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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

85

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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.

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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

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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-

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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

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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

1 About the Legal System

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.

1 About the Legal System

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.

31

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.

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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.

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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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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,

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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

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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.

7 Children and Young People

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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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