Current Affairs

Pill Testing

As you’re aware, pill testing has been at the forefront of the media over the last few weeks. It comes in the wake of a number of young people dying at festivals from alleged drug overdoses.

There has been public outcry, asking the NSW Premier, Gladys Berejiklian, to consider pill testing at NSW festivals, and punters have been told a resounding ‘no’.

Despite evidence to the contrary, the successful implementation of pill testing at Canberra’s Groovin’ the Moo festival in 2018, the NSW Government is not even remotely convinced.

There is clearly an ongoing and increasing issue of young people consuming illicit drugs and substances at festivals, if pill testing is not the answer, then what other options should we be looking at?

Legalise everything

Some groups have called for the legalisation of all illicit substances.

Why? They say it will enable pharmaceutical companies to produce and manufacture the substances, enabling them to regulate the amount of purity of various substances and ensure there are no unknown, additional poisonous substances. This would also likely result in a considerable decrease in drug-related crime, such as manufacture and supply.

Another argument is that through prescription by General Practitioners amounts of consumption can be heavily regulated and people seeking those prescriptions can also be educated about the harmful effects of the substance.

Harsher sentencing for drug-related crime

On the other hand, there are also calls for harsher punishment and mandatory minimum sentencing. With many people believing that increasing the punitive effects of drug taking and supplying will act as a deterrent.

However, what many do not realise is that sentencing for many drug offences carries some of the most serious penalties in Australia’s legal system. For example, the offence of drug trafficking carries a life sentence (25 years) – equivalent to that of murder.

If the NSW Government won’t test pills – what else should they be testing to stop drug related deaths?

Proposed on the spot fines for low-range drink driving offences

The NSW government recently proposed to give police new powers to issue on-the-spot fines and licence suspensions for first time, low-range drink driving offences.

A low-range drink driving offence applies to a driver who has recorded a prescribed concentration of alcohol (PCA) of between 0.05 – 0.08.

The proposal has generated a lot of discussion, particularly in the legal community, as to whether such powers are appropriate. The most common concern is that an ‘on-the-spot’ penalty notice detracts from the seriousness of the offence, as offenders would not have to attend court and ‘face up’ to their actions.

The proposal, if implemented, would bring NSW in line with existing Victorian laws, where drivers over the age of 26 caught low-range drink driving between 0.05 – 0.07 receive an on-the-spot fine and 10 demerit points.

According to Judicial Commission Sentencing statistics, of drivers who were charged with low-range drink driving, almost 50% received s 10(1)(b) [or (c)] non-conviction good behaviour bond. Additionally, 44.4% of offenders received a conviction and a fine. Of those 44.4% of offenders, the average fine imposed was between $501-$750 and the average disqualification period imposed by magistrates was three (3) months.

The proposal by the NSW government would see motorists receiving a $561 fine and an immediate three (3) month licence disqualification, which is very much in the median range of fines and disqualification periods currently imposed in the local court.

It is also proposed that police will have discretionary power to choose to issue a driver with a court attendance notice (CAN), instead of issuing an on-the-spot fine, when having regard to the circumstances of the offence. This means drivers issued with a CAN will need to attend court for sentencing.

However, drivers still have the opportunity to appeal their matter in the local court. Although, if convicted, offenders face an automatic disqualification period of six (6) months and a maximum $2,200 fine (which is double the current maximum amount).

Currently, first-time offenders who are caught low-range drink driving face an automatic disqualification period of six (6) months, with a magistrate having the discretion to lower the disqualification to a minimum period of three (3). Offenders also currently face a maximum $1,100 fine and the prospect of a criminal conviction.

Are we undermining the seriousness of drink driving offences with drivers no longer facing a criminal conviction?

Digital Driver’s Licences – convenience or concern?

The NSW Parliament recently passed a Bill allowing for Digital Driver’s Licences to be used for proof of identity and proof of age purposes.

Driver’s will still be issued with a physical card, however, they will no longer be required to carry it on them if they are able to produce a valid digital driver’s licence.

Amendments have been made to the Road Transport Act 2013, Photo Card Act 2005, Gaming and Liquor Administration Act 2007, and Liquor Act 2007.

Digital Driver’s licences are set to be released across NSW in early 2019. The aim is to save time and make producing identification a little easier.

 

What should you know before opting in?

You do NOT have to hand over your mobile phone, or any other electronic device, to police that your digital driver’s licence is displayed on.

You DO have to make sure your digital driver’s licence can be viewed. This means, if your phone screen is cracked, or your phone brightness is not suitable, you are considered not to have displayed your driver’s licence.

You CANNOT commit an offence for the use of using a mobile phone if it is in response to a request from a police officer or other authorised person.

Police CANNOT seize your mobile phone, or any electronic device, that your digital driver’s licence is displayed on for the purposes of seizing your driver’s licence.

Police CAN ask you to refresh your Service NSW application to ensure that it is up to date.

You MUST remove your digital driver’s licence from all electronic devices as soon as practicable after being required to surrender your licence.

 

So, what if you’re caught out?

Under the recent amendments, a person who fails to comply with a reasonable request to view, copy or scan their digital driver’s licence is considered not to have displayed their licence and is subject to penalties.

What does this mean? Potentially, if your phone is out of battery or if you are out of phone reception, you are considered to not have displayed your driver’s licence.

 

Whilst our phones are able to do just about anything for us, should we be wary about carrying such an important piece of identification on it?

 

 

Supreme Court jurisdiction questioned for hearing bail applications

In the recent decision of Noufl v Director of Public Prosecutions (NSW)[i] the Supreme Court ruled it did not have the jurisdiction to hear a bail application while an appeal was pending in the Court of Criminal Appeal.

The decision was an appeal against conviction, with the appellant applying for bail whilst the matter was heard for appeal.

 

How did this happen?

In a novel argument by the Director of Public Prosecutions (DPP), it was submitted that a single judge of the Supreme Court did not have jurisdiction to hear a bail application. It was submitted that this was an ‘unintended consequence’ of the repeal of the Bail Act 1978 and the introduction of the Bail Act 2013. Namely, that section 28 of the Bail Act 1978, the section responsible for granting Supreme Court jurisdiction, was not transferred into the Bail Act 2013.

Judge Hamill concluded:

[T]he Supreme Court is no longer empowered to hear a bail application while an appeal is pending in the Court of Criminal Appeal unless:

  1. The proceedings for the offence were dealt with in the Supreme Court and the applicant is yet to make their first appearance before the Court of Criminal Appeal (s 62); or
  2. A release application has been refused by another court, police or authorised officer (s 66).

This decision is in conflict with the general understanding of the powers conferred upon a single judge of the Supreme Court and, as such, potentially presents a very significant decision.

 

What are the implications for practitioners and their clients?

If you propose to seek bail pending an appeal against conviction or sentence to the Court of Criminal Appeal you should first make a release application to the District Court, unless the proceedings were conducted in the Supreme Court.

 

Was this an intention of the Bail Act 2013 amendments?

Hamil J provided commentary as to what the future may hold for the Bail Act 2013. He stated that if this was an unintended consequence of the amendments, that the Act should be amended to reflect the original content of s 28 of the Bail Act 1978.

He also commented that if the revocation of Supreme Court powers was intended by legislature then the Act should more clearly reflect this.

 

What does it mean for other courts?

It is now a concern, as mentioned by Hamil J, that an even greater number of bail applications will come before the Court of Criminal Appeal. He also commented that the Court of Criminal Appeal is already met with a number of bail applications, of which, judges have previously voiced their concern: Beech-Jones J in Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227.

 

[i] [2018] NSWSC 1238.

Immunity for on-field violence must end

It is time that we, as a society, stopped treating on-field violence by sport stars as being immune from criminal prosecution and held athletes accountable for their actions in the same way as the rest of us.

This weekend’s round of NRL saw yet another ugly brawl between players during the Sea Eagles v Storm match which left Dylan Walker with a broken eye socket after he was attacked and punched by Curtiss Scott. Despite the fact that the whole spectacle was clearly captured by television cameras, no criminal charges were laid against Scott or any other of the participants in the brawl.

This whole incident, and others like it, reveal a strange and disturbing aspect of our footy culture. There seems to be a tacit, unspoken rule that the football field is a place where normal Australian laws do not apply. What occurred at that game was unquestionably a criminal assault, and a serious one at that. If the very same conduct happened in any other context, say in a home or at a pub, Scott would have found himself facing a criminal court on assault charges and would be at serious risk of a prison sentence. But, because he perpetrated his crime on a football field, the only consequence he faces is a suspension.

This is completely unjust. As a criminal defence lawyer, I represent people charged with acts of violence on a daily basis. In many cases, the assault is much less serious that Scott’s, but the consequences are much more severe than simply being suspended from the offender’s job for a few weeks. They get a criminal record which follows them around for at least the next ten years, effecting job opportunities and international travel- and some go to gaol.

There is a clear double standard in our society, with one set of rules for on-field behaviour of footballers and another for everyone else. This double standard is an affront to one of the most fundamental principles of law called “the rule of law”.

The rule of law is a simple yet powerful idea that the law should apply equally to all members of society irrespective of their status, wealth or power. Its origins can be traced to at least the Magna Carter in 1215. In the Magna Carter the rule of law meant that the King of England agreed to be bound by the law in the same way as all other Englishmen. Today, over 800 years later, it seems that we have developed a new type of sporting royalty who’s on-field antics are above the law. It is high time that we revisit this part of our sporting culture and demand that our sporting heroes be made accountable for their on-field behaviour under the same law that applies to everyone else.

Major Changes to NSW Sentencing Law

Proposed Legislation

The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 No 53 will make substantial amendments to the Crimes (Sentencing Procedure) Act 1999 [“the Act”] and is scheduled to be proclaimed in about May 2018.

 Gloss Overview

  1.  Abolition of Good Behaviour Bonds (s9) AND replacement with Conditional Release Orders (“CRO’s”) OR Community Corrections Orders (“CCO’s”) and consequences of breach;
  2. Abolition of non-conviction bonds AND replacement with Conditional Release Orders (“CRO’s”) and consequences of breach.
  3. Introduction of Sentencing Procedure for Conditional Release Orders [new Part 8]
  4. Introduction of Sentencing Procedures for Community Correction Orders [new part 7];
  5. Abolition of Suspended sentences (s.12) and Home Detention Orders AND replacement with revised Intensive Correction Orders (“ICO’s);
  6. Introduction of Sentencing Procedures for Intensive Corrections Orders [new Part 5] and consequences of breach;
  7. New provisions for Assessment Reports – for ICO’s [new Division 4B];
  8. New sentencing regime for Domestic Violence Offences [new s.4A]; and
  9. Consequences of the new legislation to existing Sentencing Orders.

 

Dot point effect of the Abolition of s.9 Bonds and non-conviction Bonds

  1.  The former good behaviour bonds are abolished.
  2. A CRO may be with OR without conviction.
  3. If the court does not “convict” then the offender will be discharged under s.10 (1) (b) of the Crimes (Sentencing Procedure) Act 1999.
  4. Otherwise, either a CRO will be made under s.9 or a CCO under s.8.
  5. The court cannot impose both a fine and a conditional release order in respect of the same offence.
  6. A conditional release order under s.9 [with conviction] may be made as an alternative to the imposition of a fine.
  7. The maximum term of a CRO is 2 years.
  8. There are standard conditions for a CRO’s: s.98; however, additional conditions may be imposed on application by a community corrections officer or a juvenile justice officer OR the offender [however, the court may refuse to consider an application by an offender if it is satisfied that it is without merit – s.100 (1)]; and may vary or revoke any of the additional conditions: ss.99-99A; the additional conditions must not include home detention, electronic monitoring or a curfew for more than 12 hours a day or a community service work condition: s.99 (3).
  9. The court is to take into account the same factors in determining whether to proceed by way of a conviction [under s.9] or without conviction [under s.10 (1) (b)].
  10. It would appear that the conditional release order may be conditional on the same sort of terms previously imposed by courts under the former s.9.
  11. The footnote to s.97 states that breaches of CRO’s are to be dealt with under s.108 C of the Crimes (Administration of Sentences) Act 1999 [yet to be proclaimed] [“the Administration Act’], the effect of which is that an offender may be “called up” in much the same way as an offender would now be called up for breaching a s.9 bond.
  12. The effect of revocation of a CRO [s.108 D] is that the offender may be sentenced or re-sentenced as the case may be and the Crimes (Sentencing Procedure) Act 1999 applies to that sentencing process; and the offender has the same rights of appeal as if he had been so sentenced when found guilty.
  13. The maximum term of a CCO is 3 years: s.85 (2).
  14. There are standard conditions for a CCO: s. 88; however, additional conditions may be imposed on application by a community corrections officer or a juvenile justice officer OR the offender [however, the court may refuse to consider an application by an offender if it is satisfied that it is without merit]; and the court may vary or revoke any of the additional conditions: ss.89-90; the additional conditions must not include home detention, electronic monitoring or a curfew for more than 12 hours a day: s.89 (3)
  15. Breaches of CCO’s are to be dealt with under s.107C of the Crimes (Administration of Sentences) Act 1999 [yet to be proclaimed], the effect of which is that an offender may be “called up” in much the same way as an offender would now be called up for breaching a s.9 bond.
  16. The effect of revocation of a CCO [s.107 C Administration Act] is that the offender may be sentenced or re-sentenced as the case may be and the Crimes (Sentencing Procedure) Act 1999 applies to that sentencing process; and the offender has the same rights of appeal as if he had been so sentenced when found guilty: s. 107 D Administration Act.

Abolition of s.12 Bonds (suspended sentences) and Replacement with Intensive Corrections Orders [ICO’S]

Procedure and effect of Breach of ICO

 If the Commissioner or a community corrections officer is satisfied that an offender has failed to comply with any of his/her obligations under the ICO, the officer may do any of the following:

  1. record the breach and take no further action;
  2. give an informal warning to the offender;
  3. give, or arrange to be given to, the offender a formal warning that further breaches will result in referral to the Parole Authority;
  4. give a reasonable direction to the offender relating to the kind of behaviour by the offender that caused the breach;
  5. impose a curfew on the offender of up to 12 hours in any 24-hour period.

[s 163 (2) of the Administration Act]

Alternatively, or in addition, to taking any such action, the Commissioner or a community corrections officer may decide to refer the breach to the Parole Authority because of the serious nature of the breach and may also make a recommendation as to the action that the Parole Authority may take in respect of the offender: s.163 (3) of the Administration Act.

 Assessment Reports [relevant to ICO’s and CCO’s]

 Division 4B makes new provisions for Assessment Reports and that Division is reproduced for convenience:

New Sentencing Regime for Domestic Violence Offences

 Part 2, s.4 of the Act introduces a new regime for domestic violence offenders:

Part 2 – Penalties that may be imposed

Division 1 – General

 4 Penalties generally

4A Domestic violence offenders–requirement for full-time detention or supervision

  1. If a court finds a person guilty of a domestic violence offence, the court must impose on the person either:
    (a)       a sentence of full-time detention, or
    (b)       a supervised order.
  2. However, the court is not required to impose either of those sentencing options if the court is satisfied that a different sentencing option is more appropriate in the circumstances and gives reasons for reaching that view.
  3. For the purposes of this section, a “supervised order” is an order (being an intensive correction order, community correction order or conditional release order) that is subject to a supervision condition.

 

4B Domestic violence offenders–protection and safety of victims

1. An intensive correction order must not be made in respect of:

(a)  a sentence of imprisonment for a domestic violence offence, or

(b)  an aggregate sentence of imprisonment for 2 or more offences, any 1 or more of which is a domestic violence offence,

unless the sentencing court is satisfied that the victim of the domestic violence offence, and any person with whom the offender is likely to reside, will be adequately protected (whether by conditions of the intensive correction order or for some other reason).

2. If the sentencing court finds a person guilty of a domestic violence offence, the court must not impose a home detention condition if the court reasonably believes that the offender will reside with the victim of the domestic violence offence.

3. Before making a community correction order or conditional release order in respect of a person whom the sentencing court finds guilty of a domestic violence offence, the court must consider the safety of the victim of the offence.

 

Court clarifies DUI charges

In a recent decision, the NSW Supreme Court clarified what is meant by driving under the influence.

 

What is DUI?

Many people use the term “DUI” as an umbrella term to refer to all kinds of drink driving charges. This is not technically correct.

In law, there are two kinds of drink driving charges, DUI and PCA. Most drink driving charges are in fact PCA charges. PCA stands for Prescribed Concentration of Alcohol. When a person is breathalysed and returns a reading over the limit, the police will charge a PCA offence, not a DUI offence.

A DUI offence is used where Police do not have a reading but are instead relying on the fact that the person was under the influence of alcohol  or other drug at the time of driving. Usually, to prove a DUI charge, Police rely on observations about the person’s appearance and behaviour to show that they were “under the influence”.

Until recently, many Lawyers and Magistrates thought that in order to establish a DUI charge, police had to establish that the person was so affected by alcohol or some other drug that their ability to drive was impaired. The recent Supreme Court Decision of DPP vs Kirby established that a DUI charge can be proved even where there is no proof that the person’s state of intoxication would have impaired their ability to drive. All the police have to prove is that the person was influenced by alcohol or a drug in some way, whether it was related to driving or not.

Whether or not this development is seen as positive will probably depend on a person’s individual point of view. Critics of this development may well argue that the function of DUI charges is limited to protecting against drivers whose ability to control a car is impaired by alcohol or some other drug and that this development is unfair because it unnecessarily punishes people who may have had a little bit of alcohol, may well be under the legal limit for a PCA charge and pose no danger on the road. On the other hand, supporters will no doubt say that anyone who is under the influence of alcohol or drugs to any extent should not get behind the wheel of a car.

 

Our expert traffic law team understand all the strategies to you get the best outcome. Contact Conditsis Lawyers today.

Recent changes to the Retail Leases Act and their impact on entering into lease of a retail shop

On 1 July 2017, amendments made to the Retail Leases Act 1994 (NSW) came into effect that will impact landlords and tenants of retail premises.

The leasing of retail premises is governed and affected by numerous legislative and regulatory requirements. The Retail Leases Act 1994 (NSW) (the Act) overrides any provision of a lease that is inconsistent with the Act. Accordingly, it will be in the interests of landlords and tenants alike to be aware of them. This is particularly so, when either:

  • negotiating and entering into a lease; or
  • renewing a lease on exercise of a lease option.

A summary of the changes to the Act that are of particular relevance when either entering or renewing a lease are set out below.

 

1. Five year minimum term no longer applies

A tenant’s statutory entitlement to a five year term is one of the most significant aspects of retail leases, intended to improve a tenant’s security of tenure allowing a tenant to realise its investment in its fitout costs. A tenant could waive it by providing a certificate under the Act.

As from 1 July 2017, the minimum five year term is now no longer required.

The reason for this change is to provide greater flexibility in lease negotiations where parties find that a shorter term is better suited to their business needs.

Quite often landlords and tenants will enter into a lease for a term of less than five years not being aware that the five year statutory entitlement was required to be waived. If not waived at the commencement of the lease, a tenant was later entitled to rely on the Act to extend its lease term to five years. As a result, situations have arisen whereby tenants have sought significant sums from landlords to surrender its lease.

Removing the five year term requirement is aimed at addressing these types of situations.

 

2. Some retail premises are now no longer covered by the Act

The Act now specifically excludes certain usages from being retail shop premises. These include ATMS, vending machines, internet booths, storage of goods for use or sale in a retail shop and in some instances, car parking.

 

3. Provision by landlord of its disclosure statement

Seven days before entering into a lease, a landlord is required to provide a disclosure statement to a tenant. The information contained in the disclosure statement includes important information for a tenant such as the rent, lease term, options, relevant dates, premises details, fit out requirements and estimates of outgoings.

If the landlord fails to do so, or the disclosure statement is materially false, misleading or incomplete, a tenant can terminate the lease within the first six months.

In addition to this right of termination, a tenant will also have a right to compensation. This right also extends to a tenant’s cost in connection with the fit out of the retail premises.

Landlords should be aware that the requirement to provide a lessor’s disclosure statement also extends to when an “agreement for lease” is entered into. An agreement for lease is an agreement to grant a lease in the future. This can occur in situations where the premises are not ready for occupation or have not been fully erected, or if the former tenant is still in occupation or when a lease is inteneded to commence at a future date and the parties do not want to execute a lease until then.

 

4. Disclosure of outgoings before entering into a lease

Many leases allow a landlord to recover outgoings from a tenant for various expenses it incurs in the operation, maintenance and repair of retail premises. A retail landlord is required to disclose details of the various outgoings and contributions a tenant is required to meet. This disclosure is intended to help tenants make informed decisions about the costs of a lease.

Noncompliance with this requirement will result in the tenant not being liable for anything not disclosed or accurately disclosed by the landlord.

This also extends to estimates of outgoings. If an estimate of a particular outgoing provided in the disclosure statement is less than the actual amount required to be paid, a tenant will only be required to pay the estimate, unless there was a reasonable basis for that estimate.

In addition, any term of a retail shop lease that requires the tenant to pay or contribute towards the cost of providing any finishes, fixtures, equipment or services will not be enforceable if not disclosed in lessor’s disclosure statement.

 

5. Leases with terms of three years are now required to be registered and a copy given to the tenant within three months

It is now a requirement that when a retail shop lease has a term of more than three years (including any option term), or the parties agree that the lease is to be registered on the title to the premises, the landlord must lodge the lease for registration and an executed copy provided to the tenant within three months of it being returned to the landlord.

However, this period can be extended when a landlord is required to seek the consent of its mortgagee in order for the title deed (CT) to the premises to be produced for registration to occur. Obtaining a mortgagee’s consent and production of a CT can take a few months.

This amendment will provide greater protection to tenants. There are several risks to a tenant in not having a lease registered. In the event a landlord’s mortgagee takes possession, the mortgagee is not required to recognise a lease that is not registered. A purchaser of the landlord’s building may also not recognise a lease if unaware of its terms.

 

6. Lease preparation expenses that a landlord can recover from a tenant

Under the Act, a landlord is prohibited from passing on lease preparation costs to a retail tenant. Lease preparation costs are the legal fees a landlord incurs in issuing a lease. Other costs a landlord incurs are registration fees and mortgagee consent fees. Consent of the mortgagee is required for a lease to be registered.

When the original provision in the Act was drafted, it was intended that a landlord could not pass on mortgagee consent fees. However, the intention not to pass on mortgagee consent fees was not made sufficiently clear in the Act. As it was not specifically prohibited, mortgagee consent expenses have been passed on.

Seeking to provide greater clarity to prevent disputes, the Act now specifically prohibits a landlord from passing this expense onto a tenant.

However, a landlord can still request a tenant to pay the fee to register the lease on the title to the premises.

 

7. Bank Guarantee

A tenant is usually required to provide some form of surety to a landlord so as to guarantee it can meet its obligations under the lease.

The most common forms of surety under retail leases are security bonds and bank guarantees.

The Act did not make provision for the handling and return of a bank guarantee. In order to encourage transparency and greater certainty in dealings between a landlord and a tenant, a landlord is now required to return a bank guarantee within two months after a tenant has completed performance of its obligations under the lease.

A landlord may be required to compensate a tenant for any loss or damage suffered by the tenant as a result of any failure by the landlord to return it, including any reasonable costs incurred by a tenant in cancelling a bank guarantee as a result of the landlord not returning the original bank guarantee.

New disclosure requirements for contracts for sale of residential land

From 1 September 2017, contracts for sale of residential land will need to be updated to include new documents and meet new disclosure requirements.

 

Before residential property can be sold, a vendor is required to prepare a contract for sale that:

  • discloses information about a property’s title, its zoning, sewerage, any rights of ways or restrictions on use and swimming pool compliance;
  • contains certain documents; and
  • includes warranties about certain property matters a vendor is obliged to either make or disclose that it cannot make.

Collectively these documents, warranties and information are termed “vendor disclosure”. If contracts for sale do not contain the necessary information or fail to disclose any non-compliance with the statutory warranties, a purchaser has rights to rescind the contract.

On 1 September 2017, the Conveyancing (Sale of Land) Regulation 2010 was repealed and replaced with the Conveyancing (Sale of Land) Regulation 2017. As a result, marketing contracts that were prepared prior to 1 September 2017 that have not been exchanged will need to be updated.

 

New Asbestos Warning

A contract for sale is now required to contain a warning in respect of loose fill asbestos.

This warning advises purchasers to the effect that a purchaser should:

  • give consideration to whether or not a property contains loose fill asbestos insulation; and, if so,
  • to conduct a search of a register maintained by the Department of Fair Trading; and
  • to make enquiries at the local council as to whether it holds any records showing that the property has loose fill asbestos insulation.

This is particularly relevant for properties constructed prior to 1980. Between 1968 and 1979, a Canberra based company called “Mr Fluffy” provided loose fill asbestos insulation to homes in the ACT and in NSW. It was sprayed into roof cavities as ceiling insulation. It poses a significant health risk.

A taskforce was set up by the NSW Government to carry out free testing of residential property and in 2015, a register was set up to identify residential properties affected by this type of asbestos. In addition, from 20 June 2016, councils have been required to notify prospective purchasers if a property has been listed on the register by placing this information on its planning certificates (attached to contracts).

However, there have been concerns that purchasers may inadvertently purchase properties that had not yet been tested. To address this issue and to bring it to the attention of prospective purchasers, the warning notice is now required to be included in all contracts. Purchasers will be alerted so they can make the necessary enquiries.

 

Additional sewer service diagram to be attached

A vendor is required to disclose information about a property’s sewerage. It does this by attaching to the contract a diagram from a recognised sewerage authority showing the location of the authority’s sewer. This is commonly called the “sewer diagram”.

The sewer diagram shows the location of the sewer and the means of connection from the property to the sewer. The purpose is to show a purchaser whether part of a structure on the property has been built over or is adjacent to the sewer. This is important as an authority has a statutory easement to gain access for maintenance and is not required to compensate, rebuild or reinstate any structure to the state it was in before. The information is also important to a purchaser as it will affect a purchaser’s plans such as building a swimming pool or an extension to the house.

Following changes in 2009 the sewer diagram became less reliable. The sewer diagram did not contain all relevant information in respect of an authority’s sewer, such as an outline of the house in relation to any pipes.

A vendor will now be required to attach a diagram showing the location of any sewer lines “upstream of the point of connection to the authority’s sewer main” (including point of connection); and the location of the authority’s “sewerage infrastructure for the property downstream of the point of connection.”

This will provide all relevant information to a purchaser and not leave the vendor in a position where it has inadvertently breached its statutory warranty.

 

Additional Requirements

All strata by-laws in force are also required to be attached to a contract for selling a strata lot (ie unit or apartment in a strata title);

For further information on new disclosure requirements, contact us.

Family Court backlog letting families down

Chief Justice Diana Bryant has called on the Government to increase funding for the Family Court, describing the underfunded system as letting down “vulnerable people caught up in the system”.

 

Newcastle: Court delays in action

To see the backlog in action, look no further than Newcastle’s Federal Circuit Court. The court is experiencing a 19-month backlog in dealing with family law matters after one of three judge positions was left vacant from February 2017. The two judges who remained are each responsible for about 770 matters – almost double the national average.

On 8 September, it appeared calls for assistance may have been heeded, with the Government announcing the appointment of Jane Costigan to the Newcastle Registry of the Federal Circuit of Australia.

 

The Family Court workload

The Family Court is a busy jurisdiction. In 2015-16 over 100,000 applications were filed in the Family Court system across family law issues including:

  • separation and divorce
  • parenting and custody disputes
  • family and domestic violence
  • missing children
  • property and finance matters.

The average delay from filing to hearing is approximately 17 months, but some families have waited up to three years for their case to be heard.

 

Finding a balance for self-representation

In 2015-16, 44% of people involved in Family Court matters represented themselves. The increase of 5% from the previous year reflects the ongoing trend towards self-representation.

Self-representation is a right but can leave the system clogged with people without legal experience trying to run complex legal cases. Especially when emotions are running high around children, custody and divorce.

The Family Court recommends getting legal advice, but there’s no obligation to do so, and not everyone is eligible for legal assistance. Despite the costs of a legal representative, professional family law expertise is likely to help move their case forward and resolve it quicker than through self-representation.

 

Delays leading to settlements

The waiting times aren’t in keeping with the Court’s vision of putting children and families first and maintaining functional family relationships after separation; the backlog is not helping.

Backlogs in family law courts increase the likelihood some will choose to settle their case. Dispute resolution without judicial processes – including resolution of cases by agreement between the parties – is a fundamental element of family law. However, the need for closure to matters can encourage settlement in a case, and an outcome which isn’t in the best interests of children and families.

 

No resources to check compliance

When cases do make it through the system, a lack of resources means there’s no capacity to monitor compliance with orders made by the Court. Chief Justice Bryant remains concerned the Government “doesn’t understand the effect this is having on families”. Without enforcement of compliance, decisions of the court are rendered almost meaningless.

 

Fixing the faults

Chief Justice Bryant called on the Federal Government to boost court funding so more registrars and family consultants could ease the bottleneck.

The Government responded by announcing a $10.7 million package to engage more family consultants across the Federal Circuit Court of Australia, the Family Court of Australia and the Family Court of Western Australia.

It remains to be seen if this injection of funds for frontline services is enough to make a difference to the family law delays.

 

Resolving your family law matter

If you have a family law issue in the Family Court, your best chance of a speedy resolution in the best interests of your family is specialist family law expertise.

 

We’re ready to help

Our experienced family law team will support you through Family Court processes, and identify the best strategies to minimise waiting times. Contact Conditsis Lawyers today.

Family Law changes aim for quicker decisions and victim safety

New laws proposed by the Federal Government would introduce streamlined parenting hearings and preventing victims of family violence from being confronted by alleged attackers.

Following a review of the Family Law Act, the changes are expected to help reduce bottlenecks and long waiting periods in the Family Court, and reassure victims of violence of their safety in the system.

 

Parental Management Hearings for smarter dispute resolution

The new laws propose a $12.7 million investment in parental management hearings to resolve family law disputes.

The hearings are a new approach to resolving less complex family law disputes where both parties are representing themselves. In 2015-16, 44% of cases before the Family Court involved self-represented parties.

Designed as a less adversarial approach, the hearings will gather evidence from both sides to make decisions in the best interests of children and families.

Planned for a trial in Parramatta, the hearings would be rolled out across all relevant Australian jurisdictions.

 

No face-to-face contact protects victims of family violence

Current laws still allow for the victims of domestic and family violence to be cross-examined by their attacker who has been charged or convicted, or by an alleged offender.

The draft laws propose new rules preventing victims of family violence from being personally cross-examined by convicted or alleged perpetrators, or be required to cross-examine the convicted or alleged perpetrator if they are representing themselves. Instead, the court will appoint another party to undertake the cross-examination.

The new approach is a response to concerns that this interaction may further traumatise victims of violence, and the fear of facing attackers in court contributes to victims not reporting family violence.

Critics say the changes don’t go far enough, and that to protect victims, legal representation should be required for both parties, so family lawyers with expertise in these types of cases are a ‘buffer’ between the victim and the alleged abuser.

Public consultation has now closed on the issues, with a report expected in 2018.

 

Help when you need it

Family law can be a complex area – it can be emotionally draining for parents and children. Our specialist family law team are experts in dispute resolution and in supporting you through the Family Court hearing process. At the heart of our approach is maintaining your family relationships and acting in the best interests of your children. Contact Conditsis Lawyers today.

 

Housing Affordability: New Bills before the Federal Parliament

Housing affordability, rising house prices and high levels of home loan indebtedness are topics that have received much public comment in the media.

In the 2017–18 Budget, the Government announced the “Reducing Pressure on Housing Affordability – first home super saver scheme. There are currently four bills before the Federal Parliament to implement tax measures to implement the scheme and to tighten foreign investor rules to address housing affordability.

 

First Home Super Saver Scheme

On 1 July 2017 the First Home Super Saver Scheme (FHSSS) was established to assist first home buyers to save for a deposit inside superannuation.

Individuals are able to make voluntary contributions either through personal contributions or through salary sacrificing arrangements into their superannuation and to withdraw those contributions for the purposes of purchasing their first home.

There is a cap on the contributions that individuals can make. This is to ensure that individuals do not contribute more into their superannuation than they would otherwise have done.

From 1 July 2017, home buyers can contribute up to $15,000 per year and $30,000 in total. Contributions and withdrawals will take advantage of the concessional tax treatment available under super.

The scheme will be administered by the ATO. Contributions can be withdrawn from 1 July 2018.

Individuals will need to meet an eligibility criteria and certain conditions. These include entering into a contract to purchase or construct a residential home within 12 months of the first release under the FHSS scheme and to occupy the premises for at least six of the first 12 months.

If individuals are unable to meet the conditions, released amounts can be recontributed back to super.

 

First Home Super Tax 2017 Bill

Individuals are required to pay a tax if they do not enter into a contract to purchase or construct their first home or recontribute the requirement amount into superannuation.

This is to ensure that individuals do not obtain a benefit from accessing the FHSS Scheme.

 

Downsizing contributions into superannuation

Individuals over the age of 65 years will be able to contribute the proceeds of the sale of their family home up to $300,000 into their superannuation on or after 1 July 2018.

The measure is aimed at encouraging older people to downsize from large family homes and to relocate to housing that is more suitable for their needs. Older people will be able to invest the proceeds of selling a home into their superannuation which in turn will help to free up housing stock for young growing families.

 

Ensure Australian homes are available to Australians–changes to foreign investor rules

The Federal Government is also implementing three measures to tighten rules for foreign investor.

These include measures:

  • to reduce avoidance of capital gains tax by foreign residents with a 12.5% tax on sales of home of more than $750,000;
  • placing a limit on foreign ownership in new developments by introducing a 50% cap; and
  • implementing a charge on foreign owned residential property left vacant for more than six months in a year.

These measures are aimed at freeing up more housing stock.

Conveyancing can be a complex area. If you require an experienced and qualified conveyancing solicitor, contact us today.

The Newcastle Herald: Behind Newcastle’s rising crime statistics

Opinion | What’s behind area’s rising crime statistics

The NSW Bureau of Crime Statistics and Research disclosed last week that crime across most of NSW had remained stable or fallen over the past two years. The bad news, particularly for Newcastle, is that most major crimes are increasing in the Newcastle and Lake Macquarie Statistical Area.

This region is showing significant increases in four of the 17 major offences: motor vehicle theft (up 15.9 per cent), steal from motor vehicle (up 10.1 per cent), steal from retail store (up 17.8 per cent), and malicious damage to property (up 8.2 per cent).

Newcastle itself, however, has significant increases in five major offences including sexual assault (up 13.1 per cent) and indecent assault (up 26.9 per cent).

Why has there been such increases in [reported] sex crimes?

It should be emphasised that there has been an increase in the reporting of such crimes, not necessarily that more crimes of this nature have been committed. No one would know whether or not there has been an actual rise in this type of offending, or whether victims are now more likely to make a complaint to police. There are many and varying reasons as to the increases, but few would argue with the following:

  1. The work of the Child Abuse Royal Commission since it started in 2013 and particularly, extensive media coverage of it;
  2. Extensive media coverage of sex crimes in general and domestic violence;
  3. Gradual but significant changes to laws governing the manner in which sex trials are run and dealing with the non-admissibility of evidence that used to be taken for granted and would be put before the jury.

Although the Child Abuse Royal Commission has particularly focused on systemic child abuse, there could not be any doubt that victims of sexual abuse, hearing the heart-breaking stories of survivors and the exposure of sex crimes, in many cases committed many decades ago, would have encouraged victims to find the strength to make a complaint to police.

The media coverage of the Royal Commission, appropriately covered with sympathy and empathy for the survivors and outrage against the perpetrators and institutions that allowed abuse, would also have gone a long way towards giving victims the strength to come forward.

One ought not underestimate the link between domestic violence (with all its variables) and its continued calling out in the media and social media and victims of sex crimes being fortified with the belief that the community is behind them and that “enough is enough”.

Lastly, it is one thing for a victim to make a complaint to police and entirely another for them to tell police and prosecutors that she or he is prepared to stare down their attacker, to see him (usually a him) charged and be prepared to give evidence against him. Significant changes to laws over recent years and media coverage of them, would have emboldened victims to not only report the crime but to see the arduous proceedings through to the end. These changes include:

  •  Significant difficulties for the defence to access confidential counselling notes of the victim, let alone getting any part of the notes admitted into evidence;
  • Significant difficulties for the defence to cross examine the victim about his or her sexual history, even if relevant to the alleged offence;
  • The initial complaint to police by a child victim is recorded on a DVD by police and generally, that DVD becomes the child’s evidence as to the alleged offence;
  • The child complainant is assisted by “the Children’s Champion” in readiness for cross examination;
  •  A report is prepared on behalf of the child complainant informing lawyers [and judges] of terms and expressions to avoid, having regard to the child’s level of maturity and understanding;
  • The cross examination of the child complainant is recorded before the jury is empaneled and later played back to the jury.

Newcastle Herald – Original Article: http://www.theherald.com.au/story/4920761/whats-behind-areas-rising-crime-statistics/ 

New increased police powers unjustified and problematic

Recent changes to parole and shoot to kill laws and regulations introduced through amendments to terrorism legislation in New South Wales present some very real concerns to our priceless civil liberties under the repeated political populace mantra that this is necessary to make us “safer from terrorists that would see us harm”.

This bill was rushed through parliament without proper scrutiny and is another step in the continual fettering of our civil liberties. It raises a number of significant concerns that will likely impact on our lives and have regrettable unintended consequences.

Changes to parole

Under the new regulations, parole will not likely be granted to a person who the police suspect has links to or is associated with terrorists or terrorism, potentially, even in an indirect way. It is absolutely crucial that we understand what the words “associated” or “linked” mean. It would appear that suspicion and possibly speculation will suffice; that is “guilt by association”. Who is to determine whether there is sufficient evidence for such association or link: is it the police or government? What is the standard of proof that will be required before an offender loses his or her right to parole – to ever be released from prison?

To illustrate this point let’s consider this example; Bill, an Australian with Anglo Saxon lineage, grew up with Mahmoud, whose background is Lebanese – Muslim, and they remained friends. Unbeknown to Bill, Mahmoud had covert interests in ISIS and/or terrorist activity. Bill is then gaoled for stealing a car and after spending three years in prison is due for parole. Under the new legislation, the police could present evidence of Bill’s “association” and/or “links” to Mahmoud and the presumption would be against Bill getting parole – yet – Bill has no direct link or interest in terrorist activity or ISIS and does not support or condone their activities in any way.

Fear of such an occurrence could have the effect of isolating, even more so, persons such as Mahmoud.

Increased police powers – shoot to kill

The Coroner in the Lindt Siege Inquest made it clear that police already had sufficient power to shoot and kill Monis. This additional power – to shoot to kill even where there is no evidence that the hostages have actually been threatened – is unnecessary and problematic. The legislation does not allow for independent oversight of the police commissioner’s declaration of an event that is or is likely to be a ‘terrorist act’. Why doesn’t such life ending power with unintended potential consequences have an adequate check and balance, such as with a request for a search warrant where a Justice or Justices’ sign off on the “declaration”? This could be done within a couple of hours and sieges are notorious for lasting many hours.

Likely Unintended Consequence

Any siege is likely to be treated as a terrorist act and increases the potential for hostages to be killed or seriously injured even where there is no direct evidence that the hostages were threatened or in actual danger at the hands of the hostage taker.

These changes go a long way to achieving a perverse result; giving the terrorists’ at least part of what they seek to achieve; to cause us to react out of fear and to change the way we live. Whenever we make changes to our laws that take away or whittle down our civil liberties – such as granting (even) greater powers to our police force and intelligence agencies – these changes have the real potential to cause innocent people, particularly, if they are of different ethnicities or religions, to be locked up indefinitely without there being sufficient evidence for them to be charged or brought before a court for any (other) offence. Through these laws we then achieve an unintended consequence; that, in a perverse way, at least on one level, the terrorists’ achieve their goal; that is, to affect the way we live; to limit our civil rights and freedoms that we hold so dear and for which our forefathers have fought wars and lost their lives.

For further information, contact Manny Conditsis today.

Federal Government’s Proposed New Encryption Laws

The Federal Government has recently announced that it intends to make new encryption laws to force tech companies to provide law enforcement authorities with assistance to intercept and decrypt communications. While little else is known concerning the details of these proposed laws, the language which the Prime Minister and the Attorney General have used to describe it is concerning.

Most people accept that there is a need for our laws to keep up with changes in technology and that the delicate balance between civil liberties and community safety must change in response to the circumstances which we face as a society. However, the proposed new encryption laws shift that balance too far towards authoritarian style, Big Brother surveillance by the state of its citizens.

Reading between the lines of what both the Prime Minister and the Attorney General said in their press conference, it appears that the new encryption laws will seek to force tech companies to help law enforcement authorities with intercepting and decrypting communications by building tools for that purpose. It is one thing to require companies to release information they already have to law enforcement authorities; it is quite another to force them to “assist” those authorities with decrypting that information.

To force tech companies (or for that matter any other non-Government entity) to build tools for law enforcement authorities to help them crack encoded messages would be an unprecedented incursion into the civil liberties of private individuals and companies. Effectively, it amounts to the Government co-opting the private sector to do its job for it.

If this is what the legislation will require, then it is disingenuous of the Government to claim that the new encryption laws will not involve any change in legal principle but will simply bring those principals into the online world. The truth of the matter is, existing obligations to cooperate with law enforcement authorities already apply as much to the online world as they do in the real world. The only reason the Government might need new legislation would be to impose new and fundamentally different obligations.

As if the civil libertarian concerns were not enough, there is also the obvious danger that any decryption tool built for law enforcement authorities could be leaked to criminal organisations which will then use it to wreak havoc on ordinary law-abiding citizens and organisations. We would do well to remember that the recent, devastating wannacry cyber-attacks-which crippled many computers around the world and caused an estimated four billion dollars’ worth of damage, originated with a leak from the NSA. We would be naïve to think that if these new powers are implemented the resulting decryption tools would only ever be used for legitimate law enforcement purposes.

Michal is a Law Society Accredited Specialist in Criminal Law. If you need help with a criminal matter, contact Michal today.

 

Changes to First Home Owners Benefits: the NSW Government’s Housing Affordability Package

From 1 July 2017 first home owners have access to a range of benefits as part of a housing affordability package implemented by the NSW Government to increase housing affordability for first home buyers.

Prior to the 2017 State Budget, the NSW Government announced its housing affordability package to help first home buyers get onto the ‘property ladder’. The measures aim to remove or reduce the financial barriers that can prevent first home buyers from affording their own property, such as government stamp duty and lenders mortgage insurance, while assisting them to save for a deposit, which is often several times the average wage.

Over the years there have been numerous financial incentives implemented to assist first home buyers purchase their first home. In its first iteration, the state government scheme offered very generous incentives to first home owners whether they were investing or buying a home to live in. In 2012, the NSW Government revised the incentives to focus on stimulating the building industry by encouraging new home construction; it restricted first home benefits to the purchase of newly built properties that had not been sold before (ie sold to a purchaser by a vendor who bought from a developer but had not finalised the first sale) and vacant land. However, housing affordability has only worsened.

The state government’s current housing affordability package re-introduces financial incentives for first home buyers to purchase both newly-built and existing properties as their primary residence, while retaining its financial measures for all purchasers, new home buyers or otherwise, to purchase a newly-built home. The major change in latest government package is the removal of incentives for investors.

What’s included in the housing affordability package: exemptions and concessions for new and established properties

As from 1 July 2017, first home buyers have access to a range of new incentives and exemptions.

They will now be:

  • exempt from paying stamp duty for new and established properties that are sold for up to $650,000;
  • entitled to stamp duty relief for new and established properties that are sold from $650,000 to $800,000; and
  • no longer be obliged to pay 9% insurance duty on lenders mortgage insurance meaning a saving of $2,900.

With these measures, first home buyers can save $24,740 on the purchase of $650,000 home.

All buyers, first home owner or otherwise, who purchase a new home off the plan they plan to live in will still be entitled to the twelve-month deferral of paying stamp duty. To qualify for this entitlement, purchasers must commence living in the property within twelve months of the issue of a certificate of occupation (not from the date of settlement of the purchase) and do so for a continuous period of six months.

The current exemptions and concessions for vacant land of up to $450,000 are still available.

The First Home Owner Grant

The First Home Owner Grant of $10,000 is

  • now limited to the purchase new homes of up to $600,000 in value; and
  • available for the building of a new home up to $750,000 in value under a home building contract or by an owner builder.

Share equity scheme

As part of the housing affordability package, the NSW Government will also introduce a share equity scheme where a buyer can purchase a property with an approved equity partner. This is aimed at assisting those who are unable to afford a home on their own.

An approved equity partner includes the NSW Land and Housing Corporation, a registered community housing provider and other approved persons. The guidelines on the operation of this scheme are yet to be developed.

The shared equity scheme will apply on eligible transactions where:

  • the equity partner obtains an interest in the home of not more than 80%;
  • the equity partner has the right to share in any capital gains on sale or refinancing but has no right of occupation; and
  • the home buyer can purchase more equity in the property from the equity partner at a price determined under the arrangement between the home buyer and the equity partner.

The first home buyer will also be entitled to duty exemptions or concessions and the first home owner grant and no duty will be payable on subsequent transfers of equity from the equity partner to the home buyer.

 

Ending financial incentives for investors

One of the biggest criticisms that has arisen in recent years, is the competition first home buyers face against investors. As such, financial incentives for investors have ended.

The $5000 New Home Grant Scheme and the entitlement to defer paying stamp duty for twelve months on off the plan purchases are no longer available to investors as from 1 July 2017.

Furthermore, foreign investors will now be obliged to pay higher duties and land taxes when purchasing residential real estate. Foreign investors will now be subject to a surcharge on stamp duty of 8% and a surcharge on land tax from 0.75% to 2.%.

If you have a question about the incentives or need advice regarding purchasing or selling property, contact us today.

 

Do you have an unregistered firearm? Dispose of it without penalty as part of the Australian Government’s firearm’s amnesty

The Federal Attorney General’s Department has announced a National Firearms Amnesty aimed at reducing the number of unregistered firearms in our community, to run from 1 July to 30 September 2017.

The amnesty allows anyone with an unregistered firearm to either register, sell or dispose of it, including its accessories, without penalty or risk of prosecution.

In Australia, it is illegal to have an unregistered firearm. Outside of the amnesty period, anyone caught with an unregistered firearm could face a fine of up to $280,000, 14 years in jail, and a criminal record.

How to dispose of firearms

Amnesty participants do not need to provide personal details to surrender a firearm or firearm-related article for destruction – there is a no questions asked policy. There is also no cost involved with handing in firearms or related items for destruction.

Find your registered drop-off point by calling the Amnesty hotline on 1800 909 826 or searching for the closest point using your postcode via the Amnesty website here.

For further information, contact us.

Judges Not Out of Touch

JUDGES NOT OUT OF TOUCH – Survey Shows

For many years, there has been a perception amongst the community that Judges are out of touch with contemporary societal values when it comes to sentencing. The question however, is whether that perception is the product of our Judges and Magistrates, in fact being out of touch with community values, or inaccurate, incomplete and misleading reporting of cases in the media which make it seem that the sentences imposed by Courts are inadequate for the crimes committed.

Criticising Magistrates and Judges for being supposedly too lenient on criminals has become a favourite pastime of many mainstream media outlets. However, new research shows that, once fully informed about the facts of a case, most people within our community are actually more lenient on offenders than are Judges. This suggests that the problem is not the way Judges sentence offenders but, rather, the inaccurate and distorted way in which cases are reported and presented in the media.

New research by Professor Warner (who also happens to be the current Governor of Tasmania) provides irrefutable evidence that, once ordinary members of the community are properly informed about the facts of a particular case, most are actually more lenient towards the offender than Judges. In her research, Professor Warner surveyed jurors who sat through a trial and returned a verdict of guilty, asking those jurors what sentence they would have imposed on the offender, without knowing the sentence which the Judge actually imposed. The reason that jurors were chosen for this research is that they are ordinary members of the community, picked at random but, having sat through the whole trial, they were informed of all the facts in the case, not just those which a selective media may choose to report. The result was sobering, as 62% of the jurors came up with a sentence which was more lenient than that which the Judge imposed on the offender.

Clearly then, the media led perception of excessive leniency amongst Judges is not grounded in reality.

So, if Judges are not failing our community, why is there such a persistent perception to the contrary? The answer, surely, must be that it is in fact the main stream media that is failing us.

The problem is that there is a real disparity between the way in which cases are reported in the media and the actual facts of cases. The media thrives on controversy. This means that court reporters are under pressure to report on cases in a way in which it creates controversy even when none really exists. You may think that a court reporter who spends several days sitting in Court reporting on a case and files a story with the headline: “Judge imposes appropriate sentence” will not find favour with the editor. I am aware of reporters having filed reasonably accurate stories, only for the editor(s) to put a red pen through it and come up with a headline and content that entirely misrepresented the facts in the case.

The moral of the story is, next time you read an article in the newspaper or hear a story on the news about some outrageously lenient sentence imposed by a judge or magistrate, you should probably have a grain of salt on hand.

Final results from the Tasmanian Jury Sentencing Study
Listen to the full episode of the ABC Law Report

Michal Mantaj,
Conditsis Lawyers
Accredited Specialist, Criminal Law

(02) 4324 5688
enquiry@www.conditsis.com

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