Professional Documents
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THE LAW
‘The Law Handbook … draws on the contributions of lawyers working
in a range of specialties and provides a wealth of practical legal
information … It is a well-organised, easy-to-use book, which equips
people to understand their rights and obligations under the law.’
The Hon. Virginia Bell,
Justice of the High Court of Australia
HANDBOOK
THE
The Law Handbook is the plain English guide
to the law in New South Wales, providing
access to law that affects people in their
everyday lives. It contains 45 chapters
written by over 90 lawyers and legal experts
What people said about previous editions
of The Law Handbook:
‘The Law Handbook … puts the law into
the context of people’s lives. It provides
LAW
HANDBOOK
updated information on an ever-wider
with the most up-to-date information
possible about the law in New South Wales.
range of legal areas.’
The Hon. JJ Spigelman, Chief Justice
11th EDITION 11th EDITION
This fully revised 11th edition includes of New South Wales on the 10th edition
the recent fundamental changes to law
affecting Aboriginal people, children ‘The Law Handbook … provides a readily
and same-sex couples and their families, accessible opportunity for ordinary people
disability law and estate law; as well as to obtain a basic knowledge that every
brand new sections on legal research, and citizen should have.’
water and energy consumption law. Sir William Deane, 22nd Governor-General
Every chapter contains a comprehensive of Australia on the 9th edition
list of the organisations and websites you
need for further information or help. The ‘The Law Handbook is an essential link in
Law Handbook is an indispensable resource the chain that binds law and justice.’
for every household and workplace in New Marie Bashir, Governor of New South Wales,
South Wales. on the 8th edition
6 Banking 139
Tim Gough, Australian Securities & Investments Commission
7 Bankruptcy 145
Robert Cruickshanks, Insolvency & Trustee Service Australia
10 Complaints 251
Rodney Fisher, University of Technology, Sydney
11 Consumers 283
Guy Di Carlo, Office of Fair Trading
Peter Dodd, Public Interest Advocacy Service
Health Care Complaints Commission
Mark Ludbrooke, Public Interest Advocacy Service
Lynda Muston, Office of the Legal Services Commissioner
12 Contracts 339
Carolyn Penfold, UNSW, Sydney
13 Copyright 351
Ian McDonald, Australian Copyright Council
14 Court 363
Andrew Haesler, Public Defender’s Office
15 Credit 387
Lillian Chan, Legal Aid NSW
Alex Grosart, Legal Aid NSW
Pip Martin, Legal Aid NSW
John Moratelli, Legal Aid NSW
Katherine Pranic, Legal Aid NSW
Kai Wu, Legal Aid NSW
17 Debt 427
Lillian Chan, Legal Aid NSW
Alex Grosart, Legal Aid NSW
Pip Martin, Legal Aid NSW
John Moratelli, Legal Aid NSW
Katherine Pranic, Legal Aid NSW
Kai Wu, Legal Aid NSW
19 Discrimination 503
Jennifer Whelan, Solicitor
24 Employment 585
Joanne Moffitt, NSW Nurses Association
29 Housing 745
Grant Arbuthnot, Tenants’ Union of NSW
Sean Ferns, Park and Village Service
Adam Heydon, Office of Fair Trading
Alex Irving, Solicitor
Chris Martin, Tenants’ Union of NSW
Robert Mowbray, Older Persons Tenants Service
Rita Wilkinson, Southern Sydney Tenants Advice and Advocacy Service
30 Immigration 805
Jennifer Burn, University of Technology, Sydney
31 Insurance 833
Marion Hass, University of Technology, Sydney
Michael Sadaat, Australian Securities & Investments Commission
Nicole Tschaut, University of Technology, Sydney
Rosalie Viney, University of Technology, Sydney
34 Neighbours 889
Anthony Hudson, Solicitor
35 Prisoners 907
Will Hutchins, Prisoners Legal Service, Legal Aid NSW
36 Privacy 927
Philippa O’Dowd, Privacy NSW
Andrew Solomon, Office of the Federal Privacy Commissioner
37 Refugees 945
Christian Carney, Refugee Advice & Casework Service
41 Superannuation 1029
John Berrill, Solicitor
42 Taxation 1053
Philip Burgess, UNSW, Sydney
Glossary 1121
Index 1129
Parking 563
Parking offences 563
Common parking problems 564
Driving offences
Criminal sanctions to enforce the safe use of • the regulations associated with each of the
motor vehicles are available under: Road Transport Acts
• the Crimes Act 1900 • the Australian Road Rules 1999.
• the Road Transport (General) Act 2005 The more serious offences under these Acts are
• the Road Transport (Drivers Licensing) Act classified as major offences, breaches of which
1998 are generally dealt with by the courts (Road
• the Road Transport (Safety and Traffic Transport (General) Act s.25).
Management) Act 1999 Other offences are generally dealt with by the
• the Road Transport (Vehicle Registration) imposition of fines and demerit points.
Act 1997
Major offences
Major driving offences include:
• any crime or offence where death or grievous Penalties for second and
subsequent offences
bodily harm is caused (Crimes Act ss.33,
While the penalties for these offences are severe, as a
52A, 53, 54; Road Transport (Safety and further deterrent penalties for second and further offences
Traffic Management) Act s.42) within five years are automatically higher (See Habitual
• driving furiously or recklessly (Road traffic offenders on page 557). A third offence within that
Transport (Safety and Traffic Management) time can lead to the motorist being declared a habitual
Act s.42) traffic offender under s.199 of the Road Transport
(General) Act.
• driving in a manner or at a speed dangerous
to the public (Road Transport (Safety and
Traffic Management) Act s.42(2))
• menacing driving (Road Transport (Safety
Offences causing death and
and Traffic Management) Act s.43AA) serious injury
• predatory driving (Crimes Act s.51A) A driver who causes the death of or seriously
• driving with the prescribed concentration of injures another person may face various charges.
alcohol (Road Transport (Safety and Traffic Offences under the Crimes Act include:
Management) Act s.90) • murder (s.18)
• driving under the influence of a drug or • manslaughter (s.24)
alcohol (Road Transport (Safety and Traffic • aggravated dangerous driving occasioning
Management) Act s.12) death (s.52A)
• refusing to undergo breath analysis or a drug • aggravated dangerous driving occasioning
test (Road Transport (Safety and Traffic grievous bodily harm (s.52A)
Management) Act ss.15(4), 16, 29) • dangerous driving occasioning death (s.52A)
• refusing to stop and render assistance (Road • dangerous driving occasioning grievous
Transport (Safety and Traffic Management) bodily harm (s.52A).
Act s.70; Australian Road Rules) Offences under the Road Transport (Safety and
• aiding, abetting, counselling, procuring the Traffic Management) Act include:
commission of or being an accessory before • negligent driving occasioning death
the fact to any of these crimes or offences. • negligent driving occasioning grievous bodily
harm (s.42).
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intention, or awareness of their manner of driving, • menacing driving (Road Transport (Safety
is irrelevant. and Traffic Management) Act s.43), which
The test, which the prosecution must prove carries a penalty of up to two years’
beyond reasonable doubt, is whether the driving imprisonment.
created a danger to anyone present or likely to be All these offences also carry mandatory minimum
present, even if the danger was only potential. periods of licence disqualification (see page 561).
Predatory driving
What does manner mean? Predatory driving is engaging in conduct while in
The word ‘manner’ covers all aspects of driving, includ-
ing speeding, although a person may be charged sepa-
pursuit of or travelling near another vehicle that:
rately with driving at a dangerous speed. • causes or threatens an impact involving the
other vehicle, and
• is intended to cause someone in the other
Driving at a speed dangerous to the public
vehicle actual bodily harm.
A charge of driving at a dangerous speed must also
be proved beyond reasonable doubt. Menacing driving
Whether danger exists will depend on all the A person driving on a public street in a manner
circumstances of the case, including the condition that menaces or is intended to menace another
of the road surface, the condition of the driver’s person with the threat of personal injury or
car, observance of traffic signals and so on. damage to property may be convicted of the
offence of menacing driving. The person being
Driving over the speed limit menaced need not be on a public street.
Exceeding the speed limit is not classified as a major
offence, unless the driving is at a speed dangerous to the Penalties
public. However, the Road Transport (Safety and Traffic In addition to the terms of imprisonment referred
Management) (Road Rules) Regulation includes special to above, a driver convicted of any of the offences
penalties for exceeding the speed limit by more than under the Crimes Act is also liable to the same
30 kph and more than 45 kph (see the table on page 561). penalties as a motorist convicted of a high range
A safe speed is determined by the circumstances.
Driving at the speed limit is not necessarily driving at a
alcohol offence (Road Transport (Safety and
safe speed. Driving at the speed limit at night, or in rain Traffic Management) Act s.9(4); Road Transport
or fog, for example, may not be safe. (General) Act s.188).
• vehicles carrying dangerous goods Unless the driver can show, on the balance of
• vehicles over 13.9 tonnes. probabilities, that the reading is incorrect, the
The limit for learner drivers and drivers holding court will accept a section 33 certificate as proof of
provisional licences is zero. the driver’s blood alcohol concentration.
Drinking while driving Refusing a test
It is also an offence to consume alcohol while It is an offence to refuse to undergo a breath
driving a motor vehicle. analysis. Failure to provide a sufficient sample is
regarded as a refusal and is therefore an offence.
Ranges of alcohol concentration The police usually allow a driver two or three
Blood alcohol concentrations are described as attempts to give a sample before charging them.
special, low, medium and high, with each range When police cannot administer a breath test
carrying a higher penalty than the one below (see or analysis
page 561). There are some restrictions on the powers of the
police in relation to breath tests and analyses.
How much alcohol? They may not ask a person to undergo a breath
On average, men can drink three middies (275 mL test or breath analysis if:
glasses) of beer or the equivalent in one hour before • the person is seriously injured and the test
exceeding the limit. Women, on average, can only drink may be dangerous
the equivalent of two middies. The special range could
be exceeded after only one middy.
• the person is at home
After the first hour, the level is maintained by drinking • it is two hours or more since the person last
one middy an hour, or less. drove or attempted to drive.
These figures can vary significantly from one individ- In these circumstances the police may still charge
ual to another. the person with driving under the influence of a
drug or alcohol (see below), but not with a pre-
Breath tests scribed concentration of alcohol offence.
Police have the power to require anyone driving or
attempting to drive a vehicle to undergo a breath Blood tests
test (Road Transport (Safety and Traffic Manage- In most circumstances a person over 15 who is
ment) Act s.13). The test normally involves the admitted to hospital after an accident is required
police taking a sample of the driver’s breath using to undergo a blood test to determine their blood
a device known as a Lyons Alcolmeter SD2. alcohol level (s.20).
When a breath analysis is required
If the breath test shows a reading of 0.05 (or 0.02 Offences involving drugs other
for special range drivers) or higher, the person is than alcohol
arrested and taken to a nearby police station or It is an offence for a person to drive or attempt to
mobile van for a breath analysis. drive a motor vehicle while any prescribed illicit
If the analysis confirms that the driver has drug is present in their oral fluid, blood or urine
exceeded the limit, a court attendance notice is (Road Transport (Safety and Traffic Management)
issued showing the amount by which the driver Act s.11B).
exceeded the limit at the time of the offence.
Oral fluid tests
Altering the reading Police can require anybody driving or attempting
It is an offence for anyone to alter their blood alco- to drive a motor vehicle to undergo one or more
hol reading after being breath-tested and before oral fluid tests (s.18B).
undergoing breath analysis.
When a sample must be provided
The section 33 certificate If an oral fluid test shows that there may be one or
The breath analysis is recorded on what is called a more prescribed illicit drug in the person’s oral
section 33 certificate. The certificate can be ten- fluid, they are arrested and taken to a nearby
dered in court and, if the analysis was done within police station or other place decided by the officer
two hours of the driver last having driven or to supply an oral fluid sample (s.18D).
attempted to drive, the court will consider it to be The oral fluid sample is placed in a container,
the reading at the time of either of those events. fastened, sealed, marked and labelled. A certificate
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is then given to the person providing the sample to Trafficking Act 1985, and any other substance
enable the sample to be identified. prescribed as a drug.
The sample is then sent to a laboratory pre- Common drugs included in these categories
scribed by the regulations for testing. are amphetamines, Indian hemp (including canna-
Altering the reading bis), barbiturates, heroin and most sedatives (Ser-
It is an offence for any person to alter the amount apax, Valium and so on).
of a prescribed illicit drug in a person’s oral fluid How much is too much?
before an oral fluid test, or after an oral fluid test When a person is charged with driving under the
and before supplying an oral fluid sample (s.18G). influence of a drug or alcohol, the quantity taken
The section 33B certificate is not the issue. What is relevant is the extent to
The drug analysis is recorded on a section 33B cer- which the drug or alcohol has affected the person’s
tificate. The certificate can be tendered in court ability to drive.
and, if the oral fluid sample was taken within two
How police judge
hours of the event that entitled the officer to The police assess the person for signs of being
request it, the court will accept it as proof of the affected such as slurred speech, unsteadiness on
reading at the time of that event. their feet, glazing of the eyes and their general
Refusing an oral fluid test manner and demeanour.
It is an offence to refuse to undergo an oral fluid
Assessment after a negative breath test
test. Failure to provide an oral sample is regarded Even if a breath test has proved negative, a person
as a refusal and is therefore an offence (s.18D). can be required to undergo a further assessment of
When police cannot administer an oral fluid test their condition under some circumstances.
There are some restrictions on the power of police Further assessment can be carried out if:
in relation to oral fluid tests and oral fluid samples. • the police officer has a reasonable belief that
Police may not ask a person to take an oral fluid the person is under the influence of a drug
test or provide a sample if: because of how they drove or attempted to
• the person is admitted to hospital for medical drive, and
treatment, unless the medical practitioner in • the assessment is carried out by a police
immediate charge of the treatment is notified officer at or near the place where the person
and does not object took the breath test (Road Transport (Safety
• the person is severely injured, and the and Traffic Management) Act s.25).
procedure may be dangerous
Taking samples
• it has been two hours or more since the The police may take a person to a medical practi-
incident that allowed the police to test tioner to obtain a blood or urine sample (subject to
• the person is at home. the same restrictions as when they require a person
Blood and urine tests to undergo a breath test or analysis – see When
Police may require a person who has attempted to police cannot administer a breath test or analysis
provide an oral fluid sample but been unable to do on page 555).
so to provide a blood or urine sample (s.18E). Any blood or urine sample taken is divided
Blood or urine samples must be taken within into two parts. One is given to the driver, who has
four hours of the relevant event. the right to have it independently tested.
Insurance and alcohol-related convictions
Driving under the influence of a drug Most insurance policies covering damage to
or alcohol motor vehicles contain an exemption stating
It is an offence for a person to drive or attempt to that the insurer is not liable to pay for damage if
drive while under the influence of a drug or alco- the driver was under the influence of a drug or
hol (Road Transport (Safety and Traffic Manage- alcohol at the time of the accident, whether this
ment) Act s.12). contributed to the accident or not (see chapter 31,
Under the Act, drug means a prohibited drug Insurance).
within the meaning of the Drug Misuse and However, the fact that a person has submitted
to a breath test or breath analysis or has been
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convicted of a prescribed concentration of alcohol for three years will not commence their five-year
offence cannot by itself be used by the insurer to disqualification as a habitual offender until the
exclude liability (s.37). prescribed concentration of alcohol penalty has
Any prescribed concentration of alcohol con- been served. The person is effectively disqualified
viction must be notified to the insurance company, for eight years.
which may use it as a reason to refuse to cover the Offences that were proved but dismissed
driver or to raise the premium. For the purposes of determining whether a third
offence has occurred within five years, an offence
The effect of alcohol-related convictions on insurance is that was proved but dismissed under s.10 of
discussed in more detail in chapter 31, Insurance. the Crimes (Sentencing Procedure) Act 1999 is
counted as a conviction.
The court’s discretion
Failing to stop and give assistance The court has certain discretions, and may quash
If someone is injured in an accident, the driver the declaration if it determines that the disqualifi-
must stop and give assistance. It is an offence not cation imposed is a disproportionate and unjust
to do so, and the driver may be liable to the same consequence, having regard to the total driving
penalties as those applying to a high range prescribed record of the person and the special circumstances
concentration of alcohol offence (Road Transport of the case.
(Safety and Traffic Management) Act s.70). It also has discretion to:
A driver involved in an accident must stop and, • reduce the disqualification period, but not
if requested, give their name and address to any below two years
other person involved. They must also report the • increase the period to a lifetime
accident to the police within 24 hours if someone disqualification.
has been injured or a vehicle is towed away.
Driver education programs
For more about the driver’s obligations at the scene of an There are a number of driver education programs that
accident, see chapter 3, Accidents and compensation. can be completed before sentencing or as part of a sen-
tence for serious driving matters.
Traffic Offenders Program
People are referred to this program by the court before
Habitual traffic offenders being sentenced. Completion of the program is most
Someone may be declared a habitual traffic beneficial for first-time offenders, who may thus avoid a
offender if they have been convicted of three rele- conviction, and multiple offenders who are facing
vant offences in five years (Road Transport (Gen- custodial sentences.
eral) Act ss.198–203), including: Sober Drivers Program
• any major offence This program is for adult offenders convicted of a second
• driving in excess of 45 kph over the drink driving offence in a five-year period. It is a nine-
designated speed limit week educational program delivered by the Probation
and Parole Service. Attendance is usually a condition of
• driving for the second time without ever a good behaviour bond imposed by the court.
having been licensed Alcohol Interlock Program
• driving while disqualified People convicted of drink driving offences (except first
• having been convicted of similar offences in time low range and special range offences) can ask to
another state. participate in this program. An electronic device, which
is wired to the ignition, prevents the car from being
Penalties started unless the driver passes a breath test.
Anyone declared a habitual traffic offender is auto- People on the program have to serve at least half the
matically disqualified from driving for five years. minimum disqualification period for their offence and
then a further minimum period of one to four years
Accumulated periods of disqualification (depending on the offence) on the program.
The automatic period of disqualification is in The device records all failed attempts to start the car,
addition to any other period of disqualification. and the data is monitored regularly. Repeat failed
For example, a person whose third serious offence attempts may result in alcohol counselling or cancella-
tion of the program.
in five years is a mid-range prescribed concentration
of alcohol offence for which they are disqualified
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Street and illegal drag racing A person who participates in a street race may
A person who operates a motor vehicle on a public be fined 20 penalty units. Under s.218 of the Road
street in such a manner as to cause sustained loss Transport (General) Act, police have the power to
of traction of the wheels or for a speed competi- impound the vehicle.
tion may be fined up to five penalty units. A court may, at its discretion where there is
If some flammable liquid is used under the good reason to do so, reduce these penalties (Road
tyres, the penalty may be as high as seven penalty Transport (Safety and Traffic Management) Act
units. s.41).
Driving licences
Types of licence
The Roads and Traffic Authority (RTA) issues The P1 licence
coloured driver’s licences with a photograph of the A P1 is issued for a period of 18 months, during
licence holder. The colour of a licence indicates its which time the holder must display a red P plate on
status, as follows: the front and rear of the vehicle.
• learner’s licence – green Under cl.38(5) of the Road Transport (Safety
• provisional licence – green and red and Traffic Management) Regulation, the holder
• probationary licence – black must not drive at a speed in excess of 90 kph.
• unrestricted licence – silver The P2 licence
• unrestricted license held by a driver with a A driver who has satisfied the conditions of the P1
five-year good driving record – gold. can apply for a P2. The P2 licence is issued for
30 months, during which the holder must display
Provisional licences
a green P plate on the front and rear of the vehicle.
A novice driver is issued with a two stage provi-
The maximum speed at which the holder can
sional licence consisting of a P1 and a P2 licence
drive is 100 kph (cl.38(6)).
(Road Transport (Driver Licensing) Regulation
cll.15, 15A). Either class of probationary licence Probationary licences
may be cancelled if the driver incurs four or more A probationary licence is issued to a person when
demerit points (see Suspension and cancellation by they renew their licence after a period of disqual-
the RTA – the points system on page 560). ification. It is issued on the condition that the
driver does not incur two or more demerit points
over a 12-month period.
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• by the RTA, for the non-payment of fines (see Appeal against cancellation
Failure to respond to an infringement notice If a person’s licence has been cancelled or sus-
on page 558). pended by RTA administrative action, they have
If a person’s licence is cancelled 28 days to appeal to the Local Court.
A person must immediately surrender a cancelled
licence, and may be charged if they do not. Suspension and cancellation by
the RTA – the points system
Driving while unlicensed The RTA may cancel a person’s licence for any period it
It is an offence for a person to drive without a thinks is appropriate in the public interest.
licence or while their licence is suspended or What the RTA takes into account
cancelled. The penalties are severe. Before cancelling a person’s licence, the RTA considers
A driver remains a cancelled driver, and subject their driving record, using the points system as an admin-
to the penalties for cancelled drivers, after the istrative guide.
disqualification period has expired and until their The points system
licence is renewed. The penalty, or part of the penalty, for many driving
offences involves demerit points.
Suspension by police Under the Road Transport (Drivers Licensing) Regu-
lation cl.36 and Sch.1, an offender is given a fixed
The police may also suspend a licence in certain
number of demerit points for each of the offences listed
circumstances (Road Transport (General) Act on page 562. The points are doubled over a long week-
ss.204, 205). The licence can be suspended for up end when either Friday or Monday, or both, are declared
to 14 days if the driver is: public holidays. The number of demerit points that may
• in the opinion of police, incompetent, reckless be received before further action is automatically taken,
or careless, or or considered, depends on the type of licence.
• found to be under the influence of liquor. When a licence will be suspended
Police may recommend to the RTA that the period If a person incurs from 12 to 15 demerit points within a
period of three years, their licence will be suspended for
be increased. three months.
The person must surrender their licence to the If a person incurs from 16 to 19 points within a period
police if it has been suspended by them. of three years, the suspension period is four months.
If a person incurs from 17 to 20 points within a period
If the person has been charged with certain of three years, the suspension period is five months.
alcohol-related offences
Under s.205 of the Road Transport (General) Act, If the licence has not been cancelled before
the police may, pending the hearing and deter- If the person’s licence has not been cancelled before, the
RTA may offer them a probationary licence instead.
mination or withdrawal of the charge, suspend the
If further demerit points are incurred
licence of anyone charged with:
If the driver incurs two or more demerit points while on
• a mid-range or high-range prescribed a probationary licence, the RTA will suspend it for a
concentration of alcohol offence, or period that is twice the original suspension period and
• wilfully altering or obstructing the taking of a then issue another probationary licence.
blood test. Accumulated periods of suspension
Effect on any period of disqualification Any periods of suspension that result from incurring
The suspension may count towards any period of demerit points are added on to the automatic suspension
period, if there is one, for the offence that brought the
disqualification that the court may later impose, demerit point total over the suspension threshold.
including any minimum period. For example, under the points system, a driver incurs
Review and appeal six points for exceeding the speed limit by more than
45 kph. If that brings the driver’s total demerit points to
The person may apply to the Administrative Deci- 12, the RTA may take action to suspend the licence for
sions Tribunal to review the suspension. Lodging three months. This three-month period is added to the
the appeal does not stay the suspension. automatic period prescribed by the legislation for the
The tribunal may not lift the suspension unless offence (three months), and the person’s licence is
it is satisfied that there are exceptional circum- suspended for a total period of six months.
stances justifying it (s.241).
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Parking
Parking offences
Parking restrictions are imposed or created by • the police
both traffic regulations and parking signs. • a parking patrol officer (special constables
employed by the Commissioner of Police)
Parking restrictions • a council ordinance inspector.
The ticket will show a fine to be paid within
Restriction by traffic regulations 21 days.
Traffic regulations restrict parking in some places;
for example: If the driver believes there was no offence
• on an intersection, or within six metres of the A driver who believes that no parking offence was
property line of an intersection committed (for example, a driver who believes
• within 18 metres on the approach side and their car was parked in a two-hour zone for less
nine metres of the departure side of a bus stop than two hours but receives a ticket for overstay-
• within nine metres of the approach side of a ing) may contest the matter in the Local Court.
pedestrian crossing
• on a curve or hill when the view to the rear is Get legal advice!
not clear for at least 50 metres Challenging a parking ticket can be expensive and time-
• in metered zones and where council consuming, and may expose the driver to higher penal-
car-parking time limits operate. ties and costs if it is unsuccessful. It is advisable to obtain
legal advice from a chamber magistrate or community
Restriction by traffic signs legal centre before deciding to contest a parking ticket.
Parking signs include:
• ‘No Parking’, which means that a vehicle may Reasons for contesting a parking ticket
not park except when actually picking up or There may be a very good reason for contesting a
setting down people or goods parking ticket.
• ‘No Standing’, which means that a vehicle In some cases, the matter may be quickly
may not stop except when picking up or resolved. For example, if the offence occurred
setting down people while the vehicle was stolen or being used illegally,
• ‘No Stopping’, which means that a vehicle and the theft or illegal use has been reported to
may not wait at the kerb for any reason police, a telephone call to the Infringement
• ‘Clearway’, which means that a vehicle may Processing Bureau is usually enough to end the
not stop at the kerb for any reason, except matter.
that a bus, taxi or hire car may stop to pick up If no report was made, the reasons for this and
or set down passengers the circumstances of the theft or illegal use must be
• ‘Loading Zone’, which means that a truck set out in a statutory declaration.
may stand for up to 30 minutes or a station
wagon for 15 minutes when actually picking If the owner was not the driver
up or setting down goods. If someone else was in charge of the vehicle when
the ticket was received, and the owner wishes that
Parking tickets person to pay the fine, the owner should send a
statutory declaration to the Director, Infringement
Receiving a ticket Processing Bureau, setting out the name and
Where a driver has overstayed in a parking area or address of the person and the circumstances in
parked in a restricted area (see above), a ticket which they came to be in charge of the vehicle.
may be issued in person, through the post or by If the bureau rejects the explanation, the
being left on or attached to the offending vehicle. owner may challenge the ticket in the Local Court.
People who may issue parking tickets are:
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NSW Industrial
relations law 586
The employment relationship 586
Minimum conditions and
entitlements 587
Discrimination in employment 595
Health and safety at work 596
Unions 597
Termination of employment 599
Federal industrial
relations law 604
Workplace regulation 604
Conditions and entitlements 605
Termination of employment 608
This chapter deals with the laws applying to the 27 March 2006 the Commonwealth Workplace
workplace in NSW under both federal and state Relations Amendment (Workchoices) Act 2006
legislation. Australian employees work within a took effect, significantly increasing the coverage
sometimes complicated framework of formal of the federal industrial legislation. Information
industrial relations, and there can be an overlap on whether the state or federal legislation
of entitlements under federal and state laws. applies to a particular employment relationship
To work out what entitlements apply, an can be obtained by phoning the relevant depart-
employee must establish whether they are covered ment’s award line.
by a federal or state award or agreement. On
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additional hours the employee agrees to employee gets additional paid leave rather than a
work) higher rate. The industrial instrument usually
• where the employee agrees to work weekly requires the time to be taken within a certain
hours only one hour less than full-time hours period, or be forfeited.
fixed by the industrial instrument, all the
benefits to which full-time employees are Casual loadings
entitled under the instrument. Casual employees get an additional payment (loading) to
The employer must give the employee a copy of compensate them for the lack of benefits enjoyed by per-
the agreement, and send a copy to the NSW Indus- manent employees such as paid sick leave and paid
trial Registrar. Pay and conditions under such public holidays. The amount is usually between 15%
and 33% on top of the ordinary hourly rate.
agreements are enforced in the same way as those
under any other industrial instrument, such as an
award or enterprise agreement. Rest periods and free time
Industrial instruments always specify conditions
Spread of hours applying to:
Employers usually have the right to decide starting • meal breaks
and finishing times (spread of hours) within the • adequate rest periods between shifts, and
range of ordinary hours specified in the industrial • periodic days off work.
instrument. For example, if ordinary hours are Industrial instruments usually require breaks of
between 8 am and 6 pm, the employer may set eight to ten clear hours between the completion of
working hours between 9 am and 5 pm, but a shift (or overtime) and the start of the next work-
cannot insist that work commence at 7.30 am ing period, and between the end of one shift and
without paying overtime. the commencement of the next.
Overtime Employees are usually entitled to such breaks –
‘Wage’ and ‘salary’ have different meanings, without loss of pay – even if the employee starts
although they overlap. Employees paid under an the next working period later than usual.
industrial instrument usually get wages, and are If employees are required to return without the
entitled to overtime rates for work outside or in minimum break, overtime rates are usually paya-
excess of ordinary hours, or time off instead of ble until a break is provided.
pay. Employees on salaries are less likely to be enti- Meal breaks
tled to overtime payments, because salaries are Meal breaks of between 30 and 60 minutes must
usually intended to cover all hours worked. be given to employees who work a certain number
of hours straight (usually five hours or more,
Requirement to work overtime
Employees may usually be required to work excluding tea breaks).
‘reasonable’ overtime. What is reasonable is not If an employee works more than those hours
defined; but the employee’s other commitments without a meal break, they are usually entitled to
and their health and safety should be considered, be paid overtime until the meal break is taken.
as well as the requirements of the employer. Meal breaks during ordinary hours are not
usually paid. If more than two hours’ overtime is
Payment for overtime worked, however, employees are usually entitled
Overtime is paid at a higher rate than ordinary to a paid meal break of 20 to 30 minutes, plus a
hours – usually from one-and-a-quarter times to meal or dinner money.
double the ordinary hourly rate of pay.
The calculation of overtime rates does not usu- Flexitime
ally include shift penalties or weekend penalty Many industrial instruments provide for adjust-
rates (higher rates to compensate employees for able working hours (flexitime). A flexitime system,
working outside ordinary hours). like a conventional system, requires that a certain
Casual employees’ overtime rates usually number of hours be worked per week; within cer-
include the casual loading (see below). tain limits, however, employees can decide when
Time off in lieu they will work those hours.
Industrial instruments may also provide for time
off in lieu of overtime payments – that is, the
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Wills 1096
Making a will 1096
Changing or revoking a will 1100
estates 1101
When someone dies 1101
Formal administration 1102
The intestacy rules 1104
Dealing with the estate 1105
Trustees 1108
Contesting the will 1109
Costs 1111
funerals 1112
What must be done when
someone dies 1112
Arranging a funeral 1114
Coroner’s cases 1117
Wills
A will is a written document that sets out how a the affairs of someone who has died. In both
person wants their assets (their estate) divided cases, there are many legal requirements to be met.
after their death. This chapter is not detailed enough to be a
The law about wills affects people when they do-it-yourself guide to will-making.
make their own will and when they are managing
Making a will
Legislation all existing arrangements with or on behalf of that
Like most other legislation in Australia, succession person – for example, withdrawals from accounts
law differs from state to state. As part of a national or payment of bills under a power of attorney –
trend to harmonise state laws, the NSW govern- usually cease. Accounts in the person’s sole name
ment enacted the Succession Act 2006 (‘the new are likely to be frozen on their death, except to
Act’) which replaces the Wills, Probate and allow payment of funeral expenses.
Administration Act 1898 (‘the old Act’) as it A will may make it easier for beneficiaries to
relates to wills. The new Act commenced on gain access to funds in an estate, particularly a
1 March 2008. It is written in plainer English than small estate where Probate may not be required.
the old Act and is in the form of question and
answer. The old Act has been renamed the Probate Same-sex couples
and Administration Act 1898. The Probate and It is especially important for lesbians and gay men to
Administration Act continues to apply (with some have a will. Although recent legislative changes allow
exceptions) to wills made before 1 March 2008 same-sex partners to share in the distribution of an estate
where there is no will, it may still be difficult to prove that
and to the administration of estates. It is antici- the relationship was a de facto relationship (see
pated that the provisions relating to the adminis- chapter 38, Same-sex couples and their families).
tration of estates will be incorporated into the new
Act over time. The Succession Amendment (Fam-
ily Provision) Act 2008 commenced on 1 March Who can make a will?
2009 (see Family Provision Orders on page 1110). A will made by a minor (a person under 18) is not
The Succession Amendment (Intestacy) Bill 2009 valid unless:
was introduced into parliament on 1 May 2009 • it is made in contemplation of a marriage that
and it provides for major changes to the intestacy takes place, or
rules. It may commence on 1 March 2010. • the minor is married, or
• the court has approved it under s.16 of the
Details of the intestacy changes are not Succession Act.
discussed in this edition.
Mental capacity
Will-makers must have the mental capacity to
know what they are doing, and to distribute their
Why make a will? property according to their own wishes.
Everyone over 18 should have a will. It is the only
way to make sure that your estate is distributed in
See chapter 18, Disability law, for more about
the way you would like, and that this is done as will-making for people with intellectual disability or
quickly and cheaply as possible. mental illness, and providing for a person with
A will can also make life much easier for family intellectual disability.
and friends after your death. When someone dies,
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If the will is not written in English the person understands and approves it. The
Wills can be written in any language, but when the details should be recorded either:
will-maker dies a certified translation is required. • in an attestation clause (see Attestation
clauses on page 1097) in the will, signed by
If the will-maker does not speak English the interpreter, or
If the will is in English and the will-maker does not • in a statutory declaration by the interpreter,
read or speak English, an interpreter should read it witnessed by a lawyer or justice of the peace.
out in the appropriate language, and ask whether
Act, and not to the estate of the deceased person, only if there are no full sisters or brothers – see
as in the old Act. Order of distribution on page 1104.)
There is a new provision in the Succession Act,
s.42 that states how a gift of residue will be con- Appointing an executor
strued. Legal advice should be sought if you have What do executors do?
concerns about the wording of a residuary clause The executor of a will is responsible for:
in a will. • seeing that its terms are carried out
• applying for probate, if necessary (see
Property owned by joint tenants Applying for a grant of probate on
Property owned by the deceased and another page 1102).
person as joint tenants goes to the surviving co-
Who can be an executor?
owner regardless of a will or the intestacy rules. You can choose anyone over 18 to be an executor.
If people die at the same time Usually one of the beneficiaries is nominated; oth-
If two or more people die at the same time and erwise it can be a lawyer or other trusted person,
their order of death cannot be determined, the law depending on the complexity of the estate.
in NSW presumes that the oldest died first, and the If no executor is named in the will, the court
estates are divided accordingly. will appoint an administrator.
Payment
Appointing a guardian for children You may wish to leave your executor a cash legacy
A parent can nominate someone in their will as the under your will as compensation for the time
guardian of their children under 18, although a involved in being an executor. An executor may
surviving parent generally takes this role initially. also apply to the court for payment from the estate
If there is a dispute about who will be the for the work they have done.
guardian, the court makes the appointment. The
court may consider what you put in your will. Where to keep a will
Your will should be easy to find after you die, oth-
Ex-nuptial children erwise the court may presume that you destroyed
The words ‘child’ or ‘children’ in a will include it and you may die intestate.
both nuptial children (the children of a marriage) Your original will should be in a safe place
and ex-nuptial children (children born outside a (such as with your bank or a lawyer, a trustee com-
marriage). If a will-maker wants to exclude any pany or the Public Trustee), and a copy kept at
children, this must be explicitly stated, for exam- home among your personal papers with a note
ple by naming only the other children in the will. saying where the original is. You should also tell
From 22 September 2008, where a child is your executor where the original is kept.
born as a result of a fertilisation procedure to a
woman in a de facto relationship with another What to keep with the will
woman: It will make the executor’s or administrator’s task
• the other woman is presumed to be a parent easier and quicker if you keep with your will:
of the child if she had consented to the • a list of your assets, including details of where
procedure, and documents such as insurance policies,
• the woman who has become pregnant is passbooks and title deeds can be found
presumed to be the child’s mother even if she • a list of people, firms and organisations to be
did not provide the ovum. notified of your death (for example,
This change arises from the amendment of the particular relatives or friends, your
Status of Children Act 1996 by the Miscellaneous superannuation fund, clubs you belong to,
Acts Amendment (Same Sex Relationships) Act Centrelink, or the Department of Veterans
2008. It will not affect wills made prior to 22 Sep- Affairs).
tember 2008.
What is in a simple will?
Half-sisters and brothers The sample will in the box below gives some idea
Reference to a sister or brother in a will generally of what could be in a straightforward will.
includes half-sisters or half-brothers. (Where there Remember, unless your will is going to be very
is no will, half-sisters and half-brothers will inherit simple, it is always best to get legal help.
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Estates
When someone dies
After someone dies, there are a number of enquir- Trustee, a private trustee company, or the
ies family members or close friends should make in deceased’s lawyer or bank. A thorough search of
relation to the person’s estate. the person’s home should be made if it is not easily
located.
Is there a will? If no will is found, it is usually presumed that
One of the first things that must be done is locating the person died without a will (intestate).
the will. It may have been left with the Public
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Formal administration
If there is a will and an executor The affidavit of executor
If there is a will and an executor, formal adminis- This affidavit is made by the executor, and it
tration involves the executor applying for a grant should annex (have attached to it):
of probate from the Equity Division of the • a statement as to whether the deceased person
Supreme Court. left any other document attempting to set out
their testamentary intentions
• the death certificate (see below)
What is probate? • a copy of the newspaper advertisement
Probate is an order from the court stating that the will is
valid and clearing the way for the executor to begin
referred to in Advertising the intention to
administering the estate. apply, above
• a list of the person’s assets and liabilities.
The affidavit must also state that:
Applying for a grant of probate • the executor will administer the estate
Advertising the intention to apply according to law, and
Fourteen days before applying for a grant of pro- • there is no reason why the executor should
bate, it is necessary to take out a newspaper adver- not be granted probate of the will.
tisement indicating the intention to do so.
The death certificate
Making the application A death certificate may be obtained for $39 from
To apply for the grant of probate, the executor (or the Registry of Births, Deaths and Marriages. If it
their lawyer) should file certain documents with is required urgently, the fee is $59 (current at July
the court. The necessary documents are: 2008).
• a summons, signed by the executor or their The death certificate is often ordered by the
lawyer funeral director.
• an affidavit of executor
• the original will.