Jodie Mason

Most of us value the reputation that we have built throughout our personal lives and career; it influences the way our peers and the larger community view us and is an important part of the legacy that we leave behind. The purpose of this article is to give an overview of the mechanisms of the defamation laws and the options available to both aggrieved persons and those defending their publications.

Defamation laws provide a framework for people, and in limited circumstances, corporations, to recover damages for unlawful publications that prove to be damaging to their reputation.

In 2006, uniform defamation laws came into effect throughout most of Australia. In Queensland, the
governing legislation is the Defamation Act 2005 (Qld) (“the Act”), which applies to defamatory matter published after 1 January 2006. Early publications will be considered pursuant to the Defamation Act 1899 (Qld).

For a defamation action to be successful, the defamation must: -
1. Be published. This can be oral, in writing or pictorial, and must made available to a person other
than the aggrieved.
2. Identify the defamed. The material must reasonably refer to the aggrieved;
3. Contain defamatory matter.

The Court will ask the following two questions: -
a. Was the material was capable of conveying the defamatory meaning alleged by the aggrieved to an ordinary person?
b. Would an ordinary person have taken the publication as conveying the meaning alleged?

Material can be defamatory in the natural and ordinary meaning of the words (they are taken as they
are read), as a false innuendo (a secondary meaning can be elicited by reading between the lines) and a true innuendo (where the natural meaning of the words can be understood by taking into consideration other information not published).
Defamation actions are subject to stringent time limitations and must be brought within one year from the date of the publication of the alleged defamatory material. The court has the discretion to extend this time frame to three years if it is satisfied that an action could not have reasonably been initiated in one year.

Some of the defences available to a defendant include: -

1. Justification. It is a defence if it can be proved that the defamatory matter is substantially true.
2. Contextual Truth. If the publisher can show that the defamatory matter contains imputations that are substantially true, and as a result of the true imputations, the aggrieved’s reputation would not be further harmed by the defamatory imputations, the publisher will have a valid defence.
3. Absolute Privilege and Publication of Court Documents. This defence applies to matter published in the course of parliament, court and tribunal hearings.
4. Honest Opinion. It is a defence to a defamation claim that the material was an honest option (as opposed to a statement of fact), the opinion was a matter of public interest and was based on proper material.
5. Triviality. Where material is trivial in nature and the aggrieved was unlikely to suffer harm.
The Act facilitates an early dispute resolution process by introducing Offers To Make Amends and
Apologies. A defendant may make an offer to make amends by way of attempting to settle the legal
proceedings. The offer must be made within 28 days of receiving a notice from the aggrieved stating the details of the alleged defamation. The defendant must offer to make a written apology, a published correction, monetary compensation for the reasonable expenses incurred by the aggrieved person and possibly compensation by way of damages.

If an offer is accepted, the matter will come to an end and the aggrieved person will be barred from making any further claims in relation to the defamatory material.

If an offer is rejected, the defendant may rely on the offer to demonstrate to a court that they made the offer as soon as practicable and they were ready, willing and able to carry out the terms of the offer.

An apology can be used by a Defendant to lessen the damages and mitigate their losses in a defamation action. Evidence of the apology is not admissible as evidence of fault.
If a defamation action is successful, the damages that can be awarded vary greatly depending on the nature of the defamation and the effect on the aggrieved person’s reputation.

This is highlighted in the below summary of defamation judgements: -

• An eye surgeon had his medical reputation defamed in the Daily Telegraph, damages of $250,000.00 were awarded.
• A barrister, who had already been struck off the bar and bankrupted by the Legal Services Commission,
successfully sued a newspaper who commented that he gave shoddy legal advice. Damages of 100,000.00 were awarded.
• A mine employee was sued by his colleague whom he accused of stealing mine equipment. The
defamed was awarded $50,000.00 in damages.
• A plastic surgeon was awarded $267,919.00 for being defamed in a Nine News piece concerning
a Gold Coast Metre Maid’s botched breast implant procedure..
• A teacher sued a parent of a student for sending an email to other parents implying that the
teacher was dishonest,incompetent and untrustworthy. Damages of $80,000.00 were awarded.
• An olympic cyclist accused of being a drug cheat by a radio station was awarded $350,000.00 in damages.

Sarah Dennis

The Crime and Misconduct Commission is an independent law enforcement commission set up to combat major crime in Queensland, including among other things, official misconduct in the Queensland public sector.
It does this by receiving and handling complaints and investigating public sector misconduct and corruption, and helping public sector agencies to deal with and prevent misconduct themselves. The CMC is independent of the Government. Under the Crime and Misconduct Act 2001 the Chairperson of the CMC must be a legal practitioner who has served as, or is qualified for appointment as, a judge of the Supreme Court of any state, the High Court or the Federal Court.

What is official misconduct?
Official misconduct refers to any conduct by a public official, related to the official’s duties, that is dishonest or lacks impartiality, involves a breach of trust, or is a misuse of officially obtained information. The conduct must amount to a criminal offence or be serious enough to justify dismissal.

What is the CMC’s jurisdiction?
In relation to investigations of official misconduct, the CMC’s jurisdiction covers all state government departments, the Queensland Police Service, local governments, most public sector agencies and statutory bodies, universities, courts, prisons and elected officials of state and local government. Under the Crime and Misconduct Act, ‘misconduct’ refers to official misconduct (which applies to all public sector officials, including police) and police misconduct (which relates only to police officers).
Official misconduct investigations are decided by an Assessment Unit within the CMC. These matters can come to our attention through our own intelligence work, through referrals by CEOs and police, or through any member of the public.

What are the CMC’s powers?
Under the Crime and Misconduct Act 2001 the CMC has the power, where appropriate, to:
• conduct hearings
• require anyone to give it information relevant to a CMC investigation
• compel the production of records and things relevant to an investigation
• enter and search premises
• seize evidence
• use surveillance devices (though not telephone interception devices).

The CMC also has powers under the Police Powers and Responsibilities Act 2000, the Witness Protection Act 2000 and the Criminal Proceeds Confiscation Act 2002.

How should you make a complaint?
The CMC allows any member of the public to make a complaint to the CMC or to give them information, provided it relates to official misconduct in the Queensland public sector or police misconduct. However, even if the matter is within the CMC’s jurisdiction, it may be better to report your complaint directly to the agency concerned.

CEOs of public sector agencies are obliged to report allegations of suspected official misconduct to the CMC.
If you are the employee of a public sector, then you can report instances of suspected official misconduct to their CEO.
Complaints can be made in writing, over the phone, email, through the CMC website or in person.
For further information, please see: http://www.cmc.qld.gov.au

John Formosa

Macrossan & Amiet celebrates and congratulates Partner and well respected local solicitor, colleague and friend, John Formosa, on reaching 25 years as a legal practitioner.
In 1979 John joined Macrossan & Amiet to begin his articled clerkship under the guidance and supervision of KJ Carroll. After five years fulltime work experience whilst completing his studies externally through Queensland Institute of Technology (now known as Queensland University of Technology) to obtain his law degree, on the 25 February 1985 John was admitted as a solicitor.

During his five years articled clerkship John would make the trip every Tuesday and Thursday to Proserpine with his supervisor, KJ (John) Carroll, to service the firm’s rapidly expanding Proserpine office.
Despite the fact that in those days the office was upstairs at the Metropole Hotel, John admits that this process of ‘sitting in’ was where he learnt the key skills to be a successful solicitor: – listen to what the client wants to achieve, communicate how this can or can’t be done and then do it!

John became a Partner at the firm on the 1st July 1989 and since then has specialised primarily in Commercial and Residential Conveyancing, Wills and Estates, Commercial Leases, Town Planning, Environment and Local Government; as well as sugar cane farms, grazing properties and other rural sales. With a love of outdoor activities including boating, fishing and woodturning John has been able to transfer his recreational interests into his professional life by being actively involved over the years in environmental organisations such as the local Fishing Association, Pioneer Valley Water Board, Newry Island Volunteers and the Great Barrier Reef Marine Park Authority -just to name a few.

John continues to serve the surrounding communities by travelling to the firm’s Proserpine office every Tuesday. Managing Partner Mr. Gene Paterson says this is an outstanding achievement that the firm is very proud to be a part of.
“John is to be congratulated on his achievements, both personally and professionally over the last 25 years and more. His commitment to study, hard work and dedication to the firm, his career, his clients and the community he serves is remarkable – we congratulate him on his great successes,” Mr Paterson said.

Chris Roberts

As one of the newest recruits to the Macrossan & Amiet team, I wish to extend a warm greeting and provide a brief overview about myself.
Having recently been admitted as a legal practitioner, I am now working as a solicitor in the Mackay office and will join the ever-expanding Cannonvale office later this year.
In obtaining my legal qualifications, I completed a Bachelor of Laws at
the University of Queensland and went on to complete a Graduate Diploma in Legal Practice at the Australian National University in 2008. However, I was born and bred in Mackay, with strong family connections to the area and having completed my senior schooling at St Patrick’s College in 2001.Since returning to Mackay late last year, I have come full circle to kickoff a professional career in my hometown. I’m excited to begin this new chapter in life and look forward to making a positive contribution to my community. In line with Macrossan & Amiet’s practice, I will provide comprehensive legal advice across all areas of law.

I also plan to help solidify the firm’s solid reputation and experience in residential and business conveyancing.
Prior to commencing employment at Macrossan & Amiet, I had the pleasure of living in England, Spain, Hong Kong and Cambodia. For part of this time abroad I worked at the Cambodian Children’s Painting Project, assisting in youth development. During my time in Hong Kong I studied part of my law degree, whilst negotiating the hustle and bustle of an exciting city. I also enrolled at a language school in Barcelona where I made a solid attempt at learning the Spanish language, one of my life long ambitions.

In following my life ambitions, I look forward to developing my legal career with a firm that prides itself on professionalism and assisting its clients and community in helpful ways. I’m excited to be taking on this responsibility with Macrossan & Amiet and look forward to meeting with you.

Georgina Paterson

What is a de facto relationship?

In the relevant legislation the term “de facto partner” is a reference to 1 or 2 persons who are living together as a couple of a genuine domestic basis, but who are not married to each other or related by family.
In determining whether two people are living as a couple on a ‘genuine domestic basis’ regard will be had to:-

• The nature and extent of their common residence (it is important to note here that two persons are not regarded as living together only because they share a common residence);
• The length of their relationship;
• Whether or not a sexual relationship exists or existed;
• The degree of financial dependence or interdependence, and any arrangement for financial support;
• Their ownership, use and acquisition of property;
• The degree of mutual commitment to a shared life, including the care and support of each other
• The care and support of children
• The performance of household tasks
• The reputation and public aspects of their relationship The definition provided by the legislation enables the existence of a de facto relationship to exist between 2 people of the opposite sex, or between 2 people of the same sex.
Issues surrounding de facto relationships often arise in two areas of law: -

1. Family Law – where there is acceptance of an existing de facto relationship – and the parties are attempting to split their assets; and
2. Wills & Estate – where there is a dispute surrounding the actual existence of a de facto relationship at the date of death of one of the parties to the de facto relationship.

1. PROPERTY DIVISION WHEN THE DE FACTO RELATIONSHIP BREAKS DOWN
Commonwealth Laws
Since the 1st March 2009, new Commonwealth laws for the division of property for people in de facto relationships that break down were introduced.

What do the laws do?
These laws provide for de facto couples, when they separate, to obtain property settlements on the
principles that apply under the Family Law Act 1975 to married couples.
The laws enable the Family Law Courts to order a division of any property that the couple own,
either separately or together with each other. Superannuation that each partner has can also be split
(married couples have been able to split superannuation since 2002).
Spouse maintenance can also be ordered (not previously possible in Queensland).

2. FAMILY PROVISION APPLICATION & THE DE FACTO PARTNER
The most common type of “challenge” to a Will is a ‘Family Provision application’ (also called a
Testator’s Family Maintenance application).
Family Provision applications are made under the Succession Act which sets out the relevant principles that a Court will take into account when deciding whether or not a deceased person’s spouse,child or dependent, has or has not been provided with proper maintenance and support from the deceased person’s estate. ‘Spouse’ is defined to include de facto spouses.

What are the tests to be applied?
This is a two-fold test, which requires the Court to consider: -
(i) Was the person (that is, the person bringing the application)
the de facto partner of the deceased (using the dot points mentioned above); and If, the person and the deceased were living together as a couple: -
(ii)Was this for a continuous period of at least 2 years ending on the deceased person’s death?

Did a de facto relationship exist at the date of death?
Although parties may acknowledge that a de facto relationship has existed (at some point) between 2
people – a consideration of whether that relationship persisted to the date of death is sometimes a
question where the parties have very differing views.

In a 1989 case, the Court commented on the features of a de facto relationship as follows:
“There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all the things for which it was created has ceased….But where one party determines not to “live together” with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the other party or the other to decide whether it should continue.”

Applying the above passage, Justice Duntey, in S v B [2004] QCA 449 at [48] states that:
“…A de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate this intention to the other party providing the party that is desirous of ending the relationship acts on his or her decision…”
Therefore, please keep in mind that a break down of a de facto relationship is evidenced when: -
• The parties cease to jointly wish to reside together on a genuine domestic basis;
• One party (first party) does not communicate this intention to separate from the other party (second party);
• The second party does not agree to the first party ending the relationship;
• The de facto relationship ceases even though one party is trying to save it.

Steven Hayles

The Queensland Government has recently passed new legislation, the Civil Liability and Other Legislation Amendment Act 2010 which amendsthe law relating to claims for personal injury in Queensland.
For those persons who suffer injuries after 1 July 2010, a new increased schedule of monetary amounts for general damages will apply under then Civil Liability Regulation 2003. The new schedule will be subject to annual indexation to ensure that injured Queenslanders will receive a measure of compensation that is in keeping with changes to Queensland’s standard of living over time.

This legislation represents a long over due change as the monetary amounts provided for in the current schedule have not been indexed since their introduction in 2003.
The legislation also provides for those who suffer injuries after 1 July 2010 to claim for the loss of their capacity to provide gratuitous domestic services to other members of their household.

Gratuitous services are services provided free of charge to another person to assist that person in coping with their injuries or incapacity. Claims will be open to injured persons where: -
(a) The injured person’s general damages exceed $35,340.00; and
(b)The recipient of the gratuitous services was incapable of performing the services personally because of their age or physical or mental incapacity; and
(c) But for the person’s injury, the injured person would have provided the services for at least 6 hours per week for 6 months.

At present the courts are unable to make awards for the loss of gratuitous services provided to another.
The legislation also abolishes the statutory limitation period for personal injuries resulting from dust related conditions such as asbestosis and mesothelioma. While the dangers posed by exposure to asbestos particles and other similar materials may be more well known today, many sufferers of dust related conditions were exposed to danger many years ago when, few if any, adequate measures were taken to protect workers and members of the general public from this danger. The removal of the statutory limitation period for dust-related conditions means that a person suffering from these conditions will no longer be required to apply to the courts for leave to extend limitations periods.

Kylie Davis

Quite regularly I am asked by clients how the local newspapers are permitted to print the names and particulars of offences of those people who come before the local Court.

The answer is that during “Open Court” proceedings, such as your usual Monday morning weekly call over, Mr Joe Public (including Mr Journalist) is permitted to sit in Court and listen to proceedings as they occur.
The local newspapers have long considered it their duty to report these Open Court proceedings in the newspapers, considering it to be a ‘public service’ and to inform the public of the goings-on in their local area. Many clients have tried on a number of occasions to request the newspapers to leave their name out, however the newspapers refuse to do so.

The newspapers consider that what happens in Open Court is newsworthy and should be published, both as a tool to educate the public and to deter the public from committing an offence, in the knowledge that the offender will be ‘named and shamed’.
There are certain proceedings that cannot be made public, and these are offences which are heard in “Closed Court” such as matters involving Children or Domestic Violence.
If you do happen to appear in the “Shame List” in the local newspaper and there are incorrect details printed, you are entitled to an apology and a correction.
Until Next Month
Kylie

Robert Krahe

Setting the Scene

Can a student receiving Youth Allowance claim their costs of study, also referred to as self-education expenses against their assessable income? When you consider that the person in receipt of Youth Allowance is assessed and may pay tax on that income, it would seem arguable, in fairness that they should be permitted to deduct self-education expenses incurred against that tax liability.

The long held opinion of the Australian Taxation Office
The Taxation Office of Australia (ATO) has a long held view that self-education expenses incurred through the receipt of Youth Allowance are not deductible under the relevant taxation legislation. It must be born in mind that whilst the ATO may form an opinion on how the law can be interpreted and how the ATO might intend to apply that interpretation, the opinion formed by the ATO is not a statement on what the law is, that is the role of the Courts.

The reason given by the ATO for not allowing self-education expenditure by students receiving Youth Allowance is that they see the expenditure as incurred in connection with the students future employment and therefore too soon in time to be regarded as having been incurred in deriving assessable income. This is to be distinguished from a student who is currently employed and engaged in study.
In order for a self-education expense to be deductible what must be shown is that there exists a link between the students study and employment, which has a relevant connection to the taxpayer’s current income-earning activities. For example, a person who works as a maths teacher would be able to deduct the self-education expenses of undertaking study in advanced mathematics because it will enhance that persons ability to earn greater income in their employment as a maths teacher. What is looked for is whether the self-education expense has enabled a taxpayer to improve or maintain professional skill or knowledge or would lead, or be likely to lead to the taxpayer receiving higher income.

Australian Taxation Office opinion rejected by Federal Court
That the ATO interpretation of the law is not always correct was vividly demonstrated in the recent decision handed down by The Full Federal Court of Australia. In which the stance taken on the deductibility of self-education expenses, long held by the ATO, was put aside in the wake of Federal Commissioner of Taxation v Anstis [2009] FCAFC 154. The facts of the case involved a student who was in receipt of Youth Allowance while undertaking a teaching degree. At the end of the 2005/06-tax year the student furnished her tax return in which she declared income from employment unrelated to her study, as well as Youth Allowance. No income was declared in relation to employment as a teacher.

The student argued that the expenses she incurred, being textbooks, pens, paper, laptop depreciation etc was necessary in order to complete her course of study and continue to receive her assessable income, that being Youth Allowance. In order to do this the student’s argument was that the character of the expenditure should be seen as necessary in order to meet her study requirements and satisfy the ongoing eligibility criteria applicable to Youth Allowance under the Social Security Act, namely continued enrollment in an approved course of study. The Commissioner sought to counter the student’s argument by contending that the expenditure was not connected with the receipt of Youth Allowance. In his submission to the Court the Commissioner contended that as the student had begun her course of study with the view of becoming a teacher, that the expenditure was incurred with the view of gaining future employment rather than the retention of Youth Allowance.

What questions the Court asked
The Full Federal Court of Australia,in considering these two competing arguments, looked to long-standing authority from the High Court of Australia as to whether the issue was one of looking to what the purpose of the expenditure was or whether the issue was whether the expenditure was incurred in gaining that income. The High Court in a decision referred to as Ronpibon Tin NL v Federal Commissioner of Taxation stated that an expense, in order to be deductable, requires the outgoing to be ‘incurred in the course of’ gaining or producing the taxpayers assessable income’.

The key question then being did the student incur the expenditure in the course of gaining or producing
her assessable income?
The Court found the student’s income was due to her receipt of Youth Allowance and having preserved that qualification throughout the relevant period by satisfying the requirement of undertaking and progressing through her teaching degree. The Court reasoned that even though it may be true to say that the student did undertake her course of study for the purpose of obtaining a teaching degree and obtaining employment in the future; the correct interpretation of the taxation legislation was whether the expense was incurred in the course of deriving assessable income, not whether the outgoing was incurred for the purpose of deriving assessable income.’

To put that another way, the Court was only concerned with whether the student spent her money purchasing text books for study and because of that was able to progress through her teaching degree and therefore receive income in remaining eligible for Youth Allowance; the expenditure then being incurred in the course of her study. The question is not whether she expended those monies for the purpose of receiving income from Youth Allowance or whether she spent the money for the purpose of in the future earning income through employment as a teacher. The student did not need to show that she enrolled in a teaching degree in order to qualify for Youth Allowance.

What this means to you
Although the Full Federal Court confirmed that students could deduct self-education expenses incurred in retaining Youth Allowance, this position it seems, has not yet been fully accepted by the ATO. The ATO has sought leave to appeal to the High Court of Australia and announced that until the appeal is heard it will continue to apply it’s long held view that you cannot claim a deduction for self-education expenses. Those receiving Youth Allowance and considering claiming deductions for study expenses may in the meantime want to consider seeking advise from a qualified taxation adviser. At the very least the Federal Court has left the door open, for the time being, for students to claim their self-education expenses.

Andrea Green

In a region where development is booming, it is important that the members of the community are aware of their rights to have a say.

You may, for example, see a sign advising that premises are being changed from a hobby shop to a nightclub, or a vacant block to a factory. Well, below is information on how you can effectively and validly have your say…

The development classification Regardless of the scale or type of
change to a premise, it is likely that any change at all will be deemed a “development”.  Planning law is now governed by the newly enacted Sustainable Planning Act 2009 (Qld), which defines development as being “building work” or “material change in use” of a premises, to name a few. In actual fact, building your children a cubby house could classify as a development, so it is important to check with your local authority before you commence any work.
In a general sense, there are five types of “developments”, each having different requirements.

Those are:
1. Self-Assessable Developments – developments that do not require a building permit from the council but must comply with building codes and regulations.

2. Exempt Developments – lawful developments that include mining and forestry activities, demolition, temporary building work, and minor alterations.

3. Impact Assessable Developments – developments that require council’s assessment of the proposal against planning schemes and State planning policies. These require public notification of the development, which allows members of the public an opportunity make submissions for or against the development.

4. Code Assessable Developments – developments that are compared and assessed against building codes by a council assessor where public notification is not required and submissions are not considered.

5. Prohibited Developments -developments that are declared prohibited by a State planning scheme or a State planning regulatory provision.

The council will determine what classification a development falls under. Developments can be partly impact assessable and partly another type of development. In this instance the public can make submissions with respect to only the impact assessable aspect.

Do I have to be notified of the development?
For Impact Assessable Developments (‘IAD’s’), a person or company (‘Applicant’) must bring an application to the relevant council for assessment. These developments are called ‘impact
assessable’ because they are in a class in which their impact to the community must be assessed. The
council will appoint an Assessment Manager to carry out the assessment process. Council
requires IAD’s to be brought to the public attention so that public concerns may be raised and
considered. Applicants must give notice of their application by advertising it in all of the following ways:

• At least once in a newspaper circulating generally in the locality of the proposed development;
• A notice on the premise; and,
• A notice to the owners of all adjoining land.

Non-compliance with the advertising requirement is not fatal to the Applicant’s application; so long as the Assessment Manager application has been brought to the public attention.
On receiving the application, the Assessment Manager will either make an acknowledgement to the
Applicant that no further information is required, or he/she will make a request for further information.
The advertisement will specify the length of the notification period. It will either be 15 or 30 business
days. This period begins as soon as the Assessment Manager gives acknowledgement to the Applicant, or the Applicant has complied with the information request.

Do I get a say?
The public can make submissions during the notification period.
Although most submissions are made against a development, submissions can also be made in favour of a development. Once a person makes a submission they become a submitter. A submission must be properly made unless the Assessment Manager exercises his/her discretion to accept the submission despite the noncompliance.

However, be warned that a submission not properly made precludes the submitter from appealing the Assessment Managers decision. A properly made submission is:

• a greater chance of success as consideration will be given to the high degree of the support
  for, or concern against the development; and,
• the ability to disburse the costs of the appeal to the Queensland Planning and Environment Court which means getting results cheaper.

On what grounds can I object to a Development?

There are many grounds for objection. These include issues such as:

• Non-ecological sustainability (developments must comply with the relevant ‘Desired Environmental Outcomes’ of the State or the Assessment Manager must refuse the application);
• Impact on amenity (dust, odour, light), urban design (ugliness or bulk) and character of the existing streetscape (size, greenspace, setback from road frontages, height);
• Traffic problems (congestion, unsafe roads or intersections);
• Noise pollution (increase in background noise levels);
• Unsuitability or inappropriateness to the demographics of the area (see the Australian Bureau of Statistics website for information on your suburb’s demographics);
• Irregular or disruptive hours of trade; and,
• Contrary to the reasonable expectations of the community (judged against the State’s
  planning schemes).

What if the development affects the value of my land?
The value of privately owned land is not a relevant town planning concern and is not considered by the Assessment Manager in making the decision. This ground by itself will fail. However, if this remains a concern, it may be raised as a practical consequence to one of the above grounds. For instance, if traffic will be made significantly worse, it may detriment the economic worth of the suburb or street.

For further information, see the Queensland, Department of Infrastructure and Planning website at www.dip.qld.gov.au.

Francesco Maconi

A Power of Attorney is a formal document, by which one person (the principal) gives another person (the attorney) the authority to act on their behalf.

Powers of Attorneys are relevant to all Australians, particularly the elderly who may need assistance in making their personal or financial decisions. Personal/Health & Financial Matters A principal may create a power of attorney document so someone else can decide over the principal’s personal/health matters or over the principal’s financial matters. Personal/Health matters may include decisions about:

• The location and people with whom the principal lives
• Where the principal studies or works
• Whether to apply for a licence or permit for the principal
• Whether to consent to or refuse health care procedures for the principal.

Financial matters may include decisions about:

• Whether to enter into contracts
• Whether to grant or discharge a mortgage
• Whether to invest capital (but only under authorised investments)
• Whether to enter into real estate transactions
• How to manage a principal’s money
• Whether to pay the principal’s debts

Types of Powers of Attorney Powers of Attorney can either be ‘general’ or they can be ‘enduring’.
A ‘general’ Power of Attorney may be given for a limited period of time or for a specific purpose. These powers cease if the principal loses capacity to make his or her own decisions.

An ‘enduring Power of Attorney is different. It continues even after a principal loses capacity to make his or her own decisions.

What is the Law in Queensland?
In Queensland the law that protects people giving power of attorney documents and sets forth the
obligations for attorneys is the Power of Attorney Act 1998 (Qld).
This Act limits the potential for abuse by placing high levels of responsibility on attorneys. Section
66, for example, says that attorneys must exercise their powers honestly and with reasonable diligence.
Failure to do so is an offence and attorneys could have to pay compensation.

Section 88 says that an attorney can only give gifts to a relative or close friend of the principal. This
also limits the potential for abuse, because the attorney cannot make an unauthorised gift to a stranger.The value of the gift must also be reasonable.

Can the appointed Attorney be compensated?
It is important to remember that there is no obligation to pay an attorney for the work performed. In
other words, a Power of Attorney document will be effective regardless of whether the principal
pays the attorney.

At times however an attorney may wish to be paid. In these cases it is best to include a written clause in the Power of Attorney, which specifies how much and how often an attorney should be paid.
Another thing to keep in mind is that attorneys can always claim out-of pocket expenses for their work. This is the case regardless of whether the attorney is receiving a wage or payment. In all cases a claim for out-of-pocket expenses must be reasonable.

Appointing an attorney can be a daunting experience. Only a trusted individual, such as a relative or a close friend should be appointed as your attorney. It is important to remember that you can specify which decisions your attorney can make and how these decisions should be made on your behalf. For more information see http://www.justice.qld.gov.