Queensland demerit points – learner, provisional, probationary & open licence

Here’s our guide to Demerit Points in Queensland.

Common Offences

In Queensland the most common offences that attract demerit points are:

  1. Failing to obey traffic signals or markings (traffic lights, stop signs and road markings);
  2. Speeding;
  3. Driving under the influence of alcohol; and
  4. Using a mobile telephone or device while driving.

The full list of offices that attract demerit points in Queensland can be found here.

There are three (3) circumstances that you will have demerit points applied against your licence:

  1. If you have been issued with an infringement notice for a traffic offence that carries a penalty including demerit points and you make payment of the fine prior to the due date;
  2. If you have received an infringement notice and are unsuccessful in contesting the notice in a Court of law or you are convicted following a notice to appear for traffic offences that attract demerit points;
  3. If you have been issued with an infringement notice for a traffic offence that attracts demerit points, you fail to make payment prior to the due date and your infringement is referred to the State Penalties Enforcement Registry (SPER).

Demerit Points and your Licence

A common misconception is that you “lose points” from your licence. This is not the case. In Queensland demerit points are allocated to your licence in certain circumstances. This means that when you are issued with a Queensland drivers licence you have a clean slate and you accumulate points with each traffic infringement or conviction.

There is a maximum number of demerit points that you are permitted to accrue against your licence in Queensland. If you reach or exceed this number you may have your licence suspended and/or additional restrictions may be applied to your licence.

The limit of demerit points that may be accrued against your licence before it is suspended in Queensland will depend on the type of licence that is held by you.

Learner Licence

If you have been issued with a learners licence (L) for a class C vehicle the limit is 4 points. If you have 4 or more points accrued against your learners licence, your licence will be suspended for a period of 3 months. You will not be permitted to drive during this time and your licence will be automatically reinstated at the conclusion of your suspension period.

Provisional or Probationary Licence

If you have been issued with a provisional or probationary licence (P, P1, P2) the limit is 4 points per year. If you have 4 or more points accrued against your provisional or probationary licence within a continuous 1 year period you will be given the opportunity to select between a 1 year good behaviour period and a 3 month suspension.

Good Behaviour

If you select a 1 year good behaviour period you will be permitted to continue driving. However, during this time, if you accumulate 2 or more demerit points, your licence will be automatically suspended for a period of 6 months. This is double the suspension period you would have received initially. You will not be permitted to drive during this time and your licence will be automatically reinstated at the conclusion of your suspension period.

Suspension

If you select a 3 month suspension your licence will be suspended for a period of 3 months from the date indicated on your notice, however you may elect to have your suspension commence early. You will not be permitted to drive during this time. Your licence will be automatically reinstated at the conclusion of your suspension period.

Fail to Choose

If you fail to make a selection within the time provided for your nomination, your licence will be suspended for a period of 3 months. You will not be permitted to drive during this time and your licence will be automatically reinstated at the conclusion of your suspension period.

Open Licence

If you have been issued with an open licence the limit is 12 points every 3 years. If you have 12 or more points accrued against your provisional or probationary licence within a continuous 3 year period you will be given the opportunity to select between a 1 year good behaviour period and a suspension based on the number of points accrued.

Good Behaviour

If you select a 1 year good behaviour period you will be permitted to continue driving. However, during this time, if you accumulate 2 or more demerit points, your licence will be automatically suspended for a period of 6 months. You will not be permitted to drive during this time and your licence will be automatically reinstated at the conclusion of your suspension period.

Suspension

  • If you elect a suspension period and have accumulated at least 12, but not more than 15 demerit points your licence will be suspended for a period of 3 months from the date indicated on your notice, however you may elect to have your suspension commence early. You will not be permitted to drive during this time and your licence will be automatically reinstated at the conclusion of your suspension period;
  • If you elect a suspension period and have accumulated at least 16, but not more than 19 demerit points your licence will be suspended for a period of 4 months from the date indicated on your notice, however you may elect to have your suspension commence early. You will not be permitted to drive during this time and your licence will be automatically reinstated at the conclusion of your suspension period;
  • If you elect a suspension period and have accumulated 20 or more demerit points your licence will be suspended for a period of 5 months from the date indicated on your notice, however you may elect to have your suspension commence early. You will not be permitted to drive during this time and your licence will be automatically reinstated at the conclusion of your suspension period;

Fail to Choose

If you fail to make a selection within the time provided for your nomination, your licence will be suspended for the period of time applicable to the number of demerit points accumulated. You will not be permitted to drive during this time and your licence will be automatically reinstated at the conclusion of your suspension period.

Special Hardship Order

If a suspension of your licence will cause you or your family extreme financial hardship or severe and unusual hardship that is not of a financial nature, you may be able to apply for a “Special Hardship
Order”.

These orders allow you to continue driving under certain circumstances and subject to any restrictions the Court considers appropriate. If your licence has been suspended and you would like to make an Application for a Special Hardship Order you only have 21 days from the commencement of you suspension in which to bring an application in the Magistrates Court of Queensland. You should seek legal advice without delay.

Facing charges? We can help.

Our experienced traffic law team are here to help. Give us a call to discuss your situation & book in your appointment with our traffic lawyer today.

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What happens if all my beneficiaries die?

When a person dies having made a valid Will, the deceased’s estate will generally be distributed in accordance with the directions in that Will.

However, it may be that by the time the deceased has passed away, all of the beneficiaries (recipients) under the Will have also passed away. This is a particular risk where will-makers are leaving their estate to older beneficiaries, such as their parents.

Ideally, if a majority of the beneficiaries die during the life of a will-maker, the will-maker should update their Will to move the deceased beneficiaries and instead include living beneficiaries. However, some people never get around to doing this, and the executor of the Will finds themselves in a position where they must administer a Will that only contemplates deceased beneficiaries.

Obtaining Probate

If an executor finds themselves in this position, they would ordinarily need to apply for probate of the Will and then distribute the deceased’s estate in accordance with the laws of ‘intestacy’ (explained below).

Whether an executor will need to apply for a grant of probate will depend on various factors (including the requirements of the deceased’s bank). You should contact a lawyer if you have any queries in this regard.

The Laws of Intestacy

The laws of intestacy set out the order of the persons who a deceased’s estate must be distributed to, if a deceased dies without leaving a Will.

The same rules and order applies if a deceased dies leaving a Will, under which all of the contemplated beneficiaries died before the deceased.

These rules can be found in sections 35 – 39 of the Succession Act 1981 (QLD), and require the distribution of the deceased’s assets in the order shown in the diagram below:

If for any reason the estate assets cannot be distributed to any of the beneficiaries or any of the parties outlined in the above diagram, the estate would ultimately be distributed to the Crown as per the doctrine of Bona Vacantia.[1].

[1] A A Preece, Lee’s Manual of Queensland Succession Law (Thomson Reuters, 7th ed, 2013) 12.200.

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Are there tax benefits to a Testamentary Trust?

A Testamentary Trust has a myriad of tax benefits, which can play an integral role in maximizing the net income that beneficiaries of the Trust receive.

It is important that all trustees, as well as trust creators (or grantors), are aware of these advantages in order to seek the greatest return for the beneficiaries, and to maximise after-tax net income.

What is a Testamentary Trust?

Testamentary Trusts are trusts created by a ‘testamentary’ instrument (usually a Will). This means that a Testamentary Trust comes into effect after the person who created it has died. Testamentary Trusts are usually created to benefit a person’s spouse, children or grandchildren. For more information please read: Testamentary Trusts in Estate Planning.

It is important to note that Testamentary Trusts require their own tax file numbers, separate from the tax file number of the deceased estate. Deceased estates are not subject to the Medicare Levy; Testamentary Trusts are.

Benefit #1 – Marginal Tax Rates for the Testamentary Trust

At the Commissioner’s discretion, a Testamentary Trust’s income can be assessed under s99 of the Income Tax Assessment Act 1936 (Cth) (“ITAA”). Other trusts, such as an Inter Vivos Trust (which comes into affect while the trust creator is alive), are assessed under s99A of the same Act.

What does this mean? Under s99A, an Inter Vivos Trust will be assessed at the highest marginal tax rate for undistributed income, that is, at 49% inclusive of Medicare and Budget Levies. Under a Testamentary Trust, however, the Commissioner may choose to apply s99 which taxes the trustee at what is essentially a standard adult marginal rate. This marginal rate also excludes the tax free threshold of $18,200.

Under s99:

  • Any income between $670 and $37,000 is charged at a flat rate of 19%.
  • Any income between $37,000 and $80,000 is charged at a marginal tax rate of approximately 32.5%.
  • Any income between $80,000 and $180,000 is charged at a marginal tax rate of approximately 37%.

Benefit #2 – Discount on Capital Gains Tax for Disposal of Assets

Section 99, under which a Testamentary Trust can operate, allows trustees to access a 50% discount on Capital Gains Tax for assets that are sold off. This is provided they have been held for over 12 months. Most other types of trusts are subject to s99A which does not provide access to this discount.

Benefit #3 – Personal Income Benefits

A person will either be a “beneficiary” or a “beneficiary under a legal disability”. A beneficiary under a legal disability can include minors (under 18), bankrupts who have not been discharged and persons who are deemed “mentally impaired”.  The beneficiaries will be assessed as follows:

  • An ordinary beneficiary (not under a legal disability) will have their personal income assessed under s97 of the ITAA. This means their personal income tax will be assessed at marginal tax rates which are subject to the $18,200 tax-free threshold.
  • A beneficiary under a legal disability (who is not a child) will be assessed under s98(1) of the ITAA. Here the trustee will be assessed by the ATO on the beneficiary’s behalf. The trustee will then issue a Beneficiary Tax Statement to the beneficiary. (Implications for this below).
  • Further to the above, pursuant to s102AG(2)(a) of the ITAA, a child (who is a beneficiary with a legal disability) will have their income from a Testamentary Trust classified as “excepted trust income”. This means their income will be assessed at adult marginal rates, entitling them to the $18,200 tax-free threshold they otherwise would not have been able to access.

In addition to receiving marginal tax rates, beneficiaries under a Testamentary Trust are also entitled to “franking credits”.

Overall Effect

A beneficiary to a Testamentary Trust will therefore be entitled to marginal tax rates when being assessed on income from the trust, while also receiving distributed franking credits. This maximises their overall net income.

While these are some of the nuances of taxation involved in a Testamentary Trust, if you are creating a trust, it is important to seek legal advice to help decide which trust structure is best for your personal circumstances. If you are a trustee of a Testamentary Trust legal advice can also assist in capitalising on the tax benefits available to you and the beneficiaries of the trust.

This article was written by Andrew Lind (Director).

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