At present, the Family Law Act 1975 provides de facto same-sex couples the same legal rights as heterosexual couples for parenting and property settlement issues without being married. Recently however there has been many attempts to legalise same-sex marriage including the recent Australian Marriage Law Postal Survey.
On November 15 2017, Australia said yes to gay marriage. 61.6 per cent of eligible voters, totalling seven million people voted to say yes, but this does not mean the law has officially changed.
Liberal Senator Dean Smith’s bill has been drafted and today has passed the Senate, but with a sitting week cancelled in the House of Representatives, MPs will not continue debate until next week. The bill passed with no amendments, with 43 senators voting yes and 12 voting no. Several senators have raised concerns about the religious protections of the bill, with some conservatives requesting that there should be two definitions of marriage. If the bill is amended by the House of Representatives it will need to return to the Senate to be considered again, but this is unlikely.
Ireland is the only country in the world to have legalised same-sex marriage through a public vote and that’s because it has a requirement to do so as unions are defined in their constitution. In Australia, it is up to a parliamentary vote which is what can be arguably delaying things.
Wednesday, November 15
Australia said yes to the Australian Marriage Law Postal Survey.
Thursday, November 16
Dean Smith’s bill for same-sex marriage went before Parliament.
Monday, November 27
Final two sitting weeks begin. Parliament has eight days to pass gay marriage, if it is to be legal by Christmas.
Tuesday, November 28
Coalition MPs hold party room meeting. Conservatives will make their case for amendments to Dean Smith’s bill.
Wednesday, November 29
Dean Smith’s bill was passed by the Senate with the Lower House now to continue the debate.
Thursday, December 7
Final sitting day for the year. If Parliament hasn’t passed the bill by now — or extended the sitting period — the next chance to debate the legislation will be in 2018 on the second week of February.
Monday, January 1 2018
If Dean’s Smith’s bill has passed parliament, gay marriage will be legal anytime from early December to mid-January. All that needs to happen is for it to be given Royal Assent by the Governor-General and the Government to name an official start date.
Despite what occurs over the next few weeks, or if not months, Stone Group Lawyers family law division is highly experienced in all LGBTQ issues in relationships and endeavours to be at the forefront of all new laws in the process of being passed.
A Will is a legal document that directs how your property is to be distributed following your death.
You Will gives you the opportunity to appoint a trusted person (or preferably a group of people) to act as the Executor of your Estate. Your Executors will:
If you have minor children, you can also appoint a Guardian(s) who will look after and care for your children following your death.
Planning for the future might be scary, but it is also something that every adult needs to consider and make arrangements for. Trust us – you will feel much better once you have your affairs in order.
Often people try to avoid engaging a lawyer to assist them in drafting a Will and instead opt for a ‘do-it-yourself will kit’. These documents can be problematic, especially if they include provisions which are not sufficiently certain, or they are not completed correctly.
There are legal requirements to comply with when making a Will, and if such formalities are not in place, legal costs could be incurred by your estate to prove that your Will is in fact a true representation of your testamentary wishes. The process of proving a homemade Will can be more expensive and time consuming than it would have been to engage a lawyer from the beginning.
Your Deceased Estate is the sum of your assets (including any property, shares, business interests, personal assets, legal interests and death benefits) less all of your liabilities (funeral expenses, debts, tax liabilities and any expenses incurred in winding up your Estate).
Your Will should grant your Executor(s) the power to call in and, where appropriate, to sell and convert the same into money any assets of the Estate. Your Executor will then hold your assets on trust to distribute the balance of your Estate to your beneficiaries in accordance with the terms of your Will.
If a loved one has recently passed away and you are trying to figure out whether they have left a Will, we recommend making the following enquiries:
If a person dies in Queensland leaving property, whether real or personal, and leaves a Will, then the person named in the Will as the Executor(s) should apply to the Supreme Court of Queensland for probate of the Will. Probate grants the Executor(s) the authority to deal with the deceased’s Estate.
If you are appointed as an Executor under a Will, we can assist you with navigating the Probate Application process, including completing the relevant advertising requirements and filing the necessary forms with the Supreme Court of Queensland.
If you die without a Will, the laws of intestacy will apply to your Estate. This means that your assets may be sold to satisfy debts and will be shared among your relatives. If a deceased is survived by their spouse and children, their spouse will receive the household chattels (furniture, whitegoods etc.), the first $150,000.00 of the Estate and either half or a third of the residue of the Estate (depending on the make-up of your family). The children will receive the balance of the Estate equally between them. This can be problematic where you have recently separated from a spouse, have estranged relationships with any of your children, have remarried and have step-children, or wish to make particular provisions for certain family members.
Dying without a Will means that your family members will need to apply for Letters of Administration and each stake their claim for an interest in your Estate.
You may also need to apply for Letters of Administration (with a Will) where the Will fails to appoint someone to act as your executor, or the executor that was appointed is unwilling or unable to act in that position and no alternative person is appointed by the Will.
An application for letters of administration will be made to the Supreme Court of Queensland. You will need to complete a number of forms and provide original documents in support of your application.
Applications for Letters of Administration can be a slow, expensive process for your family members to endure when they are already grieving your death. Your family members may also struggle to agree on how your Estate should be administered, which could lead to unwanted disputes between family members. This is not a pleasant experience and not one that you would wish to impose on anyone. It is far easier to draft a Will with comprehensive instructions to your executors on how and to who your Estate should be left.
Stone Group Lawyers regularly advise clients on all aspects of estate planning, from setting up testamentary trusts for your beneficiaries, distributing your assets, dealing with superannuation and life insurance, and appointing guardians for your minor children.
One often overlooked consequence of death is the potential for taxation on the assets of the deceased. The transfer of assets from your estate to your family could have significant consequences on your family’s taxation liabilities. Stone Group Lawyers will work to minimise those taxation liabilities and preserve your legacy for the benefit of your loved ones.
An Advance Health Directive is a document that states your wishes or directions regarding your future health care for various medical conditions. It comes into effect only if you are unable to make your own decisions.
Under your Advance Health Directive, you can appoint up to three trusted friends and family members to act one your behalf for personal/health matters. In the document, you provide directions to your attorneys on the types of treatments and care that you do or do not wish to receive.
If you do not already have a Power of Attorney or an Advance Health Directive in place, then Stone Group Lawyers can assist you in drafting these as well.
There are 3 necessary elements to a valid cause of action for defamation:
Material will be defamatory if it conveys statements about a person and those statements carry either direct or implied meanings that are harmful to the reputation of that person.
Historically, there was a distinction between libel and slander, with the former being written statements and the latter being verbal statements. However, in 2005 each state and territory of Australia enacted uniform defamation legislation which unified the law across each of the states and territories. That legislation abolished the distinction between libel and slander.
The cause of action for defamation will arise in the state or territory in which the material was published.
There is a general prohibition on corporations bringing an action for defamation, with two exceptions. If the objects of the corporation do not include financial gain for the members of the company, then the corporation may fall within the first arm of the definition of an “excluded corporation” as defined in the Defamation Act 2005 (Qld). Alternatively, a corporation which employs less than 10 people and is not related to any other company may also be an excluded corporation.
There are multiple statutory defences to an action for defamation, including:
The defence of justification will apply where the defendant can establish that the defamatory imputation is substantially true.
The defence of contextual truth will be made out where the publication also carries other imputations which are substantially true, and because of the truth those other imputations, the allegedly defamatory imputations are not harmful to the reputation of the plaintiff.
Where the defamatory imputations are published during an occasion of absolute privilege, such as during parliamentary proceedings or during a hearing of a judicial body, then the statements are made subject to privilege and the conveyer of those statements cannot be held liable for such.
It is a defence to prove that the defamatory matter was contained in a public document, or a fair summary of a public document, unless the matter was not honestly published for the information of the public or the advancement of education.
Fair report of proceedings of public concern
It is a defence to prove that the defamatory material was published as a part of a fair report of proceedings of public concern, or was published in an earlier report of the same proceedings and the publisher had no reason to believe that the earlier report was not fair. The definition of proceedings of public concern is fairly broad, including but not limited to parliamentary or court proceedings.
It is a defence to prove that the recipient of the material has an interest in having information on a subject, the material is published in the course of providing the recipient with information on that subject and the defendant acted reasonably in publishing that material.
It is a defence to prove that the publisher, or the publisher’s employee, was expressing their opinion rather than making a statement of fact, the opinion was about a matter of public and the opinion is based on proper material. Material will be proper material if it is substantially true, or was published on an occasion of privilege (absolute or qualified), or was material published under the protection of the public documents or reporting proceedings of public concern defences.
It is a defence to prove that the publisher only published the material in his/her capacity as a subordinate distributor, agent or employee of another entity, and the publisher did not know, or have reason to believe that the material was defamatory and the publisher’s lack of knowledge is not the result of the publisher’s negligence.
It is a defence to prove that the circumstances of the publication are such that the defendant is unlikely to suffer damage.
The most common remedy for defamation is the award of damages. There is a statutory maximum of $250,000.00 for non-economic damages, being damages that have been suffered by cause of the defamation but do not constitute a direct economic loss. General harm to the plaintiff’s reputation would be a non-economic loss. However, if the plaintiff loses a specific commercial opportunity as a result of the defamation, then the value of that opportunity would be an economic loss.
The Plaintiff may also seek an injunction against the Defendant to require the removal of the defamatory material and/or prevent the Defendant from publishing further material on the subject.
There are two main procedure steps involved in pursing an action for defamation. The first step is drafting and issue a “Concerns Notice” pursuant to section 14 of Defamation Act 2005 (Qld). The Concerns Notice will put the defendant on notice of their defamatory actions and stipulate the conditions for the removal of the defamatory material.
If the Defendant fails to offer to make amends in accordance with the Concerns Notice, then the Plaintiff will be required to commence proceedings for defamation in either the District Court of Queensland or Supreme Court of Queensland.
The limitation period for an action for defamation is significantly shorter than most other civil actions. Proceedings must be commenced within 12 months from the publication of the defamatory material. However, there are some exceptions to this general rule so check with a Gold Coast law firm to ensure you are on the right timeline.
Under the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), any company that provides building and construction services in Queensland is required to apply for a Queensland Building and Construction Commission licence (a Licence). A company that applies for a Licence must nominate an individual to act as their “nominee”.
The nominee must be an employee, director or secretary of the company, and must hold an identical class licence to the class that the company is seeking (both at the time of application for the company’s Licence and for the duration of time that the company holds the Licence). If a nominee resigns, ceases to hold their personal licence for any reason, or ceases to be an employee, secretary or director of the company, then a replacement nominee must be found and the Queensland Building and Construction Commission (QBCC) must be notified within 14 days.
The nominee must ensure that the company’s building and construction work is “adequately supervised” and must implement and manage a system of supervision for the company. The nominee is responsible for the coordination of the company’s employees and contractors on each of its worksites, and should carry out regular on-site inspections to ensure the building and construction work is in accordance with the contract. If the nominee identifies any defects in the company’s work, they must arrange rectification of those defects.
An individual can act as nominee for multiple companies, if that individual feels that they can adequately perform the supervisory role of a nominee for those companies at the same time.
A nominee needs to be aware that in the event the company loses its Licence as a result of defective building work or other matters that are the nominee’s responsibility, they may also lose their personal licence for failing to comply with their nominee obligations. Accordingly, it is very important that nominees ensure that their system of supervision for the company is adequate, functional and effective.
The nominee is also required to be a “fit and proper person” which means that if they fail to carry out their obligations, if they are responsible for any tier 1 defective work, if they fail to comply with any QBCC directions to rectify defects, or if they have a criminal history, their personal licence may be revoked and may be unable to act as nominee for the company.
Whether you are a nominee, a building and construction company owner, or a tradesman, Stone Group Lawyers can assist you in any building and construction dispute or with any licensing enquiries that you may have.
Intellectual Property law is the area of law that deals with Intellectual Property. Property is the phrase used to describe the rights associated with ownership of a material item, such a land or a vehicle. In contrast, Intellectual Property describes the rights associated with ownership of an intangible thing, such as an invention or an artistic work.
There are several types of Intellectual Property in Australia. Copyright is the right to prevent copying which arises in literal, artistic and musical works, as well as the objects which incorporate those works. Trademarks are marks used to differentiate a product or service from other products and services, most commonly being a logo or trade name. Patents are the grant of rights over an invention. Registered designs are the rights associated with registration of a specific industrial design or pattern. There are also statutory schemes that deal with specific niche market unsuited to traditional Intellectual Property, such as plant breeder rights and circuitry design.
It is important to note that whilst your Intellectual Property may be incorporated into a product, the Intellectual Property itself remains intangible. A simple example of this is a logo which has been trademarked. If that logo appears on a shirt, then the physical shirt incorporates that trademark. Consequently, producing or wearing that shirt could infringe upon the rights of the trademark owner. This conceptual separation is relatively straight forward for trademarks, but becomes far more complicated when dealing with patented inventions and, to a lessor extent, copyright.
An Intellectual Property lawyer is a lawyer who practices in the area of Intellectual Property law. The lawyer may specialise in one specific area of Intellectual Property, such as copyright or trademarks, although they most commonly will practice all major facets of Intellectual Property.
An Intellectual Property lawyer will assist their client by advising on their rights with respect to their potential Intellectual Property, including how to maintain confidentiality during the development of their Intellectual Property and how to best protect their Intellectual Property from infringement.
An Intellectual Property lawyer will also manage applications with IP Australia on their client’s behalf, including drafting and lodging the application and corresponding with IP Australia as necessary.
Intellectual Property lawyers also assist their clients in situations where another party is threatening to infringe, or has infringed, on the client’s Intellectual Property. The Intellectual Property lawyer will assist the client with drafting demands, negotiating the terms of settlement and, if necessary, initiating court proceedings to enforce the client’s rights.
Copyright is a type of Intellectual Property that deals with protection of expressions of ideas, such as artistic works, as well as the capture of those expressions of ideas, such as sound recordings and films.
If the product of your effort is a literary, dramatic, musical and artistic work then it will fall under Part III of the Copyright Act 1968 (Cth) as a “Work” (Work). If the product of your effort is a sound recording, film, television or sound broadcast or a publication, then it will fall under Part IV of the Copyright Act 1968 (Cth) as “Subject Matter other than Works” (Subject Matter).
To be protected as a Work, the expression must meet the following criteria:
If the expression of the idea meets the criteria for a Part III Work, the copyright subsists in that expression from the time of creation. The general rule is that the owner of the copyright in that expression is the author of that expression, although there are exceptions.
The copyright in a Work gives the owner the exclusive right to do the following acts:
A party, other than the owner of the copyright, which performs any of the acts protected by the copyright will be infringing upon that copyright.
The nature of the copyright in a Work is significantly different to that of a Subject Matter, with the Subject Matter receiving significantly less protection. The copyright in a Work is aimed at protecting the original ideas in that work, whilst the copyright in a Subject Matter is designed to protect the effort in capturing that subject matter in video or audio form; the former rewards originality whilst the latter rewards effort. A Subject Matter is only protected against direct copying or unauthorised distribution to the public.
Intellectual Property can be registered in Australia by making an application to IP Australia, the department of the federal government which oversees all Intellectual Property. The main exception to this rule is Copyright, which is naturally occurring upon creation and does not require any registration.
The application process is different for each type of Intellectual Property as each type has a distinct set of requirements that need to be met in order to qualify for registration. Each application will require payment of an application fee, which also varies for each type of Intellectual Property.
Most application are made electronically through IP Australia’s online eServices website, although physical forms can be printed and filed by post if necessary. It should be noted that using physical forms usually incurs a higher application fee.
After the application is filed and the application fee has been paid, IP Australia will assign an examiner to assess the application. Generally, the examiner will then issue a determination to either accept or deny the application for registration. This process can take anywhere from a few months to more than a year depending upon the type of application. As a general rule, trademark applications have the fastest processing times whilst patents are the slowest. If an examiner issues a positive determination, the applicant is required to accept the determination and, in some cases, pay a registration fee. IP Australia will register the Intellectual Property by issuing a certificate of registration and updating the respective register. After that point in time, the Intellectual Property is registered and entitled to protection within Australia.
It is important to note that Intellectual Property is regulated differently by each country using their own statutory schemes. Registration in one country will usually not entitle the holder of the Intellectual Property to protection in any other country. Accordingly, we always recommend seeking legal advice on how to protect your Intellectual Property in all of your target markets before initiating any formal applications.
A power of attorney is a legal document that appoints a person of your choice to make decisions on your behalf about personal/health matters, and/or financial matters. In Queensland, there are two types of power of attorney, a General Power of Attorney and an Enduring Power of Attorney.
A General Power of Attorney is only for financial matters, and appoints someone to act on your behalf while you have capacity only. For example, if you were travelling overseas for an extended period of time, you may appoint a trusted friend, family member or professional to act on your behalf during this period.
An Enduring Power of Attorney is an appointment that continues indefinitely, even if someone loses the mental capacity to make their own decisions. An Enduring Power of Attorney will continue until revoked.
You can place any restrictions on the appointment as you deem appropriate, including the types of decisions that your attorney can make on your behalf.
You can appoint more than one person to act as your attorney, and this is often recommended. You can also specify whether your attorneys have to act jointly (with all attorneys in agreement), by majority, or severally (any one of them can make a decision). You can also appoint an attorney as a replacement attorney in the event that one of more of your attorneys cannot act in that capacity.
You can complete a Form 1 – General Power of Attorney form by downloading it from the Queensland Government Department of Justice and Attorney-General Website.
Section 44 of the Powers of Attorney Act provides that the enduring powers of attorney must be in the approved form and sets out the requirements of the document.
There are two forms for an enduring power of attorney—a Form 2 – Enduring Power of Attorney (Short Form) or a Form 3 – Enduring Power of Attorney (Long Form).
The short version is for those people wishing to appoint the same attorney or attorneys for both financial and personal matters. The long form is used for the appointment of different attorneys for different purposes.
Given the importance of the appointment of a power of attorney and the consequences of inappropriate appointments, we highly recommend that you always obtain independent legal advice prior to executing any power of attorney.
To be eligible to be appointed an enduring power of attorney (s 29 Powers of Attorney Act), a person must:
The following can also be appointed as an enduring attorney:
Most importantly, a principal must be able to trust the person that they appoint as their attorney, as a person without legal capacity is highly vulnerable to abuse from an unscrupulous attorney.
You can change or revoke your power of attorney at any time, provided you have capacity to do so. A General Power of Attorney can be revoked by signing a Form 5 – Revocation of General Power of Attorney. An Enduring Power of Attorney can be revoked by signing a Form 6 – Revocation of Enduring Power of Attorney.
There are certain circumstances that automatically revoke your power of attorney, such as when you get married or divorced, or you die (where the executor of your Will shall take over the control of your personal and financial matters in distributing your estate).
At Stone Group Lawyers, we regularly assist our clients to prepare and execute General and Enduring Powers of Attorney. We can assist with advice o who to appoint as your attorneys, the roles that they may be required to undertake, and advising of any limitations that you should place on their appointment. We can also assist you by witnessing your execution of the document, and in making certified copies that you can distribute to your attorneys or anyone else who may need a copy.