If you want them for your own…… more than they could ever know…… then you should know there has been recent changes in sexual consent Laws in NSW.
NSW Parliament has recently passed consent reforms to assist with the prosecution of sexual offences in NSW Courts in attempt to clarify and make the approach more “common sense”.
So what are the changes?
The new reforms require for there to be consent to sexual activity, a person must now expressly say or do something to communicate consent.
It further puts the onus on the parties to do or say something to find out if the other person consents to sexual activities.
The reforms aim to overcome Defendants of sexual assault charges from being able to suggest they have ‘reasonable grounds’ to believe that the other person had consented to the sexual activity, without taking steps to establish consent. Defendants will now be required to prove they took steps to ascertain that consent was given by the other person.
Under the new law, a person cannot reasonably believe that the other person has consented simply because they did not say “no”.
The legislative reform does not amend the requirement that consent must be free and voluntarily given. Nor does it stop a person from withdrawing their consent at any time.
And just as a brief reminder while we are on the topic of consent, the legal age of consent for sexual activity in NSW is 16 years. A person cannot give consent if they are under that age. A person also cannot give consent if they are asleep, unconscious, drunk or affected by drugs.
If you require legal assistance, contact the Solicitors at Everingham Solomons because Helping You is Our Business.
Knock Knock,
Who’s there?
The Police.
The Police who…..Oh.
Despite the terrible, knock knock joke above, there are times when the Police are legally allowed to enter your home without an invitation. And sometimes they don’t even knock!
The Legislation that gives Police their power of entry is the Law Enforcement (Powers and Responsibilities) Act 2002.
The Legislation allows legal entry to a property in the following circumstances:
1. By invitation.
2. In an emergency.
3. In the event of a breach of the peace.
4. To arrest or detain a person.
5. To exercise a warrant.
By invitation
It is not necessary for more than one occupant to extend an invitation into the house. If one occupant allows entry, and Police suspect that the safety of one occupant is at risk, they are able to stay, despite the lack of invitation from other occupants.
Remember however, if the Police are invited into your home, and they see something illegal, that gives them the power to search the premises. This may lead to further issues for you, so be careful if you extend the invitation.
In an emergency
Police may enter a property if they believe that a person has sustained significant physical injury or there is an immediate risk of significant physical injury. They must only enter if they have reasonable grounds to believe that.
In the event of a breach of the peace
If there is or is likely to be a breach of the peace the Police may enter a Property. They can also enter if it is necessary to end or prevent a breach of the peace.
To arrest or detain a person
Police are allowed to enter a property to carry out an arrest. They can do this with a warrant, or in circumstances where they reasonably believe a person avoiding detainment may be.
To exercise a search or arrest warrant
It should be noted that the Police can carry out a search warrant without you being home, pending the terms of the warrant. This kind of warrant is referred to as a covert warrant, and they must be given the specific covert powers when the warrant is granted.
But unlike those pesky house guests that just won’t leave, the Police are required to only stay as long as is reasonably necessary for them to carry out their specific duties.
Contact Everingham Solomons if you need assistance with the police because Helping You is Our Business.
Recently, the Federal Government announced a permanent Australian-wide firearms amnesty, commencing on 1 July 2021. The amnesty will allow a person to produce illegal or unregistered firearm or firearm related item for registration, sale or destruction without penalty. The process of producing firearms for sale or destruction, can be done anonymously.
Items for surrender can be produced to your Local Police station or to a participating licenced firearms dealer.
Should you wish to surrender a firearm or related item/s for destruction, there is no cost to do so.
There is also the option to surrender your firearm with the view to registering it and adding it to your licence. This can be done at the Police station or at a licenced firearms dealer as well. There are some fees that are associated with this including registration fees and fees for a replacement (once updated) licence. There is no guarantee that the firearm can be registered, but the Police or your firearms dealer can provide further details on the requirements.
You may also be able to enter into a private sale arrangement to sell the firearm to a Licenced Firearms dealer. This will have to be negotiated between the dealer and yourself, but the amnesty makes provisions for this.
The Police and registered dealers will also accept the surrender of any registered firearms that are no longer required or wanted.
Don’t forget to book in for an appointment in advance with the Police or firearms dealer, because if you get caught with the unregistered firearms, fines and penalties will apply!
For help with any firearm offences, contact Everingham Solomons because Helping You is Our Business.
Over the past few years, The NSW Property Law system has been progressively moving towards a system in which land dealings are being lodged electronically. The electronic system is known as eConveyancing.
Recently, the Office of the Register General has announced the date in which NSW will become a 100% electronic system.
This date is being referred to as the Cessation Date.
The Cessation date of 11 October 2021 brings with it a multitude of changes.
One of the bigger changes to the system is the abolition of the Certificate of Title (CT), or more commonly known as the title deed. The Real Property Amendment (Certificates of Title) Act 2021 now dictates that CTs will no longer be issued when completing a property transaction and further still all CTs in existence will be cancelled.
This will mean that a CT will no longer be a legal document.
However, current advice is that you shouldn’t immediately run to the shredder to destroy any CT you have lying around your house, but that you should retain these Certificates for at least six (6) months after the Cessation date.
The NSW Torrens Title Register will remain the sole way of proving Legal ownership of Property in NSW.
In place of a CT being issued, the NSW Land Registry Service will be issuing an Information Notice.
The Information Notice is said to contain details of the Land affected, the dealing registration number, the date of the dealing and other important information.
With these changes, you can expect that your legal representative will now be required to carry out exhaustive identification checks before they will be able to proceed with your transaction.
For all your property transactions contact Everingham Solomons because Helping You is Our Business.
We recently looked at the licensing and permit requirements to obtain a firearm. Following on from that, we now take a look at firearms offences.
We warn you firearms offences carry heavy penalties including substantial imprisonment sentences. As with obtaining a firearm, you must have a genuine reason for possessing one. Genuine reasons include being the owner of a rural property or memberships of shooting clubs.
It is an offence to possess a firearm without a licence or permit. If found to have a firearm without a proper licence or permit, you face a maximum penalty of five (5) years imprisonment.
If you are found with a “Prohibited Firearm” you face a prison sentence of fourteen (14) years. “Prohibited Firearms” can include pump action shotguns and machine guns and many more. You can also be charged for supplying, acquiring, possessing or using a firearm that is unregistered. Unregistered firearms will incur a maximum prison term of five (5) years and supplying, acquiring, possessing or using prohibited firearms has a maximum of fourteen (14) years prison sentence.
You can also face terms of five (5) to fourteen (14) years in prison if you contravene a Prohibition Order. Prohibition Orders are made if you are deemed an unfit person to possess a firearm.
There are also offences for a failure to ensure safekeeping of firearms. These offences range from failure to keep firearms away from a person who is not authorised to use them and failing to store firearms correctly and securely. Penalties range from $2,200.00 up to two (2) years imprisonment for this type of offence.
These are just the penalties with respect to holding firearms, the penalties for the misuse of firearms or using firearms in the commission of a crime are much much harsher.
Firearm offences can be quite complex. If you require legal advice with respect to a firearm offence, contact Everingham Solomons because Helping You is Our Business.
Most Australians will at some point in their lifetime sign a lease. Whether that be a residential lease for a property to live in, a retail space or for some other commercial endeavour.
Most Landlords will require you to put forth some kind of security deposit/bond in leasing matters.
But what are the requirements for you to do such a thing?
In short security for a Lease is not compulsory. In saying that however, most Landlords will require you to pay one. This gives them some security and goes some way to ensuring that they are not left out of pocket if you damage the property or fail to pay rent.
If you refuse to provide some kind of security, then it is likely that a Landlord simply will not lease the property to you and find a tenant that will.
So what happens to a Security deposit/ bond after you pay it to the Landlord?
Well that depends on what kind of Lease it is that you are signing, so let’s go through them.
Residential
If you are paying a cash security then Landlords are legally required to give you the option of lodging that security with the Rental Bond Board. The Rental Bond Board is a NSW Government run facility which is managed by Fair Trading. It allows both Tenants and Landlords to make a claim for the security in certain circumstances. It also protects the Tenants security by not allowing Landlord to make a claim for the security without cause.
If the Landlord is managing the property without an Agent, then they have ten (10) working days to lodge the security with the Rental Bond Board.
If the Landlord has engaged an Agent to manage the property then the Agent has ten (10) working days after the end of the month to lodge the security with the Rental Bond Board. We also note that a Landlord cannot require you to pay security of more than four (4) weeks rent.
Retail
A cash security paid with respect to a Retail lease must be lodged with the Retail Bond Board NSW, this is a NSW Government run facility very similar to the Rental Bond Board. The security must be lodged within 20 days from receipt of payment.
Commercial
There is no requirement for a Landlord to lodge the security with a Government agency. Commercial leases usually have a provision that notes that the Security Deposit is to be held by the Landlord.
An alternative to paying a security deposit/bond is a bank guarantee. A bank guarantee is a promise given by a bank or lending facility to pay money to the Landlord if the Landlord makes a claim. They are issued for a certain amount and any claim cannot exceed that amount.
Leasing can be complex, overwhelming and is usually a big legal commitment so if you need assistance with a lease, contact us because Helping You is Our Business.
Guns. And I’m not talking about the ones you see on the beach in Summer.
Gun laws in Australia are heavily regulated, and as such there are plenty of ways to find yourself in trouble, if you do not follow the Laws and Regulations carefully.
There are two main hurdles when looking to obtain a firearm. There are the licensing requirements and then there is the permit you are required to hold, so that you may obtain a firearm.
In order to obtain a firearms licence you must make an application. The first requirement is to show that you have a genuine reason for wanting to obtain a firearm. Genuine reasons include; vermin control, hunting, sports shooting, farming and a requirement for employment.
You will also be required to undertake a safety course and a background check which includes a criminal history check along with an intelligence check.
This process is an application so the authority has the discretion to refuse your application. There are a few reasons you may be denied a licence for example certain criminal activity will prohibit you from obtaining a licence.
In addition to not being granted a licence, the authority can suspend or revoke a licence at any time.
If you have been granted a firearms licence, then you may apply for a Permit to Acquire. This is done each time you wish to acquire a firearm.
You will need a valid reason for wanting to obtain a fire arm and generally it must be directly related to the genuine reason you provided with respect to obtaining your gun licence.
The application must include a declaration as to where the firearm is intended to be kept as well as address the safekeeping requirements as set out by the Legislation.
Further background checks are conducted upon a person submitting a permit application.
Once issued, you will be able to take the permit to a Licensed Firearms Dealer and obtain a firearm.
On top of the above, if the Commissioner is of the opinion that you are not fit to possess a firearm, they can issue a Firearms Prohibited Order which will prohibit you from possessing a firearm.
Recently, the Police have been conducting inspections of firearms locally so if you have found yourself in need of some advice, contact Everingham Solomons because Helping You is Our Business.
Like most people do when they find themselves with a spare 5 minutes, I was scrolling through my social media feed recently and I came across some marketing material for ABC’s upcoming show Fisk. Now I’m in no way part of the Fisk marketing team, but for context, the show will revolve around a Law Firm which practices in Wills and Estates.
The video in question showed some snippets from the show along with asking the cast if they had a Will in real life. Of the six Cast members that were asked, only one confirmed that they had a Will.
The others said things like “it’s kind of a complicated process”, “I probably should” and “I’m too busy living”.
It got me thinking that this is probably the general thinking when it comes to Wills.
So in attempt to dispel the notion that getting a Will prepared is horribly complicated and time consuming, I thought I’d break down the general process.
The first step in this process is sitting down with a Solicitor to give instructions. In this appointment, the Solicitor will ask questions with respect to your assets, liabilities and family members. This is an important part of the process so that we can give you appropriate advice with respect to how your assets will transfer and if there is a possibility of future claims against, and any risks for your estate.
There will also be a discussion about Executor/s and Executrix/Executrices, they are the people who will manage your estate. The Solicitor will discuss with you the role, practicalities and importance of nominating an appropriate person/s.
Its then time to discuss and for you to advise who you want to be the beneficiaries of your Estate. You can nominate specific gifts, break the estate into parts or elect to deal with your Estate as a whole.
If required, the other important thing that you will do is appoint a guardian for any minor children.
You may also wish to include funeral wishes in your Will.
Any other additional items, concerns or questions will also be addressed at this initial appointment.
Once the Solicitor has your instructions, they will prepare the document for you. They will provide you with a draft version for review. Once you are satisfied with the document, then a follow up appointment with the Solicitor is made to execute the document.
At the appointment to sign the document, you will be asked questions about your wishes and intentions. The Solicitor will take you through the document explaining the effect and if the Solicitor is satisfied you understand the document, and you confirm that the document is an accurate representation of your wishes, then you can sign your Will.
Now, if you have extensive assets or complicated affairs such as trusts, Self-managed Super funds and companies then some further enquiries and collaboration with other professionals, such as accountants, may be required. This can mean the process is a bit more complicated.
It is important to remember that Wills are not a one size fits all situation, and it is important to get the right advice with respect to your Estate. It is also important to regularly review your Will as people’s circumstances can change regularly.
If, like most of the cast of Fisk, you are in need of a Will, contact Everingham Solomons because Helping You is Our Business.
If you have bought or sold a property in the last few years, then you may have had a conversation with your Solicitor about postponed rates. If not, you probably haven’t heard of them.
The truth is postponed rates are not generally well understood, but there are consequences if they are not dealt with appropriately during a sale or purchase of property.
So what are postponed rates?
Postponed rates are a charge that Councils can levy over property.
Where you have land that is zoned commercial, industrial, residential flat building or it is permitted under a plan to be further subdivided, this land attracts higher Council rates. If you use the land for residential purposes only, you may apply to have part of these rates postponed, and essentially pay the residential rate for the land. The part you can apply to be postponed, is the difference between the residential rate and the higher commercial/ industrial/ other rate.
If the postponement is granted, Council will defer payment of the difference between the two rates for each year plus interest, and will continue to defer the difference every subsequent year for a period of five (5) years. This amount is what is known as postponed rates.
These rates are on a 5 year cycle, so that when Council levies the new year’s rates and interest, the previous 5th years postponed rates drops off. This means that there is a maximum of five (5) years’ worth of postponed rates which are levied against the property.
For example, Jo owns a block of commercially zoned land. Jo advises Council that the land will only be used for residential purposes and applies to Council to have the difference between the commercial rates and the residential amount postponed. If approved, Council will postpone part of that years rates and will continue to do so for five (5) years, so essentially Jo will pay only the residential amount of rates instead of the commercial amount as the balance has been postponed. Jo will have to pay the deferred rates when he no longer solely uses the property for residential reasons.
Postponed rates are not generally due and payable, unless the land use changes back to commercial, industrial etc.
When a property is sold with postponed rates levied against it, this becomes a bit of an issue. Is the Vendor liable to pay these rates that aren’t due? Should the purchaser have to take on the potential liability for them?
Legislation determines that postponed rates are a charge against the land, much like a mortgage and must be discharged (by making payment to Council). Alternatively, case law suggests that an alternative to payment to Council is that an amount equal to the postponed rates is retained in a Trust account for the benefit of the Purchaser for a period of 5 years. If Council deems that the rates are due and payable in this 5 year period, then the money held in trust is used to make payment to Council. If the postponed rates are not levied in the 5 year period, then the money is returned to the Vendor. Alternatively there may be options to create a special condition in the contract which outlines what is required in the event of postponed rates applying to a property.
It is important that you receive the right advice and address the issue of postponed rates upfront as the consequences could be costly.
At Everingham Solomons we have an Accredited Property Law specialist on hand to deal with complex property matters because Helping You is Our Business.
The Holliday season is something a lot of us look forward to for the whole year as it brings with it some much awaited time off from work.
It also brings with it a number of Public Holidays, and who doesn’t love a public holiday!
So what Public holidays do we have to look forward to over the holiday season?
In NSW Christmas day, 25 December 2020 and Boxing Day are recognised as Public Holidays.
As Boxing Day falls on a Saturday this year, there is an additional Public holiday on 28 December 2020. Bonus!
New Year’s Day is also a public holiday falling on Friday 1 January 2020.
So let’s talk about what happens when a Public holiday falls on a day you would usually be required to work.
If you a full time or part time employee, then your employer is required to pay you your base rate for the day. So if you would usually work five (5) hours on a Tuesday and a public holiday falls on a Tuesday, then you are entitled to get paid for five (5) hours. If your usual hours do not fall on a day that is public holiday, then you are not entitled to be paid.
If your employer requires you to work on a Public holiday or you agree to do so, then you are entitled to take the hours you worked off on another day in substitution for the Public Holiday. Depending on your award, enterprise agreement or other registered agreement, you may be entitled to a higher rate of pay for hours worked on a Public Holiday.
What about the casual employees out there?
There is no obligation for casual employees to work on public holidays. However if you do, then you are usually well compensated. Depending on your industry, public holiday rates can be up to triple your ordinary rate of pay. The rate for public holiday pay is entirely dependent on what award, enterprise agreement or other registered agreement that your employment falls under.
The Staff and Directors at Everingham Solomons wish you all a Wonderful Holiday Period and a Happy New Year and note we will be back in the office on 4 January 2021 because Helping You is Our Business.
If you want them for your own…… more than they could ever know…… then you should know there has been recent changes in sexual consent Laws in NSW.