first date. In the Federal Circuit Court, the first court date will usually be before a judge who will make directions about things that need to occur to get the case ready for trial and may order the parties to attend a conciliation conference or child dispute conference. In the Family Court, the first court event will normally be before a registrar. After that, a family consultant will usually meet with the parties and the children as part of the child-responsive program where parties are encouraged to reach agreement before going to trial. If agreement is not reached the case will go before a judge. If one party is afraid of the other If one party is afraid of the other, the court should be told so that arrangements can be made for them arrive and leave separately, to be apart at case assessment conferences or procedural hearings or to attend a court event by telephone or video. There are safe rooms at many courts and support workers can be arranged. To set up a safety plan contact the National Enquiry Centre on 1300 352 000.

How long does it take? The family law courts have guidelines about how long cases should take. Simple matters are usually expected to take six months from filing the application to the final hearing. Often, however, because of limited court resources, or for other reasons, they take longer – sometimes up to two or three years. The court is required to deal with cases where there are allegations of child abuse or

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family violence quickly (ss 67Z and 67BA) (see Family violence at [24.700]). Interim applications Interim applications are usually heard soon

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after filing. When filing an application for an interim order, it is best to be prepared for a hearing.

Enforcing parenting orders [24.720]

When a parenting order is made, each person affected by the order must comply with it. This includes taking all reasonable steps to comply. The family law courts do not oversee or follow up court orders, and the police do not enforce parenting orders. If there is a breach of a court order (called a contravention) the first step is to attempt family dispute resolution and try to resolve the problem. A lawyer will be able to give legal advice and may also be able to help resolve the problem without going to court. If agreement cannot be reached, an application for a court order can be made, both to deal with the contravention and to change the court orders if necessary.

What is a contravention? A court order is contravened if a person who is bound by it: • intentionally breaches the order • makes no reasonable attempt to comply with it • intentionally prevents someone else (who is bound by the order) from complying with it • helps someone who is bound by the order to breach it. Examples of contraventions include where a parent does not return a child to the other parent, or fails to make the child available to spend time or communicate with the other parent.

What is a “reasonable excuse”? In some circumstances the court may consider that there was a reasonable excuse for contravening the court order. “Reasonable excuse” is narrowly defined in the Family

Law Act at s 70NAE; it is not whatever the parent thinks is fair or proper. Reasonable excuses that may satisfy a court include: • not understanding the obligations imposed by the order, or • a reasonable belief that it was necessary to contravene the order to protect the health and safety of the child, the parent, or someone else, and • the contravention was for no longer than was necessary to protect the health and safety of the person. If a parent has been prevented from spending time with a child Some examples of situations when it is unlikely that the court will accept that there was a reasonable excuse for stopping the child from spending time with the other parent: • if the child does not want to spend time • if a parent does not agree with the court orders • if a parent does not like the other parent’s new partner • if the child has a cold • if the child had homework. If the child is unwell In some situations illness of a child may be considered a legitimate excuse for not following a parenting order. The court must be convinced that not complying with the parenting order was reasonable in all the circumstances, and was only for a reasonable amount of time. However, the Full Court has made it clear that a child should not be prevented from spending time with the other parent as ordered unless it is necessary to protect the child’s health. For example, the court would need to be

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persuaded that the child could not be moved, or that the other parent did not have the skills to care for the child (Childers and Leslie [2008] FamCAFC 5). If the child is in danger If a child is in danger the parent should stop the child spending time with the other parent and contact the Department of Family and Community Services. They should also obtain legal advice immediately and consider making an application to the court to have the parenting order varied. If there are serious ongoing problems If there are serious problems or issues as to why a parenting order for spending time or communicating with a child is not appropriate, it is likely that an application to vary the orders will be required. Legal advice should be sought if there are ongoing problems with the orders.

It is not appropriate for high conflict cases to be repeatedly dealt with through contravention applications. If this is happening, the court is likely to vary the orders to prevent further court cases.

If there was no reasonable excuse If the court decides that an order has been contravened without a reasonable excuse, the court can make orders that are appropriate in the circumstances, for example: • a person attend a post-separation parenting program • lost time with a child be made up • compensation be paid for reasonable expenses • a parenting order be changed • legal costs be paid. In serious or persistent cases a bond, fine, community service order or prison sentence can be ordered.

Variation of parenting orders [24.730] Duration of orders Unless the order states otherwise, a parenting order continues to have effect until the child: • turns 18 • marries or enters a de facto relationship • is adopted by another person.

[24.740] If circumstances

change If circumstances change substantially, an application to vary (change) parenting orders may be made. The courts are reluctant

to disturb the existing situation or for parties to be constantly going back to court, and will not consider an application where there are existing parenting orders unless the applicant establishes that there has been a significant change in circumstances (Rice v Asplund [1979] FLC 90-725).

If the parent the child lives with dies If there are orders for a child to live with one parent and that parent dies, the surviving parent does not automatically become the primary carer. That parent, or anyone else concerned about the matter, must apply for a new parenting order.

Relocation [24.750] If the parent the child

lives with wants to move Parents with orders for the child to live with them find themselves in difficulty if they want to relocate because of family support,

violence, job opportunities, or some other reason. If the move will make it more difficult to comply with existing arrangements or orders about spending time, the other parent will need to agree, or a change in orders must be sought.

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If there are no existing orders, it is important to obtain the other parent’s agreement, preferably in writing, to avoid being ordered to return with the children until the case has been decided. It is best if parties can come to an agreement as to how the other parent will spend time with the child. Any agreement can be put in the form of a parenting plan or consent orders. If the parent the child spends time with will not agree If the other parent will not agree, an application can be filed at court to get an order allowing them to move with the child. Otherwise they risk a recovery order being made for the child to be returned to the other parent. What must be shown in relocation cases There is no separate set of principles for deciding relocation cases. The courts must consider the best interests factors and what is reasonably practical, just as they must in any other case about where a child should

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live. This includes considering whether equal time or substantial and significant time is appropriate. Neither of the parties bears an onus (responsibility) of proving that the child should or should not be allowed to relocate. The court looks at the proposals made by both parents. However, satisfying a court that it is in the best interests of a child to relocate can be difficult because it is much harder to maintain a meaningful relationship with the other parent. The court must also consider the parent’s right to live wherever they wish within Australia. The parent who wishes to move should tell the court: • why it is in the best interests of the child that they be allowed to relocate, and • how the other parent will be able to maintain a meaningful relationship with the child.

If a parent the child does not live with wants to move There has not yet been a case where the court has forced a parent to stay living close to their child if they want to move away.

Parental abduction of children [24.760] If a child is taken or

not returned If a child has been taken from, or not returned to, their primary carer, the carer can apply for a recovery order in the Federal Circuit Court, Family Court or Local Court.

What a recovery order does A recovery order is a court order that can require a child to be returned to the person who is their usual carer. It can empower state, territory and federal police to find and return the child to their carer. It may also prohibit a person from taking the child again.

Urgent application Recovery orders are urgent applications and should be made as soon as possible. The applicant will need to persuade the court

that the situation is urgent and that the order must be made straight away. If it is not considered urgent, the parents are expected to try to resolve the matter themselves through family dispute resolution before applying to court. In some cases, the court may make an ex parte order (an order made in the absence of one of the parties).

Applying for other orders If the carer does not already have a parenting order, they should apply for a parenting order that the child lives with them at the same time as applying for the recovery order.

Location orders and Commonwealth information orders The court can make a location order or a Commonwealth information order to obtain

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information on the whereabouts of the parent and the child from individuals or from state and federal government departments such as Centrelink.

[24.770] International

abduction Children may not be taken overseas without the consent of both parents, or a court order. If a child has been taken overseas without the knowledge or consent of a parent, or kept there for longer than agreed, there are steps that can be taken to have the child returned to Australia. Emergency number if child will be taken overseas If a child has been abducted and there is a risk that a child may be taken out of the country before the next working day, call the national enquiry centre on 1300 352 000 to access the courts 24-hour emergency service.

Hague Convention countries Australia is a party to the Hague Convention on the Civil Aspects of International Child Abduction. If a child is taken to another signatory country, they will usually be returned to Australia. Under the convention, a child must be returned to their home country unless: • the parent seeking the return has had no contact with the child for some time • there is a grave risk that the child would be harmed if returned • the child is an older child, and has expressed a strong objection to being returned • the child has been away from their home country for more than a year and is settled. (Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 16). Hague Convention countries are listed in Schedule 2 of the regulations. Under the convention, it is not necessary for the person who had the child taken from them to have had a parenting order at the time; only that: • the child usually lives in the country they

were taken from, and • the person who lost them has a legal right under the law of that country to determine where they may live. The Family Law Act automatically gives these rights to parents on the birth of a child without any orders. Who takes action? The Commonwealth Attorney-General is responsible for taking action to locate and secure a child’s return, at no cost to the parent who lost the child. A solicitor with the NSW Department of Family and Community Services prepares the application.

Non-convention countries Some countries that are not signatories to the Hague Convention are reciprocating jurisdictions for the purpose of enforcing court orders (see Family Law Regulations 1984 (Cth), Sch 2). This means Australian parenting orders may be registered in these countries. The orders may then be enforced, and the child ordered to be returned to Australia. If a child has been taken to a country that is not a member of the Hague Convention, a parent may be able to get assistance from the Consular Branch of the Department of Foreign Affairs and Trade. The service operates 24 hours a day and can be contacted on 1300 555 135.

Preventing overseas abduction Preventing a child from being taken overseas is much easier than retrieving them. The Family Law Watchlist If overseas abduction is seen as a risk, the child can be put on the Family Law Watchlist kept by the Australian Federal Police. Any child on the list will be stopped as they pass through customs before boarding a plane or ship. The Federal Police require either a parenting order or a filed application for a parenting order before they will put a child on the Family Law Watchlist. Passports The Australian Passport Office has a list of children to whom it will not issue a passport.

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If they do not have a passport already, any child at risk can be placed on this list as well as the watch list. If the child does have a passport, it should be kept locked away if possible. If the child is eligible for a passport from another country, the consulate or embassy of that country should be contacted to determine what procedures they have to prevent the overseas abduction of children. Taking children overseas An application for a child’s passport must be signed by each person who has parental responsibility for the child. If one parent refuses to sign a passport application or give consent for a child to travel overseas, a parent can complete a Form B9 (Child without full parental consent)

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and lodge it with the Australian Passports Office. The form asks an Approved Senior Officer of the Department of Foreign Affairs and Trade to consider issuing the passport due to “special circumstances”. Special circumstances can include situations where the child has not seen the other parent for more than three years, or when there is a family violence order against the non-consenting parent. Even if an application meets these criteria, there is no guarantee that the application will be approved. If a parent will not consent and the Passports Office will not issue the passport without consent, the parent can apply to the Federal Circuit Court, Family Court or Local Court for an order that the passport be issued and for permission to travel overseas. If a holiday is planned, the court may require evidence of return tickets, or the lodgement of some surety to guarantee return.

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Contact points [24.780]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au.

Courts

complaints and feedback: 1800 132 468

Family Court of Australia www.familycourt.gov.au

multilingual service: 131 202

Federal Circuit Court www.federalcircuitcourt.gov.au Family Law National Enquiry Centre ph: 1300 352 000 (including after hours emergency service)

Court Support Women’s Domestic Violence Court Advocacy Services (WDVCAS) provide information, assistance and referrals to women seeking Apprehended Violence Orders in Local Courts across NSW. For a list of contacts, see Contact points in Chapter 19, Domestic Violence. Women’s Family Law Support Service (for women going through family law proceedings who have experienced domestic or family violence) Sydney 9217 7389 or [email protected] (Sydney Registry only) If you have any concerns about your safety while attending other family courts, call 1300 352 000

Government resources Department of Human Services www.humanservices.gov.au: Centrelink (Department of Human Services) families and parents: 136 150

www.humanservices.gov.au/ customer/dhs/centrelink Child Support general enquiries: 131 272 information service: 131 107 feedback & complaints: 1800 132 468 multilingual interpreting: 131 450 Family Assistance (Department of Human Services) ph: 136 150 (between 8am and 8pm Monday to Friday)

Uniting www.uniting.org ph: 1800 864 846 Relationships Australia www.relationships.org.au ph: 1300 364 277 Family Dispute Resolution services Family Relationships Online Includes register of accredited Family Dispute Resolution Practitioners www.familyrelationships.gov.au Family Relationship Advice Line

ph: 131 202 (for languages other than English) Family and Community Services (previously “DoCS”)

ph: 1800 050 321

www.community.nsw.gov.au

Bathurst: 6333 8888

Head Office: 9716 2222 Child Protection Helpline: 132 111 (to report child abuse and neglect, 24 hrs)

Blacktown: 8811 0000

Domestic Violence Line: 1800 65 64 63 (24 hrs) Enquiries, feedback & complaints: 1800 000 164 A list of Community Services offices is in Contact points for Chapter 7, Children and Young People.

Family Relationship Services Interrelate Family Centres www.interrelate.org.au ph: 1300 736 966 or 8882 7800 (for list of Children’s contact services)

Family Relationship Centres in NSW Bankstown: 9707 8555

Campbelltown: 4629 7000 Central Coast (Erina): 4363 8000 Coffs Harbour: 6659 4100 Dubbo: 6815 9600 Fairfield: 9794 2000 Lismore: 6623 2700 Newcastle: 4016 0566 Nowra: 4424 7150 Parramatta: 9895 8144 Penrith: 4720 4999 Sutherland: 8522 4400 Sydney City: 8235 1500 Tamworth: 6762 9200 Taree: 6551 1200 Wagga Wagga: 6923 9100 Wollongong: 4220 1100

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Community Justice Centres

Counselling and crisis support

1800RESPECT (sexual assault or domestic and family violence counselling):

www.cjc.nsw.gov.au

Some Family Relationship Services listed also provide counselling.

www.1800respect.org.au

Child Abuse Prevention Service

The Tabbot Foundation

Children's Contact Centres

www.childabuseprevention.com.au

www.tabbot.com.au

ph: 1800 688 009 or 9716 8000

ph: 1800 180 880

www.accsa.org.au

www.dvnsw.org.au

Albury/Wodonga Upper Murray Family Care: 6057 5399

ph: 9698 9777

ph: 1800 990 777

Bella Vista Interrelate Family Centre: 8882 7850 Blacktown Relationships Australia: 8811 0000

1800 737 732 (24 hrs)

Domestic Violence NSW

Domestic Violence Line ph: 1800 656 463 (telephone counselling, information and referrals access refuge referrals, 24 hours, 7 days).

Broadmeadow (Newcastle) Relationships Australia: 4940 1500

Dr Marie

Campbelltown CatholicCare: 4628 0044

ph: 1300 003 707

www.drmarie.org.au

Central Coast Relationships Australia: 4389 8760

Family Planning NSW

Coffs Harbour Interrelate Family Centre: 6659 4150

ph: 8752 4300

Dubbo Interrelate Family Centre: 6815 9650

Link2Home

www.fpnsw.org.au Talkline: 1300 658 886

Women's health centres Women’s Health NSW (peak non-government body for women’s health) www.whnsw.asn.au ph: 9560 0866 Bankstown Women’s Health Centre www.bwhc.org.au ph: 9790 1378 Blacktown Women’s and Girls’ Health Centre www.womensandgirls.org.au ph: 9831 2070 Blue Mountains Women’s Health and Resource Centre www.bmwhrc.org.au

Harris Park Central West Contact Service: 9893 7949

(statewide homelessness information and referral telephone service)

Lismore Interrelate Family Centre: 6623 2750

Lph: 1800 152 152

Orange Interrelate Family Centre: 6363 3650

www.speakout.org.au

ph: 4782 5133 Central Coast Community Women’s Health Centre Ltd

ph: 9635 8022

www.cccwhc.com.au

Lifeline Telephone Counselling Service

ph: 4324 2533

Penrith Relationships Australia: 4728 4800 Port Macquarie Interrelate Family Centre: 5525 3200

Immigrant Women’s Speakout

www.lifeline.org.au

Nowra CatholicCare: 4227 1122

ph: 131 114 (24 hrs)

Sutherland Interrelate Family Centre: 8522 4450

MensLine Australia

Sydney CatholicCare Contact Service: 9307 8200

ph: 1300 78 99 78

www.mensline.org.au

Tamworth Family Support CCS: 6763 2333

Parentline

Wagga Wagga Relationships Australia: 69239180

ph: 1300 1300 52

Wollongong Catholic Care: 4227 1122 Australian Children’s Contact Services Association www.accsa.org.au

www.parentline.org.au Rape & Domestic Violence Services Australia

Central West Women’s Health Centre Inc www.cwwhc.org.au ph: 6331 4133 Coffs Harbour Women’s Health Centre www.genhealth.org.au ph: 6652 8111 Cumberland Women’s Health Centre Inc www.cwhc.org.au ph: 9689 3044

www.rape-dvservices.org.au

Hunter Women’s Centre

ph: 8585 0333

www.hwc.org.au

NSW Rape Crisis

ph: 4968 2511 Illawarra Women’s Health Centre www.womenshealthcentre.com.au

www.nswrapecrisis.com.au 1800 424 017 (24 hrs)

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ph: 4255 6800 Immigrant Women’s Health Service www.immigrantwomenshealth. org.au Fairfield: 9726 4044 Cabramatta: 9726 1016 Leichhardt Women’s Community Health Centre www.lwchc.org.au ph: 9560 3011

ph: 9718 1955 Wagga Womens Health Centre www.waggawomen.org.au

Women’s Legal Advice Line

ph: 6921 3333 WILMA Women’s Health Centre www.wilma.org.au

ph: 1800 810 784 or 8745 6999

ph: 4627 2955 Women’s Centre Albury-Wodonga www.womenscentre.org.au

ph: 1800 639 784 or 8745 6977

ph: 6041 1977

ph: 1800 801 501 or 8745 6988 Domestic Violence Legal Advice Line Indigenous Women’s Legal Contact Line Care and Protection Legal Advice Line ph: 8745 6908 Working Women’s Legal Service

Lismore & District Women’s Health Centre Inc

Legal assistance

ph: 8745 6954

ph: 6621 9800

Child Support Service (Legal Aid NSW) www.legalaid.nsw.gov.au

www.clcnsw.org.au/clc_directory

Liverpool Women’s Health Centre www.liverpoolwomenshealth. org.au

Community Legal Centres NSW ph: 9212 7333

ph: 1800 451 784 or 9633 9916 Immigration Advice and Rights Centre (IARC) www.iarc.asn.au

Child abduction and recovery

www.penrithwomenshealthcentre. com.au.

admin: 8234 0700 advice: 8234 0799 (Tues and Thurs 2–4 pm)

Australian Federal Police www.afp.gov.au/what-we-do/ services/family-law/family-law-kit

ph: 4721 8749

LawAccess NSW

Shoalhaven Women’s Health Centre

www.lawaccess.nsw.gov.au

www. shoalhavenwomenshealthcentre. org.au

Legal Aid NSW

Commonwealth Attorney-General’s Department www.ag.gov.au/ FamiliesAndMarriage/Families/ InternationalFamilyLaw

ph: 9601 3555 Penrith Women’s Health Centre Inc

ph: 1300 888 529 www.legalaid.nsw.gov.au

South Coast Women’s Health and Welfare Aboriginal Corporation – Waminda

For contacts, call LawAccess ph; 1300 888 529 Wirringa Baiya Aboriginal Women’s Legal Centre

www.waminda.org.au

www.wirringabaiya.org.au

ph: 4421 7400 Sydney Women’s Counselling Centre

ph: 1800 686 587 or 9569 3847 Women’s Legal Service NSW www.wlsnsw.org.au

www.womenscounselling.com.au

ph: 8745 6900 (administration)

ph: 4421 0730

Hague Convention www.hcch.net International Social Services Support www.iss.org.au Consular emergency helpline, Department of Foreign Affairs and Trade ph: 1300 555 135, 24 hours outside Australia: +61 2 6261 3305

25 Freedom of Information Joanna Davidson

Barrister

Contents [25.20]

Right of access

[25.60]

Obtaining access

[25.110]

Review and appeal

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[25.10]

The federal Freedom of Information Act 1982 (Cth) (FOI Act) came into force in 1982. Under the Act, anyone can get access to any document held by a federal government department or agency unless the agency, or the document or part of the document, is exempted by the legislation. Substantial amendments to the federal Act came into force in 2010. People seeking information under the Act do not need standing of the kind required

under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (see Judicial review in Chapter 9, Complaints, for more about this). In 2009, NSW repealed the Freedom of Information Act 1989 and replaced it with the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). It provides for a similar right of access to information held by state departments, state authorities, local councils and ministers.

Right of access [25.20]

The federal FOI Act gives people a right of access to a document held by an agency or an official document of a minister (other than an exempt document) (FOI Act, s 11). The NSW GIPA Act gives people a right of access to information contained in a record held by an agency (unless there is an overriding public interest against disclosing the information) (GIPA Act, s 9). Although the terminology is different, the substance of the access rights is the same.

[25.30] Terminology The key terms – like agency, document, document of an agency, exempt document and official document of a minister – are defined in the Acts (FOI Act, s 4(1); GIPA Act, s 4 and Sch 4).

What is a document? Under the federal Act Under the federal Act, document is defined to include: • written or printed matter • maps, drawings, plans and photographs • materials such as films, slides, tapes and videotapes • articles on which information has been stored electronically. It does not include material maintained for reference purposes that is otherwise publicly available or Cabinet Notebooks (FOI Act, s 4).

Access is available to computer-stored material by production of a written document by printout or similar means (FOI Act, s 17) and in electronic form. Under the NSW Act Government information in a record is also defined broadly under the GIPA Act, and includes information recorded or stored in written form or by electronic process, and information held by a private sector entity to which the agency has an immediate right of access (GIPA Act, Sch 4, cll 10 and 12). Both the federal and NSW Acts provide that documents created or held by private entities which provide services to government under contract are accessible (FOI Act, s 6C; GIPA Act, s 121, Sch 4, cl 12). An application for a contractor’s documents should be made to the agency with which that entity has the service contract.

[25.40] Documents that

cannot be accessed The Acts give a right of access to all the types of documents discussed above unless they are covered by an exemption (Cth) or are subject to an overriding public interest against disclosure (“opiad”) (NSW). In both the Commonwealth and NSW Acts, there are two categories of documents: documents which are not accessible (FOI Act, ss 33–47A; GIPA Act, Sch 1), and documents to which access must be provided, unless it would be

25 Freedom of Information

contrary to the public interest (FOI Act, ss 47B–47J; GIPA Act, ss 12–14). Neither Act allows for access to Cabinet and Executive Council documents or legally professionally privileged information. Exempt documents under the federal Act also include documents affecting law enforcement and public safety, documents which are subject to a legal obligation of confidence, documents to which secrecy provisions of other Acts apply or which contain commercially valuable information. Under the NSW GIPA Act, these categories of documents can be accessed unless there is an overriding public interest against disclosure. Under both Acts, there are other categories of documents which must be released unless there is a public interest against disclosure. These include: documents recording advice, consultation or deliberation that is a part of the deliberative functions of an agency or minister; documents which would involve an unreasonable disclosure of an individual’s private information (in NSW, a disclosure that would reveal an individual’s personal information (GIPA Act, cl 3(a) of the Table to s 14)); documents that would involve an unreasonable disclosure of business information; or documents where disclosure could prejudice the management of the economy. If the document does not fall into one of the defined categories, then it must be released.

879

Each Act also deals with other categories of documents. The legislation should be consulted for the full details.

Correcting personal records People who find statements in their personal records that are incomplete, out of date, incorrect or misleading have a right to request that they be corrected (FOI Act, Pt V, from s 48). In NSW this right is now found in s 15 of the Privacy and Personal Information Protection Act 1998 (NSW).

Deletion of material Under both Acts, the agency must consider whether it is practicable to edit the document, so as to delete the exempt or “opiad” material so that an applicant can be given access to the balance of the document (FOI Act, s 22; GIPA Act, s 74).

[25.50] Exempt agencies A number of agencies are not subject to freedom of information legislation either in whole or in relation to certain types of documents. The exempt agencies are set out Sch 2 to the federal Act and also in Sch 2 to the NSW Act. In NSW, an application to an agency to seek information which is excluded from the Act is not a valid application, and need not be processed by the agency (GIPA Act, s 43).

Obtaining access [25.60] Proactive disclosure of

information Both the GIPA Act and the federal FOI Act provide for a regime of proactive disclosure. Certain kinds of documents about the agency’s structure, functions, policies and guidelines, annual reports and material provided to parliament must be posted on the agency’s website. Agencies are encouraged to consider other kinds of information that might be of public interest and post that

information too. NSW has a contracts register where agencies are required to post key information about contracts to which they are a party and which exceed $150,000 in value. The kinds of information required vary with the value and type of the contract. Under the federal Act, an agency is required to post documents to which the agency routinely gives access in response to requests under the FOI Act (FOI Act, s 8(2)). The NSW Act provides that an agency must publish a list of all the applications where the agency has decided to release

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information which may be of interest to other members of the public (referred to as a disclosure log (GIPA Act, s 27)). Presumably this is so other members of the public can also request copies of the same documents.

[25.70] How to apply Requests for access to documents must: • be in writing • include information that enables the agency to identify the document(s) sought. Most agencies have their own printed or online forms for applicants to fill in, although using the form is not a legal requirement. To limit costs, and the possibility that applications will be refused as being too large to process (see Costs at [25.90]), applicants should think carefully about the kinds of documents or information that is sought and frame their request as narrowly as possible. It is often worthwhile contacting the agency’s FOI/Right to Information Officer to discuss the terms of the request before making the formal application. The agency is now obliged to advise the applicant in writing that the request has been received (FOI Act, s 15; GIPA Act, s 51). In NSW, the agency must advise the applicant whether it considers the application to be valid, and the timeframe within which it must make its decision. The federal Act authorises agencies to provide information outside of the FOI Act process. The GIPA Act authorises informal release of government information (GIPA Act, s 8) but does not say what form informal access might take. Presumably, a simple request to an agency for informal access referring to the GIPA Act (without the need to pay an application fee) is sufficient. However, an agency does not have to process an informal application and is not entitled to provide information where there is an overriding public interest against disclosure.

[25.80] Time limits for

agencies Agencies must deal with requests as soon as possible, with a time limit of: • 30 days from receipt under the federal Act (FOI Act, s 15) • 20 working days from receipt under the NSW Act (GIPA Act, s 57). In certain circumstances, mostly where there is an obligation to consult with third parties, the agency can get a further extension of time of 10 working days in NSW (GIPA Act, s 57) or 30 days for the Commonwealth (FOI Act, s 15). Both federal and NSW Acts allow for this time frame to be extended by agreement with the applicant (FOI Act, s 15AA; GIPA Act, s 60(4)). The federal Act allows the agency to apply to the Information Commissioner for an extension of time (FOI Act, s 15AB). If a decision is not made within the required timeframe, the agency is deemed to have refused the application and the applicant can start down the path of review (FOI Act, s 15AC; GIPA Act, s 63).

[25.90] Costs The cost of accessing documents under federal freedom of information legislation has been reduced in the most recent reforms.

Under the federal Act Under the federal Act, the charges are dealt with under the Freedom of Information (Charges) Regulations 1982 (Cth). There is no charge for making an application, and there is no charge for processing an application for personal information. An agency can charge $15 an hour for the time spent in searching for documents and, if it takes more than five hours to make a decision about the application, $20 an hour for each extra hour. Photocopying is charged at 10c a page and the cost of postage is also recouped. Charges are assessed in advance and a deposit of $20-$100 may be sought, or 25% if the proposed charge is greater than $100. If a charge is imposed and a deposit sought, the applicant must indicate that he or she accepts the charge within 30 days, or

25 Freedom of Information

the application will be deemed to be abandoned (FOI Act, s 29(2)). The timeframe for processing an application is suspended until the charge is paid. If the application is not determined within the statutory timeframe, no charges can be imposed. When fees can be reviewed or waived Application fees or charges can be reviewed or waived under the federal Act, either on the grounds of financial hardship or because the person can show that it is in the public interest to disclose the documents (FOI Act, s 29).

Under the NSW Act For information requested under the NSW Act, there is an initial application fee of $30. Further costs depend on whether the application relates to the applicant’s personal information. If it does, there are no other charges provided the application takes no more than 20 hours to process. After that, there is a processing charge of $30 an hour to cover all the costs of processing (photocopying, decision-making, consultation (GIPA Act, s 64)). For non-personal requests, $30 per hour applies to all processing time. An advance deposit of up to 50% of the estimated charges can be sought by the agency. The timeframe for processing the application stops running until the deposit is paid, and the agency can refuse to deal further with the application if the deposit is not paid on time (GIPA Act, ss 68–70). Estimate of fees Under both Acts, an agency must give an applicant an estimate of the charges likely to be incurred in processing an application before going ahead with it. Applicants have an opportunity to challenge the charges or an estimate of charges (FOI Act, s 29; GIPA Act, s 70).

881

Fee reductions There is a 50% reduction of charges under the NSW Act for people who are able to demonstrate financial hardship or that the information applied for is of special benefit to the public generally (GIPA Act, ss 65 and 66). Applicants should therefore provide supporting evidence if they are seeking a reduction in charges. The Government Information (Public Access) Regulation 2009 (NSW) requires an agency to give a 50% reduction to holders of current pensioner concession cards, full-time students and non-profit organisations (cl 9). If the information is made publicly available within three days after the applicant is provided with access, then no fees can be charged (GIPA Act, s 66(2)).

[25.100] Denial or deferral of

access Grounds for denying access Obviously an agency can deny access to documents if the information in those documents is exempt or subject to an overriding public interest against disclosure. However, under both federal and NSW Acts, a request for documents may also be refused if the work involved in giving access would substantially and unreasonably divert the resources of the agency from its other operations (FOI Act, s 24AA; GIPA Act, s 60(1)(a)). However, an agency cannot refuse to process an application for this reason unless the applicant has been consulted and given the chance to narrow the request.

Grounds for deferring access Agencies can defer access for a limited range of reasons (FOI Act, s 21; GIPA Act, s 78).

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Review and appeal [25.110] The federal Act First stage review - internal review and/or Information Commissioner Under the federal Act, a person whose application for access to a document or information has been denied or deferred may seek an internal review by a more senior officer within the agency (FOI Act, Pt VI). The aggrieved applicant can also apply directly to the Information Commissioner for a review (FOI Act, Pt VII). There is no fee associated with either path and no obligation to seek an internal review before going to the Information Commissioner. If a person begins with an internal review, but remains dissatisfied, that person can then seek a review by the Information Commissioner. Internal review is not available if the decision to deny or defer access was made by: • the minister, or • the principal officer of the agency (FOI Act, ss 54(1) and 54A(1)). An application for internal review must be made within 30 days of being notified of the decision, but an application to the Information Commissioner can be made within 60 days (FOI Act, ss 54B and 54S). The Information Commissioner must conduct a review in order for the decision to be reviewable by the Administrative Appeals Tribunal (FOI Act, s 57A).

Second stage review - the AAT or the Federal Court A person who is not satisfied with the decision of the Information Commissioner can then apply to have the matter reviewed by the Administrative Appeals Tribunal (AAT). The AAT’s processes are dealt with in Chapter 9 , Complaints. There is a limited right of appeal to the Federal Court from a decision of the Information Commissioner, on a question of law only (FOI Act, ss 56 and 56A). In determin-

ing the appeal, the Court has the power to make further findings of fact, and to make whatever order it thinks appropriate. It may affirm or set aside the Information Commissioner’s decision, or substitute its own decision for that of the Information Commissioner. An application to the AAT or the Federal Court must be made within 28 days of the Information Commissioner’s decision.

Complaints to the Information Commissioner and Ombudsman The Information Commissioner also has the power to investigate any action taken by an agency in the performance of functions or the exercise of powers, under the FOI Act. The Commonwealth Ombudsman retains some residual complaint investigatory powers and FOI complaints may be referred to the Ombudsman (FOI Act, Pt VIIB).

[25.120] The NSW Act Under the NSW Act, a person who is not satisfied with a decision about access or charges can seek an internal review by a more senior officer in the agency; or an external review by the Information Commissioner; or the NSW Civil and Administrative Tribunal (NCAT) (GIPA Act, Pt 5). Generally speaking, an applicant can choose any one of the three avenues available, but may not pursue more than one avenue at a time. There is no need for the Information Commissioner to review a decision before applying for review by the Tribunal (GIPA Act, s 100).

Time limit An application for internal review must be made within 20 working days of the applicant being notified of the decision, although the agency can agree to conduct an internal review out of time (GIPA Act, s 83). An application for review to the Information Commissioner or NCAT must be made within 40 working days of the applicant

25 Freedom of Information

being notified of the decision. NCAT has the discretion to extend that timeframe (GIPA Act, ss 90 and 101). The NSW Information Commissioner may also investigate the conduct of agencies

883

more generally under the Government Information (Information Commissioner) Act 2009 (NSW).

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Contact points [25.130]

If you have a hearing or speech impairment and/or you use a TTY, you can ring any number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or 1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see www.relayservice.gov.au. Non-English speakers can contact the Translating and Interpreting Service (TIS National) on 131 450 to use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.tisnational.gov.au. Administrative Appeals Tribunal

ph: 1300 362 072

www.aat.gov.au

Council for Civil Liberties, NSW

NSW Civil and Administrative Tribunal (NCAT)

ph: 1300 366 700 or 9391 2400

www.nswccl.org.au

www.ncat.nsw.gov.au

Australasian Legal Information Institute (AustLII)

ph: 8090 2952

ph: 1300 006 228

Information and Privacy Commission NSW www.ipc.nsw.gov.au

Office of the Australian Information Commissioner ph: 1300 363 992

Commonwealth Ombudsman

ph: 1800 472 679 LawAccess NSW www.lawaccess.nsw.gov.au

www.ombudsman.gov.au

ph: 1300 888 529

ph: 8898 6500

www.austlii.edu.au Australian Human Rights Commission www.humanrights.gov.au

www.oaic.gov.au Public Interest Advocacy Centre www.piac.asn.au

26 Health Law Suzanne Castellas HIV/AIDS Legal Centre Alexandra Stratigos HIV/AIDS Legal Centre Melissa Woodroffe HIV/AIDS Legal Centre Robert Wheeler Mental Health Advocacy Service, Legal Aid NSW

Contents [26.10]

General overview

[26.170]

HIV

[26.20]

Mental health

[26.180]

[26.30]

Hospital treatment under the Mental Health Act Psychiatric services

Medical issues and legal requirements

[26.250]

Issues for people with HIV

[26.80] [26.130]

Other issues affecting mentally ill people

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General overview [26.10]

Health law in NSW is governed by specific legislation as well as other general laws. For example, public health legislation sets out requirements and establishes practices for the protection of the health and safety of the public. In cases of medical negligence, the Civil Liability Act 2002 (NSW) sets out the required standard of care for professionals, including medical professionals. Privacy of medical information is governed by the Health Records and Information Privacy Act 2002 (NSW) and the Privacy Act 1988 (Cth) including Schedule 1 of this Act which outlines the 15 Key Health Privacy Principles (HPPs). Complaints about health care professionals and/or services provided can be made in accordance with the Health Care Complaints Act 1993 (NSW). Other related areas include mental health, guardianship and consent to treatment which are covered later in this chapter as well as in Chapter 16 Disability. Issues regarding discrimination based on a medical condition (disability) are covered later in this chapter, and in Chapter 17 Discrimination. Public Health Act NSW The Public Health Act 2010 (NSW) is legislation designed to protect and promote public health. The key objectives of the Public Health Act are to: • control the risk to public health • promote the control of infectious diseases • prevent the spread of infectious diseases • recognise the role of local governments in protecting public health. Within the Act, provision is made to address general protections and precautions, notification and treatment, identity protection, public health orders, and other disease control measures.

Health Rights and Responsibilities NSW Health Policy directive [PD2011_022] outlines the general rights and responsibilities of NSW Health services and staff, and patients and carers. Basic rights are detailed

in the policy, including; Access, Safety, Respect, Communication, Participation, Privacy, and the Right to Comment. All health professionals delivering healthcare services within NSW Health must be made aware of these rights and responsibilities.

Consent for treatment The established presumption is that every adult of sound mind has a right to determine what medical treatment they do or do not consent to. As part of their duty of care, health professionals must provide such information as is necessary for the patient to give consent to treatment, including information on all material risks of the proposed treatment. ‘Informed consent’ refers to consent to medical treatment and the requirement to warn of material risk prior to treatment. Failure to do so may lead to civil liability for an adverse outcome, even if the treatment itself was not negligent.

Lack of capacity to consent Where a person is unable to give consent, the consent can be obtained from a person responsible as provided for under the Guardianship Act 1987 (NSW) or from a guardian appointed by the Guardianship Tribunal NSW. For children under the age of 14 years, consent can be obtained from the child’s parent or legal guardian, or if the child is in care, the person with parental responsibility can consent as provided for in the Children and Young Person’s (Care and Protection) Act 1998 (NSW). Under the Minors (Property and Contracts) Act 1970 (NSW), a child aged 14 years or over may consent to medical treatment, and the consent of the child will be effective in terms of defending an action relating to the treatment, if the child meets the Gillick definition of a “mature minor” See also [7.740] for medical consent in children and young people.

Privacy The Health Records and Information Privacy Act 2002 (NSW) (HRIP Act) outlines how

26 Health Law

New South Wales public sector agencies and health service providers that collect, hold or use health information, manage the health information of NSW public members. The purpose of this Act is to promote fair and responsible handling of health information. Schedule 1 of the HRIP Act outlines the 15 Key Health Privacy Principles (HPPs) which are the legal obligations which NSW public sector agencies and private sector organisations must abide by when they collect, hold, use and disclose a person’s health information. These principles detail how a person’s health information must be collected, stored, used, and disclosed as well as rights of access to a person’s individual health information. The Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) outlines how New South Wales public sector agencies manage personal information and the functions of the NSW Privacy Commissioner. The PPIP Act includes 12 Information Protection Principles (IPPs) and sets out the role of the NSW Privacy Commissioner, and gives the Commissioner powers to investigate and mediate complaints made against an agency. Certain lawful exemptions may exist for agencies in HIPPA itself; in a regulation or privacy code of practice made by the Attorney General; or in a Public Interest Direction, made by the Privacy Commissioner. These exemptions allow public sector agencies to modify the application of the Information Protection Principles (IPPs) in the PPIPA in certain circumstances with regard to: • the definition of “personal information” • an agency’s specific functions • a particular agency • one or more of the Information Protection Principles (IPPs) • the public register provisions.

Information and records Under the Health Records and Information Privacy Act 2002 (HRIP Act), a person has a right to access health information about themselves that is held by any organisation both private and public that provides a health service to them.

887

When contacting an organisation to request access to health information, the request must be in writing, include identifying information about the patient and the information request, and how the information is to be accessed (review or copy). Authorisation must be given for any other third party to access health information. A fee may be charged. The organisation must provide a decision within 28 calendar days from receiving a request for public sector agency and 45 calendar days for private sector health service provider. If the request is for medical records containing sensitive health information, such as records pertaining to mental health or a person’s HIV status, a clinician may need to review the information prior to its release. There are only limited circumstances when a provider may decline access if: • access would pose a serious threat to the life/health of an individual, or • would have an unreasonable impact on the privacy of other individuals, or • the health information relates to existing/ anticipated legal proceedings and access through court processes is not available, or • it be unlawful; denying access is required/authorised by another law, or • the request is a repeated request and has been reasonably declined previously or the information has already been provided • access would prejudice an investigation of possible unlawful activity or prejudice a law enforcement agency’s functions. Where the response provided is unsatisfactory, the fees are excessive, or the organisation has not responded within the specified timeframe, a complaint can be made to the NSW Privacy Commissioner within six months of the unsatisfactory act. Similarly, the Privacy and Personal Information Protection Act 1998 (PPIP Act) gives a person the right to see and ask for changes to be made to their personal or health information.

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Complaints about health care services or practitioners Complaints about conduct/care The Health Care Complaints Act 1993 (NSW) establishes the Health Care Complaints Commission as an independent body for the purposes of receiving and assessing complaints relating to health services and health service providers in New South Wales, investigating and assessing whether any such complaint is serious and if so, whether it should be prosecuted, and prosecuting serious complaints, and resolving or overseeing the resolution of complaints. The HCCC receives and assesses complaints about the professional conduct of a health practitioner and/or the clinical care and treatment provided by an individual or organisation. Complaints must be in writing and may be made about the professional conduct of a health service provider in NSW, including any registered practitioner, unregistered provider, and any organisation offering a health service that affects the care and treatment of an individual. The Commission is required to assess all complaints within 60 days. In complex cases or where there is further information required to make a decision, a complaint may be referred for formal investigation, with the majority of investigations being finalised within nine months. At the conclusion of investigations, a full report outlining the allegations, the relevant evidence and the Commission’s findings is provided. If the complaint has been referred to the Director of Proceedings to consider disciplinary proceedings, a report will not be provided as this could have an adverse effect on any prosecution. The HCCC cannot make changes to medical records. In general, nothing can be removed from medical records. Any comments/information in a patient’s records that are perceived to be unfavourable must be addressed directly with the health service provider. The Health Care Complaints Act provides for a right to review of the findings where the complaint was about the conduct of a health practitioner and/or the clinical care

and treatment provided by an individual. There is no right to review where the complaint concerned a health organisation. Complaints should be made within five years of the service in question. Any complaint concerning services that occurred more than five years previously, the merits of the complaint would need to be persuasive. Investigations are hindered by significant lapses in time between the act or service complained of and the complaint being lodged. Further, complaints to HCCC investigate the actions of the practitioner or agency but do not provide any specific remedy to the patient. Alternatively, a complainant could seek a remedy by filing a common law action in medical negligence if it can be shown that the treatment fell below the standard of care reasonably expected from a professional. To make a claim for medical negligence compensation, three elements must be satisfied: 1. the practitioner or agency actions did not meet Australian standards 2. the treatment resulted in suffering or injury, and 3. the physical or psychological harm was a direct result of their negligence Private Health Care Complaints If medical treatment has been received from health services other than through the public health system, there are various organisations that can assist with making a complaint: • for treatment in a private hospital: NSW Health Services Directory • for healthcare in a Commonwealthfunded aged-care service: Aged Care Complaints Resolution Scheme • for treatment by a general practitioner (GP) in private practice: Medical Council of New South Wales • for treatment by other health professionals in private practice: NSW Health Professional Councils. Complaints about breach of privacy The Privacy and Personal Information Protection Act provides for complaints to be made to the NSW Privacy Commissioner where a person reasonably believes a NSW public

26 Health Law

sector agency has misused their personal information or breached one of the IPPs. To assess if an agency has complied with its privacy obligation, an application for an internal review with the organisation must be lodged within six months of the breach. In consultation with the NSW Privacy Commissioner, the organisation must complete its review of the complaint within 60 days (if practicable). Results will be provided in writing to the complainant as well as the NSW Privacy Commissioner. Remedies can include a formal apology; remedial action such as a payment of compensation; assurances that the breach will not

889

reoccur to include administrative changes to ensure it will not occur again. If the results of the review are unsatisfactory or have not been completed within 60 days, an application to the NSW Civil and Administrative Tribunal (NCAT) for a review of the conduct or decision complained about can be made within 28 days of receiving the results. NCAT may make orders that the agency change its practices, apologise, or take steps to remedy any damage. NCAT’s decision is enforceable and may include an award for compensation.

Mental health [26.20]

The principal laws governing the treatment of people with mental illness in NSW are the Mental Health Act 2007, the Mental Health (Forensic Provisions) Act 1990

and the NSW Trustee and Guardian Act 2009. References are to the Mental Health Act 2007 unless otherwise stated.

The Mental Health Act Main provisions Some of the significant provisions of the Mental Health Act are: • a statutory definition of mental illness (s 4) • definitions of mentally ill and mentally disordered persons (ss 14–15) • a requirement that a person not be detained in a hospital unless a mentally ill or mentally disordered person, or if care of a less restrictive kind is appropriate and reasonably available (s 12) • community treatment orders (Ch 3 Pt 3) • patient rights • strict procedures for involuntary admission • control and review of psychiatric treatments • banning of deep sleep and insulin coma therapy and psychosurgery (s 83) • legal representation for patients • a wide jurisdiction for the Mental Health Review Tribunal, including regular review of all patients • designated carers and principal care providers to be informed of and involved in treatment decisions (ss 71–79). Objects and principles The objects of the Mental Health Act (s 3) are: • to provide for the care and treatment of, and to promote the recovery of, persons who are mentally ill or mentally disordered, and

• to facilitate the care and treatment of those persons through community care facilities, and • to facilitate the provision of hospital care for those people on a voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis, and • while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care, and • to facilitate the involvement of those persons, and persons caring for them, in decisions involving appropriate care, treatment and control. Principles for care and treatment are listed at s 68. They include: • people with a mental illness or a mental disorder receive the best possible care and treatment in the least restrictive environment enabling that care and treatment to be effectively given • treatment should be timely and of high quality • it should assist people to live, work and participate in the community • treatment should only be given for therapeutic purposes and never as punishment or for the convenience of others • information should be given about treatments and alternatives • any restrictions on the liberty of people receiving treatment and any interference with their rights, dignity and self-respect must be kept to a minimum

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• special needs of patients including those related to their age, gender, religion, culture, language, disability or sexuality should be recognised • people under the age of 18 should receive developmentally appropriate services • the cultural and spiritual beliefs of people who are Aboriginal or Torres Strait Islanders should be recognised • every effort should be made to involve people in the planning for their treatment and recovery and their views should be considered. This should include making every effort to obtain their consent when developing plans and to support people who lack the capacity to consent to understand the plans • people receiving treatment should be informed of their legal rights in a way that they are most likely to understand • the role of carers, including their rights to be kept informed, should be given effect. Designated carers and Principal care providers People receiving treatment for mental illness are in general entitled to the same confidentiality as those receiving treatment for any other condition. However, it has been recognised that family members are often very involved in their care, including providing the ongoing support after a hospital admission. In order to effectively provide this care, they need to have access to information about it. To enable this to happen, while still maintaining the general right to confidentiality, the Act provides for the appointment of designated carers and principal care providers. The designated carer of a person is: • the person's guardian • the parent of a child • a person nominated by the patient (if they are over 14 years old and not subject to a guardianship order). If none of the above apply, the designated carer is: • the person's spouse (including a same-sex spouse) if in a continuing relationship • a person primarily responsible for providing care (not commercially) • a close friend or relative (s 71). The principal care provider of a person is: • the individual who is primarily responsible for providing support or care to the person (other than on a

commercial basis) (s 72A(1)) • determined by the authorised medical officer or the director of community treatment (s 72A(2)). Nomination of designated carers A person may nominate up to two persons to be designated carers (s 72((1)). Exclusion of persons being given information A person may exclude someone from being given information as a designated carer or principal care provider. However, a person between the ages of 14 and 18 may not exclude a parent (s 72(2), (3) and 72A(3)). The principal care provider may also be a designated carer of a person. Information to be given to the designated carers or principal care provider A designated carer or principal care provider is to be advised of: • the person being detained in a hospital (s 75(1)) • a proposed mental health inquiry (s 76(3)) • each type of medication including dosages being administered (on request) (s 73) • absence of the person from a hospital without permission or failure to return from leave (s 78(1)(a)) • a proposed transfer (s 78(1)(b)) • discharge of the person from hospital (s 78(1)(c)) • reclassification of the person as a voluntary patient (s 78(1)(d)) • an application to the tribunal to approve ECT (s 78(1)(e)) • the person having surgery, or an application to perform surgery (s 78(1)(f) and (g)). Requirement to consider information provided by carers and other people When examining a patient for the purposes of determining whether to detain them as a mentally ill or mentally disordered person or to discharge them, a doctor is required to consider any information provided to them by the following persons: • a designated carer, principal care provider, relative or friend of the person • any doctor or health professional who has treated the person • anyone who brought the person to hospital (s 72B).

Hospital treatment under the Mental Health Act [26.30]

Patients may be treated in a hospital under the Mental Health Act as: • voluntary patients

• assessable persons, who are people detained awaiting a mental health inquiry,

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• involuntary patients, who have been detained following a mental health inquiry, or otherwise detained by the Mental Health Review Tribunal, and • forensic or correctional patients who are patients involved in certain criminal law proceedings. Mental health facilities The Act does not speak of hospitals and community health centres, but refers to mental health facilities. This term covers both types of facility. For simplicity the words “hospital” and “community health centre” are used in this chapter, but both refer to declared mental health facilities.

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People under guardianship A person under a guardianship order may be admitted as a voluntary patient at the request of their guardian. They must be discharged at the request of the guardian (s 7). The guardian must be notified if the person is otherwise discharged (s 8(3)). It is unclear whether a patient admitted as a voluntary patient at the request of their guardian has a right to be discharged at their own request (this issue was discussed in Sarah White v the Local Area Health Authority [2015] NSWSC 417, but ultimately left undetermined).

Discharge

[26.40] Voluntary patients A voluntary patient is a person who has admitted themselves to a hospital voluntarily or who has agreed to remain on a voluntary basis following some other kind of admission. The criterion for admission on this basis is the view of an authorised medical officer that the person is likely to benefit from care or treatment as a voluntary patient (s 5).

People under 16 A person under 14 may not be admitted as or remain a voluntary patient over the objections of their parents. The parents of a person between 14 and 16 must be notified of an admission.

Voluntary patients may discharge themselves at any time (s 8(2)); however, an authorised medical officer may have the person detained if satisfied that they are a mentally ill or mentally disordered person (s 10). A voluntary patient may be detained for up to two hours to enable an authorised medical officer to exercise this function (s 10(3)).

Review The Mental Health Review Tribunal must review a voluntary patient once every 12 months where the patient has been in continuous care for a period longer than 12 months. The Tribunal may order the discharge of a patient, which can be deferred for up to 14 days (s 9).

The Mental Health Review Tribunal The Mental Health Review Tribunal has an extensive jurisdiction to hear matters relating to mentally ill people, including: • conducting mental health inquiries • reviewing involuntary patients • community treatment orders • appeals • financial management applications • forensic and correctional patient reviews • electroconvulsive therapy (ECT) applications • applications for surgical operations where the patient cannot give consent. A single legal member of the Tribunal who is qualified to be a deputy president conducts mental health inquiries

and some appeals against refusal to discharge heard prior to the inquiry. The Tribunal sits as a panel of three in most other matters, including a lawyer, a psychiatrist and another person who is “suitably qualified” (Mental Health Regulation 2013, cl 19). The Tribunal also has a role in supervising what takes place at psychiatric hospitals and providing education and information on the Mental Health Act. Contact the Tribunal for more information. There are useful factsheets and other publications on the Tribunal's website. See Contact points [26.380] at the end of this chapter.

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[26.50] Involuntary patients People may only be detained in hospital under the Mental Health Act if they are considered to be mentally ill or mentally disordered persons. These terms are defined below.

Mentally ill persons Under the Mental Health Act (s 14), a person is a mentally ill person if they suffer from a mental illness and owing to that illness there are reasonable grounds for believing that care, treatment or control of them is necessary for: • the person’s protection from serious harm, or • the protection of others from serious harm. In considering whether someone is a mentally ill person, their continuing condition, including any likely deterioration, is to be taken into account. What is mental illness? Section 4 of the Mental Health Act defines mental illness as a condition that seriously impairs (temporarily or permanently) the mental functioning of a person, and is characterised by the presence of one or more of the following: • delusions • hallucinations • serious disorder of thought form • severe disturbance of mood • sustained or repeated irrational behaviour indicating the presence of any one or more of the above symptoms.

Mentally disordered persons A person is considered to be mentally disordered (whether or not they suffer from a mental illness) if their behaviour is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control is necessary for: • the person’s own protection from serious physical harm, or • the protection of others from serious physical harm (s 15).

Behaviour that does not indicate mental illness or disorder Under s 16(1), a person is not mentally ill or mentally disordered merely because of: • a particular political opinion, belief or activity • a particular religious opinion, belief or activity • a particular philosophy • a particular sexual preference or sexual orientation • sexual promiscuity or a particular sexual activity • immoral conduct • illegal conduct • a developmental disability • the consumption of alcohol or other drugs • anti-social behaviour • economic or social status or membership of a particular cultural or racial group.

When may someone be taken to a hospital? A person may be taken to a hospital involuntarily: • on the certificate of a medical practitioner or accredited person (this is called a Schedule 1 admission (s 19)) • after being brought to the facility by an authorised ambulance officer (s 20) • after being apprehended by police (s 22) • following an examination ordered by a magistrate or authorised officer (s 23) • on a court order under s 33 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (s 24) • after transfer from another health facility (s 25) • on the written request of a designated carer, principal care provider, relative or friend where remoteness or urgency makes it impracticable to see a medical practitioner or accredited person (s 26). Accredited persons Accredited persons are appointed by the DirectorGeneral of Health. They are usually people with specialist mental health nursing qualifications. People are usually accredited in remote areas, where a medical practitioner may not be readily available. In practice, most involuntary admissions occur: • on the certificate of a doctor, or • after apprehension by police, or • on an order made by a magistrate.

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Transport, entry of premises, sedation and searches A person completing a Schedule 1 certificate or an ambulance officer may request police assistance to transport the patient to hospital (ss 19(3) and 20(2)). A police officer to whose notice this request is brought must provide police assistance (s 21). A police officer may enter premises to apprehend the patient in order to transport them. In addition to police, NSW Health staff and ambulance officers may transport patients to and between hospitals. Reasonable force may be used. A person may be sedated if it is necessary to safely transport them. The person may be searched if it is suspected that they are carrying something dangerous or likely to assist them to escape. A search is limited to requiring the person to remove outer clothing and inspecting them or quickly running hands over the outer clothing or passing an electric detector over them. Articles in the person’s possession may also be opened and examined (s 81).

Procedure on admission to hospital Explanation of rights As soon as practicable after being taken to hospital involuntarily, or having their status changed to involuntary, a person must be given both an oral explanation and a written statement of their rights under the Mental Health Act. This must be in a language the person can understand (s 74). Initial examination A person must be examined by an authorised medical officer as soon as practicable (but not more than 12 hours) after arriving at a hospital or being classified as an involuntary patient (s 27(a)). When the person cannot be detained The person cannot be detained after the examination unless: • the authorised medical officer has certified them to be a mentally ill or mentally disordered person, or • they were brought to the hospital after allegedly committing an offence, in which case they may be detained and returned to the custody of the police.

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The second examination A person detained after examination by the authorised medical officer must be seen by a second doctor as soon as possible (s 27(b)). One of the two doctors conducting these examinations must be a fully qualified psychiatrist. The authorised medical officer must notify the Mental Health Review Tribunal and arrange for the person to be brought before the Tribunal for a mental health inquiry if: • the second doctor certifies that they are mentally ill or disordered, and • at least one of the two doctors has certified the person to be mentally ill (s 27(d)). If the person ceases to be mentally ill If at any stage the authorised medical officer believes that the person has ceased to be a mentally ill or mentally disordered person, they must be discharged. The patient may be immediately admitted as a voluntary patient if they agree to such an admission (s 12). The third examination If the second doctor does not find the person to be mentally ill or disordered, a third examination must be conducted by a psychiatrist (s 27(c)). If this psychiatrist finds the person to be mentally ill, they must be brought before the Tribunal for a mental health inquiry. The person must also be brought before the Tribunal if they find the person to be mentally disordered, and the person was found to be mentally ill by the authorised medical officer. Otherwise, the person must be released. Use of audiovisual equipment or examination by an accredited person If it is not reasonably practicable for an examination to be conducted in person by a medical practitioner, the examination may be conducted by a doctor using audiovisual equipment (s 27A(1)(a)), or by an accredited person face to face (s 27A(1)(b)). If the examination is required to be conducted by a psychiatrist that condition remains.

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Requirement to consult with a psychiatrist A medical practitioner who is not a psychiatrist or an accredited person conducting an examination under s 27 is required to seek the advice of a psychiatrist before determining whether the person is a mentally ill or mentally disordered person if it is reasonably practicable to do so (s 27A(4)). What treatment is allowed? Patients admitted involuntarily may be treated against their will (s 84). The treatment must be limited to the prescription of the minimum medication necessary, so that they are able to communicate adequately with their representative for the mental health inquiry (s 29). Patients considered to be mentally ill A patient considered to be mentally ill as outlined above is called an assessable person. They must be brought before the Mental Health Review Tribunal for a mental health inquiry as soon as practicable after the second or third examination (if needed). The Tribunal has indicated that it considers this to be after sufficient time has elapsed to allow the treating team to properly assess whether the person should continue to be detained in the facility or discharged and to develop an appropriate community treatment or discharge plan. This is normally about one week, so the person is usually seen in their second or third week of admission. Patients considered to be mentally disordered If a person is found to be a mentally disordered person at two examinations, they may be detained as a mentally disordered person. They are not brought before an inquiry. An assessable person may also be reclassified as a mentally disordered person by an authorised medical officer. The person may be detained in the hospital for no longer than three working days after being found to be a mentally disordered person at the second examination, and while detained must be examined at least once every 24 hours by an authorised medical officer.

A person may not be detained as a mentally disordered person on more than three occasions in any one calendar month (s 31).

The mental health inquiry The Mental Health Review Tribunal conducts inquiries on a weekly or fortnightly basis depending on the size of the hospital pursuant to s 34 of the Act. The purpose of these inquiries is to determine whether or not, on the balance of probabilities, an assessable person brought before it is a mentally ill person (s 35). If not, the person must be discharged, although the operation of the discharge order may be deferred for up to 14 days. If so, the Tribunal must determine whether the person should remain in the hospital, be discharged into the care of a designated carer or principal care provider or be subject to a community treatment order. These hearings are conducted by a single legal member of the Tribunal who is qualified to be a deputy president. They are conducted at the larger hospitals in Sydney in person, and at smaller and regional hospital by audiovisual link. Patients' rights Patients detained in hospital and/or being brought before an inquiry have a number of rights set out in the Act. These include the right: • to be informed of their rights orally and in writing (s 74) • to be informed that a mental health inquiry will be held (s 76) • to have their designated carers and principal care provider notified of the admission and hearing (ss 75 and 76) • to be legally represented (or represented by another person with the approval of the Tribunal) (s 154). In mental health inquiries, the patient is to be represented unless they choose otherwise. Persons under the age of 16 years are to be represented in all Tribunal proceedings unless the Tribunal determines it is in their best interests to proceed without representation. • to be given particulars of the type and

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•

• • • •

•

dosages of medications given (on request, s 73) to be given the minimum medication, consistent with proper care, to ensure that they are not prevented from communicating adequately with their representative at the hearing (s 29) not to be over-medicated (s 85) not to be ill-treated (s 69) to have access to an interpreter, if necessary (s 158) to have access to medical records unless refused by the Tribunal (s 156(1)). The patient’s legal representative has an unconditional right to access the records to wear street clothes (s 34(2)(a)).

Legal representation Legal representation is almost exclusively provided by Legal Aid NSW through the Mental Health Advocacy Service. This is free. Patients can also use private lawyers or community legal centres. What the Tribunal must ask about As soon as practicable in the hearing, the Tribunal member must ask the patient whether he or she has been: • given a statement of legal rights and entitlements (s 35(2A)(a)) • informed of the authorised medical officer’s duty to notify the patient’s designated carers and principal care provider (s 35(2A)(b)). The Tribunal member must also ask the doctor whether: • the notifications have been given (s 35(2B)) • the patient has been given medication likely to affect their ability to communicate (s 35(2)(c)). What the Tribunal must consider The Tribunal member must consider: • the medical practitioners’ reports and recommendations (s 35) • the effects of any medication given • cultural factors relating to the patient • any other material placed before them. The doctor's evidence The treating doctor is usually asked to outline: • the patient’s condition

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• the order being sought • why less restrictive forms of treatment are not appropriate. The doctor may then be questioned by the patient’s solicitor. Reports from other professionals Other professionals involved in the patient’s care (such as social workers or psychiatric nurses) may have prepared reports and/or be asked to speak. Views of friends and relatives Friends and relatives who are present are usually invited to express their opinions. The designated carers and principal care provider may, with the leave of the Tribunal, appear at the inquiry. Views of the patient The patient is always given an opportunity to express their views on what has been said and put forward any other matters they consider relevant. Submission from the patient's solicitor The patient’s solicitor generally makes a brief submission setting out the patient’s wishes and, if so instructed, arguing why the patient does not meet the definition of mentally ill person or why less restrictive care is appropriate and available. Proceedings at the mental health inquiry The proceedings are relatively informal, although they still have some of the features of court proceedings. Proceedings are recorded (s 159).

Adjournments An adjournment can be sought by either the patient or the hospital. The Tribunal may adjourn the inquiry for up to 14 days: • after considering the doctors’ certificates completed under the Act, and • if it is satisfied that it is in the best interests of the patient to do so. Without limiting the requirements above, the Tribunal may adjourn the inquiry if not satisfied that the patient has been informed of the requirement that their designated carers and principal care provider be

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notified of the hearing, and that all reasonable steps have been taken to give that notice. During the period of adjournment the person remains a patient and may be subject to involuntary treatment (s 36).

The authorised medical officer must discharge an involuntary patient or otherwise detained person if they believe that the person has ceased to be a mentally ill person or that less restrictive care is appropriate and available.

The Tribunal's decision The Tribunal makes a decision and gives reasons for it.

Appeal to the Mental Health Review Tribunal A patient may appeal to the Mental Health Review Tribunal (s 44) if, following a request as outlined above, the authorised medical officer: • refuses to discharge them, or • does not consider their request within three working days. The appeal may be made orally or in writing. The authorised office must provide a report to the Tribunal setting out the reasons for failing to discharge the applicant or determine the application. The Tribunal will usually consider the appeal within one week.

If the person is found not to be mentally ill If the Tribunal finds that the person is not a mentally ill person they must be discharged, although this may be deferred for up to 14 days (s 35(3) and (4)). If the person is found to be mentally ill If the person is found to be a mentally ill person, the Tribunal may: • order that they be discharged to the care of a designated carer or principal care provider • make a community treatment order • order that the person be detained as an involuntary patient for a specified period of up to three months s 35(5).

Appeals Notice of right to appeal If the Tribunal determines at a mental health inquiry that a person should be detained as an involuntary patient, the person must be given a notice setting out their rights of appeal (s 77). Request to be discharged to the authorised medical officer A person seeking discharge from a hospital should first make a request for discharge to the authorised medical officer. This request can be made by an involuntary patient and also by an assessable person who has not yet been to a mental health inquiry. The request may be oral or in writing.

Appeal to the Supreme Court Tribunal decisions may be appealed to the Supreme Court (s 163). In addition, where the court receives evidence on oath that a person who is not a mentally ill person is being detained, it must order that the person be brought before it for examination (s 166).

Can the patient be transferred? Involuntary patients can be transferred from one hospital to another. A patient may be transferred to a hospital other than a mental health facility if the person requires treatment for a condition other than mental illness (s 80). All reasonable steps must be taken to inform the person’s designated carers and principal care provider of a proposed transfer (s 78(1)(b)). Notice must be given before the transfer except in an emergency (s 78(3)).

Can the person manage their own affairs? If an order is made at a mental health inquiry to detain a person, the Tribunal must consider the patient's capacity to manage their affairs (NSW Trustee and Guardian Act 2009, s 44). If the Tribunal is satisfied that the person cannot manage their affairs, it must order that they be managed by the NSW Trustee.

Application for a financial management order Applications for financial management orders can be made to: • the Tribunal while the person is a patient, or

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• the Supreme Court or the Civil and Administrative Tribunal of NSW (NCAT) Guardianship Division at any time. Responsibility for managing the estate The NSW Trustee is responsible for the management of a person's financial affairs following an order by the Mental Health Review Tribunal. The Supreme Court and NCAT (Guardianship Division) may commit the management of a person's finances to the NSW Trustee or appoint another person. Appeal against a financial management order There is a right of appeal against the making of a financial management order to the NCAT Appeals Division, unless the order was made by the Supreme Court. If the order was made by the Mental Health Review Tribunal, the person must be advised of the right of appeal and written reasons for the order provided if requested. Revocation of an order The Guardianship Division of NCAT may review a financial management order it has made, and may revoke it if satisfied that the person has regained capacity to manage their affairs or that the order is not in the person's best interests. The Mental Health Review Tribunal may revoke an order that it has made if the person is no longer a patient and it is satisfied that the person has regained capacity or that the revocation would be in their best interests. The Supreme Court may revoke its own orders or those of any of the other judicial bodies. Management of the estate The estate must be managed so that the person's interests are protected. This includes the minimum possible restriction on their freedom of decision making and action, taking account of their views and encouraging them to live, as far as possible, a normal life in the community. Family relationships should be recognised and the person should be protected from neglect, abuse and exploitation (NSW Trustee and Guardian Act 2009, s 39). Obligation to consult the family The Trustee must consult the family of a person whose estate is being managed about any major decisions that may be proposed (NSW Trustee and Guardian Act 2009, s 72). Appeal against the NSW Trustee's decisions All decisions made by the NSW Trustee in connection with the exercise of management functions may be reviewed by NCAT (NSW Trustee and Guardian Act 2009, s 62). Preservation of personal items The Act requires that personal items be preserved as far as is reasonably practicable (NSW Trustee and Guardian Act 2009, s 76).

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Voluntary management A patient who is not subject to a management order may request that their affairs be managed by the NSW Trustee. The NSW Trustee may terminate the management on the application of the patient (NSW Trustee and Guardian Act 2009, ss 53, 92). Investment of clients' funds Clients' funds can be invested in one of a number of investment funds in accordance with a financial plan that reflects a client's short and longer term financial needs. The investment funds include Australian Cash, Cash Plus and Fixed Interest, Listed Property and Shares, and International Bonds and Shares. Money for day-to-day needs Money to meet a client's day-to-day expenditure needs is maintained in the Cash Common Fund. Fees, bonds and commissions The NSW Trustee charges fees for the administration of estates. These are set out in Part 4 of the NSW Trustee and Guardian Regulation 2008. The fee for the establishing management of the estate is 1% of the value of total assets, with a maximum of $3000. Clients with estates of less than $25,000 pay no establishment fee. Those with between $25,001 and $75,000 have this fee reduced by $250. The fee for ongoing management is 1.4% pa, up to a maximum of $15,000. The value of the principal residence and some other assets are excluded. Clients with less than $25,000 pay no account keeping fee, those with between $25,001 and $75,000 pay $5 per month. Clients with more than $75,000 are charged a fee of $10 per month. The fee for the management of an investment in an investment fund is 0.1% of the value of the investment, deducted each month. Where a private manager has been appointed, an establishment fee of $500 is charged for estates in excess of $75,000, $250 for estates between $25,001 and $74,999 and nil for estates below $25,000. Administration fees of $120 pa, $60 pa and nil are applied at the above levels. . A yearly checking fee off $100, $200 or $300 is charged depending on the estate’s complexity. A fee of 0.1% pa is charged on the value of assets in NSW Trustee investment funds. Private managers must now take out surety bonds to protect the estate. The bond is a type of insurance policy to cover loss of the estate through mismanagement. For estates below $25,000, a one off bond fee is $150. Between $25,001 and $50,000, the one off fee is $350. For estates above $50,001, an annual fee of 0.4% of the value of the estate is charged, capped at $12,000. Real estate, motor vehicles, superannuation and some other assets are not counted towards the value of the estate. Fees for other services can be charged at rates fixed by the NSW Trustee.

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Power of attorney Any legally capable person may appoint an attorney, who may then conduct transactions on the person's behalf (see Legal documents in Chapter 1, About the Legal System for more about this). The power of attorney can remain valid even after the person has lost

the capacity to manage their own affairs. This is called an enduring power of attorney. During the period of a financial management order any power of attorney is suspended (Powers of Attorney Act 2003 (NSW), s 50(3)).

Electroconvulsive therapy Electroconvulsive therapy (ECT) is a treatment that involves the passing of an electric current through a person's brain by means of electrodes on the temple. It is most commonly used for otherwise treatment resistant depression. The Act lays down strict rules regarding the circumstances in which patients may be given electroconvulsive therapy (s 89). Voluntary patients Electroconvulsive therapy may be given to voluntary patients over the age of 16 years only with the person's informed consent. “Informed consent” is defined in s 91 of the Act, and must be freely given after full disclosure of benefits, side-effects and alternative treatments. If an authorised medical officer is unsure whether a person is capable of giving informed consent, they may apply to the Mental Health Review Tribunal to determine whether that consent can be and has been given (s 93(3)). Involuntary patients and patients under 16 years An application may be made to the Mental Health Review Tribunal to approve the administration of electroconvulsive therapy to an involuntary patient or a person who is under the age of 16 years.

At least two medical practitioners, one of whom is a psychiatrist, must certify in writing that this is a reasonable and proper treatment and necessary or desirable for the safety or welfare of the patient (s 94). In the case of a person under 16 years, the psychiatrist must be experienced in the treatment of children and adolescents. The Tribunal must then hold an inquiry to determine: • whether the patient is capable of giving informed consent to the treatment • whether that consent has been given • whether, in the absence of informed consent, the treatment is reasonable and proper and is necessary or desirable for the patient's safety or welfare. The views of the patient as well as the medical evidence must be taken into account by the tribunal. In the case of a person under the age of 16 years, the views of the designated carers, principal care provider and parents of the person (if known) are to be considered. If the tribunal authorises the treatment (known as an ECT determination), it must also specify the number of treatments approved. In general this is not to exceed 12, although provision is made for a higher number if the tribunal is satisfied this is justified by special circumstances (s 96).

Can the patient leave the hospital?

Extension of orders

A patient may be allowed leave of absence from a hospital subject to conditions about time and place (s 47).

If near the end of an involuntary order made at a mental health inquiry it appears that a person will not be well enough to be discharged, the hospital must bring the patient before the Mental Health Review Tribunal for review (s 37).

If the patient does not meet conditions If the patient does not return at the end of the period or does not comply with the conditions of leave, they may be returned to the hospital by police or others (ss 48, 49). All reasonable steps are to be taken to inform the person’s designated carers and principal care provider if the patient is absent from a facility without leave or fails to return at the end of a period of leave (s 78(1)(a)).

What the Tribunal may do The Tribunal conducts a further hearing, and may order that the person continue to be detained as an involuntary patient. The Tribunal must conduct reviews at least once every three months for the first 12 months that the person is an involuntary patient, and at least once every six months thereafter.

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The Tribunal may extend this later period to once every 12 months if it considers it appropriate (s 37).

Discharge of involuntary patients An involuntary patient must be discharged by the authorised medical officer if: • they believe that the person is no longer a mentally ill person, or • they believe that care of a less restrictive kind is appropriate and reasonably available, or

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• an order to that effect is made by the Mental Health Review Tribunal, or the Supreme Court. The patient, their designated carers and principle care provider must be consulted in planning the person’s discharge and subsequent treatment. The agencies involved in providing follow-up services must also be consulted, as must any dependents of the person. The patient and their carers must be provided with appropriate information about the follow-up care arranged (s 79).

Community treatment orders A community treatment order (CTO) requires a person to accept compulsory treatment while residing in the community. A treatment plan sets out when and where they must attend to receive treatment and/or other services (s 54). Orders may be made for up to 12 months and may be renewed. They may be made by the Mental Health Review Tribunal or a magistrate in a Local Court during the course of criminal proceedings (Mental Health (Forensic Provisions) Act, s 33). Who may apply for a community treatment order? An application for a CTO may be made by a doctor at a hospital in which a person is detained, a doctor familiar with the person's history, the director of a community health centre or a person's designated carer or principal care provider (s 51, Mental Health Regulation 2013, cl 8). The applicant must notify the person in writing of the application, including a copy of the proposed treatment plan. If the applicant is not detained in a hospital, 14 days' notice must be given unless the person is the subject of a current CTO or the Tribunal determines it is in the person’s best interests to hear the application sooner (s 52). When can a community treatment order be made? An application for a CTO may be made about a person in hospital or in the community. The Tribunal, when conducting a mental health inquiry may make a CTO following a finding that the person is a mentally ill person. The Tribunal does not have to make this finding when an application is made at a later stage during hospitalisation or when renewing an existing order. An application may be made, and determined by the Tribunal, during proceedings for an appeal under s 44. The Tribunal must find that the person would benefit from the order as the least restrictive alternative consistent with safe and effective care. It must be satisfied that a mental health facility has an appropriate treatment plan and is capable of implementing it. If the person has previously been diagnosed with mental illness, there must be a history of them refusing to accept appropriate treatment and relapsing into an active phase of the illness (s 53).

A CTO may be made in the absence of the affected person if they have been given notice of the hearing (s 55). The order is to be for a specified period of time, up to 12 months s 56. Operation of a community treatment order The person must comply with the order. The director of community treatment must take all reasonable steps to ensure that the treatment in the plan is given. Medication may be given without consent, but not by force. A person implementing the order may enter land, but not a dwelling, to administer treatment without consent. The person and their designated carers and principal care provider are entitled to be provided with details of medication administered under the order (s 57). Breach of community treatment order If a person fails to comply with the community treatment order after all reasonable steps to implement it have been taken and there is a significant risk of deterioration in their health, the director must: • make a written record of the facts and reasons on which the above opinions are based, and • have the person advised that further refusal to comply with the order will result in them being taken to a mental health facility and treated. If the person still fails to comply, the director may: • issue a breach notice requiring the person to attend for treatment and warning them that the assistance of police may be obtained to ensure compliance, and • in the event of further non-compliance, issue a breach order that the person be taken to a mental health facility (ss 58–60). A person taken to a community health centre following a breach of a community treatment order may be: • treated in accordance with the order, and • assessed for involuntary admission to hospital. If the person accepts treatment they will be released unless assessed to be a mentally ill person. If they refuse treatment they may be taken to a hospital. A person taken to a hospital following a breach of a community treatment order: • must be assessed

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• may be given treatment, by force if necessary • may be detained in the hospital for the remaining duration of the order if a mentally ill person, or for up to three working days if a mentally disordered person. A person detained under these provisions must be reviewed by the Mental Health Review Tribunal not later than three months from the date of detention (ss 61–64). Variation, revocation and appeals The Tribunal may vary or revoke a CTO if circumstances have changed or new information is available (s 65). The director of the mental health facility implementing the order may revoke it if of the opinion that the person is not likely to benefit from it (s 66). Before revoking a CTO,

the director must consult the patient, and if reasonably practicable to do so, any designated carer and the principal care provider. The director must notify the Tribunal if s/he revokes a CTO or decides not to apply for a further order. The director must also notify the designated carers and principal care provider if the order is revoked or varied, an application for a further order is made or of a decision not to apply for a further order. Appeals may be made to the Tribunal against the duration of Community Treatment Orders made by a magistrate that exceed six months or on a question of law or fact. Appeals may be made to the Supreme Court against the duration of orders made by the Tribunal that exceed six months or on a question of law or fact (s 67).

Legal assistance The Mental Health Advocacy Service, which is part of Legal Aid NSW, provides free legal advice and representation for anyone appearing before a mental health inquiry and for most people appearing before other Mental Health Review Tribunal hearings. The service is staffed by lawyers, a lay advocate and a

social worker who routinely visit psychiatric hospitals and psychiatric units at public hospitals. It coordinates legal aid for all patients throughout the state, and also deals with legal aid applications in guardianship matters. Inquiries about mental health law can be directed to the service.

Official visitors Official visitors are appointed by the Minister for Health to all area health services to visit all hospitals that accept involuntary patients in that area. They must also visit every community health centre in the area that can administer community treatment orders (s 131). They can investigate, negotiate and make recommendations on complaints. They have a duty to refer any matters raising significant public mental health issues or patient safety care or treatment issues to the Principal Official

Visitor or other appropriate person or body. Anyone concerned about any aspect of a hospital stay including treatment or facilities can talk to an official visitor. There is a box at each hospital and community health centre where requests to see an official visitor may be left, and there is a contact phone number. Official visitors can also be contacted through the hospital or community health staff.

The Health Care Complaints Commission Complaints can also be made to the Health Care Complaints Commission. This is an independent body which investigates complaints about poor health care. It can take action on complaints ranging from declining to deal with them,

through negotiation and local resolution to formal investigation and prosecution. Complaints should be discussed with an inquiry officer first, who can assist with putting a formal complaint in writing if necessary.

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[26.60] Forensic and

correctional patients Forensic patients are people who have been found not guilty by reason of mental illness of serious criminal charges, people who have been found not fit to be tried and are awaiting a special hearing and people who have been given a limiting term following a special hearing. People who have been transferred from a prison to a hospital whilst on remand or serving a sentence of imprisonment are called correctional patients. The Mental Health (Forensic Provisions) Act 1990 and the Mental Health Act 2007 set out rules for the review and placement of forensic and correctional patients. In brief, these provide for the Tribunal to review the case of each patient initially and every six months thereafter. This period may be extended to up to 12 months if the Tribunal is satisfied that there has been no change in the person’s condition, there is no need for a change in orders or that a review may be detrimental to the patient. The Tribunal may make orders concerning the continued detention or release of a forensic patient. In addition it may make an order allowing a forensic patient to be absent from a facility on leave subject to conditions. Where this is granted, it remains at the discretion of the superintendent of the facility as to whether and when such leave is taken. The Tribunal may only order release or leave if satisfied that the safety of the patient or any member of the public would not be seriously endangered. The usual process is that limited leave under supervision is initially allowed, followed by more extensive periods of leave with less or no supervision and eventual release subject to strict conditions. This may take many years as placements in forensic hospitals are limited and conditional release may only be granted after the consideration of an independent risk assessment by a psychiatrist or other expert not involved in the patient’s treatment.

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A conditionally released forensic patient remains subject to six-monthly reviews and may be returned to detention if a condition of release is broken or their condition deteriorates. A person ceases to be a forensic patient on their release being made unconditional, or on the expiry of their limiting term. The limiting term of a forensic patient may be extended by the Supreme Court for up to five years if the court is satisfied that the patient would pose an unacceptable risk if he or she ceased to be a forensic patient and that risk could not be adequately managed by less restrictive means (Mental Health (Forensic Provisions) Act, Sch 1). A correctional patient is a person who has been transferred from a correctional centre to a hospital (most commonly a prison hospital) while serving a sentence or on remand. This is done on the certificates of two doctors stating that the person is a mentally ill person, or that the person suffers from a mental condition for which treatment is available and consents to the transfer. The Tribunal must review the case of a correctional patient as soon as practicable after the transfer, and every six months thereafter. Following the review the Tribunal may make an order that the person remain in the hospital or be returned to the correctional centre. The patient must be transferred back to the correctional centre on request if they are not found to be a mentally ill person. The Tribunal may reclassify a correctional patient or a forensic patient in the last six months of their sentence or limiting term as an involuntary patient. If this occurs they may be released into the community on a community treatment order. A person ceases to be a correctional patient when their sentence expires or their custody order otherwise ends, or when they are returned to a correctional centre. For more details about forensic and correctional patients, see The Lawyers Practice Manual, Chapter 8.1.

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[26.70] People facing charges

that can be heard in the Local Court People who have been charged with criminal offences which can be dealt with at the Local Court and who are suffering from mental illness or another mental condition may, in some circumstances, have their matters dealt with under s 32 or s 33 of the Mental Health (Forensic Provisions) Act.

Under section 33 Section 33 of the Act relates to those who appear to be mentally ill persons as defined by the Mental Health Act 2007. If the magistrate considers it appropriate, they may direct that the person be taken to a hospital for assessment and, if found to be a mentally ill person, further detention and treatment as an involuntary patient. The process once the person arrives at hospital is as outlined for involuntary patients at [26.50] above. If the hospital does detain and treat the person, the charges are deemed to be dismissed if they do not reappear in court in relation to the matter within six months. The magistrate’s order may contain a provision that the person be returned to court if not found to be a mentally ill or mentally disordered person.

The magistrate may also make a community treatment order (see Community treatment orders at [26.50]) if the requirements for making such an order are satisfied, or may discharge the person, conditionally or unconditionally, into the care of a responsible person.

Under section 32 Section 32 relates to a person suffering from developmental disability or a mental illness or condition but who does not appear to be a mentally ill person as defined by the Mental Health Act 2007. For an order to be made under this section, a report or reports are required demonstrating how the person is one to whom the section applies. This section gives the magistrate a wide range of powers to dismiss the charge, either unconditionally or subject to conditions. The conditions are set out as part of the order in a treatment plan, which should form part of the professional report on which the order is based. Conditions of a discharge under this section are enforceable and if the person fails to comply within six months they may be called back before the magistrate and dealt with as if the order under this section had not been made.

Psychiatric services [26.80]

Psychiatric services in NSW are provided by both the public and private sectors.

[26.90] Application of the Act The Mental Health Act applies to both sectors to ensure that patients receive the best possible care and services. The establishment and administration of public and private hospitals is governed by Chapter 5 Pt. 2 of the Act.

Role of medical superintendents In all hospitals, the person ultimately responsible for a patient’s care is the medical

superintendent, who must be a medical practitioner. Most functions under the Act are exercisable by an authorised medical officer, which means the medical superintendent and any doctor nominated by him or her. Where to find treatment People seeking treatment for mental health conditions should, depending on the need, go initially to: • their general practitioner • the local community health centre • the local hospital accident and emergency department.

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[26.100] Private psychiatric

services Private psychiatric services are provided by: • private psychiatrists • private hospitals run by organisations independent of NSW Health. These institutions usually treat only voluntary patients. People requiring involuntary admission are transferred to a public hospital or unit.

[26.110] Public psychiatric

services Hospital care has mostly moved away from the large, stand-alone institutions to psychiatric units in general hospitals. Care may also be provided in accident and emergency units and other medical wards where the patient’s condition requires it. Psychiatric hospital care is integrated with community mental health services. These include: • community health centres (outpatient clinics) • extended hours (or crisis) teams • mobile community treatment teams • rehabilitation facilities, including both day programs and accommodation services. Community health centres throughout NSW have been gazetted under the Act as mental health facilities for the purposes of administering community treatment orders.

Hospital fees In general hospitals In a psychiatric unit attached to a general hospital, the first 35 days treatment, whether voluntary or involuntary, are free.

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After this, treatment continues to be free if the hospital completes an acute care certificate. However if the patient has ceased to be acutely ill and is awaiting nursing home placement they are charged a fee of $57.85 per day. In psychiatric hospitals In the major psychiatric hospitals, the first 60 days are free. After this, fees are charged unless an acute care certificate has been completed. The fee varies depending on the age of the patient and the benefit received. The current rate for a single person over 21 in receipt of a pension is $49.55 per day.

[26.120] Multicultural health

services Interpreter services Interpreter services in most languages are available through hospitals to assist communication. Anyone involved in proceedings (for example, medical practitioners, magistrates, social workers and patients) may request the service. There are specific provisions for the use of interpreters in the Mental Health Act (ss 70, 158).

The Transcultural Mental Health Centre The Transcultural Mental Health Centre assists clients from non-English speaking backgrounds in relation to mental health care. This service aims to provide culturally and linguistically appropriate assessments and referral to suitable services.

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Other issues affecting mentally ill people [26.130] The rights of

mentally ill people People who suffer mental health problems have generally the same rights as anyone else in our society, including the right to liberty and self-determination unless detained or treated in accordance with the Mental Health Act.

[26.140] Voting Under the NSW Parliamentary Electorates and Elections Act 1912 (s 25(a)), a person may not remain on the electoral roll or vote if, due to being of unsound mind, they are incapable of understanding the significance of enrolment and voting.

[26.150] Pensions and benefits Centrelink payments Mentally ill people who receive social security payments usually receive the Disability Support Pension or the Newstart Allowance. Sickness allowance may be paid to people who are ill but who are usually employed and will be returning to their employment. If a person becomes unwell while on the Newstart Allowance, the presentation of a medical certificate to Centrelink will exempt the person from seeking employment for the time specified on the medical certificate.

Department of Veterans' Affairs payments The Department of Veterans’ Affairs will pay benefits such as repatriation benefits or war widow pension while the person is in hospital.

If there are problems If the person has any difficulties with social security payments they should contact their nearest Centrelink office, the Department of Veterans’ Affairs or, if in hospital, the ward social worker.

[26.160] Making a will There is no express bar to either a voluntary or involuntary patient or a person with a developmental disability making a will. The general law as to the person’s capacity to make a will applies (see Chapter 40, Wills, Estates and Funerals). Even although there is no law requiring it, it is advisable for a patient making a will to obtain a certificate from a medical practitioner stating that they have the capacity to understand what they are doing at the precise time of making the will. The certificate should be attached to the will. In this way, possible disputes about the validity of the will later on may be avoided. If the person subsequently becomes incapable, they cannot then alter their will or make a new will.

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HIV [26.170] Terminology HIV – Human Immunodeficiency Virus. This virus is the cause of damage to the body's immune system and leads to AIDS defining illnesses. HIV illness – HIV positive individuals may experience symptoms such as diarrhoea, minor skin conditions, minor oral conditions, lack of energy, night sweats and/or swollen glands. AIDS – Acquired Immune Deficiency Syndrome – A person may be HIV positive without having AIDS. A person is only said to have AIDS if they become ill with one of a number of specified diagnosed clinical conditions, which include opportunistic infections, tumours, neurological disorders or wasting. Very few people are diagnosed with AIDS in Australia any more. ART – Anti-retroviral Therapy (also referred to as Anti-Retroviral Treatment (HAART) or anti-retrovirals (ARVs). Treatment is now so sophisticated that many people living with HIV will have similar or the same life expectancy and working life capacity as a person without HIV. PLHIV/PHIV – People living with HIV/People with HIV. This expression is used instead of referring to someone as an HIV positive person. Viral load – refers to the amount of HIV in a person's system. A person may have an undetectable viral load when the virus is at a level that is so low that it cannot be counted. CD4 Count – CD4 cells decline in a person with HIV. A person with HIV is at risk of developing AIDS if their CD4 count falls below 200. The World Health Organisation recommends that a person with HIV commence on ART if they have a CD4 count of