What is the law? Simply put, the law is a set of rules and regulations by which human interaction and behaviour is governed. Sanctions are often imposed to punish and deter unlawful behaviour. Increase in human interaction inevitably creates greater opportunities for cooperation but also discord between members of society. In a bid to increase cooperation and reduce discord, rules and regulations are made to set parameters on what members of society may or may not do with corresponding sanctions for breach. Traditions and customs within a society may be made into law, for example, marriage, or they may be made unlawful, for example, foot binding.
Laws are made by a governing body such as a chief, king, emperor or government. Enforcement of such laws may be carried out by the law maker but modern law enforcement is usually carried out by a separate institution, such as the police force. Countries that observe the doctrine of separation of powers may set up courts to interpret and adjudicate on alleged breaches of the law.
Laws usually reflect the concerns faced by a particular group or society. For instance, a group or society concerned with personal morality will inevitably have extensive laws prohibiting immoral behaviour. In the West, one of the earliest examples of law can be found in the ten commandments of the old testament of the bible. It was a set of ten rules reflecting what were important to Israelite society at the time that the laws were made, namely, homogeneity in religion, filial piety, keeping the Sabbath and prohibiting idolatry, blasphemy, lying, murder, theft, adultery and coveting. In China, one of the earliest laws is Qin Laws, adopted by the Qin dynasty, which set out laws to protect the environment and to govern husbandry, granary, trade, manual labour, conscription, state officials, communications, judges and minorities.
Laws may change over time as society progresses. When society becomes concerned over new matters, new laws may be introduced to govern new matters of concern or if concerns over a matter become more complex, laws may be redrafted to adapt to the increased complexity. For instance, when society began using coins as a medium of exchange, new laws were made to govern the minting and nominal value of coins, and the exception of self-defence was introduced so that those who killed in self-defence may not be punished for murder. Laws may also be relaxed as society become less concerned over a matter. For instance, adultery is no longer a crime in most societies although it may still be frowned upon and be used as a basis for a divorce application.
In Australia, laws are made by a parliament which comprises of a lower house and an upper house (except Queensland and the two territories, of which parliaments only have one house). Bills are introduced in the lower house (but may sometimes be introduced in the upper house) and must be passed by both the lower house and the upper house before the bill may become law (bills in Queensland and the two territories only have to pass through one house). There is a parliament in each Australian state and territory that specifically makes laws for the particular state or territory. Australia also has a federal parliament that makes laws governing federal matters such as defence and immigration. In China, laws are made and modified by the National People’s Congress and its Standing Committee. Bills are introduced in the National People’s Congress and its Standing Committee and passed into law. The Standing Committee also has the power to interpret the laws of China as China considers interpretation of laws to be a legislative function rather than a judicial function. In Hong Kong, laws are made by the legislative council which introduces and passes bills into law. Laws made by the legislative branch of government are called “statutory law”.
In common law jurisdictions such as Australia and Hong Kong, laws are also made by judges. Contract law and torts law are just two examples of judge made or common law in Australia and Hong Kong. Rather than having been codified into statutes, common law exists in the judgments handed down by judges, which are also called “case law”, and may be modified and overwritten by statute. Civil law jurisdictions such as China do not have judge made laws. Civil laws are codified and, in the case of China, judges can apply but not interpret laws (The Supreme People’s Court has limited powers of interpretation).
Copyright © 2016 Nelson Lok Him Shum
Between 1850 and 1901, xenophobia towards the Chinese, who came to Australia as gold miners and indentured workers, led colonial governments to enact anti-Chinese legislation restricting Chinese immigration to Australia. The first of such laws was passed by the Victorian colonial legislature in 1855. It was entitled the Chinese Immigration Act and it restricted the number of Chinese arriving by ship in Victoria to one for every ten tons of the ship’s tonnage and imposed an entrance fee of £10 on each Chinese immigrant. South Australia passed almost identical legislation in 1857 followed by New South Wales in 1861. The New South Wales legislation denied naturalisation to Chinese immigrants.
Further anti-Chinese legislation were passed in Victoria such as the Chinese Immigrants Statute (1865) which gave power to the Governor in Council to make rules and regulations governing the registration of Chinese on their arrival and for their removal at the place they were bound and generally for their management and good government. Any person found in breach of or infringing the rules and regulations was to be fined a sum not exceeding £5. Chinese were also denied the vote at the election of members for a mining board. The Chinese Act (1881) further restricted the number of Chinese arriving in Victoria to one for every one hundred tons of the ship’s tonnage and re-imposed the entrance fee of £10 on each Chinese immigrant. Chinese immigrants, notwithstanding that they were ratepayers, may also be omitted from voters’ lists in municipal or parliamentary elections unless they are known to be or are proved to be British subjects.
Similar legislation to the Victorian Chinese Act (1881) were enacted by the other colonial governments of Australia with the primary differences being the proportion of Chinese to a ship’s tonnage permissible to enter the colony and the amount of the entrance fee. Like Victoria, New South Wales and Tasmania allowed one Chinese immigrant for every one hundred tons of a ship’s tonnage. Queensland and Western Australia allowed one Chinese immigrant for every fifty tons and South Australia allowed one for every ten tons. Unlike the other colonies, which imposed an entrance fee of £10, Queensland imposed an entrance fee of £30 on each Chinese immigrant. Queensland also banned Chinese miners from working on new gold fields until 3 years after its first discovery.
Many Chinese left Australia due to the heightened racial tensions and discrimination.
Fast forward to 1901, anti-Chinese sentiment in Australia had by then been extended to encompass all non-European immigrants. The immigration policy adopted by the new Australian federation sought to exclude all non-European people, in particular, Chinese and other Asian people, from entering Australia, and was what is now known as “The White Australia Policy”. Under the Immigration Restriction Act (1901), all would be immigrants are subjected to a dictation test administered by an immigration officer. The dictation test may be carried out in any European language and the person entering Australia was required to write out fifty words dictated by an immigration officer. Suffice to say, the dictation test was arbitrary and difficult even for Europeans and was used not only to exclude non-European people but also undesirable Europeans from entering Australia. The infamous case of Egon Kitsch in 1934 illustrates this. Egon Kitsch was a writer from Czechoslovakia who spoke English and a number of other European languages fluently. Fearing that he was a communist, the Australian government administered a dictation test to him in Gaelic when he arrived in Australia. Understandably, he failed, and was denied entry to Australia, but he took his case to the High Court of Australia and was permitted to enter Australia.
The dictation test was eventually abolished in 1958 and The White Australia Policy dismantled in a number of immigration reforms that took place between 1966 and 1978. In 1975, the Federal government passed the Racial Discrimination Act which is binding on federal and state authorities and prohibits any form of exclusion based upon race. In the aftermath of the dismantling of The White Australia Policy, the 2011 Census reveals that roughly 6.5% of the total population of Australia spoke an Asian language at home with Mandarin being spoken by 1.7% and Cantonese being spoken by 1.3% of the total Australian population.
Will we ever see a return of The White Australia Policy? In 1988, the future Prime Minister John Howard advocated for a return to restricting Asian immigration. He later abandoned his arguments after he was dismissed from leadership of the Liberal Party. In 1996, Pauline Hanson in her maiden speech in the house of representatives alleged that Australia was “in danger of being swamped by Asians”, prompting many to accuse her of attempting to reintroduce The White Australia Policy. The anti-Chinese sentiment which led to the enactment of anti-Chinese legislation between 1950-1901 in Australia was born out of resentment over the success of Chinese miners and labourers. Now, in an age where China is set to overtake the United States as the world’s largest economy and with ever increasing Chinese investment in Australia, pockets of renewed anti-Chinese sentiment have started to appear.
However, the economic relationship between China and Australia have never been closer. China is currently Australia’s largest trading partner and Chinese tourists pour billions of dollars into the Australian economy each year. It would be inconceivable that anyone in Australia would wish to reintroduce anti-Chinese measures and damage the close relationship between China and Australia.
Copyright © 2016 Nelson Lok Him Shum
You should make a Will if you wish to leave property to those other than your spouse and children. You should make a Will if you wish to leave property to your spouse and children in different proportions. You should make a Will if you wish to leave different property to different family members. You should make a Will if you wish to set up testamentary trusts for your family members. You should make a Will if you wish to appoint an executor of your estate other than your spouse or children.
If you pass away without a Will, your property will be left to your spouse and children. Your spouse will be entitled to $150,000, the household chattels and 1/2 or 1/3 of the residuary estate. Your children will take whatever is left in the residuary estate. Therefore, if you wish to vary the amounts each of your spouse and children will take from your estate, you should make a Will.
If you pass away without a Will, your spouse has priority in applying for letters of administration of your estate. After your spouse has been made an administrator of your estate, your spouse will be in control of your assets. If you wish to appoint someone else to administer your estate, maybe your child or your brother or sister, you should make a Will.
If you wish to leave a part of your estate to charity, you should make a Will. If you wish to leave a part of your estate to someone other than your spouse or children, you should make a Will. If you wish to set up trusts for your family members, such as an education fund for your grandchildren, you should make a Will. If you wish to appoint a guardian for your child, you should make a Will.
The law makes a distinction between probate and letters of administration. Probate is granted to an executor named under a Will and letters of administration is granted to a court appointed administrator of an intestate’s estate or in the absence of an executor under a Will. Probate of a Will is generally granted much faster and with less fuss and cost than letters of administration. Applying for letters of administration requires more paperwork and takes longer on average as the applicant will be required to prove his or her relationship to the deceased. In probate applications, the applicant merely has to prove that he or she is the named executor appointed under the Will.
To reduce the risk of the Will being misinterpreted or contested, the Will should be drafted by and executed before a solicitor. An experienced solicitor can help you draft a Will that specifically deals with each of your assets and ensure that your intentions for your estate are contained in your Will.
A Will that was made before marriage will be revoked by marriage save any gift made to the spouse or any appointments of the spouse as executor, trustee or guardian under the Will unless the Will was made in contemplation of marriage. Divorce will cancel any gift made to the spouse or any appointments of a spouse as executor, trustee or guardian under the Will.
What will happen if you do not make a Will? The facts of this case are from a recent court case that I was involved in. The family had 3 siblings, the eldest sister and 2 brothers. The mother of the family had left the family home while the children were still young and lived apart. The three children of the family lived with the father and the grandmother. After the eldest sister married and moved out of the family home, which was rented, the remaining children i.e. the 2 brothers, and the father and grandmother decided to buy an apartment to live in. They pooled their money together and paid the purchase price on the apartment which was partly funded by a mortgage. The property was registered in the joint names of the father and the grandmother. The 2 brothers paid off the mortgage. The grandmother died and then the father died. Neither left a Will. The elder brother wanted to sell the house as the younger brother had already moved out but found that he could not apply for letters of administration as the mother had priority because even though the mother had left all those years ago the father and mother never divorced, and so she was still the father’s spouse and entitled to the biggest portion of the father’s estate. The elder brother also died without leaving a Will and as he had no spouse or children, the mother became the sole beneficiary of his estate. The mother was living in an old person’s house and had dementia so she could not administer either the father’s or the elder brother’s estate. After the mother died, the eldest sister claimed that the mother had made a Will by which the mother left everything to her and made a claim on the apartment. The younger brother, who had paid part of the purchase price and half of the mortgage payments, was potentially left with just a very small interest in the apartment (less than one-sixth). The eldest sister refused to acknowledge that he had contributed to the purchase price and mortgage payments and so should have a larger interest in the apartment. The younger brother then faced a potentially long and costly litigation to acquire his rightful share in the apartment which could have been avoided if the father had made a Will leaving the apartment to the 2 brothers as joint tenants. A twist to the story is that the mother’s alleged Will was witnessed by the eldest sister’s husband which rendered the gift to her under the Will void and invalid pursuant to Hong Kong law (not the case in Queensland unless the testator died before 1st April 2006).
Copyright © 2016 Nelson Lok Him Shum
In 2013, after the federal election in which Tony Abbot became prime minister, the Australian government commenced Operation Sovereign Borders (OSB). The operation sought to turn back the boats carrying refugees who wanted to come to Australia and seek asylum. The Australian government has admitted that between December 2013 and June 2015, 20 boats carrying 633 refugees have been back turned back and prevented from landing in Australia.
This begs the question of why people would risk a dangerous boat voyage across the open sea to reach Australia? How difficult is it to obtain resident status in Australia?
Immigration policy continues to be a hot topic in Australia. Despite being a country with one of the lowest population densities (currently 3.13 persons per square kilometre), Australia has had, throughout much of its short history, restrictive immigration policies. And although immigration policy has been relaxed in recent years, there have been renewed calls to limit immigration, particularly by former New South Wales Premier Bob Carr (His argument being that Australia is becoming overpopulated).
Immigration to Australia is governed by the Migration Act 1958 and Migration Regulations 1994 enacted by the Federal Government. The federal government has power under Section 51(xxvii) of The Constitution to legislate in relation to immigration matters. The Migration Act 1958 is administered by the minister for immigration and border protection (presently Peter Dutton MP) and the Department of Immigration and Border Protection. Under the Migration Act, the minister is given broad powers including the power to grant, suspend the granting of, refuse to grant and cancel visas. The minister also has power to limit the number of visas that may be granted in a financial year and set pool marks and pass marks, which can increase or limit the number of applicants that may qualify for a skilled migration visa.
There are currently 26 classes of permanent residency visas each with its own subclasses, comprising of 3 classes of business skills visas, 2 classes of child visas, 1 class of confirmatory visas, 2 classes of distinguished talent visas, 2 classes of employer nomination visas, 1 class of special eligibility visas, 1 class of Norfolk Island Resident visas, 2 classes of other family visas, 2 classes of parent visas, 2 classes of partner visas, 1 class of resolution of status visas, 1 class of return visas, 2 classes of contributory parent visas, 1 class of territorial asylum visas and 3 classes of skilled migration visas. The applicant is usually required to have a provisional or temporary visa before applying for a permanent visa.
In addition to permanent visas, there are currently 38 classes of provisional and temporary visas each with its own subclasses. The majority of provisional and temporary visas are prerequisites to obtaining a permanent residency visa. Some visas, such as visitors and student visas, will not lead to a permanent residency visa and the visa holder will have to leave Australia before the visa expires. Depending on the visa, applications may be made offshore or in Australia.
There are five subclasses of visa that can lead to permanent settlement of refugees in Australia, namely, subclass 200 (refugee), subclass 201 (in-country special humanitarian), subclass 202 (global special humanitarian), subclass 203 (emergency rescue) and subclass 204 (woman at risk). A common theme that runs throughout these visas is that applicants are subject to persecution or substantial discrimination amounting to gross violation of human rights in their own countries. Applications must be made outside of Australia.
Refugees who arrive by boat without a valid visa are classified as illegal marine arrivals (IMAs). IMAs that arrived by boat before 1st January 2014 may be granted a subclass 785 (temporary protection) or subclass 790 (Safe Haven Enterprise) visa if they meet certain criteria. Under OSB however, IMAs that arrive by boat after 1st January 2014 will not be granted a visa. The rationale is to deter people smugglers from operating in Australian waters. There is now no reason for refugees to take a dangerous boat journey to Australia as no visa will be issued to them and they may be turned back upon reaching Australian waters. Refugees who seek to come to Australia must apply for a visa outside of Australia. Visa applications can take a long time to process. Visa applications for IMAs that arrived between 13 August 2012 and 30 April 2013 are only now being processed.
A decision made by the Department of Immigration and Border Protection to grant, not to grant or cancel a visa may be reviewed by the Administrative Appeals Tribunal. But not all such decisions are reviewable. The minister also has power to prevent decisions, that are otherwise reviewable, from being reviewed. Depending on the circumstances, the application for review may be made by a family member or sponsor, as the applicant may not be in Australia to lodge the application for review. In limited circumstances, an application for judicial review of a migration decision can be made to the Federal Circuit Court, Federal Court or High Court. Judicial review is only limited to whether there has been jurisdictional error. The court cannot vary or modify a migration decision and can only remit the migration decision back to the Department of Immigration and Border Protection to be reconsidered.
Copyright © 2016 Nelson Lok Him Shum
Only the most cynical gets married anticipating divorce. The majority gets married expecting happiness ever after. That is why, when the relationship breaks down, it is so painful for all involved. And marriage involves so many people. Not just the married couple, but their parents, sisters, brothers, relatives, friends and children. All will be caught up in the divorce. Some will take sides. Some will try and console both parties. For the married couple, there will be a lot of finger pointing, squabbles and suffering. The children will suffer too and their suffering is exacerbated by feelings of powerlessness. This applies in almost all divorce cases I have dealt with.
In Australia, marriage is governed by the Marriage Act 1961 and divorce is governed by the Family Law Act 1975 enacted by the Federal government pursuant to Subsections 51(xxi) and 51(xxii) of The Constitution. Marriage is administered by the Federal government through its marriages registries in the states and territories. The Registry of Births, Deaths and Marriages in Queensland is located at 110 George Street, Brisbane.
Anyone intending to be married must first give notice of their intention to get married at a marriages registry. Marriages solemnised overseas may be recognised under Part VA of the Marriage Act. Under the Marriage Act, bigamy is an offence and persons under the age of 18 cannot marry unless they have attained the age of 16 and have authorisation from a judge or magistrate and the consent of their parents to the marriage. Same sex marriages are not recognised in Australia. Under the Marriage Act, marriage is defined as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.
Although same sex marriages are not recognised under the Marriage Act, same sex couples are recognised as de facto couples under the Family Act and take advantage of Part VIIIAB of the Act to organise their financial affairs after the breakdown of their relationship.
There is only one ground for divorce in Australia and that is the married couple have lived separately and apart for at least 12 months. Separation can occur even if the married couple were living in the same residence. In contrast, under Hong Kong law, there are multiple grounds of divorce including that the married couple have separated for at least two years, the married couple have separated for at least one year and both consent to a divorce, adultery and unreasonable behaviour. In China, divorce can be granted immediately upon the agreement of the married couple.
Divorce is granted by the Federal Circuit Court or the Family Court. In addition to processing divorce applications, the Court will also deal with parenting, maintenance and property settlement issues. These issues can also be resolved by the Court for de facto couples. A judgment of the Family Court may be registered and enforced in the High Court of Hong Kong.
A divorce order will not take effect until the Court is satisfied that proper arrangements have been made for all children under the age of 18. Parenting orders made by the Court relate to which of the married couple the children will live with, access arrangements and allocation of parental responsibilities. Before making parenting orders, the Court will consider the best interests of the child. The views of the child may be considered and is communicated to the Court through reports made by family consultants or a lawyer ordered to represent the child by the Court. Despite the Court having the power to make parenting orders, the parents are encouraged to come to an agreement in respect of custody, access and parental responsibilities.
Maintenance relates to the periodic payments made by one party to the other party, usually to a spouse who was, prior to the divorce, financially dependent upon the other spouse. Maintenance is also payable in respect of children. The amount of maintenance payable will depend on the income of the paying spouse and the amount that is required for the upkeep of the dependent spouse and the children.
The Court can also make orders with respect to existing title or rights in respect of property. For instance, the matrimonial home may be ordered to be vested in the wife of the marriage and an investment property may be ordered to be vested in the husband of the marriage. The Court has broad powers in relation to declaration or alteration of interests in property.
Financial agreements made pursuant to the Family Act is binding on the parties and can be enforced by the Court. Financial agreements can be made at any time, prior, during or after the marriage. Solicitors should be engaged to draft financial agreements as a failure to draft the financial agreement in accordance with the provisions of the Family Act will render the financial agreement unenforceable.
A divorce order that has taken effect is not subject to appeal. In respect of other orders, orders made by the Federal Circuit Court may be appealed to the Family Court and orders made by the Family Court may be appealed to the High Court.
Copyright © 2016 Nelson Lok Him Shum
There are four main types of intellectual property recognised in Australia and around the world: patents, trade marks, designs and copyright. In Australia, the Federal Government has the power under Section 51(xviii) of The Constitution to enact laws governing intellectual property so that the laws governing patents, trade marks, designs and copyright apply equally to all states and territories in Australia. Patents, trade marks and designs must be applied for and be granted or registered before they are protected under the statutory regime. Copyright protection on the other hand is automatic and does not require any grant or registration.
A patent comprises of exclusive rights conferred on the patent owner in respect of an invention. The patent owner can prevent anyone else from commercially exploiting the invention for the life of the patent. Although granting patents are meant to encourage and reward new inventions, there have been recent claims that patents are stifling innovation. Australia accepts two main types of patent applications. The first type is the standard complete patent, that protects inventions involving an inventive step. The second type is the innovation patent, for inventions that may or may not involve an inventive step. Involving an inventive step means that the invention is not obvious to and not easily arrived at by those working in the industry. Generally, patents are only granted for inventions that are novel, involves an inventive step and useful. Standard complete patents granted in Australia are protected for up to twenty years (twenty-five for pharmaceutical substances) and innovation patents for up to eight years.
Priority is very important for patent applications as patents are granted on a first come first serve basis. Therefore, if two patent applications are made in respect of the same invention, the patent application with the earliest priority date (the first to be filed) will be granted the patent. Australia permits provisional patent applications to be made. The provisional patent application will not by itself result in the grant of a patent but is used to obtain an early priority date for a patent application.
Patents granted in Australia can only be enforced in Australia. If it is necessary to protect an invention overseas, it is necessary to apply for patents in other countries. There are two ways to do so. One is to apply for a patent in each country that protection is sought from. The second is to apply for an international patent with the PCT (Patent Cooperation Treaty) and then designate the countries that protection is sought from.
Trade marks are used to distinguish the products and services of a business from those of a competing business. Some of the most famous examples of trade marks are the McDonalds and Coca Cola trade marks. The McDonalds trade mark is used to identify the fast food products offered by the McDonalds chain of restaurants and the Coca Cola trade mark is used to identify the cola products produced and sold by the Coca Cola beverage company. A trade mark can be any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent or a combination of them. Once registered, the trade mark owner can prevent others from using the trade mark within the class that it is registered. Trade mark registration expires after ten years and may be renewed for further ten year terms. Registered trade marks must be used or it may be removed from the trade mark register for non-use. Unregistered trade marks may still be enforced under the common law, however, it usually takes less time and costs to enforce a registered trade mark.
Trade marks registered in Australia are only protected in Australia. If protection for a trade mark is required overseas, it is necessary to apply for registration of the trade mark in other countries. There are two ways to do so. The first is to apply for registration of the trade mark in each country that protection is sought from. The second is to apply for registration of an international trade mark under the Madrid Protocol and then designate the countries that protection is sought from. A difference between applying for an international patent with the PCT and an international trademark under the Madrid Protocol is that the Madrid Protocol requires a pre-existing trade mark registration. Therefore, the trade mark must already be registered in Australia before an application can be made to register it under the Madrid Protocol.
A design is the overall appearance of a product resulting from its shape, configuration, pattern and ornamentation. A design that is new and distinctive may be registered in Australia. Once registered, the owner of the registered design can prevent others from using the design. Design registration expires after five years and may be renewed for a further term of five years. If it is necessary for the design to be protected overseas, it is necessary to register the design in other countries. Although an application for registration of an international design can be made under The Hague System, Australia is not a member state of The Hague System and so applications for registration under The Hague System cannot be made in Australia.
Copyright applies to original literary, dramatic, musical and artistic works and grants the author of such works the right to prevent others from reproducing, publishing, performing, communicating or adapting such works. Copyright protection is automatic and does not require a grant or registration. Copyright does not offer total protection as there are exceptions, such as, if the works are performed or communicated in the course of educational instruction or fair dealing for the purpose of research or study. Generally, copyright expires 70 years after the date of death of the author. Copyright is recognised overseas.
Copyright © 2016 Nelson Lok Him Shum
On 8th May 2016, the Prime Minister of Australia, Malcolm Turnbull, announced that there would be a double dissolution and that a federal election will be held on 2nd July 2016. On 9th May 2016, the Governor-General of Australia, Sir Peter Cosgrove, on request from Malcolm Turnbull, formally dissolved both houses of the federal parliament prompting fresh elections to be held to elect new members of the House of Representatives (the lower house of parliament) and of the Senate (the upper house of parliament). Note that this only applies to the federal parliament and does not affect state or territory parliaments.
To understand the nature of double dissolution, and why it exists, one needs to understand how federal parliament operates.
The federal parliament consists of two houses, namely, the House of Representatives and the Senate. The House of Representatives comprises of 150 elected members from various political parties with some sitting as independents. The Senate comprises of 76 elected members, called senators, and are likewise from various political parties with some sitting as independents. The federal parliament is tasked with making laws in respect of the matters set out in The Constitution. In addition to its law making powers, the members of the political party or coalition of parties that obtains a majority of seats in the House of Representatives forms the government with its leader becoming the Prime Minister.
The members of the House of Representatives serve a term of 3 years. After the term of 3 years expires, fresh elections are held to elect new members of the House of Representatives. Senators serve a term of 6 years. Elections for the Senate are held every 3 years in which half of the senators will retire and be replaced by newly elected senators. Under a double dissolution, all of the senators will retire and fresh elections will be held. Half of the newly elected senators will serve 3 year terms and the rest will serve the usual six year terms.
Laws originate as bills introduced in the House of Representatives or the Senate (they are usually introduced in the House of Representatives). Bills become law if passed by both houses of parliament. Bills are passed in the House of Representatives and the Senate by a majority of votes. If the political party that introduced the bill fails to obtain a majority of votes in both the House of Representatives and the Senate, it will face difficulty in making laws and carrying out reforms. Although, the Liberal/National coalition lead by Malcolm Turnbull had a majority of votes in the House of Representatives, it did not have a majority of votes in the Senate. In order to pass bills through the Senate, the Liberal/National coalition often required at least 6 votes from non-Liberal/National coalition senators. As a result, a number of bills introduced and passed in the House of Representatives failed to be passed in the Senate.
The Constitution provides a mechanism to resolve such a deadlock. Section 57 of The Constitution permits the Governor-General (at the request of the Prime Minister) to dissolve both houses of parliament if a bill passed by the House of Representatives is rejected by or fails to be passed in the Senate or it is passed by the Senate with amendments to which the House of Representatives will not agree, and after 3 months the same situation repeats itself. After the double dissolution, if the same situation repeats itself, the Governor-General may convene a joint sitting of both houses of parliament to vote on the proposed law. The Queen of England is the head of state of Australia and the Governor-General is her representative. Despite being the head of state, her power is largely symbolic and she always acts on the advice of parliament.
There have only been 7 double dissolutions in the history of Australia including the double dissolution in 2016. The last double dissolution occurred in 1987. Only once did the Governor-General convene a joint sitting of both houses of parliament and that was in 1974.
The bills which triggered the double dissolution of 2016 were the Building and Construction Industry (Improving Productivity) Bill 2013, Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 and the Fair Work (Registered Organisations) Amendment Bill 2014. The bills have purportedly been rejected twice by the Senate with the requisite 3-month interval between the first and second rejections.
Due to the double dissolution, both houses of parliament have now been dissolved and all members of the House of Representatives and the Senate have retired. Fresh elections must be held to elect new members of the House of Representatives and the Senate. Political parties are already campaigning for the election, to be held on 2nd July 2016. Whether the Liberal/National coalition will retain their majority in the House of Representatives and obtain a majority in the Senate so that the aforesaid bills may be passed remains to be seen. In 1914, the political party that called a double dissolution failed to win the subsequent election.
Copyright © 2016 Nelson Lok Him Shum
China has had a long history of corrupt government officials and the documented harm they bring to society. Corrupt government officials have been universally reviled together with the emperors who failed to take action against corruption. On the other hand, emperors who clamped down on corruption and administered justice to corrupt government officials (together with those who assisted the emperors, like Bao Zheng) were celebrated. Recently, the Chinese government under Chinese Communist Party Chairman Xi Jinping is taking long awaited action against corrupt government officials. Many high ranking officials in the Chinese government have been found guilty of corruption and sentenced to imprisonment. Many more are under investigation. Corruption in China remains a large problem for the country (ranked number 83 in the world in the Corruptions Perception Index for 2015). How successful Chairman Xi Jinping will be in eradicating corruption in China remains to be seen.
Australia is ranked as one of the least corrupt countries in the world (ranked number 13 in the world in the Corruptions Perception Index for 2015). Hong Kong is also ranked as one of the least corrupt states in the world (ranked number 18 in the world in the Corruptions Perception Index for 2015) but the trend is that corruption is on the rise in Hong Kong (Hong Kong was ranked number 12 in the world in the Corruptions Perception Index for 2012) following the conviction of Rafael Hui, the former Chief Secretary for Administration of Hong Kong, and Thomas Kwok, former co-chairman of Sun Hung Kai, on charges of corruption. Furthermore, suspicions of corruption have been cast on Timothy Tong Hin-ming, the former head of the Independent Commission Against Corruption (ICAC), for excessive spending on meals and gifts for visiting Chinese government officials.
Anti-corruption bodies in Australia have curbed and deterred corruption by setting up channels through which complaints may be lodged, investigating such complaints and commencing prosecutions. The anti-corruption bodies are largely independent and are governed by a comprehensive legislative framework. Each state in Australia has its own anti-corruption body that investigates complaints of corrupt conduct within its own state. The Northern Territory has been criticised for lacking an anti-corruption body. The Australian Federal Police are tasked with investigating corruption within the Federal government.
In Queensland, the Crime and Corruption Commission (CCC) has been set up to investigate corruption within the state and is governed by a number of pieces of legislation including the Crime and Corruption Act 2001. Under the Crime and Corruption Act, the CCC are tasked with assessing and investigating complaints of corrupt conduct.
Corrupt conduct is defined as conduct of a person that can adversely affect the performance of functions or the exercise of powers of a state institution such as the legislative assembly or police or a person holding an appointment such as a minister of government and results, or could result, in the performance of functions or the exercise of powers in a way that is not honest or not impartial, involves a breach of trust in a person holding an appointment or involves the misuse of information or material and would provide a benefit to the person or to another person or cause detriment to another person and would be a criminal offence or disciplinary breach that can result in the termination of the person’s services. Examples of corrupt conduct are bribery, extortion, obtaining or offering a secret commission and fraud.
Conduct may be corrupt conduct even though it happened outside of Queensland and was engaged in before a person was appointed to or after a person leaves government office. A conspiracy or attempt to engage in corrupt conduct may also be corrupt conduct. There is no limitation period on corrupt conduct and corrupt conduct may still be prosecuted even though the limitation periods of its elements have lapsed.
Complaints of corrupt conduct are made by way of statutory declaration unless the complainant has been exempted from doing so. Public officials have a duty to inform the CCC of any suspicions of corrupt conduct. The CCC have broad powers of investigation of corrupt conduct including referring the corrupt conduct to be dealt with by the Commissioner of Police or public officials. The CCC can compel persons under investigation to provide information or documents, enter official premises to conduct investigations, require persons to make discovery of documents relevant to the investigation, apply for search warrants, conduct searches of persons and seize property.
If the CCC finds that a complaint, matter or information involves, or may involve, corrupt conduct, it may prosecute the persons who committed the corrupt acts. Prosecution may take place in the Queensland Civil and Administrative Tribunal (QCAT) and, if the matter has been referred to the Director of Public Prosecutions, in the courts as a criminal offence. If QCAT makes a finding that there has been corrupt conduct, QCAT may order that the public official be dismissed, or reduced in rank, or forfeit an increment or increase in salary or a deduction out of salary. Those found guilty of corrupt conduct in court may be sentenced to imprisonment.
Copyright © 2016 Nelson Lok Him Shum
Have you ever been asked to open your bag for inspection by a supermarket or department store? I have and I hate it. Personally, I make a point of not shopping at any establishment that asks if they can inspect my bag. And I always carry a large postal bag with the strap slung diagonally across my shoulder and chest like a Mong Kok youth. It is convenient as I like to carry a lot of things as I move about. But unfortunately, because of that I get targeted by overzealous bag checkers who may or may not suspect that I have been shoplifting. And I always find the experience of being asked to open my bag for inspection humiliating.
No shop or shop owner has an automatic right to inspect a customer’s bag. In fact, if a shop owner or their employee suspects that a customer may be shoplifting, the correct course of action would be to call the police and try to lawfully detain that person until the police arrives. A police officer has the power to search a person’s bag under Section 29(1) of Police Powers and Responsibilities Act if the bag may contain stolen property. The shop owner may ask to inspect a customer’s bag before calling the police but, without the right to inspect a customer’s bag, a customer can and may refuse to open their bag for inspection.
So why do some stores ask their customers to open their bags for inspection? Where does that right come from? It mainly stems from private property and contract law.
A shop, like a house, is private property. If I enter someone’s house without the occupier’s consent, I am trespassing upon the owner’s private property. Under Section 19 of Police Powers and Responsibilities Act, even police officers may not enter someone’s house without the occupier’s consent or a warrant issued by a magistrate or judge if the purpose of entering is limited to making inquiries, investigations or serving documents. Shop owners grant their customers a licence to enter their store so that the customer will not be treated as a trespasser. But without adequate consideration from the customer for entering the premises, the shop owner may withdraw its licence at any time. Upon withdrawal of the licence, the customer will immediately become a trespasser and must leave the premises.
Shop owners may prohibit anyone from entering their store provided they do not breach any anti-discrimination laws. Shop owners may also attach conditions to their licence which are otherwise known as “Conditions of Entry”. Examples of such conditions of entry are “No dogs allowed”, so you cannot bring your dog into the store, and “No food on the premises”, prohibiting any food being brought into the store. Another condition of entry is what we are concerned about and that is the condition that you will permit the shop owner to inspect your bag when requested to do so. However, for the shop owner to impose such conditions, the customer must be aware of these conditions when they enter the store. In other words, these conditions of entry must be displayed in a prominent position at the entrance of the store so that customers entering the store may see and be taken to have agreed to these conditions upon entering.
I once wrote an angry e-mail to a supermarket complaining about a bag inspection conducted on their premises and the representative wrote to me saying that there is a sign at the entrance of the store that authorises the bag inspection. When I wrote back pointing out that I never saw such a sign at the entrance of the store, they never replied to me.
So what happens if I refuse to allow the shop owner to inspect my bag? The shop owner may withdraw his licence and ask me to leave or, if the shop owner thinks that I have stolen something, he may call the police and try to lawfully detain me before the police arrives. He may also seek an order for specific performance from the Court to order me to comply with the condition of entry and open my bag for inspection but I am sceptical that he will go to so much trouble and that a Court would even grant such an order.
One can argue that bag inspections are necessary and serves the purpose of deterring shoplifters. I do not care much for that argument. Firstly, I am there solely to shop, not provide aid in any grand scheme of deterring shoplifters. If shops are serious about deterring shoplifters, they should install more CCTV cameras and hire more security guards instead of subjecting their customers to random bag checks. Secondly, I do not like being asked to open my bag for inspection, as it gives the impression that I am suspected of shoplifting, and I do not like strangers peering into the contents of my bag as they are my personal belongings and are private. Bag inspections are a humiliating and degrading experience every time.
Copyright © 2016 Nelson Lok Him Shum
The Queensland Court System includes the Queensland Civil and Administrative Tribunal (QCAT), the Magistrates Court, the District Court and the Supreme Court. The Supreme Court is the highest court in Queensland and has jurisdiction to hear serious criminal offences and all civil matters under Queensland law and some matters under Federal law. The tribunal and lower courts cannot hear cases that fall outside of their jurisdictional limit.
QCAT is not technically a court but a tribunal. Litigants are expected to represent themselves but may engage a solicitor for legal advice and to prepare documents for use in QCAT. Its jurisdiction is limited to minor civil disputes and review of decisions made by government bodies. Minor civil disputes are defined as monetary claims not exceeding $25,000, disputes between consumers and traders or between traders involving goods and services not exceeding $25,000 in value, damage of property by motor vehicle causing not more than $25,000 in value, claims for repair of motor vehicle, tenancy matters, disputes over fences and trees and in relation to the Building Act 1975. In addition, QCAT has jurisdiction to appoint guardians and administrators, hear complaints of discrimination, payment claims in building and construction matters, review decisions concerning children and young people, and conduct further disciplinary proceedings or review disciplinary decisions in prescribed professions. QCAT hears appeals against its own decisions but not all decisions may be appealed against. Some decisions made by QCAT and the appeal tribunal may be appealed to the Court of Appeal.
The Magistrates Court is the lowest court in Queensland. Those who are arrested and charged with a criminal offence must first be taken to the Magistrates Court. The Magistrates Court will determine whether to grant bail and whether to commit the matter to be heard by the District Court or the Supreme Court. Indictable offences are heard in the District Court and the Supreme Court. Simple offences such as driving offences will be heard summarily in the Magistrates Court. Indictable offences that may be heard summarily, such as burglary, are also heard in the Magistrates Court. Indictable offences are serious criminal offences. In addition to its criminal law jurisdiction, the Magistrates Court has civil jurisdiction for claims not exceeding the prescribed limit of $150,000.
The District Court has jurisdiction to hear serious criminal cases in which the maximum penalty for the offence is not more than 20 years’ imprisonment, such as causing grievous bodily harm. It may also hear certain criminal cases that involve penalties of more than 20 years’ imprisonment, such as rape. Criminal cases are heard in jury trials. In additional to its criminal jurisdiction, the District Court hears civil cases in which the claim does not exceed the monetary limit of $750,000. If the civil claim commenced in the District Court does not exceed $150,000, the District Court may transfer the matter to the Magistrates Court. Jury trials may be held in respect of civil cases. The District Court hears appeals from the Magistrates Court.
The Supreme Court is the highest court in Queensland and hears the most serious of criminal cases such as murder. Criminal cases are heard in jury trials. It has unlimited civil jurisdiction although claims that do not exceed $750,000 may be transferred to a lower court. In addition to hearing matters under Queensland law, it also hears matters under Federal law, such as winding up applications. Jury trials may be held in respect of civil cases. The Supreme Court has two parts, the trial division and the Court of Appeal. The Court of Appeal hears appeals from the trial division of the Supreme Court, the District Court and QCAT. The trial division of the Supreme Court may hear appeals from the Magistrates Court on certain matters.
The High Court is the highest court in Australia and hears appeals from the supreme courts of states and territories, including the Supreme Court of Queensland. The High Court also hears appeals from the Federal Court and the Family Court. The High Court and its principal registry is situated in Canberra. It also has registry offices in each state and in Darwin. Special leave is required to appeal to the High Court. The High Court decides whether to grant special leave to appeal after a preliminary hearing. The judgments of the High Court are final, as there is no higher court where the judgment can be appealed.
Queensland is also home to the Federal Circuit Court, Federal Court and the Family Court, which are, along with the High Court, established by the Federal Government.
Copyright © 2016 Nelson Lok Him Shum
Corporations law in Australia provides broad protection to minority shareholders. If a minority shareholder is treated in a way that is oppressive, unfairly prejudicial or unfairly discriminatory, the Court can make orders in favour of the minority shareholder including that the company be wound up or for other shareholders or the company to buy out the minority shareholder’s shares. However, in order to obtain relief from the Court, it is not enough that the decisions made by the company has affected the minority shareholder in an adverse way, the decisions must have been made with a lack of good faith or would not have been made by a reasonable board of directors.
A company is a legal entity comprising of two groups of people, directors and shareholders. A shareholder is an owner of the company and the proportion of his ownership in the company is determined by how many shares of the company he has in relation to how many shares the company has issued. Shareholders have various rights including the right to appoint directors of the company and to dividends if they are declared. However, shareholders do not have a right to manage the company. The company is managed by the directors of the company also known as a “board of directors”. Despite that, single director and shareholder companies are permitted in Australia.
Proposals or motions at a company meeting (whether at a directors’ or shareholders’ meeting) are put to a vote. Shareholders who own more than 50% of a company’s shares are said to control the company (although special resolutions require at least 75% of votes to pass). Normally, majority shareholders are able to appoint the directors of the company, which will grant them indirect control of the company. The shareholders that do not own a majority of the shares are known as “minority shareholders”.
Shareholders of a company may sometimes enter into a shareholders’ agreement with terms that will permit the minority shareholders to appoint their own directors and thereby influence the decisions of the board of directors. And sometimes, there is mutual understanding between the shareholders that the minority shareholders will be actively involved in managing the company, particularly if the minority shareholders are appointed as directors upon becoming shareholders of the company.
The board of directors and shareholders in general meeting may make certain decisions that will affect minority shareholders. For instance, a minority shareholder may be excluded from management of the company, subjected to unequal payment of dividends, the transfer of shares may be restricted so that a minority shareholder cannot sell his shares and leave the company, and the other shareholders may fail to make a fair offer to buy out the shares of an outgoing minority shareholder. In those circumstances, if the Court finds that there has been oppressive, unfairly prejudicial or unfairly discriminatory conduct on behalf of the directors or other shareholders, the Court may grant remedies to the minority shareholder.
Although management of the company resides in the directors of the company, corporations law in Australia permits shareholders to bring actions on behalf of a company for a wrong done to the company. In particular, for wrongs done to the company by the directors of the company. These actions are known as “derivative actions”. Such actions may only be brought by leave of the Court, and leave will usually be granted if it is probable that the company will not itself bring the proceedings, or properly take responsibility for them, or for the steps in them, and the applicant is acting in good faith, and it is in the best interests of the company that the applicant be granted leave, and there is a serious question to be tried and either at least 14 days making the application, the applicant gave written notice to the company of the intention to apply for leave and of the reasons for applying, or it is appropriate to grant leave even though at least 14 days’ notice have not be given.
Derivative actions are usually brought by shareholders against the directors for breach of fiduciary duties. Directors owe fiduciary duties and other directors’ duties to the company including the duty to act with care and diligence, duty to act in good faith, not to improperly use their position to gain an advantage for themselves, and not to improperly use information they gained in the course of their directors’ duties. Directors may breach such duties by, for example, diverting business away from the company to entities owned by or affiliated with the director, setting up a competing business, misappropriating company assets and borrowing against the company.
In derivative actions, the shareholders bring an action in the name of the company. If the directors were at fault, it would be very unlikely that the directors will bring an action in the name of the company against themselves. Any relief that is granted by the Court will be granted in favour of the company, including any loss or damages awarded by the court or recovery of assets belonging to the company. Depending on the outcome of the derivative action, legal expenses that were incurred by the shareholder in bringing the derivative action on behalf of the company may be recovered from the company. However, the Court may require that the shareholder provide an indemnity for costs ordered against the company.
Copyright © 2016 Nelson Lok Him Shum
Queensland’s anti-discrimination laws were purportedly enacted to extend Federal anti-discrimination legislation, apply anti-discrimination laws consistently throughout Queensland, and to ensure that determinations of unlawful conduct are enforceable in the courts of law. The Federal government has enacted a number of anti-discrimination legislation such as Age Discrimination Act 2004, Disability Discrimination Act 1992, Racial Discrimination Act 1975 and Sex Discrimination Act 1986. Queensland’s Anti-Discrimination Act 1991 is a further piece of legislation dealing with discriminatory conduct in Australia.
The Anti-Discrimination Act prohibits discrimination on the basis of the following attributes: sex, relationship status, pregnancy, parental status, breastfeeding, age, race, impairment, religious belief or religious activity, political belief or activity, trade union activity, lawful sexual activity, gender identity, sexuality, family responsibilities, and association with, or relation to, a person identified on the basis of any of the above attributes. Discrimination may be direct or indirect.
Direct discrimination occurs when a person with an attribute is treated, or proposed to be treated, less favourably than another person without the attribute is or would be treated in the circumstances that are the same or not materially different.
Indirect discrimination occurs if a person imposes, or proposes to impose, a term with which a person with an attribute does not or is not able to comply, with which a higher proportion of people without the attribute comply or are able to comply and that is not reasonable. Whether a term is reasonable or not will depend upon the circumstances of the case including the consequences of a failure to comply with the term.
The Anti-Discrimination Act prohibits discrimination in pre-work area, in work area, by principals, by proposed partnership in pre-partnership area, by existing partnership in pre-partnership area, by existing partnership in partnership area, by industrial, professional, trade or business organisation in pre-membership area, by industrial, professional, trade or business organisation in membership area, by qualifying body in pre-qualification area, by qualifying body in qualification area and in employment agency area.
Despite the prohibitions on discriminatory behaviour in the work or work-related area, the Anti-Discrimination Act provides exemptions to the prohibitions. Exemptions may be applicable where there are genuine occupational requirements, residential domestic services, residential childcare services, work with children, single sex accommodation, workers are a married couple, retiring age for partners, youth wages, job capacities restricted by impairment, special services or facilities that are required and circumstances of impairment. The exemptions do not usually apply if discrimination is based on age, sex or race.
The Anti-Discrimination Act also prohibits discrimination in goods and services area such as businesses refusing or failing to supply goods to another person. There are also exemptions based on sites of cultural or religious significance, for age-based benefits, children to be accompanied by an adult and for special services or facilities required. Prohibitions against discrimination in superannuation, insurance, disposition of land, accommodation, club membership and affairs area also have exemptions.
The Anti-Discrimination Act also deals with sexual harassment. Sexual harassment is prohibited under the Act.
The Anti-Discrimination Act also prohibits associated objectionable conduct such as requesting and encouraging contravention of the Act, unlawful requests for information which can be used as a basis for discrimination and racial and religious vilification. Associated highly objectionable conduct such as discriminatory advertising, victimisation and serious racial and religious vilification are also prohibited.
The Anti-Discrimination Commission is the institution tasked with enforcement of the Anti-Discrimination Act. Complaints of prohibited conduct under the Act are lodged with the commissioner. The commissioner may accept complaints even if the complainant had previously agreed not to make a complaint. The complaint must be made within 1 year of the alleged contravention of the Act but the commissioner has a discretion to accept a late complaint if the complainant shows good cause. The commissioner must decide whether to accept or reject a complaint within 28 days of receiving it and promptly inform the complainant of the decision. Dismissed workers should note that it makes a difference under the Act whether they apply for industrial relief first or lodge a complaint with the commissioner under the Act first.
The commissioner may investigate the complaint at any time after receiving it. The commissioner may try to resolve the complaint by way of conciliation. If the complaint does not proceed to conciliation or is not resolved by conciliation, the complainant may request the commissioner to refer the complaint to QCAT. If the commissioner has not finished dealing with a complaint after six months, the complainant or the respondent may request the commissioner to refer the complaint to QCAT.
QCAT will hear complaints that were made to the commissioner not more than 1 year after the alleged contravention of the Act. If the complaint was made more than 1 year after the alleged contravention of the Act, QCAT may still hear it if, on the balance of fairness between the parties, it would be reasonable to do so. QCAT may order that a solicitor appear to assist the tribunal. If the complaint is found proven, QCAT may make an order such as requiring respondent not to commit a further contravention of the Act against the complainant, requiring the respondent to pay to the complainant an amount as compensation and requiring the respondent to do specified things to redress the loss or damage suffered by the complainant. Depending on the circumstances, the decision of QCAT may be appealed to the Appeal Tribunal or to the Court of Appeal.
Copyright © 2016 Nelson Lok Him Shum
Adverse possession enables a person (referred to as a “squatter”) to acquire an interest in land by possessing the land contrary to the rights of the original owner for a specified period of time. The land may have been abandoned or neglected by the original owner prior to possession by the squatter. If the original owner fails to enforce his rights in the land and evict the squatter within the specified period of time, the original owner loses the ability to recover the land and the squatter may apply for a registered title to the land. Under Section 13 of the Queensland Limitation of Actions Act 1974, the specified period by which the original owner of land must bring an action to recover land in Queensland is 12 years. Therefore, if the original owner fails to bring an action against a squatter within 12 years of the squatter taking adverse possession of the land, the original owner will lose his right to bring an action to recover the land from the squatter. Adverse possession does not apply to Crown land in Queensland.
Adverse possession exists to ensure that all land is utilised rather than subjected to abandonment and neglect by its owners. Owners who do not occupy or utilise their land run of the risk of losing it by way of adverse possession. Adverse possession also exists to determine competing claims on land, so that the person who has been in possession of the land for the specified period will have a stronger claim to the land.
A squatter who is in adverse possession of land is technically a trespasser. As such, until the original owner loses his right to recover the land, the squatter may be liable to be evicted from the land and to pay mesne profits for the occupation of the land. Adverse possession entails that the squatter has no consent or permission from the original owner or anyone else to occupy the land, therefore the squatter will not be in adverse possession if the squatter is occupying the land under a tenancy or a licence. However, if the tenancy or licence expires and no further payment is made for the occupation of the land, the squatter may from that point on be in adverse possession of the land.
To constitute adverse possession, the squatter must take factual possession of the land and have an intention to possess the land to the exclusion of everyone else including the original owner. Factual possession of the land includes taking physical control of the land by occupying it, fencing it off or replacing the locks of the property, typically behaviour consistent with an owner of the land. Having an intention to possess the land to the exclusion of everyone else including the original owner includes acting as the true owner of the land by utilising the land as a home or cultivating it as farm property and excluding everyone else including the original owner from the land.
About a year ago, I won an adverse possession court case for a client. The court case involves a family of which the father took possession of abandoned and neglected farmland in the 1950s. The father tended the land and cultivated crops, which he sold in the local market. On the plateau above the farmland, he built a house for his family to live. His younger children were born while they were living in that house. The father did not know who the land belonged to and no one interrupted his use and occupation of the land. Some fencing was erected around the land even though the farmland was mostly surrounded by natural barriers. After 50 years of working on the land, the father grew old and left the farmland to his second son, and the second son continue to farm the land. In or around 2000, a person claiming to be the owner of the farmland came to the family home multiple times and tried to force his way onto the farmland, as the only way to enter the farmland was through the family home. The police were called many times and, because the family were registered as rate payers of the family home and were well known in the community, the owner was told to leave.
After the father passed away, and the mother was diagnosed with severe dementia, the owner commenced an action to evict the second son from the farmland and to claim mesne profits for the past 6 years of occupation (limitation period limited the claim to six years). The owner claimed that the farmland had been leased to the father in 1964 by the previous owner, and after the owner was gifted the farmland by the previous owner in 1976, the owner allowed the father to continue to use the farmland without payment. The owner further alleged that, in 1981, the farmland was returned to the owner by the father and it has remained vacant until 2002, when the second son began working on the land. Therefore, according to the owner, adverse possession only commenced in 2002 and the owner was within the specified period when he commenced an action to recover the farmland.
The second son disputed the claim of the owner but, due to the passing away of his father and the illness of his mother, there was no one to give contrary evidence to the claim of the owner save for himself. In the end, the court believed what the owner alleged concerning the return of the property in 1981. However, when the court looked at the aerial photos for the period between 1950s to present, the court found that the farmland was still being cultivated from 1981 onwards, despite the owner’s claim that the land became vacant from 1981 until 2002. In the judgment handed down by the court, the court held that from 1981 onwards, the father occupied and cultivated the farmland without permission from the owner, which amounted to adverse possession, and the second son continued the adverse possession up to the present day. As 12 years have elapsed from the date that adverse possession first commenced, the owner had lost his right to recover the farmland. The second son was granted a possessory title to the farmland.
The owner has since applied for leave to appeal against the judgment but the court refused to grant him leave. The court held that his grounds for appeal had no reasonable prospect of success.
Copyright © 2016 Nelson Lok Him Shum
The local governments in Queensland are governed by the Local Government Act 2009. Under the Act, persons working in local government are required to act in accordance with local government principles. Local government principles include transparent and effective processes, decision-making in the public interest, sustainable development and management of assets and infrastructure, delivery of effective services, and ethical and legal behaviour of councillors and local government employees. The Brisbane City Council, even though it is a local government, is governed by the City of Brisbane Act 2010 rather than the Local Government Act 2009.
Queensland is divided into local government areas and each area is governed by a local government. Local government areas may be further divided into divisions. Under Local Government Regulation 2012, Queensland is divided into 76 government areas (not including Brisbane City). Each area has a prescribed number of councillors including a mayor that are elected in local government elections. For instance, the Gold Coast City Council has 15 councillors including a mayor and the Sunshine Coast Region Council has 11 councillors including a mayor. The Brisbane City Council stands apart from other local governments, due to it being governed by its own legislation, and has 26 councillors excluding the mayor.
Local governments are responsible for the good rule and local government of a part of Queensland. They have the power to do anything that is necessary or convenient for the good rule and local government of local government areas. However, local governments cannot do anything that the state government cannot do. A local government cannot act outside of its local government area unless it has written approval from the Minister for Local Government (currently, Hon Jacklyn Trad). A local government may cooperate with other local governments, or state or commonwealth governments to conduct joint government activities.
All councillors including the mayor have the same responsibilities including to represent the current and future interests of the residents of their local government area, provide high quality leadership to the local government and the community, participate in council meetings, policy development, decision making and being accountable to the community for the local government’s performance. The mayor has extra responsibilities including to lead and manage meetings of the local government at which the mayor is the chairperson, prepare a budget to present to the local government, directing the chief executive officer and senior executive employees and conducting a performance appraisal of the chief executive officer.
Local government elections are held every four years. A by-election may be held to fill a vacancy in the office of a councillor. Persons who stand for election for the office of councillor must be adult Australian citizens, reside in the local government’s area, enrolled to vote and not disqualified from being a councillor. They must also be nominated by either the registered officer of a registered political party that has endorsed the person as a candidate for the election or at least 6 electors from the local government area. Electors are persons entitled to vote in an election. If the local government area is divided into divisions, each division will hold its own councillor election.
Candidates are required to disclose whether they have received any gifts or loans during the prescribed disclosure period. Third parties that incurs expenditure for a political activity relating to the election must also make disclosure during the prescribed disclosure period.
Local governments can make local laws that are necessary or convenient for the good rule and local government of its local government area. However, local governments cannot make local laws in respect of network connections, election advertising, development processes, anti-competitive provisions and swimming pool safety. If there is any inconsistency between a local law and a state law, the state law will override the local law. In certain circumstances, the Minister for Local Government can suspend or revoke local laws.
Local governments have control of all roads in its local government area. Control of roads extend to including construction, maintenance and improvement of roads, and to acquire land to widen a road and for use as a footpath. Local governments can require owners of property to connect their properties to a storm water drain, which is owned and maintained by local government. Local governments can also establish malls and ferry services in its local government area.
Local governments can impose rates and charges. Rates are levied on land, while charges may be levied on waste management, gas, sewage and water, any services, facilities or activities provided by local government. Local government may register a charge over land for any overdue rates and charges.
The Minister for Local Government has the ultimate responsibility for monitoring and evaluating local governments. In certain circumstances, the minister may exercise the power to override decisions made by local government, remove a councillor, dissolve a local government and appoint an interim administrator to act temporarily.
Copyright © 2016 Nelson Lok Him Shum
The Queensland state government is governed by the Constitution Act 1867 and Constitution of Queensland 2001. The Constitution Act provides for a parliament and a legislative assembly in Queensland. Parliament is made up of the Queen of England (represented by the Governor of Queensland) and the Legislative Assembly. The Legislative Assembly makes laws for the peace, welfare and good government of Queensland. It consists of 89 members (increased to 93 members for the next election); each member representing an electoral district in Queensland. The Executive Government of Queensland is made up of the Governor, the Cabinet and the Executive Council. The Cabinet consists of the Premier and a number of other Ministers. The number of Ministers cannot exceed 19. Ministers are appointed from members of the political party or coalition of parties that have a majority in the Legislative Assembly. The membership of the Executive Council is the same as the Cabinet. The difference between the Cabinet and the Executive Council is that the Governor takes part in meetings of the Executive Council but not the Cabinet. As a result, the Cabinet formulates policies and the Executive Council implements those policies. The Courts are also a part of the Queensland State Government.
There are currently 89 seats in the Legislative Assembly, which will be increased to 93 in the next election. Elections for the Legislative Assembly are held every 3 years (which will change to every 4 years after the next state election). A candidate for election must be an adult Australian citizen living in Queensland, enrolled to vote in the election, and not a person disqualified from becoming a member of the Legislative Assembly. Nomination for a candidate must be made by the registered officer of a registered political party that endorsed the candidate for the election or 6 or more persons who are enrolled on the electoral roll for the electoral district concerned and none of whom has previously nominated a candidate for the election. The voting method used in the 2015 Queensland state election was optional preferential voting, however, this method has since been abolished, and full preferential voting will be used in the next election.
In the 2015 Queensland state election, the Australia Labor Party (ALP) won 44 seats and the Liberal National Party won 42 seats in the Legislative Assembly. The rest of the seats were won by Katter’s Australian party (2) and an independent. The ALP, having won the most seats but was one seat short of a majority (45 seats), formed a minority government. The independent, Peter Wellington, supports the ALP on confidence and supply. Since the 2015 election, members of parliament, Rob Pyne and Billy Gordon, resigned from the ALP government and became independents. They also support the ALP on confidence and supply. The Labour Party currently requires 3 votes from other parties and independents to have a majority of votes (45) to pass legislation. Confidence and supply means that the independents will support the ALP on a motion of confidence or no confidence and appropriation bills but will vote according to conscience.
The Executive Government of Queensland has all the powers, and the legal capacity, of an individual. The Cabinet formulates the policies and makes the decisions by which the executive government will act, and the Executive Council gives legal effect to those policies and decisions. The policies and decisions may then be implemented by the various ministers in the Cabinet. The Cabinet and the ministers that make up the Cabinet are responsible to Parliament. Ministers are responsible for matters within their portfolio, and may take on various portfolios. Ministers may take on various portfolios, the currently portfolios of ministers include arts, infrastructure, local government and planning, trade and investment, aboriginal and torres strait islander partnerships, sport, health, ambulance services, tourism and major events, state development, natural resources and mines, justice, training and skills, police, fire and emergency services, corrective services, transport, commonwealth games, main roads, road safety and ports, energy, biofuels and water supply, environment and heritage protection, national parks and the great barrier reef, innovation science and the digital economy, small business, communities, women and youth, child safety, prevention of domestic and family violence, disability services, seniors, and assisting the Premier on North Queensland, employment and industrial relations, racing, multicultural affairs, housing and public works, and agriculture and fisheries. Ministers that fail to carry out their responsibilities may be subject to a vote of no confidence.
The Courts are also a part of the Queensland State Government. Due to the separation of powers doctrine, the government is split into 3 branches, the legislature, the executive and the judiciary. The legislature and the executive have been discussed above. The role of the judiciary is to interpret and apply the law to cases that come before it, and to act as a check and balance to the legislature and the executive branches of government. Under the Constitution of Queensland 2001, there must be a Supreme Court of Queensland and a District Court of Queensland. No mention is made of other courts and tribunals in Queensland, such as the Magistrates Court or the Queensland Civil and Administrative Tribunal. The Supreme Court has all the jurisdiction necessary for the administration of justice in Queensland. Judges are appointed and removed by the Governor in Council but may only be removed if the Legislative Assembly accepts that the judge has misbehaved or is incapable of performing his duties.
Copyright © 2016 Nelson Lok Him Shum
The Australian Federal Government (also known as the Commonwealth Government) was formed in 1901 by the six colonial states of Australia. It is governed by the Commonwealth of Australia Constitution Act (referred to as the “Constitution”) which has been ratified by a referendum held in each of the states. Under the Constitution, legislative powers are given to the Federal Parliament, which consist of the Queen of England (represented by the Governor-General), a Senate and a House of Representatives. The Executive Government consist of the Queen of England (represented by the Governor-General), Federal Executive Council and Ministers of State. All Ministers of State are members of both the Cabinet and Federal Executive Council. The Constitution only provides for a Federal Executive Council but not a Cabinet. However, the Ministers of State formulates the policies and makes the decisions for the Executive Government in the Cabinet, and the Federal Executive Council gives legal effect to those policies and decisions. The Federal Courts are also part of the Australian Federal Government. The Constitution has been amended in the past with the last amendment occurring in 1977. Despite that, there are still traces of the White Australia Policy left in the Constitution such as Section 25 which provides that a particular race may be disqualified from voting in elections for the House of Parliament in a particular state, and Section 51(xxvi) which grants the power to the Federal Parliament to make special laws for a specific race.
The Senate, which is the upper house of Parliament, has 76 members. 12 from each of the six states and 2 each from the Northern Territory and the Australian Capital Territory. Members of the Senate are called “Senators”. Senators sit for a term of six years. Elections for the Senate are held every 3 years in which half of the Senators retire and are replaced by new senators.
The House of Representatives, which is the lower house of Parliament, currently has 150 members. The number of members of the House of Representatives in each state depends on the size of its population. It is determined by first calculating a quota by dividing the number of people in Australia by twice the number of Senators, and then dividing the number of people in each state by the quota. There must be at least five members of the House of Representatives in each state. States are divided into Electoral Divisions and, currently, Queensland has 30 electoral divisions, which means that Queensland has 30 members in the House of Representatives. Members of the House of Representatives sit for a term of 3 years. At the expiration of the term, elections are held to replace retiring members.
A candidate for the Senate or House of Representatives election must be an Australian citizen, have obtained at least 18 years of age, an elector entitled or a person qualified to vote at a House of Representatives election. The candidate must be nominated by either 100 electors entitled to vote at the election for which the candidate is nominated or the registered officer of the registered political party by which the candidate has been endorsed for that election.
The Constitution sets out the matters that the Federal Parliament can legislate for. If there is any inconsistency between a federal law and a state law, the federal law prevails. Any question as to whether the law made was within the legislative powers of the Federal Parliament is resolved by the High Court.
Ministers of State are members of the Federal Executive Council, and are appointed from the elected members of the political party or a coalition of political parties that obtains the majority of seats in the House of Representatives. The leader of such political party or coalition of political parties becomes the Prime Minister. Although the Constitution states that the executive power of the Federal Government is exercisable by the Governor-General, the Governor-General must act on the advice of Parliament. As a result, the formulation of policies and making of decisions for the Executive Government occurs in the Cabinet, an institution that does not involve the Governor-General. The policies and decisions formulated and made in Cabinet are then given legal effect in the Federal Executive Council, which exists to advise the Governor-General. The number of Ministers of State is determined by Parliament. Whether a matter is within the authority and responsibility of the Federal Government or a state is resolved by the High Court.
The judiciary of the Federal Government consist of the High Court and other federal courts created by the Federal Parliament. The High Court interprets and applies the laws of Australia, and has jurisdiction to hear appeals from any other federal court or the Supreme Court of any state, including the Supreme Court of Queensland. The High Court has jurisdiction to hear matters that arise under any treaty, affects consuls or other representatives of other countries, in which the Federal Government is a party, between States, and in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Federal Government. The High Court has also been conferred jurisdiction to hear matters arising under the Constitution or involving its interpretation, and in trials of indictable offences against Federal laws. The High Court has 7 judges including a Chief Justice.
Judges of the High Court are appointed by the Governor-General in Council (Governor-General acting with the advice of the Federal Executive Council), and retires upon reaching 70 years of age.
Copyright © 2016 Nelson Lok Him Shum
Like all modern legal systems, the Queensland legal system encourages the use of alternative dispute resolution as an alternative to having a dispute resolved in court. Arguments for the use of alternative dispute resolutions include lower costs and speed of resolution compared to a court action. The two most popular alternative dispute resolution methods are Mediation and Arbitration. Mediation and Arbitration are very different. Mediation is voluntary, unless court or tribunal rules require the parties to attend mediation before a court action can be commenced or proceeded with. Arbitration is agreed to by both parties, and is usually provided for as the sole dispute resolution method under contract, in particular, under construction contracts.
Mediation is the most cost effective dispute resolution method. Instead of commencing or proceeding with a court action or arbitration, parties can instead attend mediation. To commence mediation, the parties must appoint a mediator for the mediation conference, and book a venue for the mediation conference. A mediator will facilitate the parties to resolve their dispute. A mediation conference proceeds upon a without prejudice basis, which means discussions held during the mediation cannot be disclosed in current or subsequent legal proceedings whether or not the mediation was successful. Parties may be accompanied by their legal representatives. The mediator is usually a lawyer. The mediator will often allow the parties to speak at a joint conference before separating the parties for negotiations, and acting as a go between. That is why the parties will require at least 2 rooms for a mediation, and more rooms if more parties are involved.
The advantage of mediation is that the parties are not limited to just reaching solutions based on their legal relations. The parties are free to discuss any solution to resolve their dispute without necessarily referring to the outcome of any legal proceedings involved, which would not be the case if the matter proceeded to a court trial or arbitration hearing. The parties are free to resolve their dispute upon any terms and, if an agreement is reached, to sign a settlement agreement. However, not all disputes that go to mediation may be settled. In my experience, around 6 out of 10 cases that proceed to mediation get settled, and the rest either get settled subsequently or proceed to trial. The chance of success of a mediation conference depends on how keen the parties are to settle their dispute.
I have sat at a mediation conference that commenced at 9:30 a.m. in the morning and ended at 4:00 am at night. The mediation conference had 3 parties. I was representing one of the parties. Fortunately, the parties did want to settle, and ended up signing a settlement agreement at the end of the long mediation conference.
Arbitration is an alternative dispute resolution method similar to a court trial. The parties commence arbitration pursuant to an arbitration agreement. Arbitration may be provided for under a contract entered into between the parties, most often under a construction contract. However, any contract can contain an arbitration clause including employment and building contracts. If a dispute arises under a contract with an arbitration clause, or the parties agree to settle their dispute by arbitration, the parties will appoint an arbitrator or any number of arbitrators to adjudicate their dispute. The arbitrator appointed by the parties may have special knowledge and experience in the matter of dispute between the parties. The parties will then follow the arbitrator’s directions similar to following directions in a court action culminating in an arbitration hearing. Once the hearing has taken place, the arbitrator will present the parties with an Award. The Award is similar to a judgment given by a court and can be enforced in the courts of Australia.
If a party commences a court action, despite the existence of an arbitration clause, the other party may be able to obtain an order from the court to stay the court action on the ground that the parties had agreed to resolve their dispute by way of arbitration.
Arbitration will not offer significant costs savings similar to mediation. The most notable advantage of arbitration is the speed by which parties can have their dispute resolved, which can take months rather than years if the matter went to court. The parties will be required to pay the costs of the arbitrator and costs of the venue for the arbitral hearing. Barristers may need to be briefed. Despite that, the less time required to resolve the dispute means that less legal costs may be incurred by the parties.
An arbitral award may be enforced by either a state or federal court depending on which legislation the arbitration was commenced under. Currently, arbitration may be commenced in Queensland under the Queensland Commercial Arbitration Act or the Federal International Arbitration Act, depending on whether the proceeding is domestic or international arbitration. The contract that gave rise to the dispute may stipulate as to which legislation is applicable for the arbitration.
I have been involved in numerous mediation and arbitration cases and find that they are a more efficient and cost effective alternative to having disputes resolved by the court. However, not all parties will agree to attend a mediation conference, and not all parties are able to successfully resolve their dispute at a mediation conference. Furthermore, not all parties will agree to have their dispute resolved by arbitration, as some may prefer the strict formality of court proceedings. I have litigated several successful arbitration actions on behalf of clients involving building, construction and deed of mutual covenant disputes.
Copyright © 2016 Nelson Lok Him Shum
Most people in Australia drive motor vehicles. Motor vehicles are the most convenient mode of transportation for travelling from one place to another in Australia. In 2015, there were 18 million registered motor vehicles in Australia. As the total population of Australia is around 24 million people, that means there is almost one motor vehicle for every person living in Australia. Due to the large number of motor vehicles in Australia, laws have been enacted in Australia to govern and regulate the use of motor vehicles. The Queensland Transport Operations (Road Use Management) Act 1995 and subordinate regulations governs and regulates the operation of motor vehicles in Queensland. The Queensland Police are authorised to enforce transport laws and road rules in Queensland.
Motor vehicles in Queensland must be registered. A person who fails to register a motor vehicle for use in Queensland will receive a maximum fine of $9,752. A driver of a motor vehicle must hold a valid driver licence. A person in Queensland who drives a motor vehicle without a valid driver licence will receive a maximum fine of $4,876 or 1 year’s imprisonment. A person who drives after having been disqualified from holding a driver licence will receive a maximum fine of $7,314 or 18 months’ imprisonment.
There are many traffic offences set out in Queensland transport laws and road rules. For instance, driving at a speed exceeding the speed limit is an offence and may incur a maximum fine of $4,876. The severity of the fine will depend upon by how much the speed limit was exceeded. Driving over the speed limit may also result in a charge of dangerous or careless driving. A person who drives a motor vehicle carelessly i.e. without due care and attention or without reasonable consideration for other persons on the road may incur a maximum fine of $4,876 or 6 months’ imprisonment. A person who operates a motor vehicle dangerously may incur a maximum fine of $24,380 or 3 years’ imprisonment, which may increase to a maximum fine of $48,760 or 5 years’ imprisonment if exacerbated by a prior conviction, taking part in an unlawful race or consumption of an intoxicating substance.
A person who drives at a speed of more than 40 kilometres per hour over the speed limit may be disqualified from holding or obtaining a driver licence for at least 6 months.
Most traffic offences will incur a maximum fine of $2,438, including if a driver fails to stop his motor vehicle when approaching or at a red or yellow traffic light; fails to stop at a stop sign; fails to give way to traffic; fails to give way at a give way sign; fails to give way to pedestrians; fails to give way to a bus; fails to give way or keep clear of police or emergency vehicles displaying a flashing light or sounding an alarm; fails to keep clear of trams; fails to stop at a children’s crossing; fails to give way at a pedestrian crossing; overtakes or passes a vehicle at a children’s crossing or pedestrian crossing; overtaking where there is a no overtaking or no passing sign; drives in the wrong direction where there is a one-way sign; fails to stop at a level crossing when a train or tram is approaching (very dangerous!); fails to keep a safe distance behind a vehicle travelling in front; fails to drive on the left side of the road (very dangerous!). As is the case of driving over the speed limit, these traffic offences may also result in a charge of dangerous or careless driving.
Motor vehicle parking offences may also incur fines. If a person parks a car during fixed hours in a designated car space and fails to pay the parking fee or for a time longer than the maximum time indicated on the parking sign, the person may incur a maximum fine of $4,876.
Normally, most traffic and parking offences will not attract the maximum fine. Unless the offence has been exacerbated by careless or dangerous driving, or by a person’s prior convictions, the Queensland government will usually impose a fine of between $40 to $400. A person who disputes a traffic or parking offence can have their case heard in court.
A driver who has been convicted of a driving offence, either by paying the fine or by a court, will also have demerit points allocated to his traffic history. A driver with too many demerit points allocated to his traffic history may be required to choose between having his driver licence suspended for the requisite suspension period or agreeing to be of good behaviour while driving for a year. If a driver agrees to be of good behaviour while driving for a year and, during that year is allocated 2 or more demerit points, his licence will be suspended for double the requisite suspension period. The requisite suspension period starts at 3 months and increases depending on how many demerit points the driver has accumulated.
A driver who is suspected of committing a traffic or parking offence may be issued with an Infringement Notice. The infringement notice may be disputed by electing to have the matter heard in a Magistrates Court. If, despite having the matter heard in a Magistrates Court, the driver is convicted of the offence, the driver will be required to pay an offender levy in addition to other costs. The offender levy is currently $110.90 for matters heard in the Magistrates Court.
Copyright © 2016 Nelson Lok Him Shum
Foreign persons are generally not permitted to purchase established residential properties in Australia. They are generally only permitted to purchase new dwellings or vacant land. This is due to the Commonwealth government’s policy to channel foreign investment into the construction of new dwellings to support the local construction industry. It can also lead to an increase in government revenues, in the form of increased receipts of stamp duties and other taxes. The overarching principle followed by the Commonwealth government is that the proposed investment should result in new housing being built in Australia, by creating at least one new dwelling for every foreign investment.
Under the Foreign Acquisitions and Takeovers Act 1975, the definition of a foreign person includes an individual not ordinarily resident in Australia. However, due to the definition of ordinary residence, foreign persons also include those who are residing in Australia under a temporary residence visa. Australian companies and trusts, in which an individual not ordinarily resident in Australia holds a substantial interest, are also included within the definition of foreign persons. A foreign person must apply for and receive approval from the foreign investment review board before acquiring an interest in residential property. Conditions may be attached to the approval notification issued by the foreign investment review board.
A foreign person can generally only purchase new dwellings in Australia. A new dwelling is residential premises that will be, is being or has been built on residential land and that has not been previously sold as a dwelling and either has not been previously occupied or, if the dwelling is contained in a development, was sold by the developer of the development and has not previously been occupied for more than 12 months in total. An established dwelling is a dwelling (except commercial residential premises) on residential land that is not a new dwelling.
An exemption is available for a foreign person who is also a temporary resident. A foreign person who is also a temporary resident can acquire an interest in one established dwelling. Conditions may be attached to the approval notification for the acquisition of an established dwelling by a temporary resident, such as, the property may only be used as a principal place of residence in Australia; the property cannot be rented out and must be vacant at settlement (no tenant on the premises); and the property must be sold within three months from when it ceases to be a principal place of residence.
An exemption certificate is available to foreign persons who wish to purchase a property at auction. Usually, agreements for sale and purchase of property, which a foreign person must enter into to purchase land in Australia, will inevitably contain a clause to the effect that the agreement will only be binding on the parties if the purchaser (the foreign person) obtains approval for the purchase of the property from the foreign investment review board. However, because auction contracts (to be entered into by the foreign person after a successful bid for a property) usually omit such a clause, the purchaser (the foreign person) should seek approval from the foreign investment review board prior to making a bid for a property at auction.
Vacant land for residential dwelling development may be purchased by foreign persons. Approvals for such purchases may have conditions attached, such as, the foreign person must begin to build a dwelling on the vacant land before a particular date; and evidence of completion of the dwelling is submitted to the foreign investment review board within 30 days of receipt, either in the form of an occupancy certificate or a builder’s completion certificate.
Foreign persons may also purchase established dwellings for redevelopment. Approvals for such purchases will generally not be granted unless the redevelopment will result in an increase in the housing stock in Australia. For instance, a single dwelling is demolished and two or more dwellings are built on the land. Conditions will also be attached to such approvals, including, the existing dwelling cannot be rented out prior to demolition and redevelopment; demolition of the existing dwelling and construction of new dwellings must begin by a particular date; and evidence of the completion of the new dwellings is submitted to the foreign investment review board within 30 days of receipt, either in the form of an occupancy certificate or a builder’s completion certificate.
A foreign person who fails to apply and receive approval from the foreign investment review board before acquiring an interest in residential land may receive a maximum fine of $135,000 or 3 years’ imprisonment, or both. The foreign person may also receive a maximum fine of the greater of 10% of the consideration of the residential land acquisition; or 10% of the market value of the interest in the relevant residential land as a civil penalty. A temporary resident who acquires more than one or a foreign person who is not a temporary resident who acquires an established property may also receive a maximum fine of the greatest of the amount of capital gain that was made or would be made on the disposal of the established property; 25% of the consideration for the acquisition of the established property; or 25% of the market value of the established property as a civil penalty.
A foreign person who contravenes a condition in an approval notification or an order issued by the foreign investment review board may receive a maximum fine of $135,000 or 3 years’ imprisonment, or both. The foreign person may also receive a maximum fine of the greatest of the amount of capital gain that was made or would be made on the disposal of the property; 25% of the consideration for the acquisition of the property; or 25% of the market value of the property as a civil penalty for contravening a condition attached to an approval notification.
The foreign person may also receive a disposal order requiring him to sell the property by a certain date. Third parties who assisted the foreign person in the purchase of the property and contravention of the Act may also be prosecuted and penalised.
Copyright © 2016 Nelson Lok Him Shum
In 2011, the Federal Court of Australia held that Andrew Bolt (host of the television show The Bolt Report) had breached Section 18C of the Racial Discrimination Act by writing and publishing articles that made the imputations that fair-skinned Aboriginal people were not genuinely Aboriginal and have consciously and deliberately chosen to identify themselves as Aboriginal so that they can obtain career opportunities and political activism available to Aboriginal people.
Section 18C of the Act prohibits a person from doing an act, other than in private, if the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. Section 18D of the Act provides exemptions if anything said or done was reasonable and in good faith and was in the performance, exhibition or distribution of an artistic work; or in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest.
In his judgment, Justice Bromberg held that Andrew Bolt had unlawfully made imputations in his articles that were reasonably likely, in all the circumstances, to have offended, insulted, humiliated or intimidated fair-skinned Aboriginal people by conveying the message that they were not sufficiently of Aboriginal race, colour or ethnicity to be identified as Aboriginal. Neither were the articles exempt under Section 18D of the Act, as the articles were held to have contained errors of fact, distortions of truth and inflammatory and provocative language. In particular, the articles were held not to have been written reasonably or in good faith for publication of a fair comment or in the course of any statement, publication or discussion, made or held for a genuine purpose in the public interest.
Contrary to what Andrew Bolt presented as facts in his articles, Justice Bromberg found that the fair-skinned Aboriginals referred to in the articles have been raised and identified themselves as Aboriginals since childhood, and have not consciously or deliberately identified themselves as Aboriginals in order to obtain benefits available to Aboriginal people.
Justice Bromberg further held in his judgment that Part IIA of the Act, which includes Sections 18C & 18D of the Act, is infused by the values of human dignity and equality and has the objective of promoting racial tolerance and protecting against the dissemination of racial prejudice. Justice Bromberg said that the articles may have been read by some people susceptible to racial stereotyping and the formation of racially prejudicial views and that, as a result, racially prejudiced views have been reinforced, encouraged or emboldened. Justice Bromberg stated that he had also taken into account the silencing consequences upon freedom of expression involved in the Court making a finding of contravention.
After the judgment was handed down in 2011, the Liberal/National Coalition that was the opposition party in government pledged to amend or repeal Section 18C of the Act. When the Liberal/National Coalition was elected into government in 2013, they intended to make good on their promise. The Attorney-General George Brandis claimed that people had the “right to be a bigot”. However, the government abandoned their plans to amend or repeal Section 18C of the Act in 2014. Tony Abbott, the then Prime Minister of Australia, said that “I don’t want to do anything that puts our national unity at risk”, and “I’m a passionate supporter of free speech and if we were starting from scratch with section 18C we wouldn’t have words such as offend and insult in the legislation. But we aren’t starting from scratch. We are dealing with the situation we find ourselves in and I want the communities of the country to be our friend not our critic”.
Recently, newly elected senators David Leyonhjelm of the Liberal Democrats and Malcolm Roberts of the One Nation Party have expressed that they support the removal of Section 18C of the Act, claiming that the section curbs free speech. The One Nation Party, led by Pauline Hanson, is particularly notorious for their election platforms based on race and immigration issues. Pauline Hanson has in the past claimed that multiculturalism has failed and called for a halt to Asian immigration to Australia, and is currently seeking a Royal Commission into Islam and is calling for a stop to further Muslim immigration.
Saying that Section 18C of the Act curbs free speech is not wrong. As Justice Bromberg had noted in his judgment, Part IIA of the Act is intended to regulate conduct which stimulates contempt or hostility between groups of people within the community by lowing regard for, and demeaning the worthiness of, the person or persons subjected to the conduct; or as seeking to eliminate racial discrimination; and as seeking to promote racial tolerance. In other words, Section 18C curbs speech that is racially discriminatory and seeks to promote racial intolerance.
The intention of those who propose to repeal Section 18C of the Act is not clear. They are not those normally subjected to racial discrimination or intolerant speech, but are holding themselves out as protectors of free speech. Repealing Section 18C of the Act will remove an important protection for minority groups against racially discriminatory and intolerant speech in Australia.
Copyright © 2016 Nelson Lok Him Shum
In 2011, the states and territories of Australia, including Queensland, adopted Schedule 2 of the Competition and Consumer Act 2010 enacted by the Federal Government to replace the existing consumer protection laws in each state and territory. Such consumer protection laws are now known as the Australian Consumer Law (ACL) and applies uniformly throughout the states and territories of Australia. Before the adoption of the ACL, each state and territory enacted their own consumer protection laws such as the Fair Trading Act 1989 in Queensland. The ACL does not substantially alter the rights of consumers that existed in the consumer protection laws of the states and territories, but rather seeks to provide clarity and uniformity in the consumer protection laws of Australia. Actions for breach of the ACL may be commenced in an Australian court or tribunal. Complaints can also be made to the Australian Competition & Consumer Commission (ACCC) established by the Federal Government and the Fair Trading Office of states and territories for any breach of the ACL.
The ACL provides broad protections to consumers under the main categories of general protections and specific protections. General protections include provisions protecting consumers from misleading or deceptive and unconscionable conduct of suppliers of goods and services, and by the nullification and voiding of unfair contract terms.
Specific protections are more numerous and include provisions that prohibit suppliers of goods and services from making false and misleading representations about goods or services, making false or misleading representations about sale etc. of land, misleading conduct relating to employment, offering rebates, gifts, prizes etc. in specific situations, misleading conduct as to the nature etc. of goods, misleading conduct as to the nature etc. of services, bait advertising, wrongly accepting payments and misleading representations about certain business activities.
Specific protections also include protections afforded to consumers against unsolicited cards etc., assertion of right to payment for unsolicited goods or services, liability etc. of recipient for unsolicited goods, liability of recipient for unsolicited services, assertion of right to payment for unauthorised entries or advertisements, participation in pyramid schemes, multiple pricing, referral selling and harassment and coercion.
Specific protections also impose guarantees upon suppliers of goods and services. The guarantees that are required to be given by suppliers relating to goods include a guarantee as to title, guarantee as to undisturbed possession, guarantee as to undisclosed securities etc., guarantee as to acceptable quality, guarantee as to fitness for any disclosed purpose etc., guarantee relating to supply of goods by description, guarantees relating to the supply of goods by sample or demonstration model, guarantee as to repairs and spare parts and guarantee as to express warranties. The guarantees given by suppliers relating to the supply of services include a guarantee as to due care and skill, guarantee as to fitness for a particular purpose etc. and guarantee as to reasonable time for supply.
Specific protections also seek to protect consumers from and regulate the making of unsolicited consumer agreements and lay-by agreements.
The ACL also requires suppliers to provide proof of transaction etc. for goods or services totalling $75 or more, a consumer with an itemised bill upon request and, if applicable, warranty documents that comply with regulations.
Under the ACL, safety standards may be imposed on consumer goods and product related services. Consumer goods and product related services must comply with the relevant safety standards. Consumer goods and product related services that will or may cause injury to any person may receive an interim or permanent ban. An interim ban may be upgraded to a permanent ban. Suppliers may also be issued with a recall notice requiring a compulsory recall of consumer goods, or the supplier may voluntarily recall consumer goods. Safety warning notices may also be issued in respect of consumer goods and product related services. Suppliers are required to report consumer goods associated with the death or serious injury or illness of any person.
Under the ACL, information standards may be imposed on goods and services. Goods and services must comply with the relevant information standards.
Under the ACL, a consumer can take action against a manufacturer of goods that have a safety defect if he suffered injuries because of the safety defect. A person who was not injured but nevertheless suffered loss or damage due to someone else being injured by goods that have a safety defect may also take action against the manufacturer of such goods. A person who suffered loss or damage due to other goods, land, buildings or fixtures being destroyed or damaged due to goods that have a safety defect may also take action against the manufacturer of such goods. Actions against manufacturers of defective goods must be commenced within the specified period of time.
Suppliers of goods and services may be prosecuted for a breach of the ACL. As mentioned above, complaints against a breach of the ACL may be made to the ACCC or the Fair Trading Office of a state or territory. Most offences will attract a maximum penalty of $1,100,000 for corporations and $220,000 for an individual. Suppliers may be ordered by a court to pay compensation to consumers for loss or damage caused by the supplied goods and services.
Copyright © 2016 Nelson Lok Him Shum
Persons who hold government office will often be required to make decisions. These decisions may affect those who are, for example, seeking permission to do something from the government, such as clear land, serve food or alcohol at an establishment or obtain public housing. Or the decision may be the cancelling of someone’s permission to do something, such as drive a motor vehicle or keeping a regulated breed of dog as a pet. When a government official makes a decision, the decision is expected to be made in accordance with the relevant law. The relevant law may provide that the government official must consider certain matters before making his or her decision. If the relevant law does not provide matters that the government official must take into account before making his or her decision, then the government official must make his or her decision reasonably and rationally.
Complaints concerning the decisions of government officials in Queensland may be made to the Queensland ombudsman. The Queensland ombudsman has power to investigate decisions made by Queensland government officials. The Queensland ombudsman can prepare and deliver a report and recommendations to the relevant government department after carrying out an investigation. However, the Queensland ombudsman cannot quash a decision made by a government official, refer the decision back to the decision maker to be reconsidered or vary the decision.
A person who is affected by a decision made by the Queensland government can have the decision reviewed judicially, that is, by the court system in Queensland. Such a review of a government decision is known as “Judicial Review”. Judicial reviews of decisions made by the Queensland state government is governed by the Judicial Review Act 1991.
The power of courts to review the decisions made by government officials have existed under the common law. Traditionally, the remedies granted by the court are known as “prerogative writs” including certiorari, prohibition and mandamus. A writ of certiorari is granted to quash a decision made by a government official, particularly if the government official lacks authority to make the decision. A writ of prohibition stops a government official from doing an act. A writ of mandamus compels a government official to carry out an act.
The Judicial Review Act codifies the rules concerning judicial review under the common law and sets out the procedures by which judicial review is conducted in Queensland.
In Queensland, decisions made by government officials that are subject to review by the courts include the making, suspending, revoking or refusing to make an order, award or determination; giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; or imposing a condition or restriction; or making a declaration, demand or requirement; retaining, or refusing to deliver up, an article; or doing or refusing to do anything else. The making of a report or recommendation by a government department is also a decision that can be reviewed.
A person aggrieved by a decision made by government can apply for a review of the decision. The grounds for applying for a review of the decision include that a breach of the rules of natural justice happened in relation to the making of the decision; that procedures that were required by law to be observed in relation to the making of the decision were not observed; that the person who purported to make the decision did not have jurisdiction to make the decision; that the decision was not authorised by the enactment under which it was purported to be made; and that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made.
A person who expects the government to make a decision within a certain period of time can also apply for a review of the failure of the government to make the decision. The government may be under a time limit to make a decision or there may not be a time limit. If there is no time limit as to when the decision must be made, the failure to make a decision can be reviewed on the basis that there has been an unreasonable delay in making the decision.
If a review of a decision is based on an improper exercise of power by a government official, the matters that the court can consider include taking an irrelevant consideration into account in the exercise of a power; failing to take a relevant consideration into account in the exercise of a power; and an exercise of a power for a purpose other than a purpose for which the power is conferred.
An application for review of a decision must generally be made within 28 days from the date of the making of the decision (if the notification is accompanied by a statement of reasons) or within 28 days after the decision maker gives a statement of reasons to the applicant.
The court has power to quash or set aside a decision, or part of a decision; refer the matter back to the decision maker for consideration; declare the rights of the parties in relation to any matter to which the decision relates; or an order directing any of the parties to do, or to refrain from doing, anything the court considers necessary to do justice between the parties. If the review is in relation to the government’s failure to make a decision, the court can direct the government to make a decision.
Copyright © 2016 Nelson Lok Him Shum
Many law firms in Australia specialise in personal injury cases. Some of these law firms are even large publicly listed companies, such as Slater & Gordon and Shine Lawyers. To attract clients who do not want the initial burden of paying for legal fees and expenses or may have financial difficulties, law firms may offer to take on a personal injury case on a “No Win No Fee” basis. Such law firms will instead deduct their fees and expenses from the compensation payable to their client. The clients of such law firms may be required to agree that, in the event of a dispute over the amount of their law firm’s legal fees and expenses, the legal fees and expenses will be assessed by an independent third party to be nominated by their law firm. The legal fees and expenses incurred by these law firms may be as high as 50% of the total compensation payable to the client. Contingency fee agreements i.e. taking a percentage of a client’s compensation are illegal in Queensland.
Anyone who is injured through the negligence of another person may seek compensation. Typical situations include being injured by slipping on a puddle of water in a shopping centre, in a car accident caused by someone who was driving carelessly or dangerously, a doctor mistreating an illness, getting hit by a remote controlled helicopter or drone and getting pushed over by someone. Employers may be liable for injuries suffered by an employee during the course of employment and for failing to provide a safe workplace.
For a personal injury claim to be successful, the claimant must prove that the respondent owes the claimant a duty of care, the respondent breached the standard of care, the respondent caused the injury and, as a result of the injury, the claimant suffered loss and damage.
A duty of care is a legal concept that places a legal obligation on a person to ensure that he does not cause harm to others. Examples of a duty of care that is imposed by the law on a person includes the duty of care owed by a doctor to a patient, by a driver to other drivers on the road and by a restaurant to its patrons. A respondent is only liable to the claimant for personal injury if the respondent owed a duty of care to the claimant.
The standard of care is also a legal concept and is the amount of care expected of the respondent when carrying out the activity that caused the injury to the claimant. For instance, the standard of care expected of a driver on the road is that the driver would take care to obey the speed limit, not drive dangerously and be wary of other drivers on the road. The respondent would only be considered negligent and liable to the claimant for personal injury if he breached the standard of care by failing to exercise the amount of care expected of him or her.
The claimant is required to prove that the respondent caused his injury. The injury may have been caused directly by the respondent. For instance, by a surgeon that operated on the patient or by a driver that hit a pedestrian. The injury may also have been caused indirectly. For instance, by someone accidently setting off a fire alarm in a crowded night club resulting in people being injured in the ensuing stampede for the exit. The respondent is only liable to pay compensation to the claimant if the claimant proves that the injury suffered by the claimant is caused by the respondent. If the claimant had partly contributed to his own injury, for instance, the claimant had also been driving carelessly which resulted in the accident that caused his injury, the compensation payable by the respondent may be reduced.
The claimant must prove that he has suffered loss or damage as a result of his injuries. Loss or damage can include pain and suffering, loss of enjoyment of life, medical expenses and loss of income. A medical specialist can provide an assessment of the loss or damage suffered by the claimant. A claimant should attempt to mitigate his loss or damage as much as possible, for instance, by seeking treatment for his injuries as soon as possible and working other jobs if he is unable to continue in his present job. The compensation payable to a claimant may be reduced if the claimant failed to mitigate his loss or damage.
A personal injury claim must be commenced within 3 years from the date that the claimant suffered the injury. The procedure for personal injury claims in Queensland is created to encourage settlement of the claim prior to the commencement of a court action. However, the procedure also lengthens the time required to get to the trial of a personal injury action and incurs additional costs. Generally, the claimant must give the respondent notice of the claim within 9 months from the date that the claimant suffered the injury. The notice of the claim is followed by a response from the respondent and a compulsory conference between the parties. A court action cannot be commenced unless the compulsory conference has been held or dispensed with by the parties or by the court.
Copyright © 2016 Nelson Lok Him Shum
Every society on earth has its own version of criminal law. Human societies in general are in agreement that certain acts are repugnant to members of society and should be punished if carried out. Often the punishment will also serve as a deterrent to those who wish to carry out the act. A classic example is the act of “murder”. While the punishment may vary between societies, the act of murder is universally classified as a punishable act. These punishable acts are now known as “criminal offences”. All modern legal systems in today’s societies have compiled its own list of criminal offences together with the punishments for carrying out the criminal offences and the procedure by which a person may be found guilty of having carried out a criminal offence in what is known as “criminal law”.
Criminal laws vary between different jurisdictions, for instance, different criminal laws exist in each state in Australia and the Federal Government of Australia have enacted its own criminal laws. Despite the variations between criminal laws in each jurisdiction, there are common features among them that are more or less the same. For instance, each jurisdiction will have a police force tasked with enforcing its criminal laws. The police force will be given powers to arrest a person suspected of having committed a criminal offence and to investigate and gather evidence in relation to the commission of a criminal offence. Prosecution of the criminal offence is usually conducted by the Director of Public Prosecutions of the Department of Justice or its equivalent in each jurisdiction. The court system is used to determine whether a person is guilty of having committed a criminal offence and to hand down the sentence for a person found guilty of having committed a criminal offence.
Under the criminal law in Australia, a person is presumed to be innocent until proven guilty. In accordance with that principle, a person suspected of committing a criminal offence is entitled to be free whilst awaiting trial for the offence, unless there are reasons why the person should remain in custody including a likelihood that the person will abscond and not be present for the trial. If a person awaiting trial remains in custody and is found guilty of committing a criminal offence and receives a custodial sentence, the length of the custodial sentence will be shortened by the length of time that the person had already spent in custody prior to the trial.
A person suspected of committing a criminal offence is also entitled to remain silent up to and at the trial of the offence. No negative imputations may be made by the prosecution concerning an accused person’s election to remain silent. The rationale behind the right of an accused person to remain silent is that it is up to the prosecution to prove that the accused person is guilty of having committed a criminal offence and should not be up to the accused person to prove his own innocence. A requirement that the accused person must prove his own innocence will place an overly onerous burden on the accused, especially if the accused remains in custody pending trial or has limited resources with which to prove his innocence.
Different jurisdictions around the world will have roughly the same criminal offences. However, there are differences, for example, the use of cannabis in Australia is a criminal offence whereas, in the Netherlands, limited use of cannabis will not attract criminal sanctions. These differences may be attributed to how societies view the seriousness of each act, which can change over time. For example, adultery was traditionally a criminal offence under the common law, however in most common law countries, it is no longer a criminal offence. In predominantly Muslim countries such as Saudi Arabia, adultery remains a punishable offence.
Sentences for the commission of criminal offences can also be different between jurisdictions. For instance, premeditated murder in Queensland carries a sentence of life imprisonment whereas, in Indonesia, premeditated murder carries a death sentence. Drug trafficking is also a criminal offence punishable by death in Indonesia, as illustrated by the recent executions of Myuran Sukumaran and Andrew Chan for drug trafficking in Indonesia whereas, in Queensland, drug trafficking carries a sentence of 20 or 25 years’ imprisonment depending on the drug involved. Capital punishment i.e. death sentence for criminal offences have been abolished in Australia, however it still exists in jurisdictions such as China, Indonesia and around 31 states in the United States of America.
A person who is charged with committing a criminal offence will have an opportunity to plead either guilty or not guilty. An accused person who pleads guilty early may receive a discount on the sentence to be handed down by the court. The discount will reflect the time and resources saved by the prosecution and their witnesses for not having to prove the guilt of the accused person. The accused person may not receive a discount if he pleads guilty just prior to or during the trial as substantial resources would have been expended by the prosecution in preparation for the trial.
A person who is found guilty of a criminal offence will usually have a conviction recorded in his criminal history. The courts may have a discretion to not record a conviction, which will only be exercised if there are good reasons for doing so.
Copyright © 2016 Nelson Lok Him Shum
Australian employment law provides broad protections and rights to employees. In addition to the employment standards that employers must adhere to, the Fair Work Commission (FWC) established by the Australian Federal Government can make Modern Awards and facilitate the making of Enterprise Agreements that tailors the protections and rights to be provided to employees in each industry. As from 2010, Queensland has moved from being governed by state based employment laws to a national system of employment laws under the Federal Fair Work Act 2009.
The Fair Work Act 2009 sets a number of minimum standards applicable to the employment of employees in Australia. The minimum standards are otherwise known as “The National Employment Standards” and relate to maximum weekly hours; requests for flexible working arrangements; parental leave and related entitlements; annual leave; personal/carer’s leave and compassionate leave; community service leave; long service leave; public holidays; notice of termination and redundancy pay; and fair work information statement. Modern Awards and Enterprise Agreements cannot set standards for employment that are lower than the minimum standards unless provided for by legislation.
An employee may not be requested to work more than 38 hours a week unless the additional hours are reasonable. Whether or not the additional hours are reasonable will depend on any risk to the employee’s health and safety from working the additional hours; the employee’s personal circumstances, including family responsibilities; the needs of the workplace or enterprise in which the employee is employed; whether the employee is entitled to receive overtime payments; penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours; any notice given by the employer of any request or requirement to work the additional hours; any notice given by the employee of his or her intention to refuse to work the additional hours; and other factors and relevant matters.
Modern awards and enterprise agreements may provide for averaging of hours of work over a specified period, however the average weekly hours that an employee works cannot exceed 38 hours unless the excess hours are reasonable. For instance, if the specified period is two weeks, an employee may work 52 hours in the first week but in the next week the employee may work no more than 24 hours unless any excess hours are reasonable.
A non-casual employee who has completed 12 months of continuous service with an employer or a long term casual employee of an employer may request a change in working arrangements if the employee is the parent, or has responsibility for the care, of a child who is of school age or younger; the employee is a carer; the employee has a disability; the employee is 55 or older; the employee is experiencing violence from a member of the employee’s family; or the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family. An employee who is a parent, or has responsibilities for the care, of a child; and is returning to work after taking leave in relation to the birth or adoption of the child may request to work part-time. The employer may only refuse such requests on reasonable grounds.
A non-casual employee who has completed 12 months of continuous service with an employer or a long term casual employee of an employer is generally entitled to 12 months of unpaid parental leave. The leave must be taken in a single continuous period. An employer may request a pregnant employee to take unpaid parental leave within 6 weeks before the expected birth of the child. The period of unpaid parental leave may be extended upon a request made by the employee. A female employee may also be entitled to be transferred to a safe job while pregnant, and unpaid special maternity leave. An employee may be entitled to 2 days of unpaid pre-adoption leave to attend any interviews or examinations required in order to obtain approval for the adoption of a child.
For each year of service with his or her employer, an employee is entitled to 4 weeks of paid annual leave; or 5 weeks of paid annual leave if the employee is a shiftworker covered by a modern award, enterprise agreement or regulations. The paid annual leave may be taken for a period agreed between an employee and his or her employer. The employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave. When the employment ends, the employer is required to pay the employee any untaken paid annual leave. In certain circumstances, any untaken paid annual leave may be cashed out by agreement between the employer and the employee.
A non-casual employee is entitled to 10 days of paid personal/carer’s leave for each year of service with his or her employer. An employee may take paid personal/carer’s leave if the leave is taken because the employee is not fit for work because of a personal illness; or personal injury, affecting the employee; or to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of a personal illness, or personal injury, affecting the member; or an unexpected emergency affecting the member. Paid personal/carer’s leave may not be cashed out unless provided for under a modern award or enterprise agreement. An employee is also entitled to 2 days of unpaid carer’s leave for each occasion when a member of the employee’s immediate family, or a member of the employee’s household, requires care or support because of a personal illness, or personal injury, affecting the member; or an unexpected emergency affecting the member. An employee may also be entitled to 2 days of compassionate leave if, for instance, a family member passed away.
Copyright © 2016 Nelson Lok Him Shum
An employee who engages in an eligible community service activity is entitled to be absent from his or her employment for periods of time consisting of the time the employee engages in the activity; reasonable travelling time associated with the activity; reasonable rest time immediately following the activity; and unless the activity is jury service-the employee’s absence is reasonable in all circumstances. An eligible community service activity includes jury service; a voluntary emergency management activity; or an activity prescribed in regulations. An employee required or intending to engage in an eligible community service activity must give notice to his or her employer as soon as practicable. Non-casual employees on jury service must be paid their usual rate of pay for their first 10 days of absence.
An employee may be entitled to long service leave in accordance with terms under an applicable award. Workplace and enterprise agreements may also provide an employee with long service leave.
An employee is entitled to be absent from his or her employment on a public holiday. However, an employer may request that an employee work on a public holiday if the request is reasonable. Whether or not a request to work on a public holiday is reasonable will depend on the nature of the employer’s workplace or enterprise (including its operational requirements) and the nature of the work performed by the employee; the employee’s personal circumstances, including family responsibilities; whether the employee could reasonably expect that the employer might request work on the public holiday; whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday; and other factors and relevant matters. An employee is entitled to receive payment for being absent on a public holiday.
An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given). The required length of time between giving the notice and the day of the termination will depend upon the age of the employee and how long the employee has been under the employment of the employer. For instance, an employee who is under 45 years of age and has been employed for not more than 1 year is entitled to one week’s notice of termination. An employee may receive the full rate of pay in lieu of notice.
A Modern Award or Enterprise Agreement may include terms specifying the period of notice an employee must give in order to terminate his or her employment.
If an employee’s employment is terminated at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or because of the insolvency or bankruptcy of the employer, an employee is entitled to redundancy pay. The amount of the redundancy pay will depend on how long the employee has been in the employment of the employer. For instance, an employee who has been employed for at least one year but less than two years is entitled to 4 weeks’ redundancy pay. In certain circumstances, the amount of redundancy pay may be reduced or an employer may be excluded from the obligation to pay redundancy pay.
A period of notice for termination may not be applicable if, for instance, an employee’s employment was terminated because of a serious misconduct. Redundancy payments may not be applicable if, for instance, an employee is an apprentice.
The Fair Work Commission (FWC) established by the Australian Federal Government can make, vary and revoke Modern Awards. Modern Awards may set minimum terms and conditions for employees in particular industries or occupations. However, the minimum terms and conditions set under a Modern Award may not be lower than the National Employment Standards. A Modern Award may set a minimum wage and provide additional remuneration for employees working overtime; or employees working unsocial, irregular or unpredictable hours; or employees working on weekends or public holidays; or employees working shifts. The FWC is required to periodically review the terms of a Modern Award and to vary or revoke such terms and conditions as necessary.
Enterprise Agreements are entered into between an employer and its employees and provides terms and conditions in addition to those provided under the National Employment Standards and a Modern Award, if applicable. Enterprise Agreements must be approved by the FWC and must leave employees better off overall. An employee cannot be worse off under an Enterprise Agreement than under a Modern Award. For instance, the base rate of pay for employees under an Enterprise Agreement cannot be lower than the rate under the applicable Modern Award or the national minimum wage order rate. An Enterprise Agreement can be varied or terminated by agreement between the employer and its employees, subject to approval by the FWC.
The Fair Work Act may not be applicable to Queensland government employees.
Copyright © 2016 Nelson Lok Him Shum
Companies have existed in western countries as early as the 16th century and were used by merchants to combine their capital for commercial ventures. One of the earliest and most successful companies in the world was the East India Company. The East India Company dominated world trade and infamously smuggled opium into China during the 18th and 19th centuries, which led to the opium wars being fought between China and Britain. A company is a legal construct. It does not exist outside of the law. The law gives a company a legal identity, rights and obligations. Like an individual, a company has a name and can, amongst other things, operate a business and sell and purchase property. A company exists primarily as a commercial enterprise. However, some companies may exist as not for profit organisations such as charities, clubs and associations.
Many countries have laws that provide for the incorporation of companies. Typically, where a company is incorporated is where it resides and is domiciled, and is where its registered office is located. Where a company resides and is domiciled may be important for taxation purposes. The British Virgin Islands and Cayman Islands are popular residences for companies and many companies are incorporated in those jurisdictions due to their tax haven status. Companies that were incorporated in one country may generally be registered in another country. Foreign companies that intend to carry on business in Australia must be registered with the Australian Securities and Investments Commission (ASIC) in Australia.
Australian corporations law is comprehensive, applies throughout Australia and is administered by ASIC. ASIC is responsible for keeping a register of companies incorporated in Australia and foreign companies carrying on business in Australia. In addition to providing for the incorporation of companies in Australia, Australian corporations law also, amongst other things, sets out how companies are run, the duties of directors and the rights of shareholders. Australian corporations law also sets out the procedures by which a company may be wound up or deregistered.
A company is run by two groups of people in accordance with the constitution of the company. The constitution of a company (previously referred to as the Memorandum and Articles of Association) are rules by which a company is run. Companies that have a sole director and shareholder are not required to adopt a constitution. The two groups of people that govern a company are the directors and shareholders of a company.
The shareholders are the owners and investors of the company. As owners and investors of the company, the rights of shareholders including a right to vote at the general meetings of, appoint the directors of and receive dividends declared by the company. Shareholders can and often appoint themselves as directors of the company, and this is especially common in companies that operate small to medium businesses. Shareholders may enter into a shareholders’ agreement to set out the rights and obligations between the shareholders of the company. Typically, a shareholders’ agreement will stipulate when the shareholders are expected to inject additional capital into the company and in what proportions, how many directors each shareholder may appoint to the board of directors and the mechanism for resolving any deadlocks in decision making in the company. The shareholders do not have a right to manage and do not generally have a right to inspect the books of the company.
The directors are the managers of the company. The directors are often referred to as a board of directors. The directors are appointed and removed by the shareholders. Despite being appointed by the shareholders of the company, the directors are accountable to and owe their directors’ duties to the company rather than to the shareholders. The duties that directors owe to the company include a duty of loyalty, a duty of care, a duty to avoid conflicts of interest and a duty to act in the best interests of the company. A shareholder may be appointed as a director of the company. A director of a company may receive remuneration for his or her work in the company.
A company will either be limited by shares or by guarantee. A company limited by shares is a company by which the liability of the shareholders for the debts of the company is limited to the value of their shareholding in the company. A company limited by guarantee is a company by which the liability of the members is limited to the amount the members have undertaken to contribute in the event that the company is wound up. A trading company is usually limited by shares whilst a company that is a not for profit organisation is usually limited by guarantee.
A company can be wound up voluntarily or compulsorily. Company shareholders may pass a special resolution to wind up a company voluntarily. A creditor may apply to the courts to wind up a company compulsorily on a failure of that company to pay its debt. A minority shareholder may also apply to the courts to wind up a company on the basis of unfairly prejudicial conduct by the majority shareholders. Upon winding up, a liquidator may be appointed to sell the assets of the company to pay its creditors and finally to distribute the residual to the shareholders in proportion to their shareholding. The company may be deregistered afterwards.
Copyright © 2016 Nelson Lok Him Shum
One of the most progressive and contentious area of law is human rights. Although many countries agree that human beings should have basic unalienable rights, the extent of these rights and how these rights are enforced is still being debated around the world. Recently, many countries including the United States and China have been accused of human rights abuses. China, due to government crackdown on protestors and its treatment of prisoners, and the United States, also due to its treatment of prisoners, particularly those detained at Guantanamo Bay detention camp. Even Australia has recently been accused of human rights abuses in relation to its treatment of refugees. In keeping with international obligations, many states are signatories to human rights instruments that sets out internationally recognised human rights. A number of states have adopted a bill of rights that enshrines human rights into law. Despite having established the Australian Human Rights Commission (AHRC) as early as 1986 which investigates human rights abuses in Australia, Australia has not formally adopted a bill of rights. Instead the AHRC investigates breaches of a number of anti-discrimination legislation in Australia.
Hong Kong adopted a bill of rights in 1991 known as the Hong Kong Bill of Rights Ordinance 1991. The Hong Kong Bill of Rights contains 23 articles dealing with entitlement to rights without distinction; right to life; no torture or inhuman treatment and no experimentation without consent; no slavery or servitude; liberty and security of person, rights of persons deprived of their liberty; no imprisonment for breach of contract; liberty of movement; restrictions on expulsion from Hong Kong; equality before courts and right to fair and public hearing; rights of persons charged with or convicted of criminal offence; no retrospective criminal offences or penalties; right to recognition as a person before the law; protection of privacy, family home, correspondence, honour and reputation; freedom of thought, conscience and religion; freedom of opinion and expression; right of peaceful assembly; freedom of association; rights in respect of marriage and family; rights of children; right to participate in public life; equality before and equal protection of law; and rights of minorities. The articles are based on those contained in the International Covenant on Civil and Political Rights (ICCPR), a human rights treaty extended to Hong Kong by the United Kingdom which China has declared will continue to be in force in Hong Kong following the handover in 1997.
Although not part of Australian law, the ICCPR is one of a number of the human rights instruments to be taken into account in the drafting of legislation in Australia. The Human Rights (Parliamentary Scrutiny) Act 2011 helps to ensure that the legislation enacted by the Federal parliament are compatible with a number of specified internationally recognised instruments on human rights including the ICCPR. The state of Victoria Charter of Human Rights and Responsibilities Act 2006 serves a similar purpose but at a state level. The ICCPR and a number of other human rights instruments are treaties entered into between sovereign nations to agree on human rights and to adopt human rights into law.
The first modern human rights instrument can be said to be the Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1948. The instrument was adopted in direct response to the atrocities committed during World War 2, in particular, the atrocities committed during The Holocaust. Subsequent human rights treaties entered into between nations include the aforesaid ICCPR; Convention on the Elimination of All Forms of Racial Discrimination; International Covenant on Economic, Social and Cultural Rights; Convention on the Elimination of All Forms of Discrimination Against Women; Convention on the Rights of the Child, Convention on the Rights of Persons with Disabilities and Convention relating to the Status of Refugees. Not all states are signatories to human rights instruments, and not all signatories have ratified human rights instruments in their respective states. For instance, Singapore is not a signatory to the ICCPR and China is a signatory of the ICCPR but has not ratified it.
Human rights instruments recognise different human rights. For instance, the human rights recognised in the ICCPR include the right of self-determination for all peoples (which includes the right to freely determine their political status and freely pursue their economic, social and cultural development); men and women to have equal civil and political rights; the inherent right to life for every human being; not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment; not to be held in slavery; not to be required to perform forced or compulsory labour; right to liberty and security of person (not to be subjected to arbitrary arrest or detention); all persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human being; not to be imprisoned merely on the ground of inability to fulfil a contractual obligation; liberty of movement and freedom to choose his residence; to be free to leave any country including his own; all persons to be equal before the courts and tribunals; in criminal actions to be entitled to a fair and public hearing; everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law; not to be compelled to testify against himself or to confess guilt; not to be held guilty of any criminal offence which did not constitute a criminal offence at the time it was committed; and everyone shall have the right to freedom of thought, conscience and religion.
Human rights are now enshrined in legislation around the world. A number of treaty-based bodies have been formed including The Committee on Economic, Social and Cultural Rights of the United Nations to monitor human rights abuses. Private bodies such as Amnesty International campaigns for human rights and also monitors human rights abuses around the world.
Copyright © 2016 Nelson Lok Him Shum
It is a long established notion that competition between businesses can result in more innovative and fairer prices for goods and services. As such, governments around the world have enacted laws that prevent businesses from engaging in anti-competition activity. Examples of anti-competition behaviour include collusion and the forming of cartels. Monopolies i.e. businesses that dominate a market are also a particular focus for competition laws as a business that is in a monopoly position can in many instances raise the price of its goods or services indiscriminately and force competitors out of the market. In the case of United States v. Microsoft Corporation (2001), Microsoft was sued under United States antitrust law (United States competition law) for allegedly abusing its monopoly position by including an internet browser in its windows operating system, which restricted the market for competing internet browsers, such as Netscape Navigator, which were slow to download over a modem connection or had to be purchased in a store. The case was later settled after Microsoft agreed to provide information to its competitors in relation to its windows operating system.
Australian competition law is contained in Part IV of Competition and Consumer Act 2010. The main objective of Australian competition law is to prevent businesses from lessening competition in the market place by engaging in, for instance, cartel conduct, exclusive dealing, misuse of market power and acquisitions.
Under Australian competition law, a corporation commits an offence if the corporation makes a contract or arrangement, or arrives at an understanding, that contains a cartel provision. A cartel provision may have the purpose or effect of fixing the price of goods or services supplied by the corporation and the other parties to the contract or arrangement to its customers. The cartel provision may also have the purpose of restricting the supply of goods or services in the market so that the corporation and the other parties to the contract or arrangement can demand a higher price for goods or services. The cartel provision may also provide for certain parties to the contract or arrangement to refrain from supplying goods or services to certain customers so that the parties that do can demand higher prices for their goods or services. The cartel provision may also provide that if the corporation or the other parties to the contract or arrangement is requested to make a bid in relation to the supply of goods or services, certain parties may refrain from making a bid so that the parties making the bid are more likely to be successful in winning the bid. The cartel provision must have the purpose of restricting competition between the parties to the contract, arrangement or understanding in relation to the supply and acquisition of goods or services. The parties to the contract, arrangement or understanding will be cooperating rather than competing with each other in the market place.
The Organisation of the Petroleum Exporting Countries (OPEC) is a famous example of a number of intergovernmental organisation that has often been alleged of engaging in cartel activity. OPEC is made up of 14 countries that dominate the world’s oil production. OPEC countries have allegedly cooperated to reduce market competition and set production levels and prices for oil.
Australian competition law also prohibits a corporation from engaging in exclusive dealing. Exclusive dealing includes the corporation supplying goods or services to a customer on the condition that the customer does not acquire goods or services from a competitor of the corporation or from anyone else not related to the corporation. Exclusive dealing also includes the corporation that supplied the goods or services restricting the customer from re-supplying goods or services to any particular person or class of persons. Exclusive dealing also includes the corporation refusing to supply goods or services to a person for the reason that that person has acquired goods from a competitor of the corporation or that person has re-supplied goods or services acquired from a competitor of the corporation. Exclusive dealing also includes the corporation acquiring goods or services from a supplier on the condition that the supplier will not supply goods or services to a certain person or a class of persons.
Australian competition law also prohibits a corporation that has a substantial degree of power in a market i.e. a monopoly from misusing its market power. Misuse of market power includes taking advantage of a corporation’s substantial degree of power in a market for the purpose of eliminating or substantially damaging a competitor of the corporation; preventing the entry of a person into the market; or deterring or preventing a person from engaging in competitive conduct in the market. Supplying goods or services for a sustained period at below a certain price for the purpose of eliminating or substantially damaging a competitor of the corporation; or preventing the entry of a person into the market; or deterring or preventing a person from engaging in competitive conduct in the market is also a misuse of market power.
Australian competition law also prohibits acquisitions that may reduce competition in the market. Acquisitions that would result in a substantial lessening of competition are prohibited. Typically, a corporation is prohibited from acquiring shares in the capital of a body corporate or any assets of a person if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in any market. A person is also prohibited from directly or indirectly acquiring shares in the capital of a corporation or acquire any assets of a corporation if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in any market.
Complaints for anti-competition behaviour can be made to the Australian Competition and Consumer Commission.
Copyright © 2016 Nelson Lok Him Shum
A person who is granted a skilled independent visa or skilled nominated visa by the Department of Immigration and Border Protection (DIBP) can live and work in Australia as a permanent resident. The applicant must be invited to apply for these visas before an application for a visa can be made. To be eligible to apply for a visa, the person seeking to apply must have an occupation that is on the skilled occupation list (SOL) (if applying for a skilled independent visa) or consolidated sponsored occupation list (CSOL) (if applying for a skilled nominated visa) and received a positive skills assessment from the specified assessing authority. The current SOL dated 1st July 2016 includes occupations such as construction project manager, taxation accountant, mechanical engineer and agricultural consultant. A person applying for a skilled independent visa or skilled nominated visa must also be less than 50 years of age, have at least competent English and scored at least 60 points in the points test.
To receive a positive skills assessment, the applicant must nominate an occupation from the occupation list and apply to the specified assessing authority for a skills assessment. For instance, a person who nominates the occupation of agricultural consultant must apply to VETASSESS for a skills assessment. In addition to assessing the educational qualifications such as diplomas and degrees of the applicant, the assessing authority may also assess the work experience of the applicant in the nominated occupation. Depending on the criteria that the assessing authority uses, the applicant may be required to have the requisite work experience in the nominated occupation in addition to the requisite educational qualifications to receive a positive skills assessment.
A person is deemed by the DIBP to have at least competent English if the person holds a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland. A person can also be deemed to have at least competent English if the person has passed an English test at an acceptable standard specified by the DIBP. For instance, a person is deemed to have at least competent English if the person achieved a score of at least 6 in each of the four components (speaking, reading, listening and writing) in an International English Language Testing System (IELTS) test that has been undertaken within 3 years prior to the date of the application for a visa. Other applicable English tests are the Occupational English Test (OET), Test of English as a Foreign Language internet-based test (TOEFL iBT), Pearson Test of English (PTE) and Cambridge English: Advanced (CAE) test.
To be eligible to apply for skilled independent visa or skilled nominated visa, the applicant must score 60 points in the points test. The number of points a person will be awarded in the points test will depend on the person’s age, English language ability, length of employment in the nominated occupation or a related occupation, qualifications and other factors (including nomination by a state or territory if applicable). For instance, a person who is 18-24 years of age will receive 25 points and a person who is 25-32 years of age will receive 30 points. A person who has competent English receives no points but a person with superior English will receive 20 points. A person applying for a skilled nominated visa will receive 5 points for the nomination by a state or territory government.
A person who receives a nomination from a state or territory government can apply for a skilled nominated visa when invited to do so. State and territory governments have their own state or territory nomination skilled occupation lists. For instance, Queensland has a number of skilled occupation lists that represents occupations that are currently in demand in Queensland, and those persons who have an occupation on the skilled occupation lists can apply to the Queensland state government for a nomination. Those who receive a nomination from the Queensland state government and successfully obtains a skilled nomination visa must live and work in Queensland for at least two years after the visa is granted.
The occupations on the state or territory nomination skilled occupation lists are included in the CSOL. Occupations in demand in each state or territory may be different so an applicant may find that he may be able to obtain a nomination in a state in respect of his occupation but not in another state. For persons who are currently working in Queensland, the occupations by which those persons may receive a nomination from the Queensland state government include quantity surveyor, dentist, community worker and software engineer.
The skilled independent visa or skilled nominated visa may be applied for inside or outside of Australia.
In addition to being able to apply for a skilled nominated visa, the applicant may also be able to apply for a skilled regional (provisional) visa. The skilled regional (provisional) visa will permit a person to live, work and study in a specified regional area of Australia for up to four years. This visa may lead to permanent residency.
Copyright © 2016 Nelson Lok Him Shum
Business owners and investors can apply to the Department of Immigration and Border Protection (DIBP) for a Business Innovation and Investment (Provisional) Visa which permits them to travel to, enter and remain in Australia for 4 years and 3 months from the date of the grant. Applying for a Business Innovation and Investment (Provisional) Visa is a complex process and the applicant is required to supply the DIBP with information and documents concerning the applicant’s business and investment activities. The Business Innovation and Investment (Provisional) Visa offers several streams that the applicant may apply under including the Business Innovation stream, Investor stream, Significant Investor stream, Premium Investor stream and Entrepreneur stream. There are also the Business Innovation Extension stream and Significant Investor Extension stream by which the applicant may apply for an extended visa or extension to their visa. The Business Innovation and Investment (Provisional) Visa may lead to permanent residence in Australia.
To apply under the Business Innovation stream, the applicant must have been invited by the DIBP to apply for the visa. In addition, the applicant must not be 55 years of age or older. If the applicant is 55 years of age or older, the applicant may still apply if the business or investment activity proposed to be carried out by the applicant in Australia is of exceptional economic benefit to a state or territory of Australia.
The applicant must also prove matters including that the applicant has had a successful business career; in at least 2 of the last 4 years had an ownership interest in one or more businesses that had an annual turnover of at least AUD500,000 in each of those years; at the time of the invitation to apply for the visa, the business and personal assets of the applicant that can be applied to the establishment or conduct of a business in Australia have a net value of at least AUD800,000; the business and personal assets of the applicant are available for transfer to Australia within 2 years of the grant of the visa; genuinely has a realistic commitment to establish a qualifying business in Australia or participate in an existing business in Australia; and genuinely has a realistic commitment to maintain a substantial ownership interest in the qualifying business and maintain a direct and continuous involvement in the management of the qualifying business from day to day, and in the making of decisions that affect the overall direction and performance of the qualifying business, in a manner that benefits the Australian economy.
In addition, the applicant must score 65 points or more in the points test. The number of points that the applicant will obtain in the points test will depend on the applicant’s age, English language ability, qualifications, experience in business or investment, net personal and business assets, business turnover and innovation.
To apply under the Investor stream, the applicant must have been invited by the DIBP to apply for the visa. In addition, the applicant must not be 55 years of age or older. If the applicant is 55 years of age or older, the applicant may still apply if the business or investment activity proposed to be carried out by the applicant in Australia is of exceptional economic benefit to a state or territory of Australia. The applicant must score 65 points or more in the points test.
The applicant must prove matters including that the applicant has overall had a successful record of eligible investment activity or qualifying business activity; has had a total of at least 3 years’ experience of direct involvement in managing one or more qualifying businesses or eligible investments; has demonstrated a high level of management skill in relation to the eligible investment or qualifying business activity; for at least one of the 5 years immediately before the invitation to apply for the visa, the applicant maintained direct involvement in managing a qualifying business or had an ownership interest of at least 10% of the total value of the business, or the applicant maintained direct involvement in managing eligible investments and the total net value of the eligible investments was at least AUD1,500,000; for the 2 years immediately before the time of invitation to apply for the visa, the business and personal assets of the applicant had a net value of at least AUD2,250,000; and has made a designated investment of at least AUD1,500,000 in a state or territory of Australia.
To apply under the Significant Investor stream, the applicant must have been invited by the DIBP to apply for the visa. In addition, the applicant must prove matters including that the applicant has made, on or after the time of the application, a complying significant investment of at least AUD5,000,000 and the applicant has a genuine intention to hold the complying significant investment for at least 4 years.
To apply under the Premium Investor stream, the applicant must also have been invited by the DIBP to apply for the visa. In addition, the applicant must prove matters including that the applicant has made, on or after the time of the application, a complying premium investment of at least AUD15,000,000; and has a genuine intention to hold the complying premium investment for the whole of the visa period.
To apply under the Entrepreneur stream, the applicant must also have been invited by the DIBP to apply for the visa. In addition, the applicant must not be 55 years of age or older. If the applicant is 55 years of age or older, the applicant may still apply if the business or investment activity proposed to be carried out by the applicant in Australia is of exceptional economic benefit to a state or territory of Australia. The applicant must undertake, or propose to undertake, a complying entrepreneur activity in Australia.
Copyright © 2016 Nelson Lok Him Shum
Recent graduates on student visas may temporarily remain in Australia after graduation for up to 4 years if they have applied for and been granted a temporary graduate visa. The graduates can live, study and work without any restrictions during the time they remain in Australia. Over time, the graduates may be eligible for skilled migration visas, or temporary or permanent work visas.
I have already touched on skilled migration visas in a previous article.
A Temporary Work (Skilled) visa will permit the applicant to work for an approved business in Australia for up to four years. The applicant must be sponsored by an employer pursuant to a labour agreement or an approved nomination. The applicant must have a genuine intention to work in the nominated occupation, and has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. A skills assessment is required for certain trades and if the applicant holds a passport issued by a certain state. For instance, a baker who holds a passport issued by China will be required to undergo a skills assessment.
If required for the nominated occupation, the applicant must have the necessary licensing or registration. The applicant must also have proficient English language ability which can be determined by an English test (if required by the Department of Immigration and Border Protection (DIBP)).
The applicant is required to remain an employee with the approved sponsor for the life of the visa. If the applicant stops working for the approved sponsor, the applicant must within 90 days either find another employer who can act as a replacement sponsor, be granted a different visa or depart Australia.
Under the Employer Nominated Scheme, an applicant can obtain permanent residence in Australia. The applicant must be a skilled worker who wants to work in Australia and have been nominated by an approved employer in Australia. The Employer Nominated Scheme has 3 streams, namely, the Temporary Residence Transition stream, Direct Entry stream and Agreement stream.
The Temporary Residence Transition stream is for applicants who are working in Australia under a Temporary Work (Skilled) visa and were not sponsored by their employer pursuant to a labour agreement. The applicant must be holding a Temporary Work (Skilled) visa, have worked in Australia for at least two years and be nominated by their approved employer for the permanent residence visa. The nomination is required to be approved by the DIBP and the applicant must not have attained 50 years of age (unless an exemption applies). The applicant must have at least vocational English language ability.
The Direct Entry stream is for applicants who may never have worked in Australia and have been nominated for the position by an employer. The nomination is required to be approved by the DIBP and the applicant must not have attained 50 years of age (unless an exemption applies). The applicant must have at least competent English language ability. The applicant must have been assessed to have suitable skills for the nominated occupation and has been employed in the occupation for at least 3 years on a full-time basis and at the level of skill required for the occupation (unless an exemption applies).
The Agreement stream is for applicants who are sponsored by an employer under a labour agreement and have been nominated for the position by the employer. The nomination is required to be approved by the DIBP and the applicant must not have attained 50 years of age (unless the labour agreement provides that persons who have attained 50 years of age can be employed). The applicant must have qualifications, experience and other attributes that are suitable for the position. The terms and conditions of employment applicable for the position will be no less favourable than the terms and conditions that are provided or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work in the workplace to which the application relates at the same location.
The applicants under the 3 different streams are all required to hold the proper licence or registration for the nominated occupation.
Any employer in Australia can sponsor and employ skilled workers from overseas. Typically, the employer must show that the worker possesses recognised qualifications, skills and experience that is in demand in Australia and the employer is unable to employ a person who possess the required qualifications, skills and experience in Australia. The employer may also enter into a labour agreement (as mentioned above) with the Australian government that permits them to recruit a certain number of employees from overseas on a temporary or permanent basis. Labour agreements are negotiated individually with the Australian government.
Copyright © 2016 Nelson Lok Him Shum
It is possible to build your own home in Queensland instead of buying an already built home. The cost of the build will vary depending on the price of the land and the cost of constructing the house. The first thing to start off with is to purchase the land on which the house will be built. Before signing the contract for the sale and purchase of land, a solicitor should be consulted to check whether the land has any building restrictions and whether it is subject to any easement or requires an easement from adjoining land for access. The solicitor will also check government planning and zoning to determine whether it is permissible for a house to be built on the land. It is also recommended that the solicitor review the contract of sale. The buyer should check whether utilities such as water, electricity and sewage are available at the site.
Currently, first home buyers of vacant land in Queensland are eligible for a concession that gives them a discount off the amount of transfer duty payable on the purchase of land. Depending on the price of the land, the transfer duty payable after deducting the available concession could be zero.
After the land is purchased, it will be necessary to engage someone to design the house. A house can be designed by either an architect or a building designer. A building designer is licensed to design houses by the Queensland Building and Construction Commission (QBCC). Some builders may offer generic house designs. These designs may or may not be suitable for the land that was purchased. The design of the house must comply with building laws and codes, plumbing laws and codes, and sustainable housing laws in Queensland. The architect or building designer can help to ensure that no building laws or codes have been breached in the design.
Once the design has been finalised and the house plan drawn up, the house plan will require building approval from either Council or an accredited private building certifier. The building certifier will review the house plan to ensure that the design of the house complies with building laws and codes, plumbing laws and codes, and sustainable housing laws in Queensland, and lodge the building approval and certification information with Council.
A builder can be engaged to submit the house plan for building approval by a building certifier. In any event, a builder will need to be engaged for the construction of the house unless the owner of the land intends to build the house on the land as an owner builder. An owner builder must have a permit issued by the QBCC before commencing any building works. The owner builder applying for a permit must have completed an owner builder course unless an exemption is available. The permit issued to an owner builder will carry conditions such as the owner builder must only carry out work covered in the permit; anyone the owner builder engages to carry out work must be a licensed contractor; the owner builder cannot perform any occupational work such as plumbing, draining, gasfitting or pest control unless the owner building has an occupational licence; and the owner builder must have the appropriate licence to carry out any fire protection work if the cost of the work is greater than $1,100. The owner builder must also comply with various responsibilities and obligations such as erecting an owner builder sign at the site and supervising the standards of workmanship at the site. An owner builder will only be issued with one permit every six years.
The owner of the land will usually engage a builder to build the house on the land. The owner will be required to enter into a building contract with the builder. Before signing the building contract, it is recommended that the building contract be reviewed by a solicitor. The solicitor can explain to the owner the terms and conditions of the building contract, recommend any amendments to the building contract, and ensure that the owner’s rights are protected. The solicitor can also ensure that the builder is a licensed builder in Queensland.
The owner of the land should consider purchasing public liability insurance for the period that construction is taking place in case anyone is injured on site. During the construction, the certifier will conduct periodic inspections to ensure that the house is being built in accordance with the approved house plan and meets the applicable building standards. If everything goes according to plan, the building certifier will give the final approval to occupy the house.
If the owner has a complaint concerning defective building works, the owner must lodge a complaint with the QBCC before commencing legal proceedings against the builder. If the contract was entered into before 10 October 2014, the complaint must be lodged with the QBCC within 3 months of noticing a structural defect within 6 years and 3 months from practical completion for structural defects or within 7 months from practical completion for non-structural defects. For contracts entered into on or after 10 October 2014, the complaint must be lodged within 12 months of noticing a structural defect within 6 years and 3 months from practical completion for structural defects or within 12 months from practical completion for non-structural defects.
Copyright © 2016 Nelson Lok Him Shum
Multiple unit dwellings are quite prevalent in Queensland particularly on the Gold Coast and in Brisbane. The Brisbane City Council has just announced that they are planning to redevelop parts of Brisbane to increase the number of housing in the city. This will undoubtedly increase the number of multiple unit dwellings in Brisbane as the city prepares to house more people within its confines. A multiple unit dwelling is a building containing 2 or more units co-owned by its owners. Each owner is entitled to the exclusive use of an individual unit (and maybe a parking space) but they all share in the use of the common property. Depending on the facilities offered by the multiple unit dwelling, the common property may consist of the stairs, lifts, corridors, garage, gym, swimming pool and the outer walls of the building. The question with all multiple unit dwellings is who manages and maintains the common property?
The Body Corporate and Community Management Act 1997 was enacted to assist owners in managing a multiple unit dwelling. The Act governs matters including how multiple unit dwellings are managed, how costs are apportioned between owners, the adoption of by-laws, how units are rated and taxed, and how units are sold. The Act also provides a dispute resolution process for disputes arising between persons associated with the multiple unit dwelling including the owners, body corporate and body corporate manager.
To fall within the Act, the owners of the multiple unit dwelling must adopt a Community Titles Scheme for the building. This involves lodging instruments with the Land Registry including the plan of the building and a community management statement. Typically, this will be done by the developer of the multiple unit dwelling before the units of the building are sold, because one of the advantages of adopting a Community Titles Scheme is that the units of the building will be issued with its own indefeasible title so that a buyer of a unit will get a certificate of title for that unit. In addition, upon adopting a Community Titles Scheme, a body corporate will be created to manage the common property of the multiple unit dwelling, which will be run by a committee formed by the owners.
The body corporate will be registered as the owner of the common property of the multiple unit dwelling. It is a legal entity that can sue and be sued in its own right. Its functions include managing the common property, enforcing the by-laws, and carrying out other functions under the Act and the community management statement. It can also engage a body corporate manager and contractors to assist it in carrying out its functions. Similar to the board of directors of a company, the committee formed by the owners of the multiple unit dwelling acts for and makes the decisions of the body corporate. However, the owners may agree to engage a body corporate manager to carry out the functions of a committee. Both the appointment of members of the committee and the engagement of a body corporate manager are made by the owners in general meeting.
The costs of the body corporate are naturally borne by the owners of the multiple unit dwelling. The amount that each owner must contribute to the body corporate administrative fund and sinking fund will be proportionate to the lot entitlement of the unit in the contribution schedule. Each unit will be allocated a different lot entitlement in the contribution schedule reflecting the proportion of contribution attributable to the unit. For instance, if a unit is allocated 2 lots out of a total of 20 lots, the owner of the unit must pay 10% of the total amount of contributions levied by the body corporate. The administrative fund and sinking fund are used to cover the expenses of the body corporate with the sinking fund covering future payments for non-recurrent or capital expenses. The contribution schedule may be changed for time to time but must comply with the principles for deciding contribution schedule lot entitlements.
A Community Titles Scheme will often have by-laws that sets out the rules by which the common property is managed and regulates the use and enjoyment of the units, the common property and services and amenities supplied by the body corporate, and any other matters dealt with under the by-laws. For instance, the by-laws may specify which car park in the garage is attached to which unit, when the swimming pool is open for use, whether owners can attach fixtures (such as the outdoor unit of a split system air conditioning) to the outside walls, that an owner cannot become a nuisance to other owners in the building and how rubbish is disposed of in the building.
Just as a Community Titles Scheme may be adopted by the owners of the multiple unit dwelling; the Community Titles Scheme may also be terminated. Upon termination of the Community Titles Scheme, the body corporate is dissolved and the common property, along with the liabilities of the body corporate, become vested in the owners of the multiple unit dwelling.
Buyers of units in a Community Titles Scheme must be provided with a Disclosure Statement by the seller prior to entering into a contract for sale and purchase of the unit. The Disclosure Statement will contain information concerning the Community Titles Scheme including the amount of annual contributions payable by the owner of the unit. The buyer may terminate the contract if the Disclosure Statement is inaccurate and the buyer would be materially prejudiced if compelled to complete the contract and the notice of termination is given within the specified time.
Copyright © 2016 Nelson Lok Him Shum
The Holy Triad Temple is located at 32 Higgs Street, Albion in Brisbane. According to the Queensland Heritage Register, it was constructed in 1885-86 by the Cantonese community living in Brisbane. In the 1880s, sizeable numbers of Cantonese settled in Brisbane. They were most conspicuous in small businesses (particularly in Fortitude Valley and along Albert Street), and in market gardening (especially on the flats around Breakfast Creek and Eagle Farm). By 1888, Brisbane depended almost entirely on the Chinese for its supply of fresh vegetables.
The temple was constructed by the leaders of Brisbane’s five Cantonese clans to provide their people with a community focus. The opening of the temple was covered by an article published in The Brisbane Courier on 22nd January 1886. The tone of the article was condescending and contemptuous towards the Chinese and the newly constructed temple (as may have been the norm in those days) but curious and informative at the same time. The reporter describes in detail the construction and furnishings, and the ceremony for the opening of the temple. The reporter even recounted that about a dozen pigs were slaughtered and cooked for the occasion.
According to the article, the temple was constructed in the plainest English style of architecture, but the roof is essentially Chinese. The ornamental roofs of the temple were imported from China by Quong Nam Tai and Co., then Brisbane’s most prominent Chinese trading firm, and the whole triple roof was erected by Chinese artisans. Five persons (possibly one member from each of the five clans) were appointed as trustees of the temple.
The temple was opened on 21st January 1886 and remained the focus of Chinese community activity in Brisbane for nearly sixty years. Subsequently, there was a period of declining interest in and neglect of the temple, quite possibly due to the death or absence of the registered owner of the land on which the temple was erected and the trustees of the temple. During that time, the use, control and maintenance of the temple suffered and there were problems with vandalism. To address the neglect of the temple, the Chinese community formed The Chinese Temple Society for the purpose of restoring and maintaining the temple. However, the society faced the problem that the society did not own the temple grounds and, therefore, had no legal right to the control or maintenance of the temple.
The objects of The Chinese Temple Society as set out in its constitution were as follows:
To deal with the problem that the society had in respect of the temple grounds, the Governor of Queensland in pursuance of the Religious Educational and Charitable Institutions Act 1861 issued letters patent on 12th March 1964 incorporating The Chinese Temple Society into a body corporate. Although the Religious Educational and Charitable Institutions Act was repealed in 1982, The Chinese Temple Society continues to exist as a body corporate under the Associations Incorporation Act 1981. As a body corporate, The Chinese Temple Society can receive and possess lands, goods and chattels in its own name.
The Chinese Temple Society Act was enacted by the Queensland Parliament in 1964 to vest the temple grounds in The Chinese Temple Society. The Chinese Temple Society was exempt from paying any stamp duty or registration fees involved with the transfer and the issuance of the certificate of title of the land in the name of the society. This is the only instance in which the Queensland government had enacted legislation for the sole purpose of assisting the local Chinese community to preserve their place of worship and a part of their history. The government in power during that time was comprised of members of the Country/Liberal Party coalition led by Premier Frank Nicklin of the Country Party. The Country Party is now known as The National Party.
The society undertook work on the temple and it was re-opened to the public in June 1966. Together with the Chun Lo Goon temple constructed at Rockhampton and the Hou Wang temple at Atherton, The Holy Triad Temple is one of the oldest surviving temples in Queensland. A remnant of the Chinese gold miners and labourers who worked in Queensland during the second half of the 19th Century.
The Holy Triad Temple was entered into the Queensland Heritage Register on 21st October 1992. Although the focus of the Chinese community in Brisbane has shifted to places such as Fortitude Valley, and to Sunnybank and its surrounding areas, the temple remains significant as a part of the history of Chinese settlement in Brisbane.
Copyright © 2016 Nelson Lok Him Shum
Computer software is protected by copyright. Copyright law in Australia protects literary, dramatic and musical works by granting to the creator of such works the exclusive right to reproduce, publish, perform, communicate or make an adaptation of the work. Under the Copyright Act 1968, literary works include a computer program or compilation of computer programs.
A computer program is defined in the Act as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. Typically, the source code of a computer program is protected. In Data Access Corporation v PowerFlex Services Pty Ltd & Ors [1999] HCA 49, the appellant sought to argue that reserved words (commands that tell a program to do something) are computer programs. The reserved words were adopted by the Respondent in their product. The High Court of Australia held that reserved words are mere single words; none of which are a set of instructions, and so are not computer programs. However, a compression table used in the Appellant’s computer program was held to be protected, not because it was a computer program but because it was a table, or compilation, expressed in words, figures or symbols (whether or not in visible form) that was protected as a literary work under copyright law.
In Oracle America, Inc. v Google, Inc., an American case involving America copyright law, Oracle alleged that Google had infringed its intellectual property by the re-implementation of 37 Java APIs in the Android operating system. API is short for application programming interface, and the Java APIs simplify the use of the Java programming language by providing a number of subroutines and protocols. Although the United States District Court in California held that APIs can be protected by copyright, the use of the Java APIs by Google constituted “fair use” and, therefore, did not infringe the intellectual property of Oracle.
Fair use in Australian copyright law is referred to as “fair dealing”. Under the Act, if the literary, dramatic or musical works are dealt with in a way that constitute fair dealing, then the person who dealt with the works did not infringe the copyright in those works. Fair dealing is applicable in Australia if the works were used for the purpose of research or study, criticism or review, parody or satire, and reporting news. Fair use in the United States is much broader than its Australian fair dealing counter-part and is open ended. Whether fair use is applicable in any case will depend on the purpose and character of the use, including whether such use is of a commercial or is for non-profit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.
The owner of the software (the copyright holder in the software) can authorise others to use the software. This is usually done through licensing. The owner may or may not accept payment for the use of the software. Proprietary software may include an end-user license agreement (EULA), which the purchaser of the software must agree to before the software may be installed onto a computer and used. A purchaser of the software who does not agree to the EULA will usually be entitled to return the software and obtain a refund. The EULA will set out the terms of which the software may be used such as on how many computers the software may be installed on, whether the licensee may make copies of the software and re-distribute it (self-use is protected under copyright law), whether the software may be used privately or commercially, and whether alterations may be made to the software.
Suppliers of software must comply with Australian Consumer Law (ACL), including online distributors of software such as the Steam platform of Valve Corporation of the United States. Computer software is a “good” for the purposes of the ACL, and the supplier is deemed to have given to the consumer guarantees including those of acceptable quality. The purchaser of the software may be able to obtain a refund if the supplier breaches the guarantees that were deemed to have given under the ACL. The supplier of software may be prosecuted under the ACL for making misleading or deceptive representations concerning the product.
Open source software such as the linux kernel are licensed differently than proprietary software supplied by companies such as Microsoft and Apple. A number of licenses exist for open source software and it is up to the author of the software to adopt an open source license. By adopting an open source license, the author of the software will permit the software to be used by others free of charge, and to modify and republish the software. For instance, the linux kernel is licensed under the GNU General Public License (GPL), which allows the user to run, study, share and modify the software. Popular open source licenses include the GPL, BSD, Apache and MIT licenses. Suppliers of open source software such as Redhat and Suse do not charge for their software but rather will charge for providing support for the software. The Mac OS operating system installed on Apple’s mac computers contains FreeBSD code, which is distributed under a BSD licence.
Copyright © 2016 Nelson Lok Him Shum
Everyone has received spam at some point in time. My inbox is constantly being bombarded by e-mails sent by businesses with the latest offers in electronic goods, fine dining and realestate. My old fax machine died under an onslaught of constant advertising. I do not recall ever having solicited the faxes or e-mails or faxes, but that does not seem to affect whether I receive them or not. Spam is an extremely popular and annoying advertising medium. Spam often costs almost nothing to send and a person can send an almost unlimited number of them at the same time. That is why spam tends to be abused by advertisers, and why legislation has been enacted to govern the sending of spam. Anyone who has a destroyed fax machine or an inbox inundated with spam e-mails can attest as to how annoying spam can be.
In 2003, the Federal parliament passed an act that is devoted entirely to spam. It is called Spam Act 2003. Under the Act, businesses are prohibited from sending an unsolicited commercial electronic message. An electronic message includes an e-mail, SMS or fax. A commercial electronic message is an electronic message sent for a commercial purpose, which includes to offer to supply goods or services; to advertise or promote goods or services; to advertise or promote land or an interest in land; or to provide a business opportunity or investment opportunity. Basically, any sort of advertising. The Australian Communications and Media Authority (ACMA) has the authority to enforce the Act.
The Act only governs spam that originates in Australia. Spam can still be sent to a person who consents to receiving it. In that way, it is said to be solicited rather than unsolicited spam. Consent can either be express or inferred. Express consent involves the recipient indicating in writing (or by some other means) that he would like to receive advertising from the sender. Usually, persons who join memberships or clubs of certain businesses may be required to expressly consent to receiving spam. Consent may be inferred from the conduct, and the business and other relationships of the business and the recipient. Consent may also be inferred from the publication of an electronic address, but only if the electronic address enables the public, or a section of the public, to send electronic messages to a particular person within the organisation; the electronic address has been conspicuously published; it would be reasonable to assume that the publication occurred with the agreement of the organisation; and the publication was not accompanied by a statement to the effect that the relevant electronic account-holder does not want to receive unsolicited commercial electronic messages at that electronic address. An electronic address includes an e-mail address or a telephone number.
Even if the recipient had consented to receiving commercial electronic messages, the recipient can withdraw the consent at any time by sending a message to the sender to the effect that the recipient does not want to receive any further commercial electronic messages from or authorised by the sender. The withdrawal of consent takes effect at the end of the period of 5 business days beginning on the day on which the message was sent.
Under the Act, the commercial electronic messages sent must clearly and accurately identify the individual or organisation who authorised the sending of the message; the message includes accurate information about how the recipient can readily contact that individual or organisation; and that information is reasonably likely to be valid for at least 30 days after the message is sent. The commercial electronic messages sent must also include a statement to the effect that the recipient may use an electronic address set out in the message to send an unsubscribe message to the individual or organisation who authorised the sending of the message; the statement is presented in a clear and conspicuous manner; and the electronic address is reasonably likely to be capable of receiving the unsubscribe message sent by the recipient at all times during a period of at least 30 days after the message was sent.
A commercial electronic message that is referred to in the Act as a “designated commercial electronic message” may be sent even if it is unsolicited and does not contain a functional unsubscribe facility. However, it must still comply with the requirement of including information about the individual or organisation who authorised the sending of the message. A designated commercial electronic message must consist of no more than factual information (with or without directly-related comment) and any additional information including the name, logo and contact details of the individual or organisation who authorised the sending of the message; and the name and contact details of the author. Without the additional information, the message would not be of a commercial nature. Commercial electronic messages sent by government bodies, political parties, charities and educational institutions may also be designated commercial messages.
The Act imposes an outright ban on address harvesting software and harvested-address lists in Australia.
Complaints of alleged contravention of the Act may be made to the ACMA. The ACMA may commence proceedings in the Federal Court against a person who contravened the Act. Pecuniary penalties may be imposed by the Federal Court for the contravention of the Act and the victim of a contravention may receive compensation. The Federal Court may also grant injunctions against and accept any undertaking given by a person in connection with a contravention.
Copyright © 2016 Nelson Lok Him Shum
All employees in Australia will have a part of their income paid into a superannuation fund. This is done by the employer on behalf of the employee. Currently, employers are required to pay 9.5% of the salary of their employees into a superannuation fund. Normally, the superannuation fund cannot be accessed until the employee retires. However, the employee may be able to access the superannuation fund before retirement for various reasons including hardship. In additional to the contribution paid into a superannuation fund by the employer, an employee can make additional contributions by way of salary sacrifice. There are tax advantages to contributing additional sums to a superannuation fund. Generally, employees can choose which superannuation fund they join.
Superannuation is a scheme introduced by the Australian government to reduce the reliance of a retired person on the aged pension. On the face of it, superannuation does not appear very complex. A part of the salary of an employee is paid into a superannuation fund for the benefit of the employee. The superannuation fund is invested and the employee can access the fund during retirement. The scheme is often referred to as compulsory savings. However, a whole industry has spawned out of superannuation, which currently manages $2,146 billion or $2.1 trillion of contributions. The legislative framework for superannuation is currently quite complex (no less than 29 acts of parliament) consisting of laws governing contributions to superannuation funds, regulating superannuation funds, taxation of superannuation funds and access to superannuation funds.
Under the Superannuation Guarantee (Administration) Act 1992, the contribution that an employer makes to the superannuation fund of an employee is referred to as “Superannuation Guarantee”. If an employee does not have a chosen fund, the employer can pay the contribution into an eligible fund for the employer. The employer must contribute to the superannuation fund of an employee if the employee earns $450 or more in a calendar month. Employers are exempt from paying the superannuation of some workers, such as under 18 or domestic workers working not more than 30 hours a week and employees not resident in Australia who are paid for work they do outside of Australia.
Employers are required to pay superannuation for employees every quarter. Employers who fail to pay superannuation at the end of the quarter may be required to pay a Superannuation Guarantee Charge. The amount that an employer must contribute to a superannuation fund for an employee is 9.5% of the pre-tax salary of the employee. Pre-tax salary includes regular wages and commission. Employers can make contributions more regularly i.e. fortnightly or monthly, however, they must meet their quarterly payments.
In December 2016, there are 31 corporate, 41 industry, 38 public sector and 139 retail superannuation funds in Australia. There are also 583,924 superannuation funds with less than 5 members. Superannuation funds are regulated by the Superannuation Industry (Supervision) Act 1993, which is administered by the Australian Prudential Regulation Authority (APRA), Australian Securities & Investments Commission (ASIC) and the Australian Taxation Office (ATO). All registrable superannuation entities (RSEs) must have a trustee who manages the fund. The trustee of an RSE must be licensed and the RSE must be registered with APRA. Acting as a trustee of a RSE while unlicensed is an offence. An RSE may elect to be registered as a MySuper product, which is a new superannuation product focusing on easy comparability between funds. In addition to joining RSEs, employees who wish to manage their own superannuation contributions may establish a self-managed superannuation fund. Self-managed superannuation funds must have fewer than 5 members and be registered with the ATO.
Contributions to a superannuation fund made by an employer or additional salary sacrifice contributions by an employee are referred to as “concessional contributions”. Concessional contributions have not been taxed and are taxed in the superannuation fund at the rate of 15%, or more if the employee earns over $300,000 a year. Concessional contributions are subject to a yearly cap. For the 2016-2017 financial year, the concessional contributions cap is $30,000 and $35,000 for employees aged 49 or over. If the concessional contributions of an employee exceed the cap, the excess will be taxed at the marginal tax rate of the employee. Contributions that have already been taxed are referred to as “non-concessional contributions”. Non-concessional contributions are also subject to a yearly cap. For the 2016-2017 financial year, the non-concessional contributions cap is $180,000 for members 65 or over but under 75 or $540,000 over a three-year period for members under 65. Income earned in the superannuation fund are taxed at the rate of 15%.
Superannuation can be accessed when the employee attains preservation age. The preservation age of an employee depends on the date of birth of the employee. For instance, the preservation age of an employee born before 1st July 1960 is 55, and the preservation age of an employee born after 30th June 1964 is 60. Superannuation can also be accessed before preservation age if the employee satisfies a condition of release or on compassionate grounds, such as to pay for medical treatment or to prevent foreclosure of a mortgage on the person’s principal place of residence.
Copyright © 2017 Nelson Lok Him Shum
Property law in Queensland have been largely codified and can be found in the Property Law Act 1974. The Act deals with both real and personal property, but is primarily concerned with real property. Property Law in Queensland is roughly the same as the property law in other common law jurisdictions such as New South Wales, Victoria and Hong Kong. Approximately 36% of the land in Queensland is freehold land. Freehold land is granted by the Queensland state authorities to the original owner in perpetuity. In contrast, almost all land in Hong Kong was granted by way of leasehold with the lease term due to expire in the year 2047 (the only freehold land in Hong Kong is the land on which St. John Cathedral in Central resides on). The leasehold arrangement was originally due to the lease of Kowloon and the New Territories by the British Empire expiring in 1997, but has now been extended to 2047. Approximately 64% of the land in Queensland is leasehold land, and mainly consists of farm and pastoral land. Owners of leasehold land may apply to convert the land to freehold.
Queensland employs a title registration system for real property. Owners of land in Queensland are issued with a Certificate of Title as evidence of their ownership of the land. Title to property in Queensland previously existed in the form of deeds under a deeds registration system. However, all land in Queensland have been brought under the title registration system by the Land Title Act 1994. All states in Australia employ a title registration system for land. Hong Kong still employs a deeds registration system, but is slowing moving to a title registration system. The advantage of using a title registration system is that the purchaser can rely on the information on the land register as to who the owner of the land is and whether the land is subject to any mortgages or other encumbrances. In a deeds registration system, the lawyer acting in the conveyance must examine the chain of title to determine who the owner of the land is, and whether the land is subject to any mortgages or other encumbrances.
Contracts for the sale and purchase of land in Queensland must be in writing and signed by the parties or persons authorised by the parties. Terms and conditions are implied into a contract of sale by the Property Law Act including terms and conditions relating to the showing and giving of title by the vendor, payment of settlement moneys, execution and delivery of the conveyance, and the venue of settlement.
Vendors and purchasers of land may enter into instalment contracts. Under an instalment contract, the purchaser of the land pays the purchase price in instalments but is not entitled to the conveyance of the land until the final instalment is paid. In other words, the purchaser will not become the registered owner of the land until the final instalment is paid. Restrictions are placed on the termination of the contract by the vendor if the purchaser fails to pay an instalment, or on the sale or mortgage of the property while the instalment contract is in effect. The purchaser may, after paying an amount equal to one-third of the purchase price, require the vendor to convey the property to the purchaser subject to the purchaser executing a mortgage in favour of the vendor.
A property owner may use the property as security for a loan. The Property Law Act implies terms and conditions into mortgages entered into by property owners such as the mortgagor will pay the moneys secured by the mortgage; and the mortgagor will keep all buildings and other improvements erected on the mortgaged land in good and substantial repair. The Act confirms the power of a mortgagee to sell the mortgaged property due to a default in the payment of the principal or interest of the loan, and regulates the conduct of the mortgagee or receiver during the sale of the property and the subsequent distribution of the sale proceeds.
The Property Law Act also regulates leases and tenancies. The Act implies terms and conditions into every lease of land including the obligation of the lessee to pay rent; and to keep the leased premises in good and tenantable repair. The Act also confirms the power of the lessor to enter and view the state of repair of the premises. The Act confirms the right of forfeiture by lessors and relief against forfeiture by lessees. The Act also regulates how a lease may be terminated. The Act sets out the requirements of a valid notice of termination, how it may be given and when it may be given. The Act also provides a procedure by which a landlord may recover the property if the tenant stays past the date of termination of the lease.
The Property Law Act also regulates tenancies of agricultural holdings (not less than 5 acres of agricultural land), incorporeal hereditaments and appurtenant rights, encroachment and mistake, rights of way, equitable interests and things in action, powers of appointment, perpetuities and accumulations, corporations, voidable dispositions (to defraud creditors), apportionment, unregistered land, sales and conveyances, registration of deeds, compulsory registration of title, and property belonging to de facto spouses.
Copyright © 2017 Nelson Lok Him Shum
Australia has some of the highest household debt in the world. Currently, household debt in Australia is roughly 123 percent of its gross domestic product (GDP). In the March quarter of 2016, more than 7,000 Australians went bankrupt and many more are expected to follow if the Australian economy continues to contract.
A person who is unable to pay his debts can resort to bankruptcy. Bankruptcy normally lasts 3 years and 1 day. A bankrupted person will be released from paying most of his debts. During the bankruptcy, the finances of the bankrupt will be managed by the trustee in bankruptcy. The trustee in bankruptcy will apply whatever assets the bankrupt owns and the bankrupt’s income to paying off the bankrupt’s debts. Although bankruptcy may sound attractive to a person who is unable to pay off his debts, a bankrupt will be prohibited from managing a corporation and face restrictions when practising in a profession such as the legal profession. The bankrupt will also have his name permanently recorded in the National Personal Insolvency Index (NPII), encounter difficulties when seeking to borrow money and be prohibited from travelling overseas without permission.
Bankruptcy can be voluntary, but often a person is made bankrupt on the application by his creditor. The court can make a sequestration order based on a petition by a creditor. A petition can be presented based on a debt amounting to $5,000 or a number of debts totalling $5,000 and an act of bankruptcy committed within 6 months. An act of bankruptcy includes the failure of the debtor to comply with a notice of bankruptcy. A notice of bankruptcy can be issued if the creditor has obtained against a debtor a final judgment or final order of at least $5,000 or 2 or more final judgments or final orders totalling at least $5,000.
A debtor may present a declaration of intention to present debtor’s petition to the Official Receiver. If the declaration is accepted by the Official Receiver, any enforcement action taken against the debtor will be stayed for a period of 21 days. In certain circumstances, such as after a creditor’s petition is served on the debtor but before a sequestration order is made against the debtor, the declaration will be rejected by the Official Receiver.
A bankruptcy petition may be presented by a debtor against himself. The petition may be rejected if it appears from the information supplied by the debtor that if the debtor did not become a bankrupt, the debtor would be likely to be able to pay all his debts; and the debtor is unwilling to pay his creditors or the debtor had become bankrupt before on 3 separate occasions or at least once in the past 5 years before the presentation of the petition. A person who has entered into a personal insolvency agreement may not be able to present a petition.
Once an order of bankruptcy is made, the property of the bankrupt will vest in the trustee in bankruptcy. The trustee in bankruptcy can convene a meeting of creditors. The meeting can address matters such as the remuneration of the trustee in bankruptcy, the appointment of a committee of inspection, and provide an opportunity for creditors to question the trustee in bankruptcy concerning the bankrupt and his assets.
The creditors may appoint a committee of inspection for the purpose of advising and superintending the trustee in bankruptcy. The committee of inspection can give any lawful directions to the trustee in bankruptcy.
A bankrupt can make a proposal to his creditors for a composition in satisfaction of his debts; or a scheme of arrangement of his affairs. The creditors may accept the proposal of the bankrupt in a meeting of creditors. Upon the acceptance of the proposal by the creditors, the bankruptcy is annulled. The composition or arrangement may be varied on the agreement of the creditors and debtor.
To be recognised as a creditor by the trustee in bankruptcy, the creditor will usually be required to prove his debt. To prove his debt, the creditor must lodge a proof of debt with the trustee in bankruptcy. Once the proof of debt has been lodged, the trustee in bankruptcy can admit or reject a proof, or require the creditor to verify the debt by way of a statutory declaration. Any creditor can examine a proof of debt lodged by the other creditors. A secured creditor can also lodge a proof of debt in respect of the balance after deducting the value of his security.
All debts in the bankruptcy are ranked equally and, if the assets of the bankrupt are insufficient to pay the debts, they will be paid proportionately.
In addition to the assets the bankrupt owned prior to and during the bankruptcy, any income derived by the bankrupt during a period of the bankruptcy can be applied by the trustee in bankruptcy towards paying off the debts of the bankrupt. The bankrupt will be allowed a sum for his living expenses.
There are alternatives to bankruptcy, such as debt agreements and personal insolvency agreements. Whether those alternatives are appropriate for the debtor will depend on the circumstances.
Copyright © 2017 Nelson Lok Him Shum
Disclaimer: The information and materials contained in the above articles are for reference purposes only and are not intended to constitute or be a substitute for legal advice. If you have any legal problem or matter, you should consult a qualified legal practitioner in your state or territory. Nelson L H Shum & Co. gives no warranty and provides no representation as to the quality, accuracy or completeness of the information and materials contained in the above articles, assumes no responsibility for such information and materials, and disclaims all liabilites in respect of the same.