News

News

World Elder Abuse Awareness Day

June 15th, 2017

In the 2016 financial year, the Elder Abuse Prevention Unit estimated that just over $280 million dollars had been misappropriated by 89 attorneys.  The available evidence suggests that most elder abuse occurs within the family and is intergenerational, with mothers most often being the subject of abuse by sons, although abuse by daughters is also common, and fathers are victims too.

Today is World Elder Abuse Awareness Day (WEAAD); day to raise awareness and support for those victims suffering from abuse.

Our wills and estate solicitor, Bianca Stafford feels strongly about the growing trend of elder abuse in the community, and believes that community awareness and education is key in helping detect and prevent elder abuse.

Elder abuse takes many forms (i.e. financial, emotional and physical abuse). The most common form of elder abuse we see as lawyers, is financial abuse, which may include an attorney misusing their powers under an enduring power of attorney, by taking or using money or property improperly.

If you are concerned that you may be, or know a victim of, elder abuse you can discuss this with your doctor or solicitor, or alternatively you may call the Elder Abuse Helpline on 1300 651 192.

If you would like more information about elder abuse you can find factsheets on the Queensland Government website, or alternatively by contacting our wills and estates solicitor Bianca Stafford on 40369 700 or by email biancastafford@millerharris.com.au.

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Sunday penalty rate changes as of 1 July 2017

June 13th, 2017

Earlier this year, the Full Bench of the Fair Work Commission made a decision to reduce public holiday and Sunday penalty rates.  The reduction to the Sunday penalty rates will be introduced gradually over the next 4 years.

Summarised below are the changes that will take effect as of 1 July 2017:

Retail  award


Changes  to  Sunday  rates:
Full-time  and  part-time  employees

Casual employees

Change  from  200%  to 195%

Change  from  200%  to  195%

Changes  to  public  holiday  rates:
Full-time  and  part-time  employees

Casual  employees

Change  from  250%  to  225%

Change  from  275/250%  to  250%

 

Hospitality  award 


Changes  to  Sunday  rates:
Full-time  and  part-time  employees Change  from  175%  to  170%
Changes  to  public  holiday  rates:
Full-time  and  part-time  employees

Casual  employees

Change  from  250%  to  225%

Change  from  275%  to 250%

 

Fast food award 


Changes  to  Sunday  rates:

Level  1  full-time  and  part-time  employees

Casual  employees 

Change  from  150%  to  145%

Change  from  175%  to  170%

Changes  to  public  holiday  rates:
Full-time  and  part-time  employees

Casual  employees

Change  from  250%  to 225%

Change  from  275%  to 250%

 

Restaurant award


Changes to Sunday rates  No changes
Changes to public holiday rates:
Full-time  and  part-time  employees

No change to casual employees

Change  from  250%  to 225%

 

 

Pharmacy award


Changes to Sunday rates:

Only affects employees working between 7:00 am  and  9:00 pm

Full-time  and  part-time  employees

Casual employees 

Change  from  200%  to  195%

Change  from  225%  to 220%

Changes to public holiday rates:
Full-time  and  part-time  employees

Casual  employees

Change  from  250%  to 225%

Change  from  275%  to 250%

 

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Miller Harris Lawyers wins Queensland Law Society Equity and Diversity Award for the second year in a row

May 24th, 2017

Miller Harris Lawyers, one of the leading law firms in North Queensland, has won the Queensland Law Society (QLS)’s Equity and Diversity Award for 2017 in the Small Legal Practice Category (legal practices with 20 or fewer legal practitioners).  This is the second year in a row that Miller Harris Lawyers has won the award.  Nominations came from throughout Queensland and were judged across four main criteria:

  • Promotion of diversity within the law profession
  • Equity initiatives
  • Policies supporting equal opportunity
  • Flexible work practices

“We’re delighted to win the award again in 2017.” Partner Melissa Nielsen said.  “To top the state in this award category is something we are extremely proud of.  It recognises the variety of initiatives we have put in place to support equity and diversity within our workplace.  The diversity of thought and opinion that comes from employing people from a range of different backgrounds is a key strength of our business and provides us with a competitive edge.  We are also conscious of the evolution of our workplace over time.  More and more people are seeking flexible working arrangements and as an employer, we have adapted our policies to provide this flexibility to ensure we attract and retain high calibre people.  Of our team of over 30 people, 42% are currently employed on flexible working arrangements.  It’s a two way street.  Our team certainly go the extra mile when needed and we’re flexible in return.  Unfortunately it is not possible to accommodate every request, but being open minded to innovative and practical ideas from our staff has certainly contributed to staff retention and happiness in our workplace”  Melissa went onto say.  “I personally have benefited from the firm’s flexible working arrangements through a flexible return to work following parental leave on a number of occasions.  This flexibility has enabled me to appropriately balance my continued career progression with the commitments associated with raising a young family.  All three of our senior associates are also currently employed on flexible working arrangements whilst caring for young families.”

Miller Harris Lawyers has operated successfully in North Queensland for over 25 years providing a wide range of business and personal legal services to corporates, government agencies, not for profit organisations, businesses and individuals.

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The 2017 budget seeks to address the overburdened family law system

May 16th, 2017

The government has allocated tens of millions of dollars in the 2017 budget to try to address the over-burdened family law system.

Budget measures include:

  • a comprehensive review of the family law system by the Australian Law Reform Commission;
  • a desperately needed boost to funding of Community Legal Centres and Aboriginal and Torres Strait Islander Legal Services, to a total of $55.7 million;
  • $10.7 million to fund additional Family Law Consultants in the Family Law Courts, who are qualified social workers and psychologists who assist the Courts in dealing with children’s cases;
  • a $12.7 million initiative – parenting management hearings – to try to resolve family law disputes between self-represented litigants through an informal, non-adversarial forum;
  • $3.4 million to fund six additional specialist domestic violence units to be set up in Legal Centres to deliver legal and social support to women at risk of, or experiencing family violence; and
  • consultation, which will soon commence, regarding amendments to the Family Law Act 1975 in relation to family violence.

If you would like any further information on how the 2017 budget measures might affect you, or someone you know, or would like advice as to any family law issue, please feel free to contact me.

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What happens when a tenant is in breach of a lease agreement?

May 5th, 2017

Where a tenant or lessee is in breach of their obligations under a lease, section 124 of the Property Law Act 1974 requires the landlord or lessor to issue to the tenant a ‘notice to remedy breach’ before exercising any right to terminate the lease.

To be effective the notice to remedy breach must:

  • be in writing;
  • be served on the tenant;
  • specify the nature of the ‘particular breach complained of’;
  • specify how the breach can be remedied;
  • if the landlord is alleging that the tenant owes money in compensation for the cost of issuing the notice this should also be specified in the notice; and
  • if the landlord is also claiming amounts for arrears in rent, this should also be clearly specified.

The landlord must give the tenant a reasonable time to comply with the notice to remedy breach before exercising any right of early termination under the lease agreement.  What is considered reasonable time will depend on the circumstances of the particular case, including the nature of the breach and what is required to remedy the breach.  The specification of a certain number of days does not mean that the time given is reasonable.

A recent decision of the Supreme Court, Tyrrell v Jesbro Enterprise Pty Ltd [2017] QSC 55 has reiterated the importance of issuing an effective notice to remedy breach to tenants.  In this case the tenant had failed to pay rent and council rates, the tenant was subsequently issued with a notice to remedy breach and when the tenant did not comply with the notice the landlord terminated the lease early.

When the matter came before the court, Justice McMeekin refused to declare that the lease had been validly terminated by the landlord because the notice did not include at the end of the notice the note which appears on the approved form, which is:

“NOTE: The lessor will be entitled to re‑enter or forfeit the lease in the event of the lessee failing to comply with this notice within a reasonable time.”

The court held that the notice was therefore defective and that there was not substantial compliance with the approved form.  Critical to the decision was that the letter only stated that the tenant may be liable to forfeiture and termination, not that the landlord would have a right to re‑enter and terminate if there was no compliance within a reasonable time.  The positioning of this note at the end of the notice and the reference to section 124 of the Property Law Act 1974 was also considered essential to bring to the tenant’s attention the serious consequences of non‑compliance.

If you are a landlord and require assistance with a breach of a lease by a tenant or you are a tenant who has been issued with a notice to remedy breach, our experienced property law team based in Cairns can assist you to comply with the technical procedures required to protect your interests.

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What you need to know when buying your first property

May 3rd, 2017

The purchase of property is one of the biggest financial decisions that we make in our lifetime.  Many people find the conveyancing process quite daunting or time consuming.  If you have purchased property within Cairns or surrounds, we would love to assist you with your conveyance.  At Miller Harris Lawyers we have an experienced property law team located in Cairns, who can work with you throughout the conveyancing process to ensure that your purchase is as stress free and smooth as possible.

Our top tip for purchasers of property is to engage an experienced property law solicitor before you sign the contract.  As conveyancing is usually a fixed fee service, it does not cost any extra to engage a lawyer from the beginning of the transaction.  By engaging a solicitor early, it enables you to receive advice on the terms of the contract and the critical dates prior to signing.  This reduces the risk of encountering surprises after you have signed the contract, and having to pay a penalty for terminating the contract.

Our second important tip is to take out insurance over the property at the time you sign the contract.  Under most standard form contacts, the risk of the property transfers to the purchaser the day after the contract is signed (not at settlement).

How our property law team assists you throughout the conveyancing process:

  • After we have given an initial letter of advice on the terms of the contract, we will keep you updated on each of the critical dates in relation to the conveyance such as:
    • when the cooling off period, which enables you to terminate the contract, expires;
    • what date you must obtain finance by; and
    • when to carry out building or pool inspections.
  • Carry out standard searches, and also recommend if you should undertake additional searches in relation to the property.
  • Calculate any stamp duty that you will be required to pay and any concessions that you are entitled to.
  • Complete, certify and lodge all documentation.
  • Review what is included in the purchase price.
  • Liaise with the seller’s solicitor, and your financial institution, to ensure that you know exactly how much money you need in order to complete the conveyance.
  • Book and attend settlement on your behalf.
  • Notify you as soon as you become the official owners of the property!

In addition to the above, our friendly and experienced property law team are available to answer any questions you may have about conveyancing.  Our property law team is led by Partner Nigel Hales, who is the only Queensland Law Society Accredited Specialist in property law in the Cairns area.  We have been operating within Cairns for over 25 years so we know Cairns, and we know the issues that impact our region.

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Has your business been affected by Cyclone Debbie or flooding?

April 11th, 2017

The Australian Taxation Office has released a set of automatic measures aimed at assisting small businesses affected by Cyclone Debbie, and the floods in both Queensland and New South Wales, and include:

  • lodgement of monthly Business Activity Statements (“BAS”) due on 21 April 2017 has been extended to 21 May 2017;
  • lodgement and payment of quarterly BAS due on 28 April 2017 has been extended to 28 May 2017;
  • income tax returns due on 31 March 2017 can now be lodged up until 30 April 2017; and
  • the government will also endeavour to fast track the payment of returns to those within the affected areas, and suspend recovery action until May 2017.

You may also contact the Australian Taxation Office to discuss entering into a repayment arrangement, including interest free arrangements.  If your records have been destroyed, the ATO may also be able to assist in recovering information to meet your obligations.

These measures are only for those businesses or business owners located in certain postcodes. To check whether your postcode is included, visit the ATO website here: https://www.ato.gov.au/individuals/dealing-with-disasters/in-detail/specific-disasters/natural-disasters—march—april-2017/

If your postcode is not listed but you have been affected, you may still be able to contact the ATO for assistance and support.

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First Home Buyer Grant – things to know

April 6th, 2017

Time is running out to gain the $20,000 first home buyer grant…

To find out more, view the printable information sheet here.

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Uber drivers to register for GST

March 16th, 2017

Uber launched in Cairns today and more than 3000 Cairns residents have applied to become Uber drivers.  The recent decision of the Federal Court in Uber B.V. v Commissioner of Taxation [2017] FCA 110 will be of particular interest to those in the Far North who have applied or are interested in applying to drive for Uber.

The ride-sharing service has been legal to use and operate in Queensland since 5 September 2016.  The legalisation accompanied a suite of changes to the rules regulating the taxi industry in the interests of levelling the playing field between traditional taxi operators and ride sharing companies.  Consistent with the aim for a level playing field, on Friday 17 February 2017 the Federal Court found that the Uber service is a supply of ‘taxi travel’ within the meaning of the current Goods and Services Tax (GST) legislation.

This decision means that all Uber drivers will need to be registered for and pay GST from the first dollar they earn.  Generally a service provider is not required to register for or charge/pay GST if their turnover is less than the legislated threshold of $75,000.00.  However, services for ‘taxi travel’ are excluded from gaining the benefit of this threshold.

Uber argued that because their operators do not utilise a taxi meter, taxi ranks or roadside hailing (among other reasons) that they were not supplying a ‘taxi travel’ service under the GST legislation.  However, these arguments were not accepted by the Federal Court, which found that the definition of ‘taxi travel’ in the legislation should be given its ordinary meaning and not a specialised industry meaning.

If you are thinking about applying to be an Uber driver in Cairns you will need to make sure that you are registered for GST to avoid a nasty tax bill or fine from the tax office.

The full decision of the Federal Court can be found here.

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Director of Consumer Affairs Victoria v Gibson [2017] FCA 240

March 16th, 2017

Yesterday the Federal Court handed down a decision finding Annabelle Natalie Gibson guilty of three representations that amounted to misleading and deceptive conduct in trade and commerce, under the Australian Consumer Law.

The case against Ms Gibson has been well documented in the media. The conduct in question related to statements by Ms Gibson’s about her diagnosis with terminal brain cancer, and her subsequent cure, by following certain natural recipes and therapies. These statements were made via Facebook, Instagram, in media interviews, and within Ms Gibson’s app and recipe book titled ‘The Whole Pantry’ from which Ms Gibson made substantial profits.

Australian Consumer Law provides that “a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.” Significantly, there need not be any fraudulent intention or guilty mind for a person to have engaged in misleading conduct. By contrast, deceptive conduct requires the person making the representation to know that it is false.

Whilst, in this case, the person engaging in the prohibited conduct made a lot of money, the terms ‘in trade or commerce’ have generally been interpreted widely by the courts and may encompass any commercial activity, even on a small scale.

Section 18 is a ‘strict liability’ provision. This means that it does not matter that a person is not aware that their misleading statement was false.

The court is yet to decide the penalty that will be applied to Ms Gibson.

This decision is a reminder that care should be taken, in any commercial dealings, not to make any statements that are misleading, deceptive or capable of leading another into error.

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