#Queensland law

[leveragehunters]

I'm putting my response to this in it's own post. Nothing but respect for the rightful criticisms of the situation described in those articles. The problem is that the articles by Danielle Cahill are grossly, almost negligently, misleading.

I'm not your lawyer and this is not legal advice, but I am an autistic Queensland lawyer who's pretty ticked off at Cahill.

Cahill's articles:

Autistic drivers could find their licences in legal limbo depending on where they live after new standards introduced

New national Fitness to Drive standards are 'discriminatory' and 'humiliating' for autistic drivers, psychologists say

Short version:

If you're autistic you do not automatically have to obtain a medical clearance to hold a Queensland Drivers Licence and there is no 'list of reportable conditions', much less one that includes autism.

Long version with receipts:

The first article purportedly cites a Department of Transport and Main Roads (Transport) spokesperson who they claim said: "…all autistic drivers in Queensland have since 2012 been required to obtain a medical clearance from a doctor to show they are fit to drive." It also says: "In Queensland, the Department of Transport and Main Roads (TMR) requires drivers to obtain a medical clearance form from a doctor confirming they are fit to drive despite being autistic."

The second article says: "According to the state's Department of Transport and Main Roads (TMR), autism was added to the list of reportable health conditions in 2012."  Oh, but wait, what's this from just a little further up in the same article? "A TMR spokesperson told ABC News that "there is no specific legislation that states that people with autism cannot drive".

Let's talk about that specific legislation

Despite what the spokesperson said, there was no change to the law in 2012. A new Transport Regulation, which contains the law about medical clearances for Queensland drivers licences, was, however, passed in 2021. (link to the Regulation)

Typo or ignorance? Why not both.

The 2021 Regulation did not substantively change the law. The new Regulation was a consolidation, modernisation, and streamline of multiple pieces of overlapping legislation. (Explanatory notes)

'Jet's Law', which sets the rules for driver medical clearances, was first introduced in 2008. (Ministerial Statement). It was moved from the old Regulation to the new 2021 one essentially unchanged.

Jet's Law in chapter 3, part 6, division 1 of the 2021 Regulation

Jet's Law as passed in the previous Regulation (scroll down to page 64)

The law in Queensland re: medical clearances is the same as it was in 2008. The only changes were to language, consistent with modern drafting standards, and the addition of a requirement to not drive until you've given notice if a condition develops or worsens.  

What does Jet's Law say?

Section 177 of the 2021 Regulation states:

A person who applies for the grant or renewal of a Queensland driver licence must, when making the application, give a notice to the chief executive about any mental or physical incapacity that is likely to adversely affect the person’s ability to drive safely.

Key words: any mental or physical incapacity that is likely to affect the person's ability to drive.

If you're autistic and your autism isn't likely to affect your ability to drive safely, Jet's Law doesn't require you to give notice to Transport.

But what about that list of reportable conditions the article claims exists?

It doesn't exist. There is no list of reportable conditions.

Transport DOES provide some examples of medical conditions that are likely to affect your ability to drive. You can see them here:

https://www.support.transport.qld.gov.au/qt/formsdat.nsf/forms/S5040/$file/S5040.pdf

https://www.qld.gov.au/transport/licensing/update/medical/fitness#medcond

Here's the licence application form: https://www.support.transport.qld.gov.au/qt/formsdat.nsf/forms/qf3000/$file/f3000_es.pdf. Question 7 states that you must report any medical conditions that may adversely affect your ability to drive and asks if you have any of the following conditions:

Vision or eye disorder (other than wearing glasses or contact lenses) that may adversely affect your driving

Diabetes that requires treatment by tablet, insulin or other medication

Been diagnosed with epilepsy, experienced a seizure; or been required to take anti-epileptic medication after the age of 11

Any other medical condition/s that is likely to adversely affect your ability to drive safely

You know what I don't see anywhere? Autism.

But what about the National Standards?

Cahill managed to get that part of the articles almost right.

All Queensland drivers, regardless of age, must meet the national standards to ensure their health or any physical disability does not increase the risk of a crash. (confirmed by Transport) And before you ask, the national standard is not a list of 'reportable conditions'. (Even if it was, the autism update happened in 2022, not 2012). But what is the national standard if it's not a list of reportable conditions?

The national driver medical standards Assessing Fitness to Drive set out the considerations and medical criteria for safe driving. They also guide the management of drivers with health conditions so that they may continue to drive for as long as it is safe to do so. The standards are used by health professionals to assess and manage patients with health conditions that may affect their ability to drive safely. These assessments and the standards themselves inform Driver Licensing Authority decisions about driver licensing.

The national standard does refer to "Other neurological conditions including autism spectrum disorder and other developmental and intellectual disabilities". Yes, it was updated in 2022, as indicated by a big red banner across the top of the page. The update notes state:

The review identified that information and guidance was required to enable assessment of persons with ASD. Specialist advice noted that the variability of ASD characteristics and the degree of severity were too diverse for a specific standard. General guidance is however provided in the text of the chapter.

Wait, the review? The changes were made because of a review? They weren't a secret sneaky change as Cahill alleged? There was a public review that called for submissions from stakeholders?  Yes there was.

The review concluded there was not enough evidence to determine the MVC (motor vehicle crash) risk associated with ASD, and "Specialist advice noted that the variability of ASD characteristics and the degree of severity were too diverse for a specific standard."

So what does the standard actually say about autism?

The impact of other neurological conditions including autism spectrum disorder (ASD) and developmental and intellectual disability should be assessed individually. A practical driver assessment may be required. If the degree of impairment is static, periodic review is not usually required. People with ASD can have differences in social communication and interaction, with restricted and repetitive patterns of behaviour, interest and activities. Although evidence from driving studies are limited, drivers with ASD may drive differently from people without ASD. Shortcomings in tactical driving skills have been observed, while rule-following aspects of driving are improved. There is considerable difference in the range and severity of ASD symptoms, so assessment should focus on these and the significance of likely functional effects, rather than an ASD diagnosis.

So what does that mean?

It means we're right back at Jet's Law, in section 177 of the 2021 Regulation.

If you have a mental or physical incapacity that is likely to affect your ability to drive you need to declare it.

Could this include autism? Yes.

Does it automatically include autism? Not according to any law or standard currently in force in Queensland.

If you're an autistic Queenslander, your obligations under Jet's Law and the update to the national standard mean it's important that you consider whether your autism is likely to affect your driving ability and, if so, declare it. If it's not, then don't.

[Reminder: I am not your lawyer and this is not legal advice]

[qldprobatelawyers]

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[garochetarkinslicersimlish]

[mintlegal]

New blog on property settlements

https://www.mintlegal.com.au/blog/conveyancing--property-settlements-guide

[whats-in-a-sentence]

The native mounted police of Queensland . . . carries out its sanguinary will without the intervention of judge, jury, or law. Practically, there is no appeal from its almighty vengeance.

"An Ex-Officer", 1879

"Killing for Country: A Family History" - David Marr

[qldbusinesspropertylawyersau]

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[lawyersinaustralia]

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[diannemead]

Excerpt from Article by Scott Hogan

Life is absurd. We are born into a world without a clear reason and we must play silly little games and perform trivial roles in order to be accepted into said world. And, in the end, we disappear. - Scott Hogan on Hamlet: An Identity in Crisis

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[gotocourt]

Go To Court Lawyers Queensland Legal Hotline - 7am to 12pm midnight

[inblurtub]

lovingly siesta | a smau | part 1

pairing(s): youngest sister leclerc!reader x lando norris, youngest sister leclerc!reader x f1 grid (platonic).

warnings: no face claim, age gap (25-18), protective charles leclerc, ooc

might be a multi-parts series

yourusername

liked by charles_leclerc and 17.359 others

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view all 1.001 comments

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liked by charles_leclerc, carlossainz55 and 20.284 others

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view all 3.935 comments

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[akajustmerry]

Just out of curiosity - I read your post about how the “Australian” government abducted aboriginal children and assimilated them as part of the genocide against the native people, and it has me wondering, what is the land of Australia actually called? Since Australia is the name given by settlers, what do the aboriginal people actually call their home?

this is very easily googleable and I really encourage you to do your own research but I'm feeling generous. there is no one name for the land because Aboriginal peoples had (and still very much do have) our own nations that make up this land.

There are over 300 Indigenous nations on this continent. Each with its own language, laws, and cultural protocol. Some nations close in proximity share certain cultural protocols and language. Certain regions have names like "Koori" is most of the region also known as NSW and "Murri" is similar to the region known as Queensland. My people are Koori.

What is widely known as the Australian continent is large. First Nations peoples from Palawa, for example, rarely if ever interacted with Noongar peoples until after colonisation. Because of the size (only slightly smaller than the US) and differences in language, it's unlikely Aboriginal peoples had an agreed-upon name for the entire land. But it's also worth noting that if we did have a name for it, that name has probably been lost due to violent colonial efforts to strip us of our language and history. You'll hear people say "so-called Australia" as a way to acknowledge all this.

[qldprobatelawyers]

Mothers death bed regret falls short of a valid will

Many an attempt to make what appears to be a will unconventionally or informally falls short of a valid will because it does not meet minimum legal requirements. Unfortunately this was the case in relation to the estate of Erika Kaegi-Fluri who – when she died – was survived by her only daughter, Juliana Wool. In her first will made in December 2013, she left the whole of her estate to Juliana. Juliana and her husband had a tumultuous falling out with Erika in 2017 – that lead them to sue her – over the financial arrangements they had made for Erika to reside with them in Cairns. The ensuing litigation eventually resolved, but not the disaffection that it brought. Erika moved back to Mackay to live out her days quietly in a retirement village. She made a new will in 2018 and a further final will in 2020.  Juliana’s name appeared nowhere as beneficiary in either document both of which were accompanied by a statement of Erika’s reasons for leaving no benefit to her daughter. The last will bequeathed the estate in one-third shares to the RSPCA and two friends, Micael Johannsson and Adam Anderson. Shortly after Erika’s death in July 2022 in Mackay, Charles Marino – her executor – applied for it to be admitted to probate. Julia intervened however, claiming there was a subsequent will. A note had been found in Erika’s bedside drawer.  The note appeared to state Erika’s testamentary intentions, leaving her estate to Juliana.  English was not Erika’s first language, but the intention seemed quite clear. The note read: “DEAR JULIANA I AM CHANGING MY WILL! KIM ADAM AND MICAEL HAVE ABANDEND ME.  RSPCA LET ME DOWN. I LEAVE THE HOUSE AND ALL MY MONEY TO YOU JULIANA. I GO TO HOSPITAL NOW.  WHEN I GET BETTER I MAKE A NEW WILL WITH A LAWYER.  NO MONEY MUST BE PAID TO RSPCA, MICAEL OR KIM AND ADAM.  I CANCEL THE CAIRNS WILL SORRY MY HANDS GETTING SORE. I LOVE YOU VERY MUCH YOU ARE MY ONLY DAUGHTER YOU ARE ALL I HAVE NOW. I WRITE THIS LETTER IN CASE SOMETHING HAPPEN TO ME.  SORRY I AM VERRY TIRED. I CONTACT YOU FROM HOSPITAL. I LOVE YOU MORE THAN ANYTHING IN THE WORD!  YOUR MOTHER, […Erika’s signature…] Mackay 6.6.2022” The note appeared to be an informal will, and so Juliana asked the Supreme Court to admit the note to probate as Erika’s last will. To prove the note as a valid informal will, Juliana needed to be able to convince a judge that the document embodied her mother’s testamentary intentions and by some act or words, had demonstrated it was to operate as her will of itself. The matter came before Justice James Henry in the Supreme Court of Queensland at Cairns. The judge was troubled by evidence that Erika may have had undiagnosed dementia; her health issues just prior to going to hospital may have affected her mental capacity to make a will; and Erika was emotions could fluctuate with her mood. He concluded that the note “at best provides some support for an inference Erika intended it to operate her will”. That said, “it provides at least equally strong support for the inference Erika merely intended the note to inform her daughter of her regret and change of heart and her plan to reflect that by making a new will”. Juliana failed in her attempt to have the note declared to be a valid informal will. Despite that, Juliana’s cause is not entirely lost as she has a pending family provision claim contesting her exclusion from the 2020 will, which her mother’s note will likely go a long way to support. Wool v Marino [2024] QSC 89 Henry J, 14 May 2024 Mother’s death bed regret falls short of a valid will published first on https://qldestatelawyers.com.au/probate-lawyers/

[mintlegal]

Check out new blog:

https://www.mintlegal.com.au/blog

[whats-in-a-sentence]

Where, he asked, were the magistrates of Maryborough?

I reply our magistrates are all here and they might as well be at Jericho they do not care a fig for either law or justice and in short knowing how matters stand they are as guilty of every act of cruelty as the actual perpetrators of them. They are traitors every man of them and unworthy the confidence of the people.

"Killing for Country: A Family History" - David Marr

[qldbusinesspropertylawyersau]

Lessor floored: make good costs reduced by windfall benefit

Landlords and tenants squabbling over make good costs in commercial leases should consider this dispute relating to an industrial warehouse leased to a heavy machinery hire company.

Kingston Industries took up occupation of the western Sydney premises in August 2010 and after its lease extensions expired in July 2017, it continued occupation on a month-to-month basis until December that year.

Landlord Diana Morabito claimed Kingston was responsible for the make good cost of replacing concrete surfaces in the warehouse and the car park which she claimed had been shattered by the tenant’s steel track earthmoving equipment.

She demanded the former tenant pay $344,000 in make good costs plus lost rent of $295,000 for the 18-month period between when Kingston departed and the date the premises were re-let in June 2019.

The lease – which specified a permitted use of “Plant Hire/Distribution” – contained the usual provisions in relation to the tenant’s maintenance and repair obligations but excluded damage caused by the landlord’s negligence or which occurred “outside its control” from the realm of tenant’s responsibility.

The terms also prohibited the tenant from “allowing the floor to be broken or damaged by overloading”.

The landlord was obliged to “maintain the structure of the premises in good repair” but it gave no warranty or representation that they were suitable for the tenant’s use.

When Kingston refused to pay, the landlord filed proceedings to recover her make good costs in the NSW Supreme Court.

Morabito contended that the permitted use did not extend to moving steel tracked equipment on the concrete surfaces without using protective measures of mapping or steel plates.

Justice Elisabeth Peden had to consider whether machinery with steel tracks was “plant”- and therefore permitted – that would ordinarily be expected to be moved around.

She saw no need to resort to the principle that lease covenants including those in relation to permitted use “are strictly construed against a lessor” because the word “plant” unambiguously included the tenant’s steel tracked equipment – some of over 22 tonnes in weight – of which the landlord had been aware.

Suspecting that the concrete surfaces were defective, Kingston engaged engineers to inspect and test the damaged paving.

Kingston managed to locate Fernando Algorry, the engineer who originally designed the concrete surfaces who swore that – because he was not provided with instructions about the type required – he had adopted a standard specification for concrete suitable for light to medium industry and machinery with pneumatic tyres only.

He also attested that the concrete supplied to the job – by reference to the few cartage delivery documents the landlord produced in discovery – was even inferior to the grade of product he had specified.

And had he known what was actually supplied, he “would not have certified” the low grade concrete that had been supplied.

This allowed Kingston to argue the failure in the concrete fell into one of the exceptions to its maintenance and repair obligations because it was caused by the landlord’s negligence; beyond its control; or it had occurred as a result of “fair wear and tear”.

Justice Peden accepted Kingston’s submission that Ms Morabito’s failure to produce many missing cement truck delivery dockets entitled the court to conclude they would not benefit her case and that it should conclude all batches delivered had been of low grade.

She went on to conclude that the paving damage had not been caused by Kingston’s machinery or overloading but rather by “a matter beyond its control and for which it ought not be liable”.

She went on to consider the validity of landlord’s figures to decide the damages to which she would be entitled should an appeal court decide otherwise regarding the concrete defects.

In the absence of the landlord taking reasonable steps to mitigate her loss by promptly recruiting a replacement tenant, her claim for lost rent was dismissed.

The court also decreed that any damages for the cost to replace the damaged paving should be reduced by “the betterment obtained from the new concrete”. That benefit was – having regard to the projected 50 year “life” of the new concrete paving – an additional 7.5 years.

“A successful plaintiff should not be awarded a windfall amount by reason of obtaining a better outcome, than had the defendant performed its obligations”. Similar reductions apply if a landlord gains “greater efficiency or productivity” from the repairs conducted from make good funds.

Thus Kingston – if it were to be liable at all – would have had to pay the replacement cost for the slabs, reduced in proportion by such “betterment”.

And a $58,000 claim for other make good items was reduced to $3,320 because Mrs Morabito had not demonstrated the damage was caused by Kingston as opposed to “fair wear and tear”.

ORIGINALLY FOUND ON- Source: QLD Business Property Lawyers(https://qldbusinesspropertylawyers.com.au/blog/lessor-floored-make-good-costs-reduced-by-windfall-benefit/)