Earlier this month, amendments to Federal legislation significantly expanded the protections of parties against unfair contract terms in commercial contracts. Put briefly, these amendments:

• introduced substantial financial penalties for persons or corporations who propose, rely upon, or seek to apply ‘unfair’ contract terms;
• enlarged the veil of protection to parties not previously protected under the previous unfair contract provisions;
• expanded the Court’s powers to deal with unfair contractual terms; and
• clarified the considerations to which the Court must have regard in considering whether a term is unfair.

Anyone who enters into contracts for goods or services, whether as the supplier or the purchaser, should be aware of these updated provisions.

What are Unfair Contract Terms?

An unfair contract term (“UCT”) is a term that:

• would cause significant imbalance in the parties’ rights and obligations arising under the contract;
• is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and
• would cause detriment (whether financial or otherwise) to a party if it were to be relied upon.

The Court assesses whether a term in a contract is “unfair” by considering a range of factors, such as the nature of the contract as a whole, the “transparency” of the term, and the relative bargaining power of the parties (along with other mandatory and non-mandatory considerations).

To Whom do the New UCT Provisions Apply?

The UCT provisions are designed to protect parties to standard form “consumer contracts” and standard form “small business contracts”. These kinds of contracts entered into on or after 9 November 2023 (i.e. new contracts and contract renewals), and specific terms of existing contracts of this nature amended on or after this date, are subject to the new regime.

However, the UCT provisions will not apply to the following:

• Terms specifically required/permitted by law to be included in contracts;
• Terms setting out the upfront price payable under the contract;
• Terms defining the main subject matter of the contract; or
• Various types of excluded arrangements (corporate constitutions, managed investment schemes and other excluded arrangements).

For school-based institutions in particular, school enrolment contracts have been held to be “standard form” contracts. Therefore, schools should pay particular attention to the UCT reforms.

What do the new UCT Provisions do?

1. New financial penalties

The new UCT provisions take a giant stride in escalating the protections granted to parties with respect to standard form “consumer contracts” and standard form “small business contracts”, making it illegal for a party to such a contract to:

• propose an unfair term into a contract which they have made; or
• apply or rely on, or purport to apply or rely on, an unfair term of a contract.

A party who engages in either of the above courses of conduct may be liable for a maximum penalty of:

• Where the contravening party is an individual – up to $2.5 million;
• Where the contravening party is a corporation – the greater of:
  • $50 million;
  • Where the value of the benefit to the contravening party arising from the conduct is ascertainable – 3 times the value of the benefit obtained; and
  • Where the value of the benefit is unascertainable – 30% of the corporation’s adjusted turnover during the breach turnover period.

It should be noted that the above penalties are the maximum penalties per breach. This means that if a contract contains multiple UCTs, proposing or relying upon each one would be considered separate contraventions of the law.

2. Expanded catchments of the Australian Consumer Law and ASIC Act

The amendments also significantly expand the number of businesses protected under UCT provisions. This is because of the redefined meaning of “small business contract” within the ACL and ASIC Act. Accordingly, many businesses not previously able to rely on the UCT provisions may now fall under their protective veil.

Under the new definition, a contract is considered a “small business contract” where that contract:

• is a contract for a supply of goods or services, or a sale or grant of an interest in land (for ACL contracts); and
• at least one party to the contract:

1. 1. makes the contract in the course of carrying on a business and at a time when that party employs fewer than 100 persons; and/or
   2. the party’s turnover for the last income year ending at or before the time when the contract is made is less than $10 million.

• Where the contract is one to which the ASIC Act applies, the upfront price payable does not exceed $5 million (there is also now no equivalent upfront price threshold required by the ACL).

The catchments of these pieces of legislation are also extended by reference to changes to the Court’s mandatory considerations in determining whether a contract is (or is not) “standard form”. Accordingly, a contract can now still be classified as a “standard form contract” if:

• a party had an opportunity to negotiate changes, to the contract’s terms, that are minor or insubstantial in effect;
• a party had an opportunity to select a term from a range of options determined by the other party; and/or
• there was an opportunity for a party to another contract or proposed contract to negotiate terms of the other contract or proposed contract.

Courts, in making such a determination, will also consider whether one of the parties has prepared and made other contracts in the same or substantially similar terms, and how many times they have done so.

3. Expansion of Court Powers

In addition to their current powers, the Courts will also have the ability to order a wider variety of relief mechanisms upon a term being declared to be unfair. Such relief might include:

• Voiding, varying or refusing to enforce the whole or part of the contract, or of a collateral arrangement relating to the contract, that contains the unfair term;
• Requiring the contravening party to make whole or partial redress of the loss suffered by the other party which was caused by the unfair term;
• Making orders to prevent/reduce loss or damage likely to arise to a person from the unfair term.

In cases where the term has been declared as being “unfair”, the relevant regulator (the Australian Competition and Consumer Commission (under the ACL) or the Australian Securities and Investments Commission (under the ASIC Act)) can make an application for the Court to make orders against the contravening party, such as:

• the making of orders/injunctions preventing a party from using a term with the same or substantially similar effect in future contracts that are protected under the unfair terms regime;
• the making of orders/injunctions requiring the contravening party to wholly or partially redress, prevent, or reduce loss or damage actually or likely to be caused to a party by the inclusion of a similar term in any existing contract covered by the unfair terms regime.

(Injunctions/redress would apply only to contracts that are standard form contracts protected by the UCT provisions.)

Notably, the expansion of powers means that Courts can call into question any contracts in which the contravening party may have used the unfair term being challenged or a similar term, regardless of whether that particular contract was actually brought before the Court. The orders made which resulted from the regulator’s application will bind anyone affected by the order – despite that person not being a party to the particular proceedings during which the order was made.

Why are the changes to the UCT Regime important to me?

The new penalties and increased applicability of the Unfair Contract Term regime highlights the importance of ensuring that the terms of any standard form contracts used by an organisation or individual remain fair and compliant with the law. Complacency in failing to regularly review and update standard form contracts to ensure compliance may expose a party to significant legal risk.

The amendments may of particular importance to schools using enrolment contracts – especially as they may relate to forfeiture of fees where proper notice of intention to withdraw has not been provided or to wide-reaching anti-disparagement clauses (such as restricting parents from creating social media pages about a school).

If you operate using standard form contracts and suspect that some of your contracts’ terms may be potentially “unfair”, we highly recommend you seek specialised legal advice. The friendly team at Corney & Lind Lawyers can work with you to review your contracts and help ensure they remain legally compliant. Contact our friendly team today on (07) 3252 0011 or send your enquiry to enquiry@corneyandlind.com.au – we are always happy to assist.

This article was written by Eustacia Yates and Jackson Litzow

The Productivity Commission has now released its draft Future Foundations for Giving Draft Report. The recommendations are both well considered and wide-ranging. We note and summarise five key draft recommendations that may be of interest to our clients:

1. Basic Religious Charities

The concept of, and exemptions available to, Basic Religious Charities (‘BRC’) are proposed to be removed. Many religious institutions are intentionally structured as BRCs, so this change would significantly affect both their reporting and governance obligations.

We expect that religious institutions will wish to make submissions to the Productivity Commission on why the BRC category should remain.

2. Changes to Deductible Gift Recipient endorsements

It is proposed that Deductible Gift Recipient (‘DGR’) status should be extended to most classes of charitable activities, with the exception of the following classes of charitable activities or subtypes:

• primary, secondary, religious and other informal education activities, with an exception for activities that have a specific equity objective (such as activities undertaken by a Public Benevolent Institution (“PBI”));
• the activities of childcare and aged care in the social welfare subtype (other than activities undertaken by a PBI); and
• all activities in the subtype of advancing religion.

There are many winners resulting from this proposal, with the notable losers being school building funds. We recommend that our education clients with DGR endorsed school building funds in particular take note of this proposal and consider making submissions to the Productivity Commission.

The recommendation otherwise appears to preserve the status quo for religious charities and the “advancing education” subtype generally.

3. Statutory definition of Public Benevolent Institutio

There is significant uncertainty around the scope of this category, with many in the sector taking issue with the ACNC’s recent Commissioner’s Interpretation Statement on Public Benevolent Institutions. Greater certainty in this space will be of great benefit to the sector and a statutory definition could potentially provide this certainty.

We expect that landing on a statutory definition will be difficult and hotly contested, and will therefore be of significant interest to our PBI clients.

4. ACNC Test Case Funding

Unlike in the commercial context, charities are generally averse to incurring the costs of going to court to contest the government on uncertainties in the law. Test case funding would greatly assist the sector in both getting on with their good work (rather than pouring resources into complex and prolonged litigation) and in helping clarify ambiguity within the law.

5. Binding Rulings

A binding ruling scheme from the ACNC would potentially provide charities (particularly those with novel activities and structures) with an avenue to seek greater certainty that they are appropriately registered and are entitled to tax concessions/endorsement.  We consider such a framework to be of great interest and benefit to the sector.

Submissions to the Productivity Commission close on Friday, 9 February 2024.

Please do not hesitate to contact our office if your charity would like support in making submissions to the Productivity Commission. Our specialist charity and not-for-profit team is well placed to assist.

This article was written  by Paul Neville.

Facts

The applicant was a woman in her early twenties, who had been a long-term employee of the respondent as an Assistant Restaurant Manager. The respondent is part of the Southern Restaurants Group, the largest private KFC franchise owner in Australia.

The applicant submitted to the Tribunal that she planned to return to work from parental leave in November 2021 with flexible work arrangements to accommodate for her breastfeeding needs. Pursuant to the Fair Work Act 1998 (Cth),[1] she requested she be provided with a private and clean room with a comfortable chair, a refrigerator in which to store expressed milk, sufficient time to express, and facilities to wash and store equipment.

The respondent provided the applicant with a pop-up tent in a back storeroom with a chair. The storeroom was a small space without a door and therefore no privacy. The applicant believed that the sound of her expressing milk was audible to other staff. A staff member could enter the storeroom at any time. The respondent submitted to the Tribunal that it could not provide a private room due to the store layout and lack of private rooms. Further, any changes to store layout would have incurred to the respondent significant costs.

Due to the unsatisfactory work environment, the applicant began to leave site to express her milk at a local mall during unpaid meal breaks, but only when there was another manager on site. The respondent submitted that it could not permit the applicant to leave the store when she was operating in her management role, due to the policy that there must be at least one manager on site at any given time to respond to health and safety matters. It was further submitted it was too costly and inefficient to regularly ensure that there were two managers on site for the applicant’s shifts. Regularly, no other managers were present on site and therefore she could not take breaks to express milk. This caused the applicant significant pain and discomfort.

The applicant further proposed she be transferred to a nearby KFC restaurant, where more suitable facilities to express milk were available. This was initially declined by the respondent, to which it submitted would be disrupting to staff arrangements. Eventually, a transfer was agreed upon when the store could accommodate another manager, but the applicant resigned before the transfer occurred.

The applicant submitted to the Tribunal she felt ultimately “trapped and pressured to discontinue breastfeeding”[2] due to the respondent’s response to her ongoing requests and issues raised. She further submitted to the Tribunal that the respondent was ill informed regarding breastfeeding, and that the respondent had suggested that she step back to a casual role on multiple occasions to accommodate for her breastfeeding needs, which would be a demotion.

Findings

The Discrimination Act 1991 (ACT) (“Discrimination Act”) protects persons with protected attributes from direct and indirect discrimination[3] in certain areas of public life, including employment[4]. One of the protected attributes is breastfeeding.[5] Queensland offers similar protections for breastfeeding at work under the Anti-Discrimination Act 1991 (Qld).[6] The applicant alleged that she was indirectly discriminated against as per section 8(3) of the Discrimination Act.

The Tribunal referred to the case of Australian Capital Territory v Wang[7] as a framework for applying section 8 of the Discrimination Act. Under this framework and the Act, the applicant is required to establish in evidence that the respondent had been imposing, or proposing to impose, a condition or requirement that has, or is likely to have, the effect of disadvantage due to her protected attribute. If successful, the onus is then on the respondent to demonstrate that the effect of the disadvantage was not due to her protected attribute, or alternatively that the condition or requirement imposed was reasonable in the circumstances.

Was there a particular condition or requirement in the circumstances of this application?

The Tribunal found that the respondent imposes as a condition of employment upon mangers of its stores, in that they may not leave the store unless there is another manger on site, trained in work health and safety.

Was the condition imposed by the respondent?

The Tribunal found that the respondent imposed the condition upon the applicant, as a manger of one of the stores, and insisted upon her compliance. The condition was not mandated by law or any work place regulation, rather, a term of employment imposed for commercial reason. The respondent was found to have resisted variation or flexibility relating to the condition.

Was the effect of the condition to disadvantage certain people with that attribute?

The Tribunal found that the effect of this condition was disadvantageous upon employees with the attribute of breastfeeding, and that the disadvantage arose because of the imposition of the condition of the respondent, and their failure to make appropriate alternative arrangements.

The Tribunal further noted that the respondent’s submission that it let the applicant leave the store “most of the time” to express milk was not a sufficient accommodation.

Did the detriment occur because the applicant had that attribute?

The Tribunal was satisfied that that the imposition of the condition upon the applicant resulted in her ill health, arising from the workplace response, due to her attribute of breastfeeding.

Was the condition reasonable in all the circumstances?

The Tribunal was not satisfied that the condition imposed by the respondent was reasonable, nor were the alternatives suggested by the applicant unreasonable.

Conclusion

The Tribunal was ultimately satisfied that the applicant had been indirectly discriminated against by the respondent, on the grounds of her status as a breastfeeding mother, by imposing upon her a condition which was disadvantageous and not reasonable.

The Tribunal concluded that the respondent’s condition imposed upon managers to not leave the site was “not a reasonable response to the needs of a modern workforce”;[8] nor when applied in actual effect would achieve the outcome that the respondent sought:

“The respondent insists on the condition being enforced so that a manager trained in work health and safety would be available in an emergency, but the Tribunal questions how an employee half undressed, on a chair, in a tent could be a responsive manager in any emergency in any case.”

The Tribunal further commented on the duty of employers to appropriately accommodate for persons who are breastfeeding in the workforce:

“Catering to the needs of breastfeeding employees is not an outlandish demand. Women remaining in the workforce after giving birth has become a commonplace occurrence. In the future, there will be other employees who will wish to breastfeed their child. It is an unavoidable workplace issue which needs to be met and dealt with in an appropriate fashion.”[9]

The matter was listed for further direction.

Appointment

If you feel like you have been discriminated against in the workplace, please contact us on (07) 3252 0011 to book a consultation with one of our employment team today.

This article was written  by Luke Borgert  and Sarah Gates

[1] Fair Work Act 1998 (Cth) s 65.

[2] Complainant 202258 v Southern Restaurants (Vic) Pty Ltd (Discrimination) [2003] ACAT 57, 12.

[3] Discrimination Act 2011 (ACT) s 8.

[4] Discrimination Act 2011 (ACT) s 10.

[5] Discrimination Act 2011 (ACT) s 7(1)(d).

[6] See s 7, 9 and 15.

[7] Australian Capital Territory v Wang [2019] ACAT 65.

[8] Complainant 202258 v Southern Restaurants (Vic) Pty Ltd (Discrimination) [2003] ACAT 57, 36.

[9] Ibid, 36.

The Queensland Government has recently announced significant developments within the Queensland early childhood education sector – with the Government committing an additional $645 million to its investment into kindergarten services to make kindergarten free for all Queensland families as of 1 January 2024. This is expected to save Queensland families around $4,600 per annum, and will allow over 50,000 more children to access kindergarten services for free. The newly-announced scheme details that the Queensland Government will cover the costs of a kindergarten-aged child enrolled in a government-approved educational program for up to 15 hours a week (or 600 hours a year). Accordingly, this means that funding will likely be accessible to all kindergartens to assist them in covering the costs of providing kindergarten education – provided that the kindergarten offers a “government-approved program”.[1]

Whilst we still await the full detail, the “government-approved program” limitation on accessibility to the scheme highlights that Schools offering kindergarten services and seeking to take advantage of the scheme will likely need to ensure that they are approved kindergarten program providers who offer approved kindergarten programs, and that they elect to opt into the scheme: [2]

1. The School should be an approved kindergarten program provider in that:[3]

a. The School operates a service that has a current service approval under the Education and Care Services National Law or the Education and Care Services Act 2013 (Qld);

b. The School is registered as an “approved kindergarten program provider” and has not had such status suspended or revoked;

c. The School has a rating of working towards the National Quality Standard (or higher);

d. The School provides a learning program that:

i. Is available for children who are in the year before Prep (i.e. the children must be at least 4 years of age before 30 June in the year they commence kindergarten);

ii. Is run for 15 hours per week for 40 weeks (or 600 hours per year); and

iii. Is delivered by a qualified early childhood teacher (i.e. a person qualified as an early childhood teacher under the Education and Care Services National Law (and Regulations) or the Education and Care Services Act 2013 (Qld)); and

e. For particular types of providers:

i. It is a member or affiliate of a central governing body (sessional kindergartens only); or

ii. It has the correct eligibility status to receive Child Care Subsidy payments on behalf of eligible families (long day care service providers only).

2. The School must provide an approved kindergarten learning program that is based on either:[4]

a. the Queensland Kindergarten Learning Guideline; or

b. an alternative kindergarten learning guideline accredited by the Queensland Curriculum and Assessment Authority (this accreditation requires, amongst other things, that the guideline meets the educational and social criteria under sections 5 and 6 of the Education (Queensland Curriculum and Assessment Authority) Regulation 2014 (Qld)).[5]

3. The School will be required to opt into the free kindergarten scheme. It remains to be seen what further implications may accompany an opt in decision.

Whilst Schools offering kindergarten services should continue to comply with the current eligibility and subsidy requirements in the Queensland Government’s Queensland Kindergarten Funding Essentials, it is expected that updated requirements will be introduced to take effect from 1 January 2024 to reflect the announced reforms.[6]

The full joint ministerial statement from the Queensland Premier, Treasurer and Education Minister announcing the scheme can be found here: https://statements.qld.gov.au/statements/97916

This Update is general information only, and is not Legal Advice.

This Update was written by Alistair Macpherson & Jackson Litzow.

[1] https://earlychildhood.qld.gov.au/early-years/kindergarten/free-kindy; https://earlychildhood.qld.gov.au/early-years/kindergarten/what-does-kindy-cost/kindy-savings

[2] https://www.business.qld.gov.au/industries/service-industries-professionals/service-industries/child-care/approved-kindy-programs/requirements

[3] https://earlychildhood.qld.gov.au/fundingAndSupport/Documents/kindy-funding-essentials-sessional-kindergartens.pdf; https://earlychildhood.qld.gov.au/fundingAndSupport/Documents/kindy-funding-essentials-sessional-kindergartens.pdf; https://earlychildhood.qld.gov.au/fundingAndSupport/Documents/kindy-funding-essentials-long-day-care.pdf

[4] https://www.business.qld.gov.au/industries/service-industries-professionals/service-industries/child-care/approved-kindy-programs/requirements

[5] https://www.qcaa.qld.edu.au/kindergarten/accreditation-guidelines; https://www.qcaa.qld.edu.au/downloads/about/syll_accred_guideline_yrs1to12.pdf

[6] https://earlychildhood.qld.gov.au/early-years/kindergarten/free-kindy

How to appeal a licence disqualification

If you have been found guilty of a traffic offence, a court may order the disqualification of your licence. How long your licence is disqualified for will depend on the offence. You may however be able to apply to have your licence disqualification removed in certain circumstances.

Applying for removal

In order to qualify for a licence disqualification appeal you must:

1. 1. have been disqualified by a Queensland court from holding a driver’s licence for more than 2 years; and
   2. it has been more than 2 years since the date of the disqualification.

If your licence is in danger of being disqualified but you have not yet had your court hearing, you may be able to apply for a restricted or work licence. However, applications such as these must be made before a judgement is ordered by a court. If you are currently awaiting a final hearing date, it is imperative that you seek legal advice urgently in relation to obtaining a restricted or work licence.

What you need to apply

In order to submit your application you must:

• • obtain a copy of your traffic history from the Department of Transport and Main Roads.
  • obtain a copy of your criminal history from your local police station;
  • ensure that your details are accurate; and
  • fill out the application form and lodge it with the court.
  • write an affidavit. This explains why you want your licence back, how your circumstances have changed, and should give detailed reasons as to why the return of your would be appropriate.
  • serve a copy of the application and affidavit on:
    • Police Prosecutor for Magistrates Court; or
    • Commissioner of Police for District or Supreme Court (most common).
  • attend your court date.

What the court will consider

When deciding whether to remove your disqualification, the court will take into account:

• • your character;
  • the reasons you were disqualified;
  • your behaviour since your disqualification;
  • any rehabilitation you have undertaken;
  • whether there is a significant need for a licence;
  • any medical reasons; and
  • any other factors the court determines relevant to your circumstances.

How we can help

Preparing your application can be difficult and timely. One of our experienced criminal lawyers can guide you through your application step by step to ensure you have the best possible chance of success.

Your primary difficulty will be proving to the court that a return of your licence is appropriate in the circumstances. It is a common myth that a driver’s licence is a right; in most cases, the court will be very skeptical about returning a licence after it has been disqualified. This is where the assistance of a traffic lawyer can be invaluable. We can present your reasons to the court in an ordered and well thought out fashion, giving you a greater chance at being returned to the road. If you want to find out more, click here to view our traffic law specialists page.

What happens if your application is successful?

If the court approves your application, your licence disqualification will be removed. This does not mean you will be granted a licence. You must make a separate application to the Department of Transport and Main Roads for a new licence. You may have to pass the standard driving tests before you can obtain a new licence. If the reason you were disqualified was related to a drink driving offence, you may be required to participate in the alcohol ignition interlock program once your disqualification has been removed.

Licence renewal

A licence renewal notice should be sent to you about 4 weeks before your licence expires. It is your responsibility to notify the Department of Transport and Main Roads within 14 days if you change your address or your name. Find out more about how to change your address here.

Appointment

If your licence has been disqualified and you wish to discuss getting back on the road, please contact us  on (07) 3252 0011 to book a consultation with one of our traffic lawyers today.

Driving as a learner driver

I have been referred to SPER for a speeding fine, help?

Before SPER

If you are charged with a traffic offence in Queensland, for example speeding or ignoring a red light, you will be given or sent a fine known as an infringement notice.[1] The infringement notice outlines your traffic offence and includes the cost of your fine and the procedure for payment.[2]

Typically, you must act within 28 days by either: [3]

• • paying the fine in full;
  • entering into a voluntary instalment plan;
  • disputing the matter; or
  • requesting to have the matter heard by a court.

If action on an infringement notice is not taken within the necessary time frame, the matter may be referred to the State Penalties Enforcement Registry (SPER).[4]

What is SPER?

SPER is a body within the Queensland Treasury and Trade responsible for collecting and enforcing unpaid fines from government agencies.[5] If you offer to pay your fine outright, you will deal only with Queensland Transport Department.

What if I can’t pay the lump sum of the fine?

If you are unable to pay your fine in a lump sum by the due date, you can apply for a voluntary instalment plan. Through this plan, you will be required to pay a minimum payment of $60 to Queensland Transport and then be referred to SPER who will manage the collection of the outstanding fine.

The provision of a payment plan is preferable to many as the fines can be a significant financial burden. Factors affecting a person’s capacity to pay is not limited to but includes homelessness, disability and financial difficulty.

What will happen if I don’t pay my infringement notice?

You will receive an enforcement order with a registration fee.

If payments are not made when they should be, SPER can seek an enforcement order. You will normally have 28 days to respond to the enforcement order.[6] The amount of the enforcement order will be the fine and an additional registration fee of $73.80.

What if I can’t pay the enforcement order in full?

If you are unable to pay this in a lump sum payment, you may apply for an instalment plan.

What enforcement action will be taken against me if I don’t respond to the enforcement order?

SPER will take enforcement action for failure to respond. Enforcement actions are serious matters and can result in:

• • Disqualification of License
  • Seizure of Vehicle
  • Collection letters
  • Warrant for arrest and imprisonment

What if I want to contest the infringement notice registered with SPER?

If you been sent an enforcement order by SPER, you have 28 days to apply to SPER to have your matter heard in a Magistrates court.

Given the extensive nature of SPER’s powers, it is advisable you seek legal advice before attending your court hearing. Knowing how to explain your case to the Magistrate, or having a lawyer explain your case for you, could mean the difference between an extension of time on your SPER debt and the suspension of your license or seizure of your vehicle. On top of this, an unsuccessful court outcome will result in payment of the fine, an offender levy and potential extra court costs.

For more information on SPER, visit their website at https://online.sper.qld.gov.au/home  
To book an appointment with one of our traffic lawyers in relations to SPER issues, contact us on (07) 3252 0011 today.

Edited by Prini Avia

Footnotes

[1] S14, State Penalties Enforcement Act 1999 (Qld).

[2] S15, State Penalties Enforcement Act 1999 (Qld).

[3] S22, State Penalties Enforcement Act 1999 (Qld).

[4] S33, State Penalties Enforcement Act 1999 (Qld)

[5] S8, State Penalties Enforcement Act 1999 (Qld).

[6] S41, State Penalties Enforcement Act 1999 (Qld).

Can a traffic offence be a criminal offence?

If you’ve been charged with a traffic offence in Queensland there is a chance that this may be recorded on your criminal history. While most traffic offences are minor offences, if the traffic offence is of a serious enough nature, it may end up on your criminal history depending on various circumstances.

If you are a driver, it is important to understand what a traffic offence is and the different types of traffic offences and penalties.

What are the two types of offences in Queensland? 

In Queensland, there are two types of criminal offences: regulatory and serious offences.

Minor offences are labelled regulatory offences which include most traffic offences. More serious criminal offences involve more serious matters such as assault and dangerous operation of a motor vehicle.

While both are criminal offences, a conviction of a serious traffic offence will generally be noted in your criminal history. Minor traffic offences are generally recorded in your traffic history only, which is different and separate from a criminal history.

What is a traffic offence? 

A traffic offence arises when you have disobeyed the traffic laws.

What are some types of minor traffic offences? 

In Queensland, the Transport Operations (Road Use Management – Road Rules) Regulation 2009 lists minor traffic offences which include:

• • Running a red light
  • Speeding
  • Failing to keep left
  • Illegal U turn

What is the result of a minor traffic offence? 

If you’ve been charged with a minor traffic offence, you will may incur demerit points depending on the nature of the charge.

On top of this, you may be given or sent an infringement notice which will outline your offending behaviour as well as a disqualification period of your license.

If you dispute the notice, you can appear before court.

If you are found guilty of the traffic offence you will charged with the Queenland Offender’s levy and costs.

In some cases of a more serious nature, such as careless driving, you can receive up to 6 months imprisonment. [1] It is important to note that for minor traffic offences, the court may have discretion to sentence a term of imprisonment. If the outcome of a minor traffic offence is a sentence, there will be an automatic recording on your criminal history.

When does a traffic offence become a criminal offence? 

If you are sentenced to any term of imprisonment due to a traffic offence, there will be an entry on your criminal record and the recording of a conviction will be automatic.

There are various instances when a traffic offence may be recorded as a criminal offence including:

• • Drink driving
  • Driving under the influence of a drug
  • Driving with a relevant drug present in your saliva or blood
  • Unlicensed driving

See the Transport Operations (Road Use Management) Act 1995 – s79 for more information

For certain offences, the Court has discretion to enter a traffic offence on a person’s criminal history.

Certain considerations will include:

• • your traffic history
  • your Blood Alcohol Concentration at the time of the offence
  • Whether or not you have been charged with the same or a similar offence
  • Particular vehicle you’ve operated while driving.

Are there any traffic offences in the Criminal Code of Queensland? 

If you are charged with the dangerous operation of a vehicle (dangerous driving), this is considered not just a traffic offence but also a criminal offence. As a serious offence, you will be charged with dangerous driving under s328A of the Criminal Code 1899 which can lead to license disqualification, a fine of $4,000 and an imprisonment term of 5 years. If you are charged with dangerous driving that causes death or bodily harm, there is a risk of imprisonment of up to 14 years.

S328A (1) outlines dangerous driving as occurring when ‘a person who operates, or in any way interferes with the operation of a vehicle dangerously’ and:

(a) at the time of committing the offence is adversely affected by an intoxicating substance; or

(b) at the time of committing the offence is excessively speeding or taking part in an unlawful race or unlawful speed trial; or

(c) has been previously convicted either upon indictment or summarily of an offence against this section;

What are some examples of ‘dangerous driving’?

• • Driving while adversely affected by an intoxicating substance

• • Taking part in an unlawful dangerous race
  • Falling asleep while driving and hitting a pedestrian
  • Driving at a high speed and hitting another car, resulting in the death of the passengers in the other car

Whether you are facing a dangerous driving charge or been charged with a traffic offence, seek legal advice. 

Traffic offences are not always simple and can result in a criminal record if there is one charge or multiple charges and you may lose your licence. With the courts discretion, a criminal conviction for a traffic offence can have a significant impact on your ability to gain employment and travel.

If you have been charged with a dangerous driving offence or you are unsure about your legal rights regarding a traffic dispute, our experienced criminal and traffic team are here to help.

Contact us to discuss your situation & book in an appointment with our criminal and traffic lawyers today.

Footnotes

[1] Section 83, Transport Operations (Road Use Management) Act 1995.

The Penalties for Driving Without a License or Recently Expired Driver License

Under Queensland law, if you are charged with driving without a licence or driving on a recently expired licence you may face a number of penalties including imprisonment, fines or disqualification of drivers license.  

Driving without a License 

What happens if you are caught driving without a legally valid licence? 

You will be charged with an offence under the Transport Operations (Road Use Management) Act 1995 (Qld).  

What is the Penalty for driving without a licence? 

Under the Transport Operations (Road Use Management) Act the maximum penalty for driving without a licence is: 

• • 60 penalty units or 18 months imprisonment or  
  • 40 penalty units and 1 year’s imprisonment. 

You may alternatively receive an infringement notice if:  

• • The person has not been convicted of driving without a licence in the preceding 5 years; and 
  • The person has not had their driver licence disqualified in the previous 2 years for drink driving; and 
  • The person has been the holder of a valid driver’s licence previously. 

If given an infringement notice, you must not be:  

• • An interlock driver whose driver licence was not granted after a disqualification period for drink driving; 
  • An interlock driver who did not hold a valid Queensland driver’s licence (or had it expire over 4 weeks ago) at the time of the offence and the person’s interlock period has not ended. 

What does the court take into account? 

The court will consider a few things when deciding on what penalty you will receive including:  

1. 1. Aggravating or Mitigating factors   
   2. Public interest; 
   3. Criminal and Traffic history; 
   4. Relevant Medical history, Mental or Physical Impairment or Physical Capacity; 
   5. Other Relevant Matters  
   6. If the offence was committed in the prosecution or attempted prosecution of another offence and what the nature of the offence is; 

Driving with a recently expired license 

What happens if you drive with a Recently Expired licence? 

You may be subject to an infringement notice under the State Penalties Enforcement Act 1999. 

What is a Recently Expired Licence? 

A licence which expired less than a year before the offence was committed. 

It could also be a licence which was withdrawn less than 1 year previously because the holder of that licence had a mental or physical incapacity which made it unsafe for them to drive a car. 

What is a Recently Expired Licence? 

If you have been charged with driving on a recently expired driver licence, a police officer may grant you a permit authorizing you to drive to a stated place to safely store your vehicle. 

The permit must:  

1. 1. Be in an approved form; and 
   2. State the number of the infringement notice; and 
   3. State the term, not longer than 24 hours, for which it is issued; and 
   4. State the conditions, if any, on which it is issued. 

Will my license be suspended?  

In some circumstances, the court must automatically disqualify a person from driving including:  

• • If the person was suspended from driving due to a loss of demerit points, or  
  • If the person drove without a licence which had been suspended because of an offence against the Queensland Road Rules, section 20 – Obeying the speed limit.

Been caught driving without a valid licence? Seek legal advice 

There are serious ramifications if you are being charged with driving without a licence. This is the same if you are driving on a recently expired driver’s licence.  

If you unsure of your legal rights and options you should speak to an experienced Brisbane Traffic lawyer.  

If you would like to make an appointment to discuss your situation, please call us on 07 3252 0011. 

Links for further resources: 

https://corneyandlind.com.au/traffic-law/traffic-offence/

https://corneyandlind.com.au/traffic-law/the-festive-season-and-driving-under-the-influence/

https://corneyandlind.com.au/traffic-law/licence-disqualified/

What is a common assault?

In Queensland, there are three types of assault charges:

1. 1. Common Assault

1. 2. Assault occasioning bodily harm

1. 3. Serious Assault

This article focuses on the first type of assault charge in Queensland, common assault.  

Common Assault 

Common assault is a misdemeanor indictable offence, which can result in a maximum 3-year imprisonment. 

We refer to Common Assault in two forms:  

• • Direct Application Assault or
  • Threatened assault.

 Common assault is of less significance than an aggravated or serious assault, which is a crime and can result in imprisonment of up to 14 years. 

 Common Assault – Direct Application Assault 

In Queensland S245(1)CC (Criminal Code) defines Direct Application Assault as occurring when: 

• •  A person strikes touches or moves or applies force either directly or indirectly 
  • Without the other persons consent OR 
  • With the other persons consent if the consent was obtained by fraud  

 When is someone said to be “Applying Force”? 

Applying force includes applying heat, light, electricity or any other substance to such a degree as to cause injury or personal discomfort.  

The application of force does not become assault until the necessary intention to inflict unlawful force is formed.  

CASE STUDY Fagan v Metro Police Commissioner (1968 3 ALL ER 442) 

The accused accidentally drove a police car onto an officer’s foot.  

When the accused was asked to remove the car, he mocked the officer and delayed moving  

This incident, which began as an accident, then turned into an assault charge  

When is it with consent? 

Consent can either be expressed or inferred.   

An implied consent can stem from acts that are generally done reasonably in the “common intercourse of life” and “not disproportionate” to the occasion.  

For example, these could include non-hostile acts such as patting someone on the back or moving with the crowd at a music concert.  

When is it without consent? 

The question of whether a force is with or without consent, depends on whether the force is disproportionate or has exceeded that to which consent has been given. This is often a question for the jury.  

Common Assault – Threatened Application Assault 

In Queensland, S245(2)CC defines Threatened Application Assault as: 

• •  Any bodily act or gesture  
  • that attempts or threatens to apply force of any kind to another person  
  • without the other person’s consent  
  • and person making the attempt or threat has actually or apparently a present ability to carry out the assault   

What is a bodily act or gesture? 

A bodily act or gesture must be associated with words that indicate you have an intention of assaulting someone.  

The test for this is whether an ordinary person might reasonably consider your words, combined with the act or gesture, to construe an intention of assault.  

This threat can be conditional, for example, “If you don’t do this, I will knock you out”. 

Does it matter if you don’t intend to carry out the threat?  

Even if you don’t intend to carry out the threat, making the threat is enough to warrant an assault charge.  

What is attempting or threatening? 

If you have the intention to apply force or make the victim believe that the threat will be carried out, this could be seen as attempting or threatening assault. Additionally, you must create apprehension of violence in the mind of the individual. 

Under s4(1) of the Code: 

“When a person intending to commit an offence, begins to put the person’s intention into execution by means adapted to its fulfillment, and manifests the person’s intention by some overt act, but does not fulfill the person’s intention to such an extent to commit the offence, a person is said to attempt to commit the offence.” 

Does the complainant have to be aware of the apprehension of violence?  

If the complainant is unconscious, asleep or otherwise unaware to the point where apprehension is not possible, they cannot be victim to threatened application assault. 

What is an apparent ability? 

Having an apparent ability to carry out a threat is enough to be considered as threatened assault.  

For example, if you were to threaten someone with an unloaded gun, it would still qualify as an apparent ability to carry out the threat – unless they were aware it was unloaded. This awareness would be essential in disproving this element of an assault charge 

Charged with Assault and need legal advice? Contact our Brisbane Criminal Defence Lawyers 

It is important that you obtain legal advice as soon as possible if you or anyone you know has been charged with assault.   

To speak to one of our Criminal Defence Lawyers, call us on (07) 3252 0011 or you can book a FREE 30-minute initial consultation.  

Helpful Links  

https://corneyandlind.com.au/resource-centre/helpful-court-tips/

https://corneyandlind.com.au/resource-centre/bail/

https://corneyandlind.com.au/criminal-law/how-do-criminal-proceedings-impact-my-blue-card/