Law Handbook Example

47.
5 mm
Your Practical Guide to the Law in New South Wales
THE LAW
‘The Law Handbook … draws on the contributions of lawyers working
in a range of specialties and provides a wealth of practical legal
information … It is a well-organised, easy-to-use book, which equips
people to understand their rights and obligations under the law.’
The Hon. Virginia Bell,
Justice of the High Court of Australia
HANDBOOK
THE
The Law Handbook is the plain English guide
to the law in New South Wales, providing
access to law that affects people in their
everyday lives. It contains 45 chapters
written by over 90 lawyers and legal experts
What people said about previous editions
of The Law Handbook:
‘The Law Handbook … puts the law into
the context of people’s lives. It provides
LAW
HANDBOOK
updated information on an ever-wider
with the most up-to-date information
possible about the law in New South Wales.
range of legal areas.’
The Hon. JJ Spigelman, Chief Justice
11th EDITION 11th EDITION
This fully revised 11th edition includes of New South Wales on the 10th edition
the recent fundamental changes to law
affecting Aboriginal people, children ‘The Law Handbook … provides a readily
and same-sex couples and their families, accessible opportunity for ordinary people
disability law and estate law; as well as to obtain a basic knowledge that every
brand new sections on legal research, and citizen should have.’
water and energy consumption law. Sir William Deane, 22nd Governor-General
Every chapter contains a comprehensive of Australia on the 9th edition
list of the organisations and websites you
need for further information or help. The ‘The Law Handbook is an essential link in
Law Handbook is an indispensable resource the chain that binds law and justice.’
for every household and workplace in New Marie Bashir, Governor of New South Wales,
South Wales. on the 8th edition
© 2009 Thomson Reuters (Professional) Australia Limited

ABN 64 058 914 668
For further information visit: www.thomsonreuters.com.au

Proudly Printed in Australia
REDFERN LEGAL CENTRE PUBLISHING REDFERN LEGAL CENTRE PUBLISHING
TR0093_RLCP_Cover_v4.indd 1 24/06/09 9:55 AM

F o r e wo r d
I was one of many contributors to the predecessor to The Law

Handbook, which was launched in 1978. It was then called by
the less alluring title The Legal Resources Book. It was a rather
unwieldy, looseleaf book packaged in a ring-binder made out
of the material used to make Globite school-cases. We adopted
the looseleaf format so that the book could be updated to
reflect changes in the law. While this was good in theory it
did not make for a very convenient book. So, over time, The
Legal Resources Book was transformed into the snappier
The Law Handbook, a comprehensive guide to the law in a single paperback volume.
The Law Handbook has been regularly revised and released in new editions ensuring that
it remains up-to-date and relevant. It has come a long way over the past 30 years.
The Law Handbook is designed to make the law accessible to anyone with an interest
in finding out about it. It draws on the contributions of lawyers working in a range
of specialties and provides a wealth of practical legal information. The scope of the
topics and the depth of coverage has expanded over the years. This is evident in the
detailed treatment of the ways in which the law deals with publication on the internet,
downloading, copying and sharing digital content and the application of consumer
protection laws to e-commerce. It is a well organised, easy-to-use book, which equips
people to understand their rights and obligations under the law. It may not always serve
as a substitute for professional legal services but it will make the reader a better informed
consumer of those services. More than this, it is a valuable source of legal information on
topics, including the environment, the regulation of the media, immigration and criminal
justice, that are of general interest to many members of the community.
All of the contributors are to be congratulated for the quality of their plain English
exposition of the law. I commend Redfern Legal Centre Publishing for the quality of the
11th edition of this valuable and tested work.
The Hon. Virginia Bell

Justice of the High Court of Australia
LawHandbookPrelims.indd 5 11/06/09 3:23 PM

Contents
About The Law Handbook x

Redfern Legal Centre Publishing xi
Contributors to past editions xii
1 About the legal system 1

Lynda Muston, Office of the Legal Services Commissioner
Simon Rice, Australian National University, Canberra
Jill Quin, Legal Information Access Centre, State Library of
New South Wales
2 Aboriginal people and the law 35

Donna Hensen, Women’s Legal Services NSW
Tony McAvoy, Barrister
The Arts Law Centre of Australia
3 Accidents and compensation 65

John Cahill, Workers Compensation Commission
Andrew McSpedden, Lawyer
4 Arrest, interrogation and bail 99

Andrew Haesler, Public Defender’s Office
5 Assistance with legal problems 119

Sally McAtee, Legal Aid NSW
Lalitha Raman, Legal Aid NSW
Ludmilla Robinson, Barrister
6 Banking 139
Tim Gough, Australian Securities & Investments Commission
7 Bankruptcy 145
Robert Cruickshanks, Insolvency & Trustee Service Australia
8 Children and young people 161

Deborah De Fina, Legal Aid NSW
Jane Sanders, Shopfront Youth Legal Centre
Julieanne Mahony, Department of Community Services
9 Community organisations 225

Graham Wheeler, Solicitor
10 Complaints 251
Rodney Fisher, University of Technology, Sydney

Contents vii
Jo Flanagan, Office of the NSW Ombudsman

11 Consumers 283
Guy Di Carlo, Office of Fair Trading
Peter Dodd, Public Interest Advocacy Service
Health Care Complaints Commission
Mark Ludbrooke, Public Interest Advocacy Service
12 Contracts 339
Carolyn Penfold, UNSW, Sydney
13 Copyright 351
Ian McDonald, Australian Copyright Council
14 Court 363
15 Credit 387
Lillian Chan, Legal Aid NSW
Alex Grosart, Legal Aid NSW
Pip Martin, Legal Aid NSW
John Moratelli, Legal Aid NSW
Katherine Pranic, Legal Aid NSW
Kai Wu, Legal Aid NSW
16 Criminal law 411

Andrew Miles
17 Debt 427
Lillian Chan, Legal Aid NSW
Alex Grosart, Legal Aid NSW
Pip Martin, Legal Aid NSW
John Moratelli, Legal Aid NSW
Katherine Pranic, Legal Aid NSW
Kai Wu, Legal Aid NSW
18 Disability law 451

Esther Cho, Guardianship Tribunal
Ben Fogarty, Intellectual Disability Rights Service
19 Discrimination 503
Jennifer Whelan, Solicitor
20 Dispute resolution without going to court 515

Robyn Claremont and Louise Davies, Workplace Wordsmiths

viii T he L a w H a n d b o o k
21 Domestic violence 527

Women’s Legal Services NSW
22 Driving and traffic law 551

Phillip Gibson, Lawyer
23 Drug offences 567

Steve Bolt, Northern Rivers Community Legal Centre
24 Employment 585
Joanne Moffitt, NSW Nurses Association
25 Environment and planning 613

Graeme Wiffen, Macquarie University, Sydney
Ian Ratcliff, Environmental Defender’s Office (NSW) Northern Rivers
26 Family law 655

Ruth Pilkinton, Legal Aid NSW
27 Freedom of information 709

Anina Johnson, NSW Crown Solicitor’s Office
28 Health law 715

Indraveer Chatterjee, HIV/AIDS Legal Centre
Marlene Keese, Therapeutic Goods Administration
Renee Trentini, National Health & Medical Research Council
Robert Wheeler, Legal Aid Commission of NSW
Melissa Woodroffe, HIV/AIDS Legal Centre
29 Housing 745
Grant Arbuthnot, Tenants’ Union of NSW
Sean Ferns, Park and Village Service
Adam Heydon, Office of Fair Trading
Alex Irving, Solicitor
Chris Martin, Tenants’ Union of NSW
Robert Mowbray, Older Persons Tenants Service
Rita Wilkinson, Southern Sydney Tenants Advice and Advocacy Service
30 Immigration 805
Jennifer Burn, University of Technology, Sydney
31 Insurance 833
Marion Hass, University of Technology, Sydney
Michael Sadaat, Australian Securities & Investments Commission
Nicole Tschaut, University of Technology, Sydney
Rosalie Viney, University of Technology, Sydney
32 Internet law 851

James Arnott, Victoria University, Melbourne

Contents ix
Michael Fraser, Communications Law Centre, Sydney

Ben Strong, Victoria University, Melbourne
33 Media law 867

Roy Baker, Macquarie University, Sydney
Sarah Harmelink, Australian Communications & Media Authority
34 Neighbours 889
Anthony Hudson, Solicitor
35 Prisoners 907
Will Hutchins, Prisoners Legal Service, Legal Aid NSW
36 Privacy 927
Philippa O’Dowd, Privacy NSW
Andrew Solomon, Office of the Federal Privacy Commissioner
37 Refugees 945
Christian Carney, Refugee Advice & Casework Service
38 Same-sex couples and their families 957

Ghassan Kassisieh, Solicitor
Jenni Millbank, University of Technology, Sydney
39 Sexual offences 993

40 Social security entitlements 1011

John Stannard, Caxton Legal Centre
41 Superannuation 1029
John Berrill, Solicitor
42 Taxation 1053
Philip Burgess, UNSW, Sydney
43 Veterans’ entitlements 1077

Anastasia Toliopoulos, Veteran’s Advocacy Service
44 Victims’ compensation 1083

John McAteer, Victims Compensation Tribunal
45 Wills, estates and funerals 1095

Trudy Coffey, Director of Social Work, Liverpool Hospital
Rosemary Long, Solicitor
Glossary 1121
Index 1129

22
driving and traffic law
Driving offences 552

Major offences 552
Other driving and traffic
offences 558
Driving licences 559

Types of licence 559
Cancellation and suspension
of licences 559
Parking 563
Parking offences 563
Common parking problems 564

LHB11-22.fm Page 552 Monday, June 1, 2009 3:08 PM
552 The Law Handbook
Driving offences
Criminal sanctions to enforce the safe use of • the regulations associated with each of the
motor vehicles are available under: Road Transport Acts
• the Crimes Act 1900 • the Australian Road Rules 1999.
• the Road Transport (General) Act 2005 The more serious offences under these Acts are
• the Road Transport (Drivers Licensing) Act classified as major offences, breaches of which
1998 are generally dealt with by the courts (Road
• the Road Transport (Safety and Traffic Transport (General) Act s.25).
Management) Act 1999 Other offences are generally dealt with by the
• the Road Transport (Vehicle Registration) imposition of fines and demerit points.
Act 1997
Major offences
Major driving offences include:
• any crime or offence where death or grievous Penalties for second and
subsequent offences
bodily harm is caused (Crimes Act ss.33,
While the penalties for these offences are severe, as a
52A, 53, 54; Road Transport (Safety and further deterrent penalties for second and further offences
Traffic Management) Act s.42) within five years are automatically higher (See Habitual
• driving furiously or recklessly (Road traffic offenders on page 557). A third offence within that
Transport (Safety and Traffic Management) time can lead to the motorist being declared a habitual
Act s.42) traffic offender under s.199 of the Road Transport
(General) Act.
• driving in a manner or at a speed dangerous
to the public (Road Transport (Safety and
Traffic Management) Act s.42(2))
• menacing driving (Road Transport (Safety
Offences causing death and
and Traffic Management) Act s.43AA) serious injury
• predatory driving (Crimes Act s.51A) A driver who causes the death of or seriously
• driving with the prescribed concentration of injures another person may face various charges.
alcohol (Road Transport (Safety and Traffic Offences under the Crimes Act include:
Management) Act s.90) • murder (s.18)
• driving under the influence of a drug or • manslaughter (s.24)
alcohol (Road Transport (Safety and Traffic • aggravated dangerous driving occasioning
Management) Act s.12) death (s.52A)
• refusing to undergo breath analysis or a drug • aggravated dangerous driving occasioning
test (Road Transport (Safety and Traffic grievous bodily harm (s.52A)
Management) Act ss.15(4), 16, 29) • dangerous driving occasioning death (s.52A)
• refusing to stop and render assistance (Road • dangerous driving occasioning grievous
Transport (Safety and Traffic Management) bodily harm (s.52A).
Act s.70; Australian Road Rules) Offences under the Road Transport (Safety and
• aiding, abetting, counselling, procuring the Traffic Management) Act include:
commission of or being an accessory before • negligent driving occasioning death
the fact to any of these crimes or offences. • negligent driving occasioning grievous bodily
harm (s.42).
Murder • was a passenger in the vehicle being

A person who drives a motor vehicle with the dangerously driven
intention of causing death or grievous bodily harm • was struck by the vehicle or something that
(that is, very serious injury) which actually results was attached to it or fell from it
in someone’s death may be guilty of murder. • was struck by an object that had first been
The maximum penalty is life imprisonment. struck by the vehicle.
Defences
What is grievous bodily harm? It is a defence against a dangerous driving charge
There is no clear definition of grievous bodily harm, but to show that death or injury was not the driver’s
courts treat it as a question of degree as to the serious- fault; for example, that a pedestrian ran onto the
ness of the injury, including any permanent or serious road suddenly and without warning, giving the
disfiguring.
driver no chance to avoid them.
Manslaughter Aggravated dangerous driving
A person who drives a motor vehicle in a crimi- Aggravated dangerous driving is a dangerous
nally negligent way and causes the death of some- driving offence that involves:
one else is liable to be charged with manslaughter. • driving with a blood alcohol concentration in
the high range
What must be proved
For the court to decide that criminal negligence is • exceeding the speed limit by more than
involved, it has to find a very high degree of care- 45 kilometres per hour
lessness (much higher than the normal degree of • attempting to escape a police pursuit.
negligence in civil matters) showing a disregard for Negligent driving
the life and safety of others. Negligent driving is an offence in which the driver
Manslaughter is an offence that must be tried fails to exercise the degree of care expected of a
before a jury, and the punishment may be impris- careful driver in the circumstances.
onment up to a maximum of 25 years. However, The court will look at factors such as the type,
juries seem to be reluctant to convict drivers of use and condition of the road, and the actual and
manslaughter, so a driver in this situation is more potential traffic on the road.
likely to face one or more of the lesser charges. Negligent driving charges can also be dealt
with summarily in the Local Court (see below).
How offences involving death
are dealt with How offences involving serious
A person charged with a driving offence involving death injury are dealt with
(other than the negligent driving offences – see below)
A person charged with a driving offence involving seri-
first faces a committal hearing in the Local Court. If the
ous injury may be dealt with in either the Local or Dis-
magistrate decides there is enough evidence against the
trict Court. Either the defendant or prosecution can elect
driver to prove the charge, the case is referred to the
to have the matter dealt with in the District Court. If the
District Court for trial.
matter is dealt with in the District Court the procedure is
the same as for offences involving death.
Dangerous driving offences If the matter is to be dealt with in the Local Court the
Dangerous driving offences may be committed by person will be sentenced following a plea of guilty or the
court will hold a hearing to determine the person’s guilt
the driver of a vehicle (including a horse-drawn following a plea of not guilty.
vehicle) who was, when the death or grievous
bodily harm occurred:
• under the influence of alcohol or a drug, or Driving in a manner or at a speed
• driving in a manner or at a speed dangerous
to another person.
dangerous to the public
The offence may occur on private or public land. Driving in a manner dangerous to the public
In determining whether someone is driving in a
Who may be affected by dangerous driving?
Under the Crimes Act, the crime of dangerous manner dangerous to the public, the court must
driving may apply where the injured person: make an objective assessment of a driver’s care and
control of a vehicle (Road Transport (Safety and
Traffic Management) Act s.42). The driver’s
Contact points and internet resources for this chapter begin on page 565
intention, or awareness of their manner of driving, • menacing driving (Road Transport (Safety
is irrelevant. and Traffic Management) Act s.43), which
The test, which the prosecution must prove carries a penalty of up to two years’
beyond reasonable doubt, is whether the driving imprisonment.
created a danger to anyone present or likely to be All these offences also carry mandatory minimum
present, even if the danger was only potential. periods of licence disqualification (see page 561).
Predatory driving
What does manner mean? Predatory driving is engaging in conduct while in
The word ‘manner’ covers all aspects of driving, includ-
ing speeding, although a person may be charged sepa-
pursuit of or travelling near another vehicle that:
rately with driving at a dangerous speed. • causes or threatens an impact involving the
other vehicle, and
• is intended to cause someone in the other
Driving at a speed dangerous to the public
vehicle actual bodily harm.
A charge of driving at a dangerous speed must also
be proved beyond reasonable doubt. Menacing driving
Whether danger exists will depend on all the A person driving on a public street in a manner
circumstances of the case, including the condition that menaces or is intended to menace another
of the road surface, the condition of the driver’s person with the threat of personal injury or
car, observance of traffic signals and so on. damage to property may be convicted of the
offence of menacing driving. The person being
Driving over the speed limit menaced need not be on a public street.
Exceeding the speed limit is not classified as a major
offence, unless the driving is at a speed dangerous to the Penalties
public. However, the Road Transport (Safety and Traffic In addition to the terms of imprisonment referred
Management) (Road Rules) Regulation includes special to above, a driver convicted of any of the offences
penalties for exceeding the speed limit by more than under the Crimes Act is also liable to the same
30 kph and more than 45 kph (see the table on page 561). penalties as a motorist convicted of a high range
A safe speed is determined by the circumstances.
Driving at the speed limit is not necessarily driving at a
alcohol offence (Road Transport (Safety and
safe speed. Driving at the speed limit at night, or in rain Traffic Management) Act s.9(4); Road Transport
or fog, for example, may not be safe. (General) Act s.188).
Conviction for a lesser offence

Menacing driving, predatory driving A motorist who is charged but then acquitted of one of
and similar offences the major offences may nevertheless be found guilty of a
less serious offence. For example, a person may be
These offences are found in both the Crimes Act acquitted of a charge of aggravated dangerous driving
and the Road Transport (Safety and Traffic Man- occasioning death but be found guilty of either danger-
agement) Act, and include: ous driving occasioning death or negligent driving
• maliciously causing grievous bodily harm occasioning death.
(Crimes Act s.33), which carries a penalty of
up to 25 years’ imprisonment
• predatory driving (Crimes Act s.51A), which Prescribed concentration of
carries a penalty of up to five years’ alcohol offences
imprisonment It is an offence for a person to drive or try to drive
• driving wantonly, furiously or with wilful a motor vehicle if the concentration of alcohol in
neglect causing harm (Crimes Act s.53), their blood is more than the prescribed limit.
which carries a penalty of up to two years’
imprisonment What is the limit?
• causing grievous bodily harm by any The general prescribed limit is 0.05 grams of
unlawful or negligent act (Crimes Act s.54), alcohol per 100 mL of blood.
which carries a penalty of up to two years’ A special limit of 0.02 grams per 100 mL
imprisonment applies to drivers of:
• public vehicles such as buses and taxis
• vehicles carrying dangerous goods Unless the driver can show, on the balance of
• vehicles over 13.9 tonnes. probabilities, that the reading is incorrect, the
The limit for learner drivers and drivers holding court will accept a section 33 certificate as proof of
provisional licences is zero. the driver’s blood alcohol concentration.
Drinking while driving Refusing a test
It is also an offence to consume alcohol while It is an offence to refuse to undergo a breath
driving a motor vehicle. analysis. Failure to provide a sufficient sample is
regarded as a refusal and is therefore an offence.
Ranges of alcohol concentration The police usually allow a driver two or three
Blood alcohol concentrations are described as attempts to give a sample before charging them.
special, low, medium and high, with each range When police cannot administer a breath test
carrying a higher penalty than the one below (see or analysis
page 561). There are some restrictions on the powers of the
police in relation to breath tests and analyses.
How much alcohol? They may not ask a person to undergo a breath
On average, men can drink three middies (275 mL test or breath analysis if:
glasses) of beer or the equivalent in one hour before • the person is seriously injured and the test
exceeding the limit. Women, on average, can only drink may be dangerous
the equivalent of two middies. The special range could
be exceeded after only one middy.
• the person is at home
After the first hour, the level is maintained by drinking • it is two hours or more since the person last
one middy an hour, or less. drove or attempted to drive.
These figures can vary significantly from one individ- In these circumstances the police may still charge
ual to another. the person with driving under the influence of a
drug or alcohol (see below), but not with a pre-
Breath tests scribed concentration of alcohol offence.
Police have the power to require anyone driving or
attempting to drive a vehicle to undergo a breath Blood tests
test (Road Transport (Safety and Traffic Manage- In most circumstances a person over 15 who is
ment) Act s.13). The test normally involves the admitted to hospital after an accident is required
police taking a sample of the driver’s breath using to undergo a blood test to determine their blood
a device known as a Lyons Alcolmeter SD2. alcohol level (s.20).
When a breath analysis is required
If the breath test shows a reading of 0.05 (or 0.02 Offences involving drugs other
for special range drivers) or higher, the person is than alcohol
arrested and taken to a nearby police station or It is an offence for a person to drive or attempt to
mobile van for a breath analysis. drive a motor vehicle while any prescribed illicit
If the analysis confirms that the driver has drug is present in their oral fluid, blood or urine
exceeded the limit, a court attendance notice is (Road Transport (Safety and Traffic Management)
issued showing the amount by which the driver Act s.11B).
exceeded the limit at the time of the offence.
Oral fluid tests
Altering the reading Police can require anybody driving or attempting
It is an offence for anyone to alter their blood alco- to drive a motor vehicle to undergo one or more
hol reading after being breath-tested and before oral fluid tests (s.18B).
undergoing breath analysis.
When a sample must be provided
The section 33 certificate If an oral fluid test shows that there may be one or
The breath analysis is recorded on what is called a more prescribed illicit drug in the person’s oral
section 33 certificate. The certificate can be ten- fluid, they are arrested and taken to a nearby
dered in court and, if the analysis was done within police station or other place decided by the officer
two hours of the driver last having driven or to supply an oral fluid sample (s.18D).
attempted to drive, the court will consider it to be The oral fluid sample is placed in a container,
the reading at the time of either of those events. fastened, sealed, marked and labelled. A certificate
is then given to the person providing the sample to Trafficking Act 1985, and any other substance
enable the sample to be identified. prescribed as a drug.
The sample is then sent to a laboratory pre- Common drugs included in these categories
scribed by the regulations for testing. are amphetamines, Indian hemp (including canna-
Altering the reading bis), barbiturates, heroin and most sedatives (Ser-
It is an offence for any person to alter the amount apax, Valium and so on).
of a prescribed illicit drug in a person’s oral fluid How much is too much?
before an oral fluid test, or after an oral fluid test When a person is charged with driving under the
and before supplying an oral fluid sample (s.18G). influence of a drug or alcohol, the quantity taken
The section 33B certificate is not the issue. What is relevant is the extent to
The drug analysis is recorded on a section 33B cer- which the drug or alcohol has affected the person’s
tificate. The certificate can be tendered in court ability to drive.
and, if the oral fluid sample was taken within two
How police judge
hours of the event that entitled the officer to The police assess the person for signs of being
request it, the court will accept it as proof of the affected such as slurred speech, unsteadiness on
reading at the time of that event. their feet, glazing of the eyes and their general
Refusing an oral fluid test manner and demeanour.
It is an offence to refuse to undergo an oral fluid
Assessment after a negative breath test
test. Failure to provide an oral sample is regarded Even if a breath test has proved negative, a person
as a refusal and is therefore an offence (s.18D). can be required to undergo a further assessment of
When police cannot administer an oral fluid test their condition under some circumstances.
There are some restrictions on the power of police Further assessment can be carried out if:
in relation to oral fluid tests and oral fluid samples. • the police officer has a reasonable belief that
Police may not ask a person to take an oral fluid the person is under the influence of a drug
test or provide a sample if: because of how they drove or attempted to
• the person is admitted to hospital for medical drive, and
treatment, unless the medical practitioner in • the assessment is carried out by a police
immediate charge of the treatment is notified officer at or near the place where the person
and does not object took the breath test (Road Transport (Safety
• the person is severely injured, and the and Traffic Management) Act s.25).
procedure may be dangerous
Taking samples
• it has been two hours or more since the The police may take a person to a medical practi-
incident that allowed the police to test tioner to obtain a blood or urine sample (subject to
• the person is at home. the same restrictions as when they require a person
Blood and urine tests to undergo a breath test or analysis – see When
Police may require a person who has attempted to police cannot administer a breath test or analysis
provide an oral fluid sample but been unable to do on page 555).
so to provide a blood or urine sample (s.18E). Any blood or urine sample taken is divided
Blood or urine samples must be taken within into two parts. One is given to the driver, who has
four hours of the relevant event. the right to have it independently tested.
Insurance and alcohol-related convictions
Driving under the influence of a drug Most insurance policies covering damage to
or alcohol motor vehicles contain an exemption stating
It is an offence for a person to drive or attempt to that the insurer is not liable to pay for damage if
drive while under the influence of a drug or alco- the driver was under the influence of a drug or
hol (Road Transport (Safety and Traffic Manage- alcohol at the time of the accident, whether this
ment) Act s.12). contributed to the accident or not (see chapter 31,
Under the Act, drug means a prohibited drug Insurance).
within the meaning of the Drug Misuse and However, the fact that a person has submitted
to a breath test or breath analysis or has been
convicted of a prescribed concentration of alcohol for three years will not commence their five-year
offence cannot by itself be used by the insurer to disqualification as a habitual offender until the
exclude liability (s.37). prescribed concentration of alcohol penalty has
Any prescribed concentration of alcohol con- been served. The person is effectively disqualified
viction must be notified to the insurance company, for eight years.
which may use it as a reason to refuse to cover the Offences that were proved but dismissed
driver or to raise the premium. For the purposes of determining whether a third
offence has occurred within five years, an offence
The effect of alcohol-related convictions on insurance is that was proved but dismissed under s.10 of
discussed in more detail in chapter 31, Insurance. the Crimes (Sentencing Procedure) Act 1999 is
counted as a conviction.
The court’s discretion
Failing to stop and give assistance The court has certain discretions, and may quash
If someone is injured in an accident, the driver the declaration if it determines that the disqualifi-
must stop and give assistance. It is an offence not cation imposed is a disproportionate and unjust
to do so, and the driver may be liable to the same consequence, having regard to the total driving
penalties as those applying to a high range prescribed record of the person and the special circumstances
concentration of alcohol offence (Road Transport of the case.
(Safety and Traffic Management) Act s.70). It also has discretion to:
A driver involved in an accident must stop and, • reduce the disqualification period, but not
if requested, give their name and address to any below two years
other person involved. They must also report the • increase the period to a lifetime
accident to the police within 24 hours if someone disqualification.
has been injured or a vehicle is towed away.
Driver education programs
For more about the driver’s obligations at the scene of an There are a number of driver education programs that
accident, see chapter 3, Accidents and compensation. can be completed before sentencing or as part of a sen-
tence for serious driving matters.
Traffic Offenders Program
People are referred to this program by the court before
Habitual traffic offenders being sentenced. Completion of the program is most
Someone may be declared a habitual traffic beneficial for first-time offenders, who may thus avoid a
offender if they have been convicted of three rele- conviction, and multiple offenders who are facing
vant offences in five years (Road Transport (Gen- custodial sentences.
eral) Act ss.198–203), including: Sober Drivers Program
• any major offence This program is for adult offenders convicted of a second
• driving in excess of 45 kph over the drink driving offence in a five-year period. It is a nine-
designated speed limit week educational program delivered by the Probation
and Parole Service. Attendance is usually a condition of
• driving for the second time without ever a good behaviour bond imposed by the court.
having been licensed Alcohol Interlock Program
• driving while disqualified People convicted of drink driving offences (except first
• having been convicted of similar offences in time low range and special range offences) can ask to
another state. participate in this program. An electronic device, which
is wired to the ignition, prevents the car from being
Penalties started unless the driver passes a breath test.
Anyone declared a habitual traffic offender is auto- People on the program have to serve at least half the
matically disqualified from driving for five years. minimum disqualification period for their offence and
then a further minimum period of one to four years
Accumulated periods of disqualification (depending on the offence) on the program.
The automatic period of disqualification is in The device records all failed attempts to start the car,
addition to any other period of disqualification. and the data is monitored regularly. Repeat failed
For example, a person whose third serious offence attempts may result in alcohol counselling or cancella-
tion of the program.
in five years is a mid-range prescribed concentration
of alcohol offence for which they are disqualified
Information that must be given to police on request

A person normally has the right to remain silent when If a driver is suspected of having committed a driving
questioned by police; however, a driver must produce offence, the owner of the vehicle may be requested to
their licence and state their name and address if identify the driver and, if unable to do so, may be found
requested to do so by a police officer (Road Transport guilty of an offence even if the driver is later found to be
(General) Act s.125). innocent (s.173).
Where the owner is not the driver The owner will not be liable if for some reason the
A person who allows their vehicle to be driven by some- driver’s identity is not known; for example, if the vehicle
one else is expected to know who used the vehicle and has been used without the owner’s knowledge and
when it was used. consent.
Other driving and traffic offences

Less serious offences usually involve a breach of • paying the fine specified in the notice
the traffic regulations, or road rules. • challenging the infringement notice, if the
driver believes they are not guilty of the
The road rules offence.
Rules dealing with the control and right of way of motor
vehicles in various situations likely to be met on the road
Challenging an infringement notice
are set out in the Regulations to the Road Transport A person who wishes to challenge an infringement
(Safety and Traffic Management) Act, the Road Transport notice should request that the matter be either:
(General) Act and the Australian Road Rules. Details of • reviewed by the Director of the Infringement
these rules can be obtained from the Roads and Traffic Processing Bureau, or
Authority (RTA). • referred to the Local Court.
Penalties for breaching the traffic regulations may
include loss of licence points (see Suspension and can- Requesting a review
cellation by the RTA – the points system on page 560) as A review must be requested before the time for
well as fines. payment has expired.
All traffic offences apart from the major offences The request for the review should set out:
discussed above are dealt with by the issue of • the reasons for the request
either: • details of the person’s driving record.
• a court attendance notice, or The reasons should consist of facts that demon-
• a traffic infringement notice. strate either:
• innocence, or
• extenuating circumstances that may be
Court attendance notices sufficient excuse for committing the offence.
If a person is issued with a court attendance notice The review usually takes about six weeks.
for a driving offence, they must appear before a
Local Court. Referral to the Local Court
If the matter is heard in the Local Court and the
The notice must be issued within six months of
driver is unsuccessful, the court may impose a fine
the alleged offence.
higher than that in the traffic infringement notice.
Traffic infringement notices Failure to respond to an infringement notice
If the penalty for the offence does not involve a If the person does not pay the fine or refer the
term of imprisonment, the police may issue the matter to court, the State Debt Recovery Office, in
driver with a traffic infringement notice. The cooperation with the RTA, may move to first
driver then has the option of: suspend and then cancel the person’s driver’s
licence or car registration, and will not permit
their reissue until the fine has been paid (Fines Act
1996).
Street and illegal drag racing A person who participates in a street race may
A person who operates a motor vehicle on a public be fined 20 penalty units. Under s.218 of the Road
street in such a manner as to cause sustained loss Transport (General) Act, police have the power to
of traction of the wheels or for a speed competi- impound the vehicle.
tion may be fined up to five penalty units. A court may, at its discretion where there is
If some flammable liquid is used under the good reason to do so, reduce these penalties (Road
tyres, the penalty may be as high as seven penalty Transport (Safety and Traffic Management) Act
units. s.41).
Driving licences
Types of licence
The Roads and Traffic Authority (RTA) issues The P1 licence
coloured driver’s licences with a photograph of the A P1 is issued for a period of 18 months, during
licence holder. The colour of a licence indicates its which time the holder must display a red P plate on
status, as follows: the front and rear of the vehicle.
• learner’s licence – green Under cl.38(5) of the Road Transport (Safety
• provisional licence – green and red and Traffic Management) Regulation, the holder
• probationary licence – black must not drive at a speed in excess of 90 kph.
• unrestricted licence – silver The P2 licence
• unrestricted license held by a driver with a A driver who has satisfied the conditions of the P1
five-year good driving record – gold. can apply for a P2. The P2 licence is issued for
30 months, during which the holder must display
Provisional licences
a green P plate on the front and rear of the vehicle.
A novice driver is issued with a two stage provi-
The maximum speed at which the holder can
sional licence consisting of a P1 and a P2 licence
drive is 100 kph (cl.38(6)).
(Road Transport (Driver Licensing) Regulation
cll.15, 15A). Either class of probationary licence Probationary licences
may be cancelled if the driver incurs four or more A probationary licence is issued to a person when
demerit points (see Suspension and cancellation by they renew their licence after a period of disqual-
the RTA – the points system on page 560). ification. It is issued on the condition that the
driver does not incur two or more demerit points
over a 12-month period.
Cancellation and suspension of licences

A driver’s licence may be cancelled: their health or medical condition or in the
• by a court, when it disqualifies a driver from interests of public safety (see Suspension and
driving, or cancellation by the RTA – the points system
• by the RTA, when it decides that a person is on page 560), or
temporarily unfit to hold a licence because of
• by the RTA, for the non-payment of fines (see Appeal against cancellation
Failure to respond to an infringement notice If a person’s licence has been cancelled or sus-
on page 558). pended by RTA administrative action, they have
If a person’s licence is cancelled 28 days to appeal to the Local Court.
A person must immediately surrender a cancelled
licence, and may be charged if they do not. Suspension and cancellation by
the RTA – the points system
Driving while unlicensed The RTA may cancel a person’s licence for any period it
It is an offence for a person to drive without a thinks is appropriate in the public interest.
licence or while their licence is suspended or What the RTA takes into account
cancelled. The penalties are severe. Before cancelling a person’s licence, the RTA considers
A driver remains a cancelled driver, and subject their driving record, using the points system as an admin-
to the penalties for cancelled drivers, after the istrative guide.
disqualification period has expired and until their The points system
licence is renewed. The penalty, or part of the penalty, for many driving
offences involves demerit points.
Suspension by police Under the Road Transport (Drivers Licensing) Regu-
lation cl.36 and Sch.1, an offender is given a fixed
The police may also suspend a licence in certain
number of demerit points for each of the offences listed
circumstances (Road Transport (General) Act on page 562. The points are doubled over a long week-
ss.204, 205). The licence can be suspended for up end when either Friday or Monday, or both, are declared
to 14 days if the driver is: public holidays. The number of demerit points that may
• in the opinion of police, incompetent, reckless be received before further action is automatically taken,
or careless, or or considered, depends on the type of licence.
• found to be under the influence of liquor. When a licence will be suspended
Police may recommend to the RTA that the period If a person incurs from 12 to 15 demerit points within a
period of three years, their licence will be suspended for
be increased. three months.
The person must surrender their licence to the If a person incurs from 16 to 19 points within a period
police if it has been suspended by them. of three years, the suspension period is four months.
If a person incurs from 17 to 20 points within a period
If the person has been charged with certain of three years, the suspension period is five months.
alcohol-related offences
Under s.205 of the Road Transport (General) Act, If the licence has not been cancelled before
the police may, pending the hearing and deter- If the person’s licence has not been cancelled before, the
RTA may offer them a probationary licence instead.
mination or withdrawal of the charge, suspend the
If further demerit points are incurred
licence of anyone charged with:
If the driver incurs two or more demerit points while on
• a mid-range or high-range prescribed a probationary licence, the RTA will suspend it for a
concentration of alcohol offence, or period that is twice the original suspension period and
• wilfully altering or obstructing the taking of a then issue another probationary licence.
blood test. Accumulated periods of suspension
Effect on any period of disqualification Any periods of suspension that result from incurring
The suspension may count towards any period of demerit points are added on to the automatic suspension
period, if there is one, for the offence that brought the
disqualification that the court may later impose, demerit point total over the suspension threshold.
including any minimum period. For example, under the points system, a driver incurs
Review and appeal six points for exceeding the speed limit by more than
45 kph. If that brings the driver’s total demerit points to
The person may apply to the Administrative Deci- 12, the RTA may take action to suspend the licence for
sions Tribunal to review the suspension. Lodging three months. This three-month period is added to the
the appeal does not stay the suspension. automatic period prescribed by the legislation for the
The tribunal may not lift the suspension unless offence (three months), and the person’s licence is
it is satisfied that there are exceptional circum- suspended for a total period of six months.
stances justifying it (s.241).
Maximum penalties and disqualifications under the road transport legislation

for offences committed after 1 October 1998
Section Offence First offence Second or subsequent offence
Road Transport (Safety and Traffic Management) Act
42(1)(a) negligent driving occasioning death 30 penalty units and/or 18 months’ jail; 50 penalty units and/or 2 years’ jail;
disqualification for 3 years (min. 1 year) disqualification for 5 years (min. 2 years)
42(1)(b) negligent driving occasioning grievous 20 penalty units and/or 9 months’ jail; 30 penalty units and/or 1 year’s jail;
bodily harm disqualification for 3 years (min. 1 year) disqualification for 5 years (min. 2 years)
42(1)(c) negligent driving 10 penalty units
42(2) driving furiously, recklessly or at a speed or in a 20 penalty units and/or 9 months’ jail; 30 penalty units and/or 1 year’s jail;
manner dangerous to the public disqualification for 3 years (min. 1 year) disqualification for 5 years (min. 2 years)
43(1) intent to menace 30 penalty units and/or 18 months’ jail; 50 penalty units and/or 2 years’ jail;
43(2) possibility of menace 20 penalty units and/or 12 months’ jail; 30 penalty units and/or 18 months’ jail;
9(1) driving with a special range concentration of 10 penalty units; disqualification for 20 penalty units; disqualification for 1 year
alcohol 6 months (min. 3 months) (min. 6 months)
9(2) driving with a low range concentration of 10 penalty units; disqualification for 20 penalty units; disqualification for 1 year
alcohol 6 months (min. 3 months) (min. 6 months)
9(3) driving with a middle range concentration of 20 penalty units and/or 9 months’ jail; 30 penalty units and/or 1 year’s jail;
alcohol disqualification for 1 year (min. 6 months) disqualification for 3 years (min. 1 year)
9(4) driving with a high range concentration of 30 penalty units and/or 18 months’ jail; 50 penalty units and/or 2 years’ jail;
alcohol disqualification for 3 years (min. 1 year) disqualification for 5 years (min. 2 years)
11B driving with certain drugs (other than 10 penalty units; disqualification for 20 penalty units; disqualification for
alcohol) in oral fluid, blood or urine 6 months (min. 3 months) 12 months (min. 6 months)
18D(2) refusing to submit an oral fluid sample 30 penalty units; disqualification for 3 years 50 penalty units and/or 18 months’ jail;
(min. 6 months) disqualification for 5 years (min. 12 months)
18G(2) wilfully altering a prescribed illicit drug in a 30 penalty units; disqualification for 3 years 50 penalty units; disqualification for
person’s oral fluid (min. 6 months) 5 years (min. 12 months)
13 refusing to submit to a breath test 20 penalty units
15(4), 16 refusing to submit to a breath analysis or 30 penalty units and/or 18 months’ jail; 50 penalty units and/or 2 years’ jail;
wilfully altering the concentration of alcohol disqualification for 3 years (min. 1 year) disqualification for 5 years (min. 2 years)
22(1) obstructing a medical practitioner or nurse 20 penalty units
trying to take a blood sample
22(2) preventing a medical practitioner or nurse 30 penalty units and/or 18 months’ jail;
taking a blood sample or wilfully altering the disqualification for 3 years (min. 1 year)
sample
12(1) driving under the influence of alcohol or a 20 penalty units and/or 9 months’ jail; disqualification for 3 years (min. 1 year)
drug disqualification for 1 year (min. 6 months)
29 refusing to submit to a blood or urine test or 30 penalty units and/or 18 months’ jail; disqualification for 3 years (min. 1 year)
wilfully altering tests disqualification for 1 year (min. 6 months)
70 failing to stop and render assistance 30 penalty units and/or 18 months’ jail; 50 penalty units and/or 2 years’ jail;
Road Transport (Safety and Traffic Management) (Road Rules) Regulation
r.154(5) exceeding speed limit 20 penalty units
r.154(3) exceeding speed limit by more than 45 kph 20 penalty units (30 for heavy vehicles);
disqualification for 3 months or such longer
period as the court orders
r.154(4) exceeding speed limit by more than 30 kph 20 penalty units; disqualification for 1 month
but less than 45 kph or such longer period as the court orders
Road Transport (Drivers Licensing) Act
25(1) driving while unlicensed 20 penalty units
25(2) driving while never having been licensed 20 penalty units 30 penalty units and/or 18 months’ jail
Section Offence First offence Second or subsequent offence

25A driving while disqualified, cancelled or 30 penalty units and/or 18 months’ jail; 50 penalty units and/or 2 years’ jail;
suspended (but not fine default suspension) disqualification for 1 year commencing when disqualification for 2 years commencing
current disqualification, cancellation or when current disqualification, cancellation
suspension ends or suspension ends
25A driving whilst suspended – fine default 30 penalty units and/or 18 months’ jail; 50 penalty units and/or 2 years’ jail;
disqualification for 3 months commencing disqualification for 2 years commencing
when suspension ends when current suspension ends
List of demerit points: Road Transport (Drivers Licensing) Regulation Schedule 1

Part 1 • ride motorcycle without helmet and passenger not
• exceeding speed limit by over 45kph – 6 wearing helmet – 6
• exceeding speed limit by over 30kph – 4 • ride motorcycle without helmet and 2 or more
• exceeding speed limit by over 15kph – 3 passengers not wearing helmet – 9
• exceeding speed limit by under 15 kph – 2 • disobeying ‘Trucks and buses low gear’ sign – 3
• disobeying traffic light – 3 • driving contrary to roundabout road rules – 3
• disobeying stop or give way sign or line or police • failing to drive in bus lane or in truck lane where
directing traffic – 3 required – 3
• failing to give way – 3 • drive in bus lane – 3
• failing to stop or give way to pedestrian, children’s, or • drive in T-way lane – 3
level crossing – 3 • drive in truck lane – 3
• driving with unrestrained passengers under 16 – 3 • disobeying overhead lane control device – 3
• using vehicle contrary to defect notice: • crossing continuous line separating marked lanes – 3
– in the case of a major defect – 3 • not driving within single marked lane or line of traffic – 3
– in the case of a minor defect – 1 • overtaking or passing stationary vehicle at pedestrian
• driving on wrong side of dividing lines – 3 or children’s crossing – 3
• driver not wearing seat belt – 3 • increase speed while being overtaken – 3
• motorcycle rider not wearing approved motorcycle • long vehicle following other long vehicle too closely – 3
helmet – 3 • making unlawful U turn – 2
• unlawfully driving past safety zone or tram or failing • not giving proper signal when pulling out from side of
to give way to pedestrian crossing near stopped tram – 3 road – 3
• negligent driving – 3 • not having proper control of vehicle – 3
• improper passing or overtaking – 2 • unauthorised carriage of pillion passenger on
• changing direction or stopping without signalling – 2 motorcycle or motor trike – 2
• turning improperly – 2 • passing bus at speed over 40 kph:
• failing to keep left – 2 – where speed exceeds 85 kph – 6
• failing to dip headlights – 1 – where speed exceeds 70 kph – 4
• following too closely – 1 – where speed exceeds 55 kph – 3
• driving at night/dark without headlights on – 1 – where speed exceeds 40 kph – 1
Part 2 • drive on/over continuous white line – 4
• conduct associated with street racing – 3 • approach pedestrian crossing too quickly – 3
• not stopping and supplying particulars at scene of • start or drive vehicle with undue noise/smoke – 2
accident – 3 • use hand held mobile phone while driving – 3
• disobey give way sign on bridge/narrow road – 3 • drive motor vehicle with sound system that emits
• driving vehicle towing excess weight – 2 offensive noise – 2
• riding motorcycle or motor trike towing other vehicle – 2 • enter level crossing when warning bells/lights
• not complying with conditions of licence – 2 operating – 3
• use vehicle when child is in child restraint in front • enter level crossing when gate, boom or barrier is
seat with air bag fitted – 3 closed, opening or closing – 3
• drive vehicle with 1 unrestrained passenger – 3 • enter level crossing when train or tram is on or
• drive vehicle with 2 or more unrestrained passengers – 6 entering the crossing – 3
• drive vehicle not wearing seat belt and with one • enter a level crossing when a train or tram is
unrestrained passenger – 6 approaching the crossing –3
• drive vehicle not wearing seat belt and with 2 or more • enter a level crossing when crossing or road beyond
unrestrained passengers – 9 is blocked – 3
• ride motorcycle with one passenger not wearing • fail to leave level crossing – 3
helmet – 3 • learner or P1 or P2 driver drive unrestrained – 3
• ride motorcycle with two or more passengers not • learner or P1 or P2 driver drive with unrestrained
wearing helmet – 6 passenger – 3
• drive with person in the boot – 3
• consume alcohol while driving – 3
Parking
Parking offences
Parking restrictions are imposed or created by • the police
both traffic regulations and parking signs. • a parking patrol officer (special constables
employed by the Commissioner of Police)
Parking restrictions • a council ordinance inspector.
The ticket will show a fine to be paid within
Restriction by traffic regulations 21 days.
Traffic regulations restrict parking in some places;
for example: If the driver believes there was no offence
• on an intersection, or within six metres of the A driver who believes that no parking offence was
property line of an intersection committed (for example, a driver who believes
• within 18 metres on the approach side and their car was parked in a two-hour zone for less
nine metres of the departure side of a bus stop than two hours but receives a ticket for overstay-
• within nine metres of the approach side of a ing) may contest the matter in the Local Court.
pedestrian crossing
• on a curve or hill when the view to the rear is Get legal advice!
not clear for at least 50 metres Challenging a parking ticket can be expensive and time-
• in metered zones and where council consuming, and may expose the driver to higher penal-
car-parking time limits operate. ties and costs if it is unsuccessful. It is advisable to obtain
legal advice from a chamber magistrate or community
Restriction by traffic signs legal centre before deciding to contest a parking ticket.
Parking signs include:
• ‘No Parking’, which means that a vehicle may Reasons for contesting a parking ticket
not park except when actually picking up or There may be a very good reason for contesting a
setting down people or goods parking ticket.
• ‘No Standing’, which means that a vehicle In some cases, the matter may be quickly
may not stop except when picking up or resolved. For example, if the offence occurred
setting down people while the vehicle was stolen or being used illegally,
• ‘No Stopping’, which means that a vehicle and the theft or illegal use has been reported to
may not wait at the kerb for any reason police, a telephone call to the Infringement
• ‘Clearway’, which means that a vehicle may Processing Bureau is usually enough to end the
not stop at the kerb for any reason, except matter.
that a bus, taxi or hire car may stop to pick up If no report was made, the reasons for this and
or set down passengers the circumstances of the theft or illegal use must be
• ‘Loading Zone’, which means that a truck set out in a statutory declaration.
may stand for up to 30 minutes or a station
wagon for 15 minutes when actually picking If the owner was not the driver
up or setting down goods. If someone else was in charge of the vehicle when
the ticket was received, and the owner wishes that
Parking tickets person to pay the fine, the owner should send a
statutory declaration to the Director, Infringement
Receiving a ticket Processing Bureau, setting out the name and
Where a driver has overstayed in a parking area or address of the person and the circumstances in
parked in a restricted area (see above), a ticket which they came to be in charge of the vehicle.
may be issued in person, through the post or by If the bureau rejects the explanation, the
being left on or attached to the offending vehicle. owner may challenge the ticket in the Local Court.
People who may issue parking tickets are:
Common parking problems

Blocked driveways Proof of residence (such as a rates notice) and,
It is an offence to park a vehicle in a way that usually, payment of a fee is required to obtain a
obstructs traffic or ‘unreasonably’ inconveniences sticker.
someone else. This includes parking across a
driveway. If there is no residents’ parking scheme
A person whose driveway is blocked by a vehi- People having trouble parking in their street, especially
cle may report the matter to the police and request in areas where there is little off-street parking, should
that a ticket be issued. contact the council and suggest that a residential parking
scheme be set up, or their street be included in an exist-
Police have no power to remove the vehicle. ing scheme.
It is often a good idea to join with other residents and
Difficulty parking near home make a joint submission to council.
If a person has difficulty parking close to their
home, and this is due to an illegally parked vehicle
blocking access, the vehicle should be reported Abandoned vehicles
(see Blocked driveways above). The Impounding Act 1993 gives wide powers to
councils to deal with abandoned vehicles.
Residents’ parking schemes If the vehicle appears to be unregistered and
Some councils reserve street parking for local worth less than $500, the council may tow it away
residents by restricting non-residential parking to and destroy it.
certain times of the day, or limiting non-resident In other cases, the council may ask the police
parking to one or two hours while residents have for the name and address of the last registered
unlimited parking. In these areas, local residents owner and then give that owner 28 days’ written
can obtain a sticker to attach to their vehicle, notice to remove it.
indicating their right to unrestricted parking. If the vehicle is not removed within 28 days, it
may be impounded and sold at public auction, and
council costs deducted from any money received.
24
e m p loy m e n t
NSW Industrial
relations law 586
The employment relationship 586
Minimum conditions and
entitlements 587
Discrimination in employment 595
Health and safety at work 596
Unions 597
Termination of employment 599
Federal industrial
relations law 604
Workplace regulation 604
Conditions and entitlements 605
Termination of employment 608

LHB11-24.fm Page 586 Tuesday, June 9, 2009 1:03 PM
This chapter deals with the laws applying to the 27 March 2006 the Commonwealth Workplace
workplace in NSW under both federal and state Relations Amendment (Workchoices) Act 2006
legislation. Australian employees work within a took effect, significantly increasing the coverage
sometimes complicated framework of formal of the federal industrial legislation. Information
industrial relations, and there can be an overlap on whether the state or federal legislation
of entitlements under federal and state laws. applies to a particular employment relationship
To work out what entitlements apply, an can be obtained by phoning the relevant depart-
employee must establish whether they are covered ment’s award line.
by a federal or state award or agreement. On
NSW industrial relations law

There is no single law applying to workplaces in Generally speaking, individual agreements, writ-
NSW. This section concentrates on the minimum ten or verbal, must improve on these minimum
conditions of employment under NSW laws. conditions.
The employment relationship

Types of employment relationship bread vendors, cleaners, carpenters, joiners, brick-
There are many different types of employment layers, painters, outworkers in the clothing trade,
relationships ranging from permanent employ- timber cutters and suppliers, plumbers, drainers,
ment (part-time or full-time) to temporary or plasterers, blinds fitters, council swimming centre
fixed-term employment to casual employment, managers and supervisors, ready-mix concrete
piecework, outwork and so on. truck drivers and RTA truck drivers (Sch.1).
The most common legal basis for working
relationships is that of employee and employer, Rights and obligations
but there may be an employment relationship even The employment relationship sets up various
where the person being employed is retained as an rights and obligations. Many of these are fixed by
independent contractor. laws and regulations; others have developed under
the common law. This section outlines some of the
Other types of legal work relationship basic rights and entitlements of employees in
While most work is performed under an employment NSW, and how these can be protected under NSW
relationship, there are other types of legal working rela- industrial relations laws, primarily the Industrial
tionships. These generally involve rights and obligations Relations Act.
different from those arising in an employment relation-
ship. Examples of other working relationships include
principal and contractor, bailor and bailee (for example, Special provisions
in the taxi industry), and voluntary work. There are special laws covering:
• workers in the public sector
• apprentices and certain categories of trainees, and
People deemed to be employees • employees unable to obtain work at the usual rate of
The NSW Industrial Relations Act 1996 deems pay (because of a disability, for example).
some people to be employees who might otherwise
not be regarded as such, including milk vendors,
24 Employment 587
Finding out about entitlements

Copies of relevant industrial instruments and some Acts of parliament
work-related legislation are supposed to be displayed at Copies of Acts of parliament may be viewed free of
all workplaces, or given to employees on request. These charge on www.austlii.edu.au.
requirements are frequently ignored by employers.
Other sources of information
However, it is essential for employees to know what
their entitlements are if there is a dispute. Workers can also obtain information about industrial
instruments from the Office of Industrial Relations award
Industrial instruments enquiry service, and through their union.
Industrial instruments can be purchased from the NSW Victimisation is illegal
Office of Industrial Relations, or accessed free of charge
through its website. It is illegal for employers to dismiss or victimise employees
who question or raise complaints about their entitlements.
Minimum conditions and entitlements

Industrial instruments • the date of the payment
Industrial instruments are legally binding agree- • the period of employment to which the
ments and decisions (such as awards and enter- payment relates
prise agreements) that set minimum wages and • the gross amount of pay (including overtime
conditions for employees in particular industries, and other payments)
occupations and workplaces. • the amount paid as overtime, or information
that will enable the employee to calculate the
The ‘no net detriment’ test amount paid as overtime
Enterprise agreements struck in NSW must be • the amount deducted in tax
approved by the NSW Industrial Relations Com- • the amount deducted as employee
mission and must pass the ‘no net detriment’ test – contributions for superannuation
that is, the commission must be satisfied that they: • details of any other deductions
• do not make employees any worse off overall • the net amount paid.
than under a comparable award, and
• comply with anti-discrimination provisions. Keeping records
It is a good idea for employees to keep written records
Payment of wages concerning wages, hours, pay-slips, and so on, in case a
Rights, obligations and remedies concerning the problem arises.
payment of wages are set out in industrial instru-
ments and legislation. Some of the more important Employment records kept by employers
general obligations in NSW are discussed below. Employers must keep accurate time sheets and pay
Common problems in this area are: sheets for at least six years.
• underpayment Access to records
• illegal deductions by employers, and An employee may inspect these records only if:
• different interpretations of entitlements. • the employer agrees, or
• a court or industrial tribunal gives permission.
Pay-slips
Government inspectors and authorised union offi-
Under the Industrial Relations Act and the NSW
cials may inspect them, and can do so on the
Industrial Relations (General) Regulation 2001,
employee’s behalf. Union officials must normally
employers must give employees written particu-
give an employer 24 to 48 hours notice, although
lars about their pay, including:
this requirement can be waived by the Industrial
• the employee’s name
Relations Commission or Industrial Registrar.
• if the rate of pay is set by an industrial
instrument, the employee’s classification
under that instrument
Minimum wages have been contacted by a union or an Office of

Minimum wages vary across industries and occu- Industrial Relations inspector.
pations. Wages rates are specified in the relevant Taking court action
industrial instrument, and it is illegal for employ- If the matter is not resolved in this way, the claim
ers to pay amounts below the minimum specified, may be prosecuted before the appropriate court or
even if the employee agrees. tribunal. There is also a small claims procedure
What form can payment take? before the Chief Industrial Magistrate’s Court,
Employees are entitled to be paid their full wages which may be used by both individuals and
(including overtime, allowances, and so on) in unions.
money. Employers may not, for example, make If the employee is represented by a union in
payment, in whole or part, in company vouchers proceedings before the Industrial Relations Com-
or store credits, or board and lodging. It is also ille- mission (for example in an unfair dismissal claim),
gal for employers, directly or indirectly, to require underpayments less than $20,000 may be dealt
wages to be spent in a particular way. with in a fairly informal way under special small
claims procedures (s.380).
How can payment be made? What can be recovered?
Payment can be made either: At the very least, employees are entitled to recover
• by cheque, or the minimum wage specified in the relevant indus-
• by electronic funds transfer into the trial agreement plus allowances, overtime, com-
employee’s account if the industrial missions and so on.
instrument allows it (most do), or the
employee gives written permission.
What if the employee agreed?
Stand-down without pay It does not matter if the employee agreed to work for less
Generally, employees can be stood down without than the minimum conditions contained in the industrial
instrument, or was working illegally (for example, with-
pay if this is authorised by an industrial tribunal out a work permit or without paying tax), though there
(because, for example, it is satisfied that the person may be other implications for people in these situations
cannot usefully be employed due to a problem the and they should seek legal advice. Generally, all
employer is not responsible for). employees are legally entitled to receive the full relevant
minimum wage.
Apprentices and trainees
Apprentices and trainees cannot lawfully be stood
Wages paid by a contractor
down. If a contractor is responsible for paying wages, the
Suspension without pay person who engaged the contractor must obtain a
Employees cannot usually be suspended without signed statement to the effect that there are no
pay (for example, for disciplinary reasons), although wages due when the job is over, and that the con-
some awards permit this. tractor’s employees have been fully paid. Other-
wise, the person who engaged the contractor is
Stand-down or suspension with pay personally liable for unpaid wages.
Employees can be stood down or suspended with
full pay at the employer’s discretion. Deductions from wages
The period of a stand-down or suspension In general, employers may legally deduct or with-
does not break continuity of service, and usually hold money from wages only:
counts towards accruing service-related benefits • where they have clear lawful authority to do
such as leave and superannuation. so (for example, for PAYG tax or a garnishee
– a court order requiring the employer to
Underpayment deduct money from wages for such things as
Legally, underpayment of wages creates a debt. If child support or debt repayments), or
underpayment is alleged, the employee has up to • from an employee’s termination pay if the
six years to take action to recover the money from employee took paid leave in advance or
the time the entitlement accrues. resigned without giving the required notice.
Employers often pay or repay proper entitle-
ments without any formal legal action once they
24 Employment 589
Deductions authorised by the employee

Other deductions from wages can be made only Where to get help
with the employee’s written permission (for An employee who has not been paid their wages, has
been underpaid, has had unlawful deductions taken
example, for union membership fees, credit union from their wages or has problems with late payments
contributions and medical insurance schemes). should contact the NSW Office of Industrial Relations or
The employee’s permission can be withdrawn in their union.
writing at any time.
In any case, if the employee authorises deduc-
tions, they must not generally be for the Hours of work
employer’s benefit; for example, deductions Provisions concerning hours of work vary greatly
cannot be made to compensate the employer for in different industries and occupations. However,
loss or property damage caused by the employee. there are certain minimum conditions that must
Unlawful deductions generally be observed by all employers.
If amounts are unlawfully withheld or deducted Ordinary full-time hours
from wages, the employee can commence recovery For most workers in NSW, maximum full-time
proceedings in industrial tribunals and courts. hours are eight per day, and 38 per week.
Advice and assistance is available from the NSW Full-time hours in industrial instruments usu-
Office of Industrial Relations, the federal Depart- ally range from 35 to 40 per week, with a standard
ment of Employment and Workplace Relations, or of eight (or less) to 12 per day. These are called
the relevant union. ordinary hours. Overtime or shift rates are usually
Overpayments payable for work outside ordinary hours.
An employer who alleges that an employee has
been overpaid cannot lawfully make deductions Part-time hours
without the employee’s consent. Industrial instruments always specify the terms
If the overpayment is not disputed, it is usual and conditions attaching to part-time work, such
for a fair system of repayments to be negotiated. as the spread of ordinary part-time hours, pro rata
If it is disputed, the employer must take legal entitlements and overtime entitlements.
proceedings for recovery through the courts. Part-time work agreements
People employed under an industrial instrument
Late payment may agree to work under a part-time work agree-
Employees are entitled to be paid on time and, ment. Part-time work agreements must include:
generally, in working hours. If intervals are not • the employee’s entitlement to work part-time
specified in the industrial instrument, employees • the number of hours to be worked, the days
can legally demand to be paid at least fortnightly. on which they will be worked, and starting
Where payment is normally made in advance and finishing times
If by custom or agreement employees are entitled • the classification applying to the work, and
to be paid in advance, the employer may not with- • the employee’s entitlement (if any) to return
hold the advance or make deductions from it for to full-time employment.
any reason. Part-time work agreements must also comply with
Termination pay certain minimum conditions determined by the
Generally, all termination pay should be paid NSW Industrial Relations Commission, including,
before the employee leaves the job, or within a in most cases:
reasonable time (for example, on the next day • a minimum of three continuous hours each
wages are usually paid). If termination pay is not time the employee works
collected, it is the employer’s responsibility to send • maximum weekly hours that are less than
the money to the employee within 30 days. ordinary full-time hours (where this is not
If the employer does not know where the specified in the industrial instrument,
employee is, the money must be paid to the NSW maximum part-time hours are 37 per week)
Treasury, which holds it in trust until it is claimed • the same minimum ordinary hourly rate as
by the employee. full-time employees under the industrial
instrument (both for work under the
part-time work agreement and for any
additional hours the employee agrees to employee gets additional paid leave rather than a
work) higher rate. The industrial instrument usually
• where the employee agrees to work weekly requires the time to be taken within a certain
hours only one hour less than full-time hours period, or be forfeited.
fixed by the industrial instrument, all the
benefits to which full-time employees are Casual loadings
entitled under the instrument. Casual employees get an additional payment (loading) to
The employer must give the employee a copy of compensate them for the lack of benefits enjoyed by per-
the agreement, and send a copy to the NSW Indus- manent employees such as paid sick leave and paid
trial Registrar. Pay and conditions under such public holidays. The amount is usually between 15%
and 33% on top of the ordinary hourly rate.
agreements are enforced in the same way as those
under any other industrial instrument, such as an
award or enterprise agreement. Rest periods and free time
Industrial instruments always specify conditions
Spread of hours applying to:
Employers usually have the right to decide starting • meal breaks
and finishing times (spread of hours) within the • adequate rest periods between shifts, and
range of ordinary hours specified in the industrial • periodic days off work.
instrument. For example, if ordinary hours are Industrial instruments usually require breaks of
between 8 am and 6 pm, the employer may set eight to ten clear hours between the completion of
working hours between 9 am and 5 pm, but a shift (or overtime) and the start of the next work-
cannot insist that work commence at 7.30 am ing period, and between the end of one shift and
without paying overtime. the commencement of the next.
Overtime Employees are usually entitled to such breaks –
‘Wage’ and ‘salary’ have different meanings, without loss of pay – even if the employee starts
although they overlap. Employees paid under an the next working period later than usual.
industrial instrument usually get wages, and are If employees are required to return without the
entitled to overtime rates for work outside or in minimum break, overtime rates are usually paya-
excess of ordinary hours, or time off instead of ble until a break is provided.
pay. Employees on salaries are less likely to be enti- Meal breaks
tled to overtime payments, because salaries are Meal breaks of between 30 and 60 minutes must
usually intended to cover all hours worked. be given to employees who work a certain number
of hours straight (usually five hours or more,
Requirement to work overtime
Employees may usually be required to work excluding tea breaks).
‘reasonable’ overtime. What is reasonable is not If an employee works more than those hours
defined; but the employee’s other commitments without a meal break, they are usually entitled to
and their health and safety should be considered, be paid overtime until the meal break is taken.
as well as the requirements of the employer. Meal breaks during ordinary hours are not
usually paid. If more than two hours’ overtime is
Payment for overtime worked, however, employees are usually entitled
Overtime is paid at a higher rate than ordinary to a paid meal break of 20 to 30 minutes, plus a
hours – usually from one-and-a-quarter times to meal or dinner money.
double the ordinary hourly rate of pay.
The calculation of overtime rates does not usu- Flexitime
ally include shift penalties or weekend penalty Many industrial instruments provide for adjust-
rates (higher rates to compensate employees for able working hours (flexitime). A flexitime system,
working outside ordinary hours). like a conventional system, requires that a certain
Casual employees’ overtime rates usually number of hours be worked per week; within cer-
include the casual loading (see below). tain limits, however, employees can decide when
Time off in lieu they will work those hours.
Industrial instruments may also provide for time
off in lieu of overtime payments – that is, the
24 Employment 591
Rostered days off When is the entitlement paid?

Flexitime systems may allow for a rostered day off Employees are entitled to receive their holiday pay
at regular intervals (for example, employees work before going on leave.
a 19-day month or nine-day fortnight). Employers
can allocate the day off, unless the industrial Casual employees
instrument specifies a particular day. In NSW casual employees are entitled to annual leave
The industrial instrument should be checked benefits, usually a payment of an additional one-twelfth
for what happens if a rostered day off falls on a on top of the casual wage for each pay period. Once
public holiday, or the employee is sick that day. again, advice and assistance are available from your
union and the Office of Industrial Relations.
Leave entitlements Leave loading

Minimum entitlements Under many industrial instruments holiday pay
Entitlement to paid and unpaid leave varies, but includes a leave loading of 17.5% or more on top
certain minimum conditions generally apply for: of ordinary pay. This is intended to compensate
• annual leave for the lack of other earnings regularly received
• long service leave (like overtime and allowances). It is generally pay-
• sick leave able only on fully accrued leave, but not all
• parental leave employees are entitled to it.
• family/carer’s leave. Payment in lieu of leave
Payment instead of actually taking time off work
Further entitlements is not allowed except on termination.
Many industrial instruments provide better conditions Accumulated leave entitlements
than the minimum provisions discussed in this section, It is common for employees to delay taking leave,
as well as other entitlements such as:
• study leave or accumulate it, with the employer’s agreement.
• leave to attend union training courses Legally, however, fully accrued leave must be
• leave to undertake union business taken within six months, and may be postponed
• bereavement leave only with the Industrial Registrar’s permission.
• leave for jury duty Employers can direct employees to take fully accu-
• leave to attend English language classes.
mulated leave by giving a month’s notice.
Leave in advance
Annual leave Employees may take leave in advance of their enti-
The NSW Annual Holidays Act 1944 specifies a tlement if the employer agrees. If the employee
minimum annual leave entitlement of four weeks’ leaves before they have worked long enough to
paid leave each year for most employees in NSW cover the leave, the employer may deduct the
(there are exceptions, such as public sector money from their termination pay.
employees and federal award employees). The
leave becomes due on each anniversary of employ- Effect of public holidays
ment, when it is said to be fully accrued. Annual leave is usually increased by one day for
each public holiday (or other holiday specified in
Eligibility the relevant industrial instrument) occurring while
Annual leave entitlements apply to full-time and the employee is on leave.
part-time employees, and employees who are
employed for only a short period (in which case a Annual shut-downs
pro rata payment must be made on termination). Employers are allowed one annual shut-down per
calendar year, provided they give at least one
Entitlement month’s notice. If this notice is given, employees
Employees on annual leave are entitled to what the may be required to use some or all of their leave
Act calls ordinary pay, which usually excludes entitlements during the shut-down.
such things as regular overtime or allowances. If
there is no fixed rate, it is the average weekly wage Payment on termination
over the immediately preceding 12 months. On termination of employment, all untaken
annual leave must be paid out to the employee as a
lump sum. This includes fully accrued leave and
any partially accrued amount. The proportional Effect of public holidays

amount paid for an incomplete year is the equiva- Long service leave is increased by one day for each
lent of one-twelfth of the total ordinary pay for the public holiday (or other holiday specified in the
period of employment (for example, if employ- relevant instrument) occurring while on leave.
ment terminates after nine months in a job, the When should leave be taken?
entitlement is three weeks’ pay). Long service leave should be taken when it falls
If the employee is entitled to leave loading, this due, unless other arrangements have been agreed.
is also paid out on termination. It must be taken in one period unless the employer
and employee agree otherwise. Employers can
Long service leave
direct employees to take fully accumulated long
Long service leave is paid leave legally required to
service leave by giving one month’s notice.
be granted to employees after a certain amount of
continuous service. The entitlement is usually
available after ten years, but proportional pay- What is continuous service?
ments may be available after five. Continuous service means working without a break for
the same employer. However, the Act specifies a number
The Long Service Leave Act 1955 specifies of breaks that do not affect continuity of service for long
minimum entitlements for most employees in service leave purposes, such as where:
NSW. Industrial instruments or contracts may • an absence is caused by illness or injury
provide the same or better entitlements. • an absence is deliberately caused by the employer to
fraudulently avoid paying long service leave, or
Basis of entitlement • the break was caused by the employer and the
Under the Act, employees are entitled to two employee returns to the service of the employer
months’ leave on ordinary pay after ten years’ con- within two months of the date on which their service
tinuous service with an employer. The entitlement was interrupted.
after that is one month’s paid leave for each addi- In some circumstances, an employee’s service is deemed
tional five years’ service. to be continuous where the employer transmits (for
example, sells) the business to someone else and the
It is not necessary to work full-time to be enti- employee is retained by the new employer.
tled to long service leave; the entitlement arises
whether the employee has worked full-time or Payment on termination
part-time, or both. The payment is reduced to After ten years’ continuous service, an employee is
reflect periods of part-time work. unconditionally entitled to payment for untaken
In some circumstances, employees may also be leave on termination. The payment is calculated
entitled to a pro rata payment on termination if on the basis of two months’ ordinary pay for ten
they have between five and ten years’ service. years’ service and one month’s pay for each addi-
tional five years. Payment is made only for com-
What is a month’s pay? pleted years of service.
A month’s pay is defined as payment due for four and An employee who has between five and ten
one-third weeks’ work. years’ continuous service as an adult is entitled to
a pro rata payment if:
Payment in lieu of leave • the employer terminates their employment
Payment instead of leave is not permitted, except for any reason except serious and wilful
on termination of employment. misconduct (in practice, it can be hard to
Part-time employees prove that misconduct was both), or
Part-time employees are entitled to long service • the employee has to resign because of illness,
leave on a pro rata basis. incapacity, or some domestic or other
Casual employees pressing necessity (for example, to care for
Casual employees are also entitled to paid long young children or a sick relative), or
service leave if continuous service can be estab- • the employee dies (in which case payment is
lished. However, casuals can only count service made to their personal representative).
accrued after 9 May 1985. Sick leave
Minimum paid sick leave entitlements are usually
specified in the relevant industrial instrument.
24 Employment 593
Generally, a minimum qualifying period of Employees’ responsibilities

service is expected before an employee can claim Employees should check the relevant industrial
any entitlements; after that, leave accrues on a instrument to find out their obligations in relation
service-related basis. to sick leave.
The minimum entitlement in most awards is
Family/carer’s leave
one week of sick leave on full pay for each year of
service. Many industrial instruments, particularly Industrial awards and agreements may provide for
those for the public sector, provide far more family/carer’s leave.
In NSW most award-covered employees are
favourable leave and accumulation entitlements.
entitled to use any available paid sick leave entitle-
If sick leave entitlements are exhausted ments to provide care and support for family
If all paid sick leave entitlements are exhausted, an members. Family member is broadly defined, and
employee may be eligible to apply for sickness includes a wide range of relatives, as well as
benefits through Centrelink. de facto and same-sex partners.
Effect on continuity of service
Absence from work on authorised sick leave Parental leave
(whether paid or unpaid) does not break the The minimum parental leave entitlements (mater-
continuity of service. nity leave, paternity leave and adoption leave) for
employees in NSW are contained in Chapter 2 Pt 4
Notification of the Industrial Relations Act.
A person should notify their employer as soon as
possible if they cannot come to work due to illness Payment
or injury. Failure to do so within 24 hours (less in Under the legislation, parental leave is unpaid.
some circumstances) without reasonable cause However, some employers (for example, in the
may be grounds for dismissal. public sector) grant some paid parental leave.
Medical certificates Eligibility
Employees must usually provide medical certifi- The employee must have had 12 months’ contin-
cates for absences of two to three or more consec- uous service with the employer, and must give
utive days. They are not usually required for proper notice and documents (see below). It is not
single-day absences unless the employee has a necessary to accrue further periods of service to be
‘bad’ sick leave record, although some industrial entitled to another period of leave.
instruments limit the number of single days that Parental leave applies to:
may be taken without a certificate. • full-time and part-time employees, and
Many industrial instruments provide that an • casuals who have been employed on a regular
employee will not be paid for an absence immedi- and systematic basis for at least 12 months,
ately before or after a public holiday. and have a reasonable expectation of
continued employment.
Employees do not have to be married, and any
reference to a spouse includes a de facto spouse.
Notice requirements for parental leave

The notice and the documents required for parental Notice and documents required
leave are set out in s.58 of the Industrial Relations Act. All parental leave has similar written notice require-
Information required from the employer ments for notifying and varying leave dates. A doctor’s
An employer who becomes aware that an employee (or certificate must accompany applications for maternity
their spouse or de facto spouse) is pregnant or adopting and paternity leave; official confirmation of placement is
a child has a legal obligation to inform them of their required for adoption leave. Employees must also give
parental leave entitlements, and their responsibilities for information in a statutory declaration about parental
giving notice and providing documents. An employer leave sought or taken by their spouse.
who does not give an employee this information cannot Strict compliance with notice requirements is waived
use failure to give the required notice or documents as a if, for example, the baby arrives early, or the adopted
reason to deny their entitlement to parental leave. child is placed sooner than expected, or other com-
pelling circumstances arise.
Return to work What if the employee’s spouse takes leave?

After returning from leave, employees are entitled Parental leave may not be taken by an employee
to the job they held immediately before it (except and their spouse at the same time, apart from the
for a ‘safe job’ to which a pregnant employee was week of short paternity leave at the time of birth.
transferred – see below). If the previous job no Adoption leave may not be taken by both spouses
longer exists, the employee must be given a job as concurrently, apart from the three weeks’ short
similar as possible in pay and status, if it is avail- adoption leave at the time of placement.
able and the employee is capable of doing it. Effect of parental leave on employment
Employees are not required to return to work after
The right to a safe work environment parental leave, and may resign by giving the usual
in pregnancy notice. It is, however, an offence for an employer
A woman who is pregnant or breastfeeding has a right to to dismiss an employee for taking or intending to
a safe workplace, and the employer must temporarily take parental leave. Besides the provisions in the
adjust her working conditions or hours of work if this is
necessary to avoid exposing her to any risk.
Act, remedies may be available for dismissal or
If this is not feasible, the employer must transfer her to discrimination under unfair dismissal and anti-
other appropriate work that: discrimination laws.
• will not expose her to that risk, and
• is, as far as possible, comparable in status and pay to
her present position.
Breaking the period of leave
If this is not feasible or cannot reasonably be required, The requirement concerning unbroken periods of leave
the employer must grant maternity leave or any available can be varied by an agreement between employee and
paid sick leave for as long as is necessary to avoid the employer under which the employee may break the
employee’s exposure to the risk, as certified by a doctor. period of leave by returning to work for the employer,
whether full-time, part-time or casual. If required by the
employer, the employee must agree not to ‘engage in
Amount of parental leave conduct inconsistent with the contract of employment’
The maximum leave for each pregnancy or adop- while on parental leave (an example of this may be
tion is 52 weeks, available only for the first year taking another job).
after the birth or adoption. Maternity leave is
taken in an unbroken period. Paternity leave con- Employees covered by NSW awards
sists of one or two periods, comprising: Employees covered by NSW awards have a right to
• an unbroken period of up to a week at the request that the employer allow the employee:
time of the birth or other termination of the • to extend the period of simultaneous unpaid parental
pregnancy (short paternity leave), and leave use up to a maximum of eight weeks
• to extend the period of unpaid parental leave for a
• a further unbroken period to be the primary further continuous period of leave not exceeding
care-giver (extended paternity leave). 12 months
Adoption leave • to return from a period of parental leave on a part-
Adoption leave may be taken by an employee time basis until the child reaches school age
in order to assist the employee in reconciling work and
(male or female) if the child is under five (and has parental responsibilities.
not already lived with the employee for at least six The employer shall consider the request having
months, or is not a child or step-child of the regard to the employee’s circumstances and, provided
employee or their spouse). The leave consists of: the request is genuinely based on the employee’s paren-
• an unbroken period of up to three weeks when tal responsibilities, may only refuse the request on reason-
the child is placed (short adoption leave), and able grounds related to the effect on the workplace or the
employer’s business.
• a further unbroken period to be the primary
care-giver.
Special maternity and special adoption leave Employment of children
Employees are also entitled to: The Industrial Relations (Child Employment) Act
• special maternity leave to recover from a 2006 regulates the employment of people under
termination of pregnancy or an illness related 18 in NSW, including those employed by constitu-
to pregnancy, and tional corporations (see What is a constitutional
• special adoption leave of up to two days for corporation? on page 604).
adoption agency interviews or examinations.
45
w i l l s , e s tat e s a n d f u n e r a l s
Wills 1096
Making a will 1096
Changing or revoking a will 1100
estates 1101
When someone dies 1101
Formal administration 1102
The intestacy rules 1104
Dealing with the estate 1105
Trustees 1108
Contesting the will 1109
Costs 1111
funerals 1112
What must be done when
someone dies 1112
Arranging a funeral 1114
Coroner’s cases 1117

LHB11-45.fm Page 1096 Tuesday, June 2, 2009 9:13 AM
Wills
A will is a written document that sets out how a the affairs of someone who has died. In both
person wants their assets (their estate) divided cases, there are many legal requirements to be met.
after their death. This chapter is not detailed enough to be a
The law about wills affects people when they do-it-yourself guide to will-making.
make their own will and when they are managing
Making a will
Legislation all existing arrangements with or on behalf of that
Like most other legislation in Australia, succession person – for example, withdrawals from accounts
law differs from state to state. As part of a national or payment of bills under a power of attorney –
trend to harmonise state laws, the NSW govern- usually cease. Accounts in the person’s sole name
ment enacted the Succession Act 2006 (‘the new are likely to be frozen on their death, except to
Act’) which replaces the Wills, Probate and allow payment of funeral expenses.
Administration Act 1898 (‘the old Act’) as it A will may make it easier for beneficiaries to
relates to wills. The new Act commenced on gain access to funds in an estate, particularly a
1 March 2008. It is written in plainer English than small estate where Probate may not be required.
the old Act and is in the form of question and
answer. The old Act has been renamed the Probate Same-sex couples
and Administration Act 1898. The Probate and It is especially important for lesbians and gay men to
Administration Act continues to apply (with some have a will. Although recent legislative changes allow
exceptions) to wills made before 1 March 2008 same-sex partners to share in the distribution of an estate
where there is no will, it may still be difficult to prove that
and to the administration of estates. It is antici- the relationship was a de facto relationship (see
pated that the provisions relating to the adminis- chapter 38, Same-sex couples and their families).
tration of estates will be incorporated into the new
Act over time. The Succession Amendment (Fam-
ily Provision) Act 2008 commenced on 1 March Who can make a will?
2009 (see Family Provision Orders on page 1110). A will made by a minor (a person under 18) is not
The Succession Amendment (Intestacy) Bill 2009 valid unless:
was introduced into parliament on 1 May 2009 • it is made in contemplation of a marriage that
and it provides for major changes to the intestacy takes place, or
rules. It may commence on 1 March 2010. • the minor is married, or
• the court has approved it under s.16 of the
Details of the intestacy changes are not Succession Act.
discussed in this edition.
Mental capacity
Will-makers must have the mental capacity to
know what they are doing, and to distribute their
Why make a will? property according to their own wishes.
Everyone over 18 should have a will. It is the only
way to make sure that your estate is distributed in
See chapter 18, Disability law, for more about
the way you would like, and that this is done as will-making for people with intellectual disability or
quickly and cheaply as possible. mental illness, and providing for a person with
A will can also make life much easier for family intellectual disability.
and friends after your death. When someone dies,
Who can draft a will? Requirements for a valid will

There are no formal requirements about who can Formal requirements
draft a will. You can write one yourself (see Exam- The formal requirements for a valid will are given
ple of a simple will on page 1100). However, the in s.6 of the Succession Act. A will is not valid
will must be signed and witnessed properly, other- unless:
wise your executor may have difficulties when • it is in writing and signed by the will-maker or
applying for probate (see Formal requirements on some other person in the presence of, and at
page 1097). the direction of, the will-maker; and the
In practice, most people consult lawyers about signature is made or acknowledged by the
making wills and administering estates. Unless will-maker in the presence of two or more
your will is very simple, it is best to use a lawyer, witnesses present at the same time; and at
the Public Trustee or a private trustee company. least two of those witnesses sign the will in the
The Public Trustee presence of the will-maker (but not
The Public Trustee is a NSW government body set necessarily in the presence of each other)
up under the Public Trustee Act 1913. Its main • the signature of the will-maker or of the other
business is drafting wills and administering person signing in the presence of, and at the
estates, and its staff has considerable expertise in direction of, the will-maker must be made
this area. with the intention of executing the will, but it
is not essential that the signature be at the
Drafting wills foot of the will.
The Public Trustee will only draft your will if you These provisions do not apply to a will made by
appoint it to act as the executor of your estate. In order of the court under s.18 of the Succession
this case, it will draft the will for free, though there Act.
is a charge for the administration of the estate.
Administering estates Attestation clauses
The Public Trustee administers the estates of An attestation clause in a will records that the
people who have: formal requirements of making a will have been
• made a will with it complied with.
• left no will Attestation clauses are not essential. However,
• chosen an executor who does not wish to act. it is a good idea to include such a clause in the will
to show that the formal requirements were com-
Why use the Public Trustee? plied with.
The Public Trustee is particularly useful if:
• you do not have a close friend or relative who Can a beneficiary be a witness?
can be appointed as executor A beneficiary under a will should not witness the
• the estate will require ongoing will. If they do, the beneficiary may lose their enti-
administration; for example, a life interest tlement under the will (although s.10 of the Suc-
has been left or the will names minors cession Act allows a beneficiary to be a witness in
(children under 18) as beneficiaries. certain circumstances). Section 10 of the Succes-
The Public Trustee also has special powers under sion Act allows the spouse of a beneficiary to be a
the Act, particularly in relation to small estates witness. This is a significant change from the
under $50,000. old Act.
A person who is unable to see that a will-
Private trustee companies maker has signed a document cannot act as a wit-
Private trustee companies make wills and admin-
ness to a will. That includes someone who is tem-
ister estates for a fee. They are listed in the Yellow porarily unable to see (Succession Act s.9).
Pages under ‘Trustee services’.
Wills made overseas
A will made in another country will be accepted in
NSW if it is valid under the law of that country.
If the will is not written in English the person understands and approves it. The
Wills can be written in any language, but when the details should be recorded either:
will-maker dies a certified translation is required. • in an attestation clause (see Attestation
clauses on page 1097) in the will, signed by
If the will-maker does not speak English the interpreter, or
If the will is in English and the will-maker does not • in a statutory declaration by the interpreter,
read or speak English, an interpreter should read it witnessed by a lawyer or justice of the peace.
out in the appropriate language, and ask whether
Procedures for executing a valid will

• The will-maker should read the will, and make sure – initial any alterations.
they understand and are happy with everything in it. The witnesses should print their names and addresses
• There should be two adult witnesses who are not below their signatures.
beneficiaries under the will. Copies of the will, with the names of the will-maker
• The will-maker should date the will before signing. and the witnesses printed on them, should be made and
• In the presence of the witnesses, the will-maker marked ‘Copy: Original kept at …’.
should: Points to note
– sign the will at the bottom of each page
• Copies should not be signed or they may become
– sign the attestation clause, if there is one (see ‘valid’ wills.
Attestation clauses on page 1097) • The will-maker and the witnesses should all use the
– initial any alterations. same pen as evidence that they were all together
• In the presence of the will-maker and each other, when the will was signed.
each witness should: • No pins or paper clips should be attached.
– sign the will at the bottom of each page • No alterations should be made to the will after it has
– sign the attestation clause, if there is one been signed.
Avoiding problems What if a beneficiary dies first or within 30 days

A document is recognised as being a will if the of your death?
court is satisfied (on a range of evidence) that this A major change under the Succession Act is s.35
is what the deceased person intended (see Informal which states that if a disposition is made to a
wills on page 1102). To avoid problems, however, person who dies within 30 days after the will-
it is strongly recommended that when you make maker’s death, the will is to take effect as if the
your will you comply with the formal require- person died immediately before the will-maker. It
ments and follow the procedures in the box above. is possible to exclude that provision from your will
or to lengthen or shorten the 30-day period.
Other considerations If you leave a specific legacy
Residuary clauses Generally, if you leave a specific legacy – for exam-
The residuary clause covers the distribution of ple, a sum of money or a particular asset – to a
your residuary estate, that is: person who dies before you, or within 30 days, the
• any assets not specifically mentioned in the legacy will lapse, and the asset will pass under the
will residuary clause in your will (see above).
• any legacies that have lapsed (because, for If you leave a share of your residuary estate
example, the named beneficiary died before If you leave a share of your residuary estate to
or within 30 days of the will-maker). someone who dies before you, or within 30 days,
It is extremely important to have a residuary and you have not named an alternative benefici-
clause in your will, otherwise your residuary estate ary, that person’s share will be distributed accord-
will be administered under the intestacy rules (see ing to the intestacy rules (see The intestacy rules on
The intestacy rules on page 1104) – which may page 1104).
not be what you want. The only exception is if the beneficiary was a
child of the will-maker who has living children, in
which case the deceased child’s share will pass to
his or her children under s.41 of the Succession
Act, and not to the estate of the deceased person, only if there are no full sisters or brothers – see
as in the old Act. Order of distribution on page 1104.)
There is a new provision in the Succession Act,
s.42 that states how a gift of residue will be con- Appointing an executor
strued. Legal advice should be sought if you have What do executors do?
concerns about the wording of a residuary clause The executor of a will is responsible for:
in a will. • seeing that its terms are carried out
• applying for probate, if necessary (see
Property owned by joint tenants Applying for a grant of probate on
Property owned by the deceased and another page 1102).
person as joint tenants goes to the surviving co-
Who can be an executor?
owner regardless of a will or the intestacy rules. You can choose anyone over 18 to be an executor.
If people die at the same time Usually one of the beneficiaries is nominated; oth-
If two or more people die at the same time and erwise it can be a lawyer or other trusted person,
their order of death cannot be determined, the law depending on the complexity of the estate.
in NSW presumes that the oldest died first, and the If no executor is named in the will, the court
estates are divided accordingly. will appoint an administrator.
Payment
Appointing a guardian for children You may wish to leave your executor a cash legacy
A parent can nominate someone in their will as the under your will as compensation for the time
guardian of their children under 18, although a involved in being an executor. An executor may
surviving parent generally takes this role initially. also apply to the court for payment from the estate
If there is a dispute about who will be the for the work they have done.
guardian, the court makes the appointment. The
court may consider what you put in your will. Where to keep a will
Your will should be easy to find after you die, oth-
Ex-nuptial children erwise the court may presume that you destroyed
The words ‘child’ or ‘children’ in a will include it and you may die intestate.
both nuptial children (the children of a marriage) Your original will should be in a safe place
and ex-nuptial children (children born outside a (such as with your bank or a lawyer, a trustee com-
marriage). If a will-maker wants to exclude any pany or the Public Trustee), and a copy kept at
children, this must be explicitly stated, for exam- home among your personal papers with a note
ple by naming only the other children in the will. saying where the original is. You should also tell
From 22 September 2008, where a child is your executor where the original is kept.
born as a result of a fertilisation procedure to a
woman in a de facto relationship with another What to keep with the will
woman: It will make the executor’s or administrator’s task
• the other woman is presumed to be a parent easier and quicker if you keep with your will:
of the child if she had consented to the • a list of your assets, including details of where
procedure, and documents such as insurance policies,
• the woman who has become pregnant is passbooks and title deeds can be found
presumed to be the child’s mother even if she • a list of people, firms and organisations to be
did not provide the ovum. notified of your death (for example,
This change arises from the amendment of the particular relatives or friends, your
Status of Children Act 1996 by the Miscellaneous superannuation fund, clubs you belong to,
Acts Amendment (Same Sex Relationships) Act Centrelink, or the Department of Veterans
2008. It will not affect wills made prior to 22 Sep- Affairs).
tember 2008.
What is in a simple will?
Half-sisters and brothers The sample will in the box below gives some idea
Reference to a sister or brother in a will generally of what could be in a straightforward will.
includes half-sisters or half-brothers. (Where there Remember, unless your will is going to be very
is no will, half-sisters and half-brothers will inherit simple, it is always best to get legal help.
Example of a simple will

This will dated Wednesday 10 December 2006 is made 4. If Tamie does not survive me by 30 days I give my
by me, Malcolm Smith, of 3 Brown Street, Jonesville, whole estate to those among Sue, John and Sally who
New South Wales. survive me by 30 days and if more than one in equal
1. I revoke all former wills and testamentary shares.
dispositions. Signed by the testator . . . . . . . . . . . . . . [testator signs here]
2. I appoint my wife Tamie Smith (‘Tamie’) executor of in our presence and attested by us
my will but if she is unable or unwilling to act I . . . . . . . . . . . . . . . . . . . . . . [witnesses sign here, and print
appoint my children Sue Brown (’Sue’), John Smith their names and addresses below their signatures]
(’John’) and Sally Smith (’Sally’) in her place. in the presence of the testator and each other.
3. I give the whole of my estate to Tamie if she survives
me by 30 days.
Changing or revoking a will

If the will has not been signed • divorce or annulment of the marriage, but
The will-maker can change the words of the will only to the extent set out in s.13 (see below)
before it has been signed. The will-maker and wit- • making a new will
nesses must then sign or initial each change in the • a declaration of intention to revoke a will,
margin or near the alteration – otherwise the court which must be witnessed in accordance with
may assume the alteration was made after the will s.6 by the will-maker or someone in his or her
was signed and it will not be effective. presence and at his or her direction, dealing
with the will in such a manner that the court
is satisfied that the will-maker intended to
If the will has been signed revoke it.
Once a will has been signed, it cannot be altered by
crossing out clauses or writing in new ones. Such Marriage
alterations will have no effect. The only way to A will is automatically revoked when the will-
update the will is by a codicil or a new will. maker marries, unless the will was made in antic-
ipation of marriage (whether a particular marriage
Codicils or marriage in general) (Succession Act s.12).
A codicil is a written document added to a will, There are new exceptions if you are married at
which must meet all the formal requirements of a your death to the person to whom you have
will discussed earlier. It may be easier to make an made a disposition under your will.
entirely new will. If you are making a will in anticipation of mar-
The codicil must not contain a clause cancel- riage, you should consult a lawyer.
ling previous wills, otherwise it will cancel the will If you marry after making a will that was not
it is intended to update. made in anticipation of the marriage, you should
make a new will, even if it is the same.
Revoking or cancelling a will
Section 11 of the Succession Act now sets out an Divorce
exhaustive and expanded list of the means by A divorce will not revoke the whole will. It will
which a will or part of a will may be revoked. The revoke:
means are: • any gift to your former spouse
• a will made by order of the court under ss.16 • the appointment of your former spouse as an
and 18 (discussed later) executor, trustee or guardian (Succession Act
• marriage to the extent set out in s.12 (see s.13) unless you express a contrary intention
below) in your will.
A divorced person should not rely on the partial
revocation provisions, but make a new will.
New provisions the Registrar, but a failure to do so will not inval-

Court-authorised wills for people idate the will.
lacking testamentary capacity Wills for minors
Under ss.18–26 of the Succession Act the court Section 16 of the Succession Act is not completely
may, on the application of any person, authorise new, but extends the old power for the court to
that a will be made, altered, or partially or fully authorise the making of wills for minors to alter-
revoked on behalf of a person lacking capacity ing or revoking a will. The Registrar must be one
either through immaturity, or a particular incapac- of the witnesses to a court authorised will for a
ity. The person on behalf of whom the application minor and it must be deposited with the Registrar
is made must be alive at the time the order is made. after execution, but a failure to do so will not
The will, when executed, must be deposited with invalidate the will.
Providing for future incapacity

A person may want to provide for the possibility that in Enduring guardianship
the future they will be unable to make certain decisions The Guardianship Act 1987 allows a person to appoint
for themselves; as the result of an incapacitating illness, someone to make decisions on their behalf about such
for example. matters as where they will live and what health care they
Enduring Power of Attorney will have, and to consent to medical or dental treatment.
A Power of Attorney enables you (the Principal) to (A Power of Attorney covers only financial decisions.)
authorise someone else (the Attorney) to carry out finan- Both the person making the appointment and the
cial transactions on your behalf. You must have mental guardian must sign an appointment of enduring guardian
capacity when you make the Power. You can make either form, and it must be witnessed by a solicitor, barrister or
a general Power of Attorney which will become invalid if clerk of the Local Court.
you subsequently lose your mental capacity or an endur- Living wills
ing Power of Attorney which will remain valid if you lose People sometimes make written directions about their
your mental capacity. The standard form is in Sch.2 of the future treatment if they are incapacitated. Although such
Powers of Attorney Act 2003. The form is called ‘General documents are often called living wills, they are not
Power of Attorney’. To make it an Enduring Power, cl.2 legally binding, and they have nothing to do with the sort
must be retained and your signature must be witnessed of will being discussed in this section. They are more
by a prescribed person such as a solicitor, barrister, reg- accurately called Advance Care Directives.
istrar of the Local Court or a licensed conveyancer. For
background and more extensive information you can
refer to Power of Attorney in chapter 1, About the legal For more about enduring guardianship and living wills,
system. see chapter 18, Disability law.
Estates
When someone dies
After someone dies, there are a number of enquir- Trustee, a private trustee company, or the
ies family members or close friends should make in deceased’s lawyer or bank. A thorough search of
relation to the person’s estate. the person’s home should be made if it is not easily
located.
Is there a will? If no will is found, it is usually presumed that
One of the first things that must be done is locating the person died without a will (intestate).
the will. It may have been left with the Public
– the size of the estate. Most institutions will

Informal wills not release the funds without probate or
Under s.8 of the Succession Act a document that appears
to contain the deceased person’s wishes, even if it is not
administration if it is over a set amount.
a validly executed will, can be considered to be their Where formal administration is essential
will, or an amendment to or revocation of their will, if the
court is satisfied that this is what the person intended. Formal administration is always required if real
If you are not sure whether a document is a valid will, estate was held by the deceased in their own name
refer it to a lawyer. or as a tenant-in-common with someone else.
Who makes the enquiries?

Is formal administration required? As the person chosen by the deceased to adminis-
If there is an estate, it must be decided whether ter the estate, the executor should make these
formal administration of the estate is required. enquiries and decisions.
Where formal administration is not required If there is no executor
Formal administration is not required if: If there is no executor (whether there is a will or
• all assets are in joint names with someone not), a family member or close friend may make
else. In this case, the estate goes to that person enquiries. If formal administration is required, the
• the institution holding the person’s funds court will appoint an administrator – normally the
does not require formal administration to beneficiary with the largest entitlement to the
release them. It will consider such things as: estate.
– who the beneficiary is
– whether there is a will
Formal administration
If there is a will and an executor The affidavit of executor
If there is a will and an executor, formal adminis- This affidavit is made by the executor, and it
tration involves the executor applying for a grant should annex (have attached to it):
of probate from the Equity Division of the • a statement as to whether the deceased person
Supreme Court. left any other document attempting to set out
their testamentary intentions
• the death certificate (see below)
What is probate? • a copy of the newspaper advertisement
Probate is an order from the court stating that the will is
valid and clearing the way for the executor to begin
referred to in Advertising the intention to
administering the estate. apply, above
• a list of the person’s assets and liabilities.
The affidavit must also state that:
Applying for a grant of probate • the executor will administer the estate
Advertising the intention to apply according to law, and
Fourteen days before applying for a grant of pro- • there is no reason why the executor should
bate, it is necessary to take out a newspaper adver- not be granted probate of the will.
tisement indicating the intention to do so.
The death certificate
Making the application A death certificate may be obtained for $39 from
To apply for the grant of probate, the executor (or the Registry of Births, Deaths and Marriages. If it
their lawyer) should file certain documents with is required urgently, the fee is $59 (current at July
the court. The necessary documents are: 2008).
• a summons, signed by the executor or their The death certificate is often ordered by the
lawyer funeral director.
• an affidavit of executor
• the original will.

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47.

Your Practical Guide to the Law in New South Wales

© 2009 Thomson Reuters (Professional) Australia Limited

For further information visit: www.thomsonreuters.com.au

REDFERN LEGAL CENTRE PUBLISHING REDFERN LEGAL CENTRE PUBLISHING

TR0093_RLCP_Cover_v4.indd 1 24/06/09 9:55 AM

I was one of many contributors to the predecessor to The Law

The Hon. Virginia Bell

LawHandbookPrelims.indd 5 11/06/09 3:23 PM

About The Law Handbook x

1 About the legal system 1

2 Aboriginal people and the law 35

3 Accidents and compensation 65

4 Arrest, interrogation and bail 99

5 Assistance with legal problems 119

8 Children and young people 161

9 Community organisations 225

LawHandbookPrelims.indd 6 11/06/09 3:23 PM

Jo Flanagan, Office of the NSW Ombudsman

16 Criminal law 411

18 Disability law 451

20 Dispute resolution without going to court 515

LawHandbookPrelims.indd 7 11/06/09 3:23 PM

21 Domestic violence 527

22 Driving and traffic law 551

23 Drug offences 567

25 Environment and planning 613

26 Family law 655

27 Freedom of information 709

28 Health law 715

32 Internet law 851

LawHandbookPrelims.indd 8 11/06/09 3:23 PM

Michael Fraser, Communications Law Centre, Sydney

33 Media law 867

38 Same-sex couples and their families 957

39 Sexual offences 993

40 Social security entitlements 1011

43 Veterans’ entitlements 1077

44 Victims’ compensation 1083

45 Wills, estates and funerals 1095

LawHandbookPrelims.indd 9 11/06/09 3:23 PM

Driving offences 552

Driving licences 559

LawHandbookPrelims.indd 22 9/06/09 2:30 PM

552 The Law Handbook

22 Driving and traffic law 553

Murder • was a passenger in the vehicle being

554 The Law Handbook

Conviction for a lesser offence

22 Driving and traffic law 555

556 The Law Handbook

22 Driving and traffic law 557

558 The Law Handbook

Information that must be given to police on request

Other driving and traffic offences

22 Driving and traffic law 559

Cancellation and suspension of licences

560 The Law Handbook

22 Driving and traffic law 561

Maximum penalties and disqualifications under the road transport legislation

562 The Law Handbook

Section Offence First offence Second or subsequent offence

List of demerit points: Road Transport (Drivers Licensing) Regulation Schedule 1

22 Driving and traffic law 563