Latest Legal Blogs
Driving? Do Not Use Your Phone! - Here's Why
It is common knowledge that you shouldn’t use your phone while your driving, at least for the obvious reason that it is extremely dangerous and unsafe conduct. It is also a serious offence in Queensland, whether you are trying to change the song you are listening too or trying to use google maps on your phone; the use of your mobile phone whilst driving is an offence which carries significant penalties. The Queensland Government has recently taken steps to 'crack down' on this conduct by increasing monetary penalties and adding specialised fixed and sometimes portable cameras in an attempt to catch drivers. Offence In Queensland we have two main pieces of legislation which deals with traffic offences, this is the Transport Operations (Road Use Management - Road Rules) Regulations 2009 and the Transport Operations (Road Use Management) Act 1995. Under Regulation 300: The driver of a vehicle must not use a mobile phone whilst the vehicle is moving, or is stationary but not parked. The term 'use' refers to using a mobile phone, and a person is deemed to have 'used a mobile phone' if they do the following:- If the driver holds the phone in their hand or; Or rest the phone on any part of the driver's body - ie resting the phone on your lap It is irrelevant if the phone is turned on or not operating, whether or not the purpose of operating the phone or function of the phone or whether the phone is partially or wholly supported by another part of the driver's body. Penalty Should you be charged with this offence you can face a fine of at least $1,033.88 as an individual or if you are charges in the capacity of a business vehicle $5,169.38. Additionally you will receive a demerit point penalty of four (4) demerit points, Exceptions Subsection 2) of the Regulations states the following exceptions:- (2) Subsection (1) does not apply to a driver using a mobile phone— (a) to the extent the mobile phone— (i) is in a pocket of the driver’s clothing, or in a pouch worn by the driver; and (ii) kept in a way that— does not allow the driver to operate the phone, or a function of the phone, other than by using only the driver’s voice; and does not allow the driver to see the face of the phone while the phone, or a function of the phone, is operating; or (b) while the vehicle is stationary and to the extent the mobile phone is in a wallet, or has attached to it a wallet, that the driver is using for any of the following purposes— (i) to obtain and produce for inspection a licence, permit, authority or other document, as required under an Act or by a police officer or another person acting under an Act; (ii) to obtain and use money, or another form of payment, to pay for goods or services, if the place where the vehicle is stationary is a place where the goods or services are lawfully paid for; Example of a place for subparagraph (ii)— a drive-through retail outlet (iii) to obtain and use a card or other thing to enter a road-related area or land adjacent to a road-related area. (3) Also, subsection (1) does not apply to a driver using a mobile phone while the vehicle is stationary for any of the following purposes— (a) to produce for inspection a digital authority or other document stored on the phone, as required under an Act or by a police officer or another person acting under an Act; (b) to pay for goods or services, if the place where the vehicle is stationary is a place where the goods or services are lawfully paid for; Example of a place for paragraph (b)— a drive-through retail outlet (c) to use the phone as an electronic device that enables the driver to enter a road-related area or land adjacent to a road-related area. (4) This section does not apply to the driver of an emergency vehicle or police vehicle.[1] If the Police Charge you If the Police charge you with this offence you will receive a Police infringement notice. You then have 28 days to do the following:- Accept responsibility for the offence and pay the fine Submit a declaration if you were NOT the driver at the time Elect to contest the matter in the Magistrates Court. The common question most people ask is will I lose my license? The short answer is yes, the way this happens is in the accumulation of demerit points. If you are charged and convicted of this offence, you will receive 4 demerit points. If you accumulate enough demerit points you can lose your license as a result. In this case the Department of Transport will issue you with a notice letter "Accumulation of Demerit Points". You then have the option of agreeing to the suspension of your license for a period of time or agree to continue driving under a good behaviour period of one year. It is important that you notify the Department of your choice within the time frame as failing to do so can result in an automatic suspension of your license. At Connolly Suthers our Crime Team regularly deals with cases like this. If you are charged with a traffic or criminal offence make sure you give us a call and get the proper advice, it could be the difference between keeping or losing your license. [1] Transport Operations (Road Use Management - Road Rules) Regulations 2009, Reg 300, Subsection (2)
Understanding Self-Managed Super Fund Performance For Current Trustees
New research released New research released by the University of Adelaide provides tangible evidence of the benefits of investment diversification. In its report, titled “Understanding self-managed super fund performance” and using data from over 318,000 SMSFs between 1 July 2017 and 30 June 2019, the University of Adelaide explored the relationship between the investment performance of self-managed super funds (SMSFs) and their level of diversification across multiple asset classes. The asset classes that were considered included: Cash and term deposits Listed Australian equities Listed international equities Listed trusts Unlisted trusts Limited recourse borrowing arrangements Other assets The research study found on aggregate, SMSFs with more diversified asset allocations achieved higher returns. The performance benefits of adding a second, third or fourth asset class are strong and consistent across the 2017-19 period. Each incremental increase in asset classes (up to 4) is associated with an improvement in median investment returns of between 1% to 3%. Diversification beyond 4 asset classes (up to 7) also improves aggregate SMSF performance, but at reduced marginal rates. These results are consistent with standard finance theory. Higher levels of diversification are correlated with improved levels of investment performance. The research also found SMSFs generate greater variation in investment returns relative to larger funds. There is a higher tendency for SMSF investors to outperform as well as a higher tendency to underperform relative to larger funds. This underlies the importance of professional advice and a sound investment strategy. Finally, the research found SMSFs with net assets of more than $200,000.00 that are not heavily concentrated in cash and term deposits, on average, outperformed APRA regulated funds in 2 out of 3 years between 2017 and 2019. How can we help? If you require any assistance with your SMSF or would like to discuss the University of Adelaide research findings in more detail, please feel free to give us a call.
Understanding Self-Managed Super Fund Performance For Prospective Trustees
New research released When used in the right circumstances a self-managed super fund (SMSF) can provide important benefits for individuals looking for greater levels of investment flexibility and control over how their super savings are invested. New research released by the University of Adelaide shows an SMSF may be a suitable option for individuals with lower superannuation balances than previously thought. In its report, titled “Understanding self-managed super fund performance” the University of Adelaide used data from over 318,000 SMSFs between 1 July 2017 and 30 June 2019, to identify the minimum amount of capital required for an SMSF to achieve comparable investment returns with much larger funds. The research study found that the performance of a typical SMSF improves as the fund balance approaches $200,000. Once this threshold is reached the investment performance of the fund was comparable with much larger funds. The research data revealed no noticeable changes in performance patterns as fund sizes approach $500,000, so the notion that SMSFs with balances under $500,000 deliver materially lower returns, on average, than larger SMSFs, is not supported by the research results. The research suggests it is more appropriate to set this threshold at $200,000. When coupled with research by the actuarial firm Rice Warner in late 2020, which found SMSFs with balances of $200,000 or more were cost effective compared with industry and retail funds, it mounts a compelling argument that an SMSF with $200,000 or more in net assets, can be competitive with much larger superannuation funds both in terms of cost and investment performance. The research also found SMSFs generate greater variation in investment returns relative to larger funds. There is a higher tendency for SMSF investors to outperform as well as a higher tendency to underperform relative to larger funds. This underlies the importance of professional advice and a sound investment strategy. Is an SMSF right for you? Most SMSF investors are motivated to set up an SMSF by the extra flexibility and control over how their super savings are invested. However, setting up an SMSF is a major financial decision. There are many factors to consider and having a sufficient superannuation balance is just one factor. If you set up an SMSF you are held responsible for complying with the super and tax laws, so you need to have the time and be confident to be ‘hands on’ with your fund. How can we help? If you would like to discuss whether an SMSF is right for you, please feel free to give us a call so we can discuss your specific circumstances in more detail.
The Connolly Suthers 2021 Heaven, Hell and Limbo List Announced
04/02/2022 Worldwide over 150,000 people die every day. That’s a horrible statistic to ponder but you will be pleased to know the birth rate is way higher such that in the first week of 2022 there was a net population growth of about 1.5M – the human race is in no danger of extinction it would seem. For now anyway. Advances in medical science means you will be able to be propped up for way longer than you may have been 50 or 60 years ago. What is interesting though is that the numbers of people living past 100 are not increasing. Science has not caught up just yet. The broad categories of how you might die are:- Road accidents, homicides, conflict deaths, drowning, fire, natural disasters, and suicides; Non-communicable diseases (eg chronic long term illnesses including cardiovascular diseases, stroke, cancers, diabetes, pulmonary disease to name a few); Communicable diseases (eg AIDS, malaria, tuberculosis, maternal deaths, neonatal deaths, and deaths from malnutrition). Category (b) results in about 2/3rds of all deaths worldwide. And in 2020, 1,880,000 died of Covid 19 (which falls into Category (c)) alone (that’s about 5000 of the 150,000 deaths per day worldwide). When you look at the stats your own mortality is easily rationalised and put into perspective. One way or another something is going to get you. Anyway, rather than morbidly dwelling on our own morbidity and moving to a lighter note on a dark topic we are pleased to announce the Connolly Suthers 2021 Heaven, Hell and Limbo List for 2021. Many people (famous and not so famous) have lived interesting and fulfilling lives. Here are our top 10 of them (in descending order). No. 10 - The Quiet Monkee - Brian Nesmith https://www.nytimes.com/2021/12/10/arts/music/michael-nesmith-dead.html No. 9 - Raindrops keep falling on my head - BJ Thomas https://www.nytimes.com/2021/05/30/obituaries/bj-thomas-dead.html No. 8 - The architect of all scandals now called "Gates" Gordon Liddy https://www.nytimes.com/2021/03/30/us/g-gordon-liddy-dead.html No. 7 - The unassuming rock and roller - Rolling Stone Charlie Watts https://www.nytimes.com/2021/08/24/arts/music/charlie-watts-dead.html No. 6 - Quick on your feet Bert Newton https://www.theguardian.com/tv-and-radio/2021/oct/30/bert-newton-an-instant-hit-who-became-australias-most-enduring-tv-personality-dies-aged-83 No. 5 - Rugby League Legend Tom Raudonikis - https://www.abc.net.au/news/2021-04-07/rugby-league-legend-tommy-raudonikis-dies-aged-70/100052450 No. 4 - Strop - https://www.abc.net.au/news/2021-07-23/comedian-john-cornell-dies-aged-80/100317142 No. 3 - British Royalty - Prince Philip https://www.nytimes.com/2021/04/09/obituaries/prince-philip-dead.html No. 2 - A Real Australian Legend - David Gulpilil https://www.nytimes.com/2021/11/29/movies/david-gulpilil-dead.html No.1 - A Fearless Leader - Captain Stubing https://www.nytimes.com/2021/05/29/arts/television/gavin-macleod-dead.html
Superannuation Death Benefits - Review Succession Plans
1 July 2021, saw the Transfer Balance Cap (TBC) indexed for the first time to $1.7 million from the original $1.6 million limit which was introduced on 1 July 2017. Indexation of the TBC means there is no longer a single cap that applies to all individuals. Instead, every member has their own personal TBC of between $1.6 million and $1.7 million, depending on their circumstances. If you are already in receipt of a pension, it is important to review your personal TBC and seek help if you unsure how to calculate, or locate, your personal TBC The TBC not only imposes a limit on the amount of capital that you can transfer to the retirement phase of super, but it also has an impact on what happens to your superannuation when you die. The $1.7 million TBC applies to pensions paid to your dependants after you die (called death benefit pensions or reversionary pensions) meaning it has a substantial impact on estate planning. When it comes to the TBC, the main issues that you need to plan for in the event of death include: If your death benefit will be paid as a death benefit pension, your beneficiary’s TBC will be relevant in determining how much can be paid as a pension to them. Any excess death benefit above their TBC must be paid as a lump sum to them. This limits the amount of money that can now be retained within the superannuation environment upon your death. Where your dependant has already used some of their TBC, you may need to consider strategies which maximise the amount of your benefits that can remain in the SMSF on your death and minimize the amount that would need to be paid to your beneficiaries as a lump sum. The special rules which delay when the reversionary pension counts towards the new recipient’s TBC and the differences between how reversionary and non-reversionary pensions are counted towards the new recipient’s TBC. The special rules that operate to modify the TBC of a child in receipt of a death benefit pension to ensure that their personal TBC is not exhausted. The ability for a recipient of a death benefit pension to rollover the pension to another super fund (note, to satisfy the regulatory rules, a new death benefit pension must be commenced in the new fund or the amount must be withdrawn from the superannuation environment as a lump sum death benefit). Given the significant shift in the landscape with respect to SMSFs and estate planning, we also strongly recommend that trustees have their SMSF trust deed reviewed to ensure maximum flexibility when dealing with excess TBC amounts, rollover of death benefits, reversionary pensions and child pensions. This should be done alongside the review of any binding death benefit nomination(s) you have in place to ensure that they too are valid and provide the certainty in how your death benefits will be dealt with upon your death. The payment and tax treatment of death benefits paid from an SMSF has traditionally been a complex area, with the need to obtain advice from a specialist. With the recent introduction of the TBC, the need for specialist advice has never been more important. How can we help? If you would like to understand how the TBC affects your superannuation and succession plans, please feel free to give me a call to arrange a time to meet so that we can discuss your particular estate planning requirements in more detail.
"Get me out of here" A Guide to Queensland Bail Laws
What is it? In criminal law matters you will often see that a person charged with a criminal offence has been granted bail or is applying to the Court. Bail is a written promise to the Court (in the form of an undertaking) that you will attend to face the charges against you. In other circumstances this undertaking can include a number of conditions or rules which you must abide by. Some of the conditions a Court may impose in granting Bail are; Curfew condition Reporting to the local police station Must reside at a specific residential address known to the Police Not contacting specific people or witnesses Not consuming alcohol or drugs Submitting yourself to weekly or random drug tests Not using the internet Providing a surety Or any other conditions the Court would deem necessary. In this article we go through Queensland’s Bail Laws and how to prepare the best possible bail application. How do I get it? In Queensland there is a “prima facie” right to bail. Section 9 of The Bail Act 1980 (Qld) says: “The court has an obligation, subject to the Act, to grant bail or enlarge bail where the person is before the court charged with an offence but has not been convicted.”[1] What this means is that the starting position for the Court is to grant a person bail unless the Court is satisfied of two (2) things: That there is an unacceptable risk of the person: Failing to appear at Court or surrender into custody Committing further offences Endangering the safety of the victim, or themselves, or any other person. Interfere with witnesses or obstruct the course of justice. (Footnote) OR 2. The person should remain in custody for their own protection. What does the Court look at? When considering whether or not someone is an unacceptable risk, the Court considers a broad range of issues such as:- The strength of the case against them; The criminal history or previous grants of bail to the defendant; The character and antecedants (background); Any associations or affiliations in the community; Home environment and; Employment Onus of Proof The starting point in Queensland is that an accused person has a right to bail and it is for the Prosecution to prove that that the person is an unacceptable risk. This means that it is for the Police to satisfy the Court why you should not be granted bail. However this position changes when you charged with certain serious charges which will place you in a show cause situation. Section 16 (3) of the Bail act says; “A defendant charged with an offence listed in s.16(3) must be refused bail unless he or she shows cause why their detention in custody is not justified. This provision places the onus of proof on the defendant on the balance of probabilities and sets aside the presumption in favour of bail in s.9”[2] In these occasions the onus shifts, and you must show to the Court why it is unjust for you to be in custody. It is important that you get our expert advice before you make this application as it could be the difference in you being sent to jail or being granted bail. What happens when Bail is refused? When a Judge or Magistrate refuses Bail you are remanded in custody. You only get one proper shot at a Bail application and if you are unsuccessful on the first attempt it is quite difficult to apply for bail again. This is because before the Court can consider a second application the Court has to be satisfied that there has been a material change in the circumstances from when the first application was made. It is often difficult to establish a change in the circumstances, however a common example has been when there is a substantial delay in the charges progressing in Court. If you are unsuccessful in an application for Bail in the Magistrates Court a further application for Bail can be made to the Supreme Court. This type of bail application does take more time as it involves preparation and filing of material to the Court. Whats the best way? It is important that you seek legal advice before you make an application for Bail. It is not difficult in getting a date in Court for a Bail Application, but getting a date in Court doesn’t always mean you are going to get Bail. It is extremely important to get the best advice so you can have the best preparation for an application for Bail. If you ever end up in a position where you are being charged by the Police, make sure you remember your rights to silence and call us immediately. Our criminal law team has experience in these matters and are ready to help you along the way. [1] Section 9 Bail Act 1980 Queensland [2] Ibid (1) Section 16
Separation, Divorce, my Will and Property Settlement
Say you and your spouse separate, that means in the event of your death all your property will go to your children or your family right? No that is not always the case. Married If you are married and separate, your Will remains unchanged. So what do you do if your Will no longer reflects your current wishes? Once you become divorced any gifts to your former spouse or appointment of your former spouse as executor, trustee and/or guardian in your current Will will be revoked. But before you can apply for a divorce you must be separated for twelve months. Even if you become divorce and any gifts to your former spouse or appointment of your former spouse as executor, trustee and/or guardian in your current Will are revoked, your current Will can still have unintended consequences in how your deceased estate is administered. What if you don't have a current Will? If you don't have a Will the laws of intestacy will apply. In Queensland, if you are separated but not divorced the laws of intestacy recognise your former spouse as a surviving spouse and they will generally inherit the lion's share of your deceased estate. De Facto If you are in a de facto relationship and separate, any gifts to your former spouse or appointment of your former spouse as executor, trustee and/or guardian in your current Will will be revoked. Again, even though any gifts to your former spouse or appointment of your former spouse as executor, trustee and/or guardian in your current Will are revoked, your current Will can still have unintended consequences in how your deceased estate is administered. If you don't have a Will, the laws of intestacy will also apply, and in Queensland a former de facto spouse is not a surviving spouse for a deceased estate. Estate Planning Whether or not you are married, were married, were de facto, have a current Will or don't have a current Will, once you separate it is important that you consider your estate planning and so that your current wishes are in place you should do a new Will. Not knowing what the future holds you should do this as soon as possible. What about my share of our house? In Queensland, where real property is owned jointly with another person, it will be owned as either "joint tenants" or "tenants in common". How you own real property will affect what happens in the event of your death, irrespective of what your Will says. "Joint tenants" means you and your former spouse own the property together and in the event of either persons death, the deceased's share of the property will automatically go to the other person by survivorship. "Tenants in common" means that you each own a separate share of the property and in the event of either persons death, the deceased's share of the property will form part of their deceased estate and administered in accordance with their Will or the laws of intestacy if you don't have a Will. You can change the ownership of property from "joint tenancy" to "tenants in comment" which will stop your former spouse from receiving full ownership of jointly owned property in the event of your death. This is called "severing" the tenancy. Is that the end? No it's not. You may now have your estate planning affairs in order, but unless you have done a property settlement with your former spouse you have not severed the financial relationship between you. Without finalising property settlement with your former spouse there is likely to still be property or debts held together. Or if there isn't, you could be entitled to more than the property that is solely in your name, ownership or possession. Upon separation you should also consider getting family law advice. Our Family Law and Wills and Estate teams are able to provide you with comprehensive legal advice to ensure that your affairs are properly in order and your interests are protected. It you would like to discuss your Family Law matter - contact our Family Law If you would to discuss Estate Planning – contact our Estate Planning
The Great COVID19 Debate: To Vaccinate or Not to Vaccinate?
The world we live in is a very different place to what is was pre-COVID19. As of the 10th of January 2022 Australia’s COVID19 vaccination program was extended to all children aged 5 to 11 years. With this development, it brings to light the question, what happens when separated parents don’t see eye to eye on whether their child or children should be vaccinated? As the various COVID19 vaccinations roll out in the community, it is likely we will see an increase in disputes between parents about whether or not they should vaccinate their children. What happens if we simply can’t agree? There is a presumption that both parents have equal shared parental responsibility (ESPR) in relation to the long-term decisions for a child. In short, both parents must jointly agree on decisions in relation to a child’s name, schooling, health, religion and the like. If both parents cannot agree, then one parent will be required to make an Application to the Court to have a Judge determine the matter. The Court is bound to consider section 60CA of the Act which states:- “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.” The Court must be provided with evidence about whether the vaccination is, or is not, in the child’s best interests. For example, if the child suffers from a medical condition, it may be that the COVID19 vaccination could be harmful to their health and, in those circumstances, the parent opposing the vaccination would require medical evidence from the child’s treating doctor outlining the possible health implications such vaccination may pose for the child. What Orders can the Court make to resolve the issue? There are a variety of Orders a Judge may make when deciding whether the COVID19 vaccination is in a child’s best interests. The Court may make the following Orders:- One or both parents must do all things necessary to ensure the child is vaccinated against COVID19; The parents be restrained, by injunction, from vaccinating the child against COVID19; One parent be granted sole parental responsibility; or One parent be granted sole parental responsibility in relation to medical and health matters only. If one parent is granted sole parental responsibility, it means they are at liberty to make decisions they consider best for the child, without requiring the other parent’s permission or approval. They do, however, have to keep the other parent informed of their decision and normally, they are required to attempt to reach an agreement with the other parent before making a decision. If you require assistance in relation to your Family Law matters, please contact the Family Law Team at Connolly Suthers.
What is a Director Identification Number (director ID) and do I need one?
You may have heard about the new rules which require directors of Australian companies to obtain a Director Identification Number (director ID). The new requirement to obtain a director ID also applies to individuals who have an SMSF with a corporate trustee. All directors of your corporate trustee will need to apply for their own director ID by the prescribed deadline. This document provides some important information about Director Identification Numbers, including how to apply for one and by when. An application for a director ID must be made individually and only by those who are applying for the director ID. As you are required to prove your identity as part of the process, our firm, or any other third party, is not able to apply for a director ID on your behalf. What is a Director Identification Number (director ID)? A director ID is a unique identifier that directors need to apply for, like a tax file number. If you are a director of multiple companies, you are only required to have one director ID that will be used across all companies. You will keep your director ID forever even if you change companies, resign altogether from your director role(s), change your name, or move overseas. Why do I need a Director Identification Number? As part of the Government’s Digital Business Plan, it is rolling out a Modernising Business Registers program which includes the introduction of director IDs. The main purpose is to prevent the use of false or fraudulent director identities as well as to improve the efficiency of the system by making it easier to meet registration obligations and trace director activity and relationships. By improving the integrity and security of business data it is expected to reduce the risk of unlawful activity. How do I apply for a Director Identification Number? There are 3 key steps to apply for your director ID. Step 1: Set up myGovID – If you do not already have a myGovID you will need to set this up before you can apply for your director ID online. You can find information on how to setup your myGovID by downloading the app at: https://www.mygovid.gov.au/set-up Step 2: Gather your documents – You will need to gather some information that the ATO already knows about you to verify your identity. You will need your tax file number, your residential address held by the ATO, and information from two of the following documents: Bank account details ATO notice of assessment Super account details Dividend statement Centrelink payment summary PAYG payment summary Most of this information can be downloaded from your myGov account so it may be worthwhile linking to this service ahead of applying for your director ID. Note, myGovID is different to your myGov account. Your myGov account allows you to link to and access online services provided by the ATO, Centrelink, Medicare and more, while myGovID is an app that enables you to prove who you are and to log in to a range of government online services, including myGov. Step 3: Complete your application - Once you have a myGovID and information to verify your identity, you are ready to apply for your director ID. You can click on the following link to start the application process. The application process is quick and should take you less than 5 minutes. https://abrs.gov.au/persons/ui/secure/start/applyForDirectorID?action=applyfordirectorid Further information about the application process, and step-by-step instructions, can be found via this link: https://www.abrs.gov.au/director-identification-number/apply-director-identification-number