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Traffic offences encompass numerous road rule breaches ranging from speeding, failing to give way or stop at a designated traffic sign, failing to stop at a red or orange traffic light, failure to wear a seat belt and more.
Traffic offences can also include driving with an expired driver’s license, driving whilst unlicensed or driving whilst disqualified from driving. All these offences usually require the court to disqualify your driver’s license from 1 month up to 5 years or, in some serious cases, indefinitely. There is not always an option to apply for a worker’s or hardship license; however, we can make such applications where there are.
All of these offences are determined in the Magistrates Court before a Magistrate (not a jury).
Drink driving offences are generally highly frowned upon by the courts and society. Harsh penalties are imposed upon persons detected driving under the influence of alcohol or drugs.
The police will immediately suspend your driver’s license at the time of charging, and a court will also disqualify you for an offence of this nature at the time of sentence.
The length of the disqualification increases depending on how high the alcohol reading is. The disqualification period can be indefinite or designated for a time period from 1 month to five years.
Depending on your traffic history, you may even be liable to a mandatory period of imprisonment if you have previous offences for drink driving.
It is vital you contact us as soon as you are charged so we can advocate for you in and out of the courtroom.
Queensland’s Judicial Review Act 1991 (‘JR Act’) provides the public the right to request the reasons for decisions which adversely affect them, or seek a review of a decision in the Supreme Court. In addition to administrative decisions of government departments and local authorities, the JR Act applies to administrative decisions of quasi-government agencies and statutory authorities.
The JR Act also provides judicial review in relation to failure to make a decision and actions and conduct leading up to the making of the decision. A decision can be an order, award or determination, certificate, direction, approval, consent or permission, licence, condition or restriction, declaration, requirement, demand or a refusal to hand over an article.
Some of the grounds for judicial review are:
- the decision-maker breached the rules of natural justice;
- the decision-maker did not observe correct legal procedure;
- the decision-maker did not have authority to make the decision;
- the decision was not authorised by the legislation it was purported to be made under;
- the decision involved an improper use of power;
- the decision involved an error of law;
- the decision is or may be tainted by fraud;
- there was no evidence or other material supporting the decision; or
- the decision was in some other way unlawful.
We have a successful history in the area of challenging government decisions under the JR Act.
Malicious prosecution is a tort or a civil wrong that enables you, the subject of groundless and unjustified court proceedings, to seek a civil claim for damages against the relevant prosecutor. Examples of malicious criminal prosecution can include law enforcement pursuing baseless charges, such as charging someone with a crime to cover up wrongdoing by law enforcement or trying to ruin an individual’s reputation by bringing groundless criminal charges against them.
Malicious prosecution claims can often be challenging to prove. To be successful, four elements must be proven:
- criminal proceedings were brought against you;
- the proceedings were terminated in your favour;
- the prosecutor brought the proceedings maliciously; and
- the proceedings were brought without reasonable and probable cause.
Compensation in the form of monetary damages is the usual remedy for successful malicious prosecution claims. We are experienced in this area of law and can provide expert advice and representation in complex malicious prosecution claims.
Offences against animals are taken very seriously by the courts and the community at large. Animal cruelty can take many different forms. It includes overt and intentional acts of violence towards animals, but it also includes animal neglect or the failure to provide for the welfare of an animal under your control. In addition to this, it is important to remember animal cruelty is not restricted to cases involving physical harm. Causing animals psychological harm in the form of distress, torment, or terror may also constitute animal cruelty.
The court has the power to order restitution for the cost of euthanasia or treatment of the victim animal against you.
The court also can make prohibition orders against to stop you from owning any pet, stop you from owning specific types of pets, or limit the number of pets you own.
Cruelty to animal charges carries maximum penalties of up to 7 years imprisonment.
Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner. The Fair Work Commission (‘the Commission’) decides cases of unfair dismissal. Employees need to apply to the Commission within 21 days of the dismissal taking effect. The 21-day period starts the day after the dismissal.
What is a ‘dismissal’?
‘Dismissal’ means the employer telling the employee they no longer have a job. In some cases, if the employer’s behaviour forces an employee to resign, that might also be a dismissal.
Examples of ‘harsh’ dismissal
- the dismissal is an extreme response to the situation; and
- the dismissal has a very big (‘disproportionate’) impact on the employee’s economic and personal situation.
Example of ‘unjust’ dismissal
- the employee is not guilty of the action or behaviour the employer used as the reason to dismiss them.
Example of ‘unreasonable’ dismissal
- the evidence does not support the decision to dismiss the employee.
What makes a dismissal ‘unfair’
A dismissal is not always unfair. In some situations, it is fair to end an employee’s employment.
When an employer dismisses an employee, the law says that they:
- should not dismiss an employee if it is harsh, unjust or unreasonable;
- should not make an employee redundant if it is not a genuine redundancy; and
- should follow the Small Business Fair Dismissal Code (if they are a small business).
What is not a dismissal?
When an employee chooses to resign, this is not dismissal. A decision not to offer a new contract when an old contract ends, the employee has completed the specific task they were employed to complete, or the employee was employed only for seasonal work, which has ended, is also not dismissal.
A workplace investigation is supposed to be a procedurally fair process to determine whether allegations against another person in the workplace are substantiated or not.
A question often asked in workplace investigation matters is, ‘does an employee have to answer questions of an investigator?’. To answer this question, the relevant legislation governing the employment and/or employment contract must be examined. Often public sector legislation will require an employee to answer questions of a workplace investigator, and failure to do so can result in distinctly different disciplinary action. The private sector often does not have such a requirement. It is important to remember that an interview is your chance to tell your side of the story. If an investigator asks you a question, it is because the investigator believes the answer might be important to the investigation.
Workplace investigations should be conducted in a timely way to ensure the least disruption to the workplace. Timely investigations are essential in consideration of the welfare of both the employee subject to the investigation and the complainant. Failure to conduct an investigation in a timely fashion has resulted in successful civil negligence cases, and WorkCover claims being accepted for unreasonable management action.
Workplace Investigators must conduct themselves in an objective and impartial manner at all times. Otherwise, they risk being asked to recuse themselves.
An industrial dispute is a disagreement regarding an industrial matter between an employer and:
- an employee; or
- a group of employees; or
- an industrial organisation (union) on behalf of an employee/employees.
One or more of the parties to the dispute may notify the Queensland Industrial Relations Commission (QIRC) of the question in issue. The Commission will then hold a conciliation conference with the parties in an attempt to reach a resolution. If the dispute cannot be resolved it may be referred to arbitration, where the matter is heard and considered before a decision is made by a Member of the Commission.
The jurisdiction of the QIRC includes wage recovery, industrial disputes involving state and local government employees, unfair dismissals and reinstatement applications for state and local government employees.
Fair Work Commission
Anti-bullying laws protect most workers from bullying at work. Eligible persons may apply to the Fair Work Commission to stop bullying at work.
Who is eligible?
The national anti-bullying laws only apply to certain workers. To ask the Commission to stop workplace bullying, you must be:
- a worker; AND
- working in a ‘constitutionally covered business’; AND
- still working in (or connected to) the workplace where the alleged bullying happened; AND
- experiencing (or at risk of experiencing further) behaviour that creates a risk to your health and safety.
Both who is a ‘worker’ and whether your workplace is a ‘constitutionally covered business’ are set out by the Fair Work Commission.
Who is not eligible?
You cannot apply if you no longer work for the employer where you believe the bullying was taking place. You will also not be covered by national anti-bullying laws if you work for one of a number of businesses and sectors of Government to which the laws do not apply. Members of the Defence force are also not covered by these laws.
If the national anti-bullying laws do not cover you, state or territory laws may still protect you. Queensland’s anti-bullying measures through the QIRC will apply to all workers not currently able to access the federal anti-bullying jurisdiction under the Fair Work Act 2009 (Cth).
What is considered ‘bullying’?
Bullying is considered to occur when you or a group of people repeatedly act unreasonably towards another person, or a group of workers of which the person is a member, and the behaviour creates a risk to their health and safety. It does not include reasonable management action.
What is reasonable management action?
Reasonable management action can include among other things, making decisions about an employee’s poor performance, taking disciplinary action and directions about the way work is carried out. Reasonable management action carried out in a reasonable way is not bullying.
Management action not carried out in a reasonable way may constitute bullying.
Blue Cards are mandatory requirements in a number of industries in Queensland. Private businesses can also, where reasonable, require employees to hold a Blue Card. We can assist in proceedings where a Blue Card application has been rejected, you have been requested to show cause as to why a Blue Card should not be cancelled or your Blue Card has been cancelled.
To own or possess a weapon in Queensland you must have a license issued by the Queensland Police Service. We are able to assist in proceedings where a license application has been rejected, you have been requested to show cause as to why a license should not be revoked, your license has been revoked or your license has been cancelled.
What is a reprisal?
A reprisal is when someone causes detriment to another person because they believe the other person (or someone else):
- has made, or intends to make, a public interest disclosure; or
- has been involved, or intends to be involved, in a proceeding under the Public Interest Disclosure Act 2010.
It includes attempting to cause a detriment, trying to induce another person to cause a detriment, or conspiring to cause a detriment. For reprisal, a detriment includes:
- personal injury or prejudice to safety;
- property damage or loss;
- intimidation or harassment;
- adverse discrimination, disadvantage or adverse treatment about career, profession, employment, trade or business;
- financial loss; and
- damage to reputation, including, for example, personal, professional or business reputation.
For example, a clerical worker in a regional council office became aware that a senior manager in the civil works section is directing council materials and equipment to be delivered to his private residence for use in a new driveway. When the worker makes a public interest disclosure the senior manager makes a threatening phone call saying he will finish the worker’s career and that they’ll be sorry they ever took him on.
Complaints about reprisals for public interest disclosures can be made to the Human Rights Commission. Reprisal is also a criminal offence and can be reported to the police
If a complaint about a reprisal is accepted by a Human Rights Commission, the complainant cannot then start proceedings in a court.
If the person subjected to the reprisal has started proceedings in a court, they cannot make a complaint to a Human Rights Commission about the same reprisal.
What is a public interest disclosure?
A public interest disclosure – also sometimes referred to as “whistle-blowing” – is a report of wrongdoing in the public sector that is in the public interest.
Any person can make a public interest disclosure about:
- danger to the health or safety of someone with a disability;
- a danger to the environment caused by the commission of an offence or contravention of a condition in certain environment legislation; and
- reprisal after making a public interest disclosure.
A public sector officer may also make a public interest disclosure about:
- corrupt conduct;
- maladministration that adversely affects your interests in a substantial and specific way;
- a substantial misuse of public resources;
- a substantial and specific danger to public health or safety; and
- a substantial and specific danger to the environment.
The Queensland Ombudsman is the oversight agency for public interest disclosures.
We are highly experienced in the area of reprisal law.
Human rights violations are brought as complaints to either the Queensland or Australian Human Rights Commission. The person alleged to have breached the complainant’s human rights is requested or directed, depending on the jurisdiction, to attend a conciliation conference. If an agreement regarding the resolution of the complaint cannot be reached during the conciliation conference, the complainant has a period of time during which they can refer the matter to a different jurisdiction to be determined by the judiciary at hearing.
Complaints of discrimination can be made to either the Queensland or Australian Human Rights Commission. The person alleged to have acted in a discriminatory manner is requested or directed, depending on the jurisdiction, to attend a conciliation conference. If an agreement regarding the resolution of the complaint cannot be reached during the conciliation conference, the complainant has a period of time during which they can refer the matter to a different jurisdiction to be determined by the judiciary at hearing.
A parole date can be provided by a court during a criminal sentence as either a parole eligibility date or a parole release date. A parole release date requires you to be released on parole on the exact date provided by the court. A parole eligibility date means that you must apply to the Queensland Parole Board who assess your application to be released on parole and make a determination. We can assist with a parole application, remedying unnecessary delay in the Parole Board making a determination or in appealing a final determination by the Parole Board.
The Queensland Information Privacy Act 2009 provides a right for individuals to have their personal information collected and handled in accordance with certain rules or ‘information privacy principles’ (IPP). The IPPs only apply to Queensland Government agencies.
There are 11 IPP’s contained in the Information Privacy Act. The level of storage and security will depend upon the nature of the personal information in the document and the risk of a security breach occurring. Agencies must also ensure that if it is necessary to disclose a document to a third party, all reasonable steps are taken to prevent unauthorised use or disclosure by that third party.
If you believe a government agency has breached one or more of the IPPs the privacy complaint process in Queensland consists of three tiers:
- Tier one – An individual first makes their privacy complaint to the government agency involved and allows them a minimum of 45 business days to respond and/or to resolve the subject matter to their satisfaction;
- Tier two – An individual who, at the end of the time period, is not satisfied with the agency’s response can bring their privacy complaint to the Office of the Information Commissioner (OIC); and
- Tier three – An individual may seek referral of their privacy complaint to the Queensland Civil and Administrative Tribunal (QCAT) if OIC considers that resolution of the complaint is not reasonably likely to be achieved through mediation.
Where a privacy complaint is referred to QCAT, it may make an order that the complaint (or part) has been substantiated, and if as appropriate, QCAT may also make orders to remedy the damage suffered by the complainant as a consequence of the breach.
These orders include the capacity for an award up to a maximum of $100,000 to compensate an individual for loss or damage suffered by reason from the privacy breach – including injury to the complainant’s feelings or for humiliation suffered by the complainant.
Expert legal advice backed by years of experience.
Serious Assault and Wilful Damage
“I could not be happier with the outcome Calvin and his team achieved for my son and myself. As two people who had never been in trouble with the law before, we were shocked when we were both charged with serious assault and wilful damage.
Calvin understood the faults in the prosecution case immediately and through rigorous advocacy and legal strategy, he got the charges withdrawn and costs were awarded in our favour against prosecutions. I highly recommend Gnech and Associates.”