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We looked inside some of the posts by starscreamlog-blog and here's what we found interesting.
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Last Seen Tumblr Blogs
Fun Fact
When “GIF” was named word of the year in 2012, Oxford Dictionaries U.S.A. credited Tumblr for pushing the word.
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Freedom of Information Act
The Freedom of Information Act (FOI Act) allows the public to obtain information from the government and most government agencies. Most of this information is personal information relating to the requestor. Other information can include government policies, information relating to decision-making processes and programs. The FOI Act only applies to information held in the form of ‘documents’, which is defined in the Act.
A person may or may not identify themselves when requesting an FOI. Companies have the capacity to make an FOI request.
If the request for information if refused, the person may make an appeal to the Information Commissioner (OAIC).
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What if someone dies without a will?
If someone dies without a will, Part 3 of the Queensland Succession Act applies, which sets out the entitlements of the next of kin of the intestate. If a person entitled does not survive for a period of 30 days, that person is taken to have died before the intestate.
-- DISTRIBUTION OF RESIDUARY ESTATE ON INTESTACY (in schedule 2)
Intestate survived by spouse
If the intestate is not survived by issue and there is only 1 surviving spouse, the spouse is entitled to the whole of the residuary estate.
If the intestate is survived by issue
If there is only 1 surviving spouse, the spouse is entitled to— (a) $150000 and the household chattels; and (b) the following part of the residuary estate then remaining— (i) if there is only 1 child of the intestate who survived, or who did not survive but left issue who survived, the intestate—1/2; (ii) otherwise—1/3.
The issue of the intestate are entitled to the balance of the residuary estate in accordance with section 36A.
Intestate not survived by any spouse
The issue are entitled to the whole of the residuary estate in accordance with section 36A.
Where the intestate is not survived by issue but is survived by a parent or both parents. The parent is entitled to the whole of the residuary estate or, if both parents survive the intestate, the parents are entitled to the whole of the residuary estate in equal shares.
Where the intestate is not survived by issue or by a parent but is survived by next of kin. The next of kin are entitled to the residuary estate in accordance with section 37.
Where the intestate is not survived by issue, by a parent or by next of kin, the residuary estate shall be deemed to be bona vacantia and the Crown is entitled to it.
The definition of ‘next of kin’:
brothers and sisters
grandparents
uncles and aunts
nieces and nephews
Section 36A Rules for issues:
(3) If the intestate had only 1 child (surviving), the child takes.
(4) If the intestate had 2 or more children (all surviving), then the children take in equal shares
(5) If the intestate had 2 or more children and some died, then the surviving children take in equal shares
The Administrator
The Administrator has many duties such as paying debts, collecting assets and distributing the assets in accordance with the rules. The administrator does not have authority to deal with the assets until the Supreme Court of Queensland grants him or her with “letters of administration” (similar to a ‘grant of probate’ for an executor of a will). Financial institutions will usually refuse to release assets until they sight the letters of administration. In considering whether to grant the letter of administration, the court will consider whether the person is suitable to be the administrator. There are steps to follow when applying for letters of administration:
Step 1: The applicant must place an advertisement in the Queensland Law Reporter and a newspaper that circulates in the state that the deceased lived in.
Step 2: Give a copy of the advertisement to the public trustee
Step 3: Wait for 14 days to see if anyone objects before filing the application.
Step 4: Filed the application in court. This should contain -
The Application
Affidavit in Support
Exhibits (death certificate)
Affidavit of Publication and Service (and their exhibits)
Step 5: If everything runs smoothly, the court will issue the grant in four weeks.
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The 417 Visa (Working Holiday)
This visa is for young people (18 - 30) who want to holiday and work in Australia for up to one year. The visa was designed to increase Australia’s cultural ties with other countries.
The applicant must pass the medical health test, character test, pay for costs of their on healthcare (they are not eligible for medicare). The applicant must have a certain amount of money ($5,000) to be able to meet their living needs in Australia and cannot have dependent children accompanying them.
The application is lodged with the department of immigration. It takes about a month to process. When the visa is granted, the applicant will be provided with a visa grant number and any conditions attached to the visa. If the visa is not granted, the department of immigration will provide the reason why the grant was refused, review rights and the time limit to lodge an appeal.
The applicant can apply for a second working holiday visa. To become eligible, the applicant must have complied with all the conditions of the first working holiday visa, performed three months of specified work in a regional area (there is a long definition for this), and must not have turned 31 years of age.
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Buying property at auction
There are a few important points you must know if buying property at an auction.
Cooling of Period
There is no cooling off period for buying at auction [or a follow-up sale after an unsuccessful auction (before 5pm on the second business day)], in which the buyer was a registered bidder. The standard contract of buying a home usually comes with a five (5) day cooling off period. This means the buyer can cancel the contract by serving a written notice on the seller before 5pm on the last day. If the buyer chooses to cancel the contract during the cooling-off period, the seller must refund the deposit within 15 days. The seller may also make a deduction 0.25% of the purchase price.
Reserve Price
The seller may set a reserve price, that is, a minimum price that the seller will accept (this will be in writing). The buyer must ask the seller if they have set a reserve price. If the seller does not set a reserve price, they must accept the highest bid. The reserve price is not to be disclosed to bidders.
Sometimes the buyer will recommend a reserved price for the seller by giving them a Comparative Market Analysis (CMA), which justifies the recommendation that they are giving. The CMA compares at least three similar properties sold recently within the vicinity of the property.
Registered Bidders
The seller must keep a register of all the bidders at the auction. Only registered bidder can bid. The seller must not identify any bidder during the auction process.
Disclosure of conditions
The seller must disclose the conditions. The seller may leave a copy of the unsigned contract to disclose the conditions.
Acceptance
The seller MAY accept a bid from a bidder who bids below the reserve price. Once bids are or exceed the reserve price (aka “on the market”), the vendor must accept the highest bid. If the seller does not set a reserve price, the property is “on the market” from the first bid. The auctioneer does not have to announce when a property is on the market, but they are allowed to do so if they wish.
Unconditional basis
Most auctions require you to bid on an unconditional basis. This means the contract cannot be ‘subject to finance’ or ‘subject to the completion of another sale’. Therefore, the buyer should inspect the property, arrange finance, obtain a copy of the contract and seek legal advice before going in to bid. Checks that should be conducted beforehand, include:
titles searches
building inspections
pest inspections
land tax clearance search
If bids do not reach the reserve price
If the property doesn’t reach the reserve price, the buyer can negotiate with the seller after the auction. If this leads to a sale within 2 days of the auction, the buyer will not get a cooling-off period.
If an agreement is reached more than 2 days after the auction, the buyer will have access to a cooling-off period.
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Subdividing Land
Subdivision of land is relevant to environment and planning law. The word ‘subdivision’ is also known as reconfiguration of land and includes:
creating a lot by subdividing
merging two lots or more into one lot
rearranging the boundaries of a lot
creating a community titles scheme
the creation of an easement
Most subdivisions do not require a development application. These are known as ‘exempt development’; otherwise, you will need a code assessable development application under the Sustainable Planning Act 2009, that is, an application assessed against the codes in the Brisbane City Plan 2014 but does not require public notification. Note that even if a development application is not needed, you may need building approval.
Things that are exempt:
structural changes to the building (unless subdivisions are above or below the land)
the merging of existing lots
subdivision for road widening purposes
Dividing land requires a development application. One of the first things to consider is whether the land is big enough to subdivide. The minimum lot size is categorized into three further criteria:
minimum frontage
average width
development rectangle
There is further information in the subdivision code in the City Plan. In some cases, it may not be appropriate to subdivide due to characteristics of the land, such as excessive slope, protected vegetation, the location of infrastructure, flooding or the location of heritage or character buildings.
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ASIC initiated deregistration of a company
There are a few reasons ASIC may deregister a company:
The company has not paid its annual review fees in the past twelve months of the due date.
The company has not responded to a compliance notice, has not lodged documents in the past 18 months and ASIC believes that the company is no longer in business.
The company is being wound up and there is no liquidator.
The steps to an ASIC initiated deregistration:
ASIC will send a letter to the company informing them of the pending deregistration.
ASIC will register the company in its database as SOFF (strike off status), meaning it’s deregistered.
ASIC will make a post on the ‘published notices’ board stating that the company will be deregistered in two months unless it is objected to.
When the above two months have passed, ASIC will send a letter to the company advising them that their company has been deregistered.
The ASIC initiated deregistration can only be stopped if:
The company pays its annual review fees and any other outstanding fees.
The company lodges any required documents.
The company writes to ASIC advising that there are still trading.
The effects of deregistration means that the company ceases to be a ‘legal entity’. This means any legal proceedings against the company cannot be continued. A third-party can apply to ASIC to defer the deregistration of a company.
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Regional Sponsored Migration Scheme visa (subclass 187)
This class of visa is a permanent resident visa that allows skilled workers to work in regional Australia. To work in regional Australia, the worker must be sponsored by an employer. “Regional” does not mean Brisbane, Sydney, Melbourne, Gold Coast. The worker must be able to meet the skill requirement, English requirement and be under 50 years of age.
An application of this visa involves a two-step process. Firstly, there must be an employer willing to sponsor the employee, and secondly, the worker will need to make an application under a nominated stream:
Temporary Residence Transition stream is for subclass 457 visa holders currently working for an employer who is going to be their sponsor for this class of visa and is offering them a permanent position in the role.
Direct Entry Scheme is for those who have never, or only briefly, worked in Australia.
Agreement stream is for subclass 457 visa holders nominated by an employer through a labour agreement.
The process takes about one year. The Temporary Residence Transition scheme is faster than the direct entry scheme. The minimum price for this visa is $3,600.
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Section 325 of the Fair Work Act
Unreasonable requirements to spend amount
(1) An employer must not directly or indirectly require an employee to spend any part of an amount payable to the employee in relation to the performance of work if the requirement is unreasonable in the circumstances.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) The regulations may prescribe circumstances in which a requirement referred to in subsection (1) is or is not reasonable.
The current maximum penalty for an individual for breach of this section is $10,800 and $54,000 for a corporation.
The employer will try and establish that the requirement is reasonable (e.g. not a huge financial amount). Furthermore, s 326 invalidates a term in an employment contract where pay is deducted for the benefit of the employer and is “unreasonable” in the circumstances. On a random note, this can be an issue where some retailers require their employees to buy their brand of clothing to promote them.
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Powers of inspectors at the Fair Work Ombudsman
Chapter 5, Division 3, Subdivision D provides the inspectors with the power to carry out the functions of the Fair Work Ombudsman. Section 706 allows the inspectors to exercise their powers of compliance in determining whether the Fair Work Act (or instrument) has been complied with. An inspector may exercise compliance power if he or she reasonably believes that the person has contravened one or more of the following:
provision of the national employment standards
a term of a modern award
a term of an enterprise agreement
a term of a national minimum wage order
An inspector may exercise compliance powers at any time (even outside of work hours).
An inspector may enter the premises without force if the inspector reasonably believes that there are records on the premises (physical or electronic) that are relevant to compliance purposes. An inspector must not enter residential premises unless he or she believe that part of the premises is used for work. The inspector must, either before or as soon as practicable after entering premises, show identification to the occupier or the apparent occupier's representative.
While on the premises, the inspector may inspect any work, process or object, interview any person, ask who has access to records, require a person who has access to records to provide those records while the inspector is on the premises or within a specified period of time and make copies of those records.
The inspector may ask for the person’s name and address, and provide evidence of this if he or she suspects that it is false. An inspector can require a person to produce records within a specified period by providing notice. The notice must be in writing, served on the person and require the person to produce the document at a specified place within a specific period of at least 14 days. The notice may be served by sending it to the person's fax. A person who fails to comply with the notice contravenes a civil penalty provision. A person is not excused from producing documents, even if it may incriminate them or exposed themselves to a penalty.
Enforceable Undertakings
The Fair Work Ombudsman may accept an enforceable undertaking by the person in relation to relevant contraventions. The undertaking cannot be given if the person has been served with a section 716 compliance notice. If the Fair Work Ombudsman is satisfied that the person has breached the undertaking, they may apply to the Federal Circuit Court or Federal Court. If the court is satisfied that there has been a contravention, the court may order:
a person to comply with the term of the undertaking
compensate someone for the breach of undertaking
any other order that the court considers appropriate
Compliance notices are only given out if there has been a suspected contravention of:
provision of the national employment standards
a term of the modern award
a term of an enterprise agreement
a term of the national minimum wage order
The notice may ask the person to remedy the breach and provide evidence of compliance. The notice must contain details of the breach and provide that both sides can get the court to review the notice. As stated above, notices cannot be given if an enforceable undertaken has already been given. Failure to comply with a notice is a breach of a civil remedy provision.
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Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
Summary of Natalie James’ Opening Statement
The Fair Work Ombudsman supports the measures that the bill will provide to vulnerable workers. Natalie James said that the amendment will enhance the Ombudsman’s capacity to take action against employers who are involved in the worst cases of employee exploitation. She also said the exploitation reflected badly on our country and national reputation. Some examples of exploitation include:
Migrant workers being paid well below the minimum wage
Employers threatening to cancel employees’ working visas
Employers forcing employees to withdraw cash from the ATMS and having them pay them back
Employers paying by way of food rather than the money that they are entitled to
The Fair Work Ombudsman currently has a high win rate in courts and is often able to obtain the maximum penalty for breaches. The inspectors doggedly pursue operators that try to avoid enforcement of the law by:
liquidating their company and setting up a new business (phoenixing)
engage in ‘cash back’ schemes
targeting workers that are too scared to report them
threaten workers with their job or visas
Employers are currently setting up their businesses and considering non-compliance merely as a calculated ‘business risk’. They may think that the penalty is so low that it is worth exploiting workers as part of their ‘business model’.
Explanatory Memorandum Summary
The Fair Work Ombudsman is the regulator that ensures that workplace laws are complied with. The bill amends the Fair Work Act to:
Increase penalties for more serious contraventions, so that operators can be effectively deterred instead of considering the penalties as a ‘cost of doing business’
Increase penalties for failing to keep records
Make franchisors or holding companies liable for franchisees or subsidiaries companies’ breach if they knew or ought to have known about the breaches (this will depend whether the larger company had a significant degree of influence and control)
Express prevention of ‘cash-back’ schemes
Strengthen the powers of inspectors, so that effective investigation can be conducted
The Seven Eleven case was a major push in the amendments. The case involved franchisees paying the correct wage but subsequently forcing workers to systematically pay them back.
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Oaths Act 1867 (Qld)
In Queensland, any individual is entitled to make an affirmation in place of an oath. A witness, deponent making an affirmation should use the following words:
‘I A.B. do solemnly sincerely and truly affirm and declare etc.’.
A witness’ oath in a civil trial should be the following:
‘The evidence which you shall give to the court [and jury sworn] touching the matters in question between the parties shall be the truth the whole truth and nothing but the truth So help you God.’.
An interpreter’s oath in a civil proceeding should be the following:
‘You swear that you understand the language of the witness [or plaintiff or defendant] and are able to interpret between the witness [or plaintiff or defendant] and the court and jury and all persons conversant with the English language So help you God.’
A witness’ oath in a proceedings that is not categorised should be the following:
‘The evidence which you shall give to the court [or in these proceedings] shall be the truth the whole truth and nothing but the truth So help you God.’.
In the case of a statutory declaration, the following people can take a statutory declaration: a judge, a commissioner of declarations, a notary public, a lawyer or a conveyancer. And it should be in the following form:
‘I A.B. do solemnly and sincerely declare that [let the person declare the facts] and I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act 1867.’.
Any person taking an oath, should, if physically capable, hold a bible in their hand. The officer administering the oath may repeat the appropriate form of the adjuration and indicate the person’s assent o the oath so administered by uttering the words ‘So help me, God’; or, the person taking the oath may repeat the words of the oath as prescribed by law.
Here is a list of people who can take affidavits: a judge, a commissioner of declarations, a notary public, a lawyer or a conveyancer.
A form of a solemn affirmation found in the schedule:
I solemnly affirm and declare that the evidence given by me to the court [or in these proceedings] shall be the truth, the whole truth, and nothing but the truth.
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Maritime Union and CMFEU merger
Members of the maritime union have expressed disapproval of the merger between the Maritime Union and the CMFEU for fears the bigger organisation (CMFEU) will dominate. Employers fear the the merger will lead to increased actions against the resource industries.
The MUA and CMFEU have signed a memorandum for the merger, but it is now awaiting the approval vote of the 14,000 members of the MUA.
The Turnbull government has attempted to stop the merger by introducing legislation that prevents the super-merger of an organisation by introducing a public interest test. The public interest test would require the fair work commission to consider a union's past industrial breaches before approving a merger.
The abuse of MUA officials by its members has been non-stop. The abuse extended to physical violence. In April 2015, an unemployed union member punched the MUA secretary to the ground outside MUA headquarters. A MUA spokesperson said that measures need to be put in place, so that officials can carry out their responsibilities without violence or threat of violence.
The MUA and CMFEU Amalgamation is expected to be held in April.
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