Thursday, 19th of October, 2017

Community and Environment

Neighbourhood Disputes

Introduction

Neighbourhood disputes arise over a number of issues and in a number of situations. Issues range from arguments about the exact position of boundaries to complaints about noisy children. Situations arise between two owners, or between a landlord and tenant, or between two tenants, and can involve houses and flats. When disputes arise between neighbours in strata title units, they may be resolved under special strata titles law.

There are many types of neighbours and many types of neighbourhood disputes. One thing they all have in common is that a polite but direct conversation about the matter can often remove the problem. If your neighbour is doing something which you think unreasonably interferes with you or your property, talk about it.

  • Talk about it early (before you become angry or emotional);
  • Talk about it directly (so there is no misunderstanding); and
  • Talk about it politely (remember, you have to continue living in proximity).

Boundary Disputes

Boundary Disputes in General

The boundary between neighbouring blocks of land is the central to many neighbourhood disputes and legal relations. There are three general areas of dispute which can take the boundary as the starting point:

  • the position of the boundary;
  • people or things which cross the boundary without permission; and
  • things which exist on one side of the boundary and cause problems on the other side.

Any dispute about the position of the boundary between two blocks of land can usually be solved by having a survey done by a licensed surveyor. A registered surveyor will mark out the boundary on the ground or existing structures according to land title documents.

There are some situations where the survey will not satisfactorily settle the boundary problem but these situations are rare. For example, if a river or stream runs between two adjacent blocks of land, the centre of the stream is often the common boundary. In this case, it is possible for the boundary to change gradually if the stream cuts a new course over time.

A more difficult boundary problem can arise if the owner or occupier of one block occupies a part of the adjoining block for a considerable period of time. In this situation, adverse possession may arise. However, legislation has substantially changed the law in this area, it has never been tested before the court, and it is extremely difficult and technical to establish adverse possession. It is best to seek legal advice if seeking to establish adverse possession.

Legislation and enforcement bodies

Much of the legislative framework is contained within the Environmental Management and Pollution Control Act 1994 (Tas) and the seven Environmental Management and Pollution Control Regulations. These are administered by the Environmental Protection Authority (EPA), an office of the state government. Other acts which impact on the EPA are the Land Use, Planning and Approvals Act 1993 (Tas), and the Litter Act 2007 (Tas).

Remedies are available through the Magistrates Court and the Supreme Court, as well as through the Resource Management and Planning Appeal Tribunal.

Boundary Fences

The law relating to the construction and repair of boundary fences in Tasmania is contained in the Boundary Fences Act 1908 (Tas) (BFA). The BFA has remained substantially unchanged since 1908. The BFA was the subject of a Law Reform Commission of Tasmania Report in 1984 (No 37 of 1984) but, at the time of writing (2013) this report had yet to be acted upon, and is unlikely to be acted upon, considering the lapse of time.

Exemptions from the Act

Unoccupied Crown lands and public reserves are exempted from the application of the BFA (s6). It is not clear whether the phrase "public reserves" refers solely to Crown public reserves, or to all public reserves including those controlled by local authorities. Different local authorities in Tasmania have adopted different policies on accepting liability for sharing the cost of fencing boundaries between private properties and reserves.

The Crown is not liable to make any contribution towards the erection or repair of any fence between Crown lands and adjoining lands (s6). The Forestry Commission is not liable to make any contribution towards the erection or repair of any dividing fence between land owned by the Commission and adjoining owners (s6A). Authorities in charge of roads are not liable to make any contribution towards the erection or repair of fences between roads and the land adjoining roads (s7).

Erection of Fences

Fences between properties must be sufficient or ‘rabbit proof’. In town, boundary fences must have council planning approval only if the fence is to be taller than 2.1 metres high. Sufficient in town means a fence that neighbours have agreed upon. On properties out of town, this means capable of excluding livestock.

It is an offence to plant gorse, briar or bramble on any boundary without the consent of the owner of the adjoining land (s20).

Repair of Fences

Where a fence is out of repair or becomes insufficient, the owners of land on either side are liable for the cost of repairing the fence in equal proportions (s22). Similar provisions apply in relation to the state of rabbit-proof fences.

Accidental or Wilful Damage

If a fence, or part of a fence, is damaged or destroyed by accident or wilfully, it appears that either adjoining owner, after giving the other owner 7 days' notice, has the power to repair or renew the fence and to recover half the costs of doing so from the other owner within 12 months (s24(1)). If a fence is damaged or destroyed by fire, a falling tree, or stock, the owner responsible for the cause of damage must repair any damage to or renew the fence.

Dispute Resolution

If any dispute or difference between adjoining owners, or an owner and occupier of the same property, cannot be resolved it can be decided by arbitration in the manner referred to in the BFA although the right of a person to sue through the courts to recover compensation for any damage or injury caused by the reckless use of fire is preserved. The costs of the arbitration are to be borne by the parties in such proportions as the arbitrator may determine.

Crossing Boundaries

Many problems or disputes between neighbours occur because people, animals or things cross the boundary. Normally it does not matter in such a dispute whether there is a fence or not. The boundary still exists without a fence.

Under section 44 of the Boundary Fences Act 1908, a person may enter adjoining land for the purposes of effecting repairs on a boundary fence. Where the neighbour refuses to permit access an application can be made to a Magistrate for an order to allow such access under the Access to Neighbouring Lands Act 1992 (Tas). An application can also be made if access to adjoining land is necessary for other repairs.

Access

There is no general right of access to neighbouring land in Tasmania, even if access is required to effect emergency repairs to one's own house or property.

Whilst some entries to a person's land by other people will be allowed, other entries will no be allowed, and may be prevented or give rise to legal action for compensation. It is the occupier of land who has the right to refuse permission to anyone wishing to enter his or her land in most circumstances.

Certain public authorities have powers of entry for reasons ranging from simple convenience to matters of public health and safety.

Under certain circumstances, a neighbour or other person has a right to enter a piece of land. Sometimes the occupier can take this right away, and sometimes not. The occupier may allow any person to come on to the land for a particular purpose. That person then becomes a licensee or invitee. Permission may normally be withdrawn at any time. After permission is withdrawn, the person is obliged to leave immediately or be considered a trespasser.

Easements

If a neighbour has a right of way across the land (a type of right called an "easement"), the right cannot normally be ended except by the agreement of both the adjoining landowners. Where a neighbour does have a right of way, he or she is restricted to simply crossing over the land. Any other use of the land is not allowed. Normally a right of way will exist by prior agreement of the neighbouring owners (or the owners before them) and will be written into the land title documents. Sometimes the right of way will exist because of a long custom to use the land for, say, a shortcut.

License to enter

In some situations, permission to enter can be implied. There is implied permission (known as a "licence") to enter the land for the purpose of coming to ring the front door, or delivering goods.

If a neighbour is building or repairing a dividing fence, then the neighbour and any workmen have a right to come on to the adjoining land if this is necessary for the purpose (s44(1)Boundary Fences Act, (BFA)). An exception is if the land being entered is "in crop" or is "garden, orchard, plantation, shrubbery, or pleasure ground". If this is the case permission of the owner or occupier is required (s44(2)).

A person is entitled to enter land within 1.5 kilometres of any land of which he or she is a owner, if he or she finds a fire burning on that land on a day declared to be a total fire ban or where the fire has been lit in contravention of the Fire Service Act 1979 (Tas).

There is no implied permission to enter a neighbour's land to retrieve something that has crossed the boundary (for example, a ball, or a kite, or an animal).

Access to Neighbouring Property for repairs and work

The Access to Neighbouring Land Act 1992 (Tas) empowers courts to make access orders for access to neighbouring property. The Magistrates Court handles applications for court orders for access. The contents and conditions of access orders are contained in section 5 of the Act.

The court must be satisfied of two factors in deciding to grant an access order:

  1. the work for which entry is sought is reasonably necessary for the preservation of the land in respect of which the work is to be carried out; and
  2. the work cannot be carried out or would be substantially more difficult or expensive to carry out without entry to the land in respect of which entry is sought.

However, the court must refuse if entry to the land would cause unreasonable hardship to any person affected by the order. Access orders can pertain to a range of matters including:

  • carrying out work of repair, maintenance, improvement, decoration, alteration, adjustment, renewal or demolition of buildings and other structures; and
  • inspection for the purposes of ascertaining whether any such work is required; and
  • making plans in connection with any such work; and
  • ascertaining the course of drains, sewers, pipes or cables and renewing, repairing or clearing them; and
  • ascertaining whether any hedge, tree or shrub is dangerous, dead, diseased, damaged or insecurely rooted; and
  • replacing any hedge, tree or shrub; and
  • removing, felling, cutting back or treating any hedge, tree or shrub; and
  • clearing or filling in ditches or
  • any work that is necessary for or incidental to any of the above reasons.

Access orders only need to be sought if a neighbouring property owner does not agree to entry onto their property. Access orders are not a first step. Asking your neighbour, and talking person to person is the first step to take. Court ordered access orders are a last resort.

Trespass

Trespass is an offence under the Police Offences Act 1935 (Tas). A trespasser may be asked by the occupier to leave, and be shown the way out. An occupier may forcibly remove a trespasser, but not with more force than is reasonably necessary, otherwise it may be an assault and allow the trespasser to sue the occupier. This risk should be avoided and the police called if a trespasser refuses to leave.

An occupier may sue a trespasser in order to obtain compensation for any damage caused. Most often so little damage is caused that it is not worth the time and expense of suing. If damage has been caused, then an action for compensation can be taken in a Court of Petty Sessions as part of a prosecution for trespass. If, however, the same person repeatedly trespasses, or seems likely to do so, the occupier can ask the Supreme Court to order that person not to do so again, that is, an "injunction".

In very urgent cases when the repeated trespass is serious, an injunction, known as an "interim injunction", can be obtained quickly from a Supreme Court from a judge in chambers. The services of an experienced lawyer will be necessary and the cost will be considerable unless legal aid can be obtained.

Entry of Objects

Like the entry of persons, the entry of objects can be with or without permission. Permission would normally have to be expressly given by the occupier, and may normally be withdrawn at any time. After permission is withdrawn, the person who owns or controls the object must remove it as soon as reasonably possible. If not, a trespass may be committed .

The entry of an object without permission onto, under or over (aircraft usually have implied permission) a person's land may be:

  • intentional or a "trespass" (for example, a stone or ball thrown by someone, or sand or gravel from a pile on neighbouring land).
  • continual, unintentional but causing damage (for example, water from pipes, smoke and ashes from a fire);
  • caused by carelessness or "negligence" (for example, an old tree falling, insecure roof tiles).

A person has no implied permission to enter another's land to retrieve an object which has crossed the boundary by accident. Express permission must be obtained. This could include calling out, telephoning, or entering and knocking on the door to explain why it is necessary to come on to the land.

If a person has taken another person's goods on to his or her land, there may be implied permission to retrieve the goods. No damage must be caused in retrieving the goods, and should any dispute arise, the person retrieving the goods should leave and obtain advice from the police.

When an object has entered land without permission, the occupier can do the following:

  • Return the object. This is appropriate where no damage is done, and where the entry of the object is not likely to occur frequently.
  • Keep the object if damage has been done and request the neighbour to compensate for the damage (but the object must not be destroyed and must be returned when the occupier is compensated for damage).
  • Sue the person who committed the trespass to obtain compensation (not worthwhile if little or no damage has been caused).
  • Obtain a court order ("injunction") forbidding any more trespass, but only where a trespass is likely to continue.

Environmental Issues

Water

Different laws apply to the entry of different kinds of objects. Water flowing from one neighbour's land to another neighbour's land as a result of natural events and situations (rain, floods, slope of the land and so on) does not normally involve any legal issues. Where a flow of water from a neighbour's land on to the occupier's land is caused by the neighbour, this may be with or without permission.

A typical situation involving permission (often permanent) is a drainage easement. The easement would normally be written into the land title documents. If the flow of water occurs without the occupier's permission, and was caused directly or indirectly by the neighbour's own activities, the occupier may have a legal right to sue the neighbour in an attempt to prevent this occurring again, and to receive compensation if appropriate.

This right will exist in four situations:

  • where the flow was intentional ("trespass"), for example, where a neighbour deliberately directs a hose on to the adjacent occupiers land;
  • where the flow occurred in the course of another activity, for example, a garden sprinkler, over-flowing drains, running taps, modification of normal watercourses like a river or stream;
  • in some cases, where the flow was accidental and caused damage, even without carelessness by the neighbour; and
  • where the flow has been caused by the negligence of the neighbour, and it causes some damage to the occupier, for example, because of the careless construction of a tank or dam.

Smoke, Smells, Noise, and Pollution

Smoke and Smells

The EPA lists a number of smoke, smell and air pollutions that elicit complaints. These include: odours from abattoirs and food processing plants, forestry burns, waste and wastewater disposal, management and treatment sites or plants, industrial premises, and domestic pollutions such as motor vehicles, tyre burning, backyard burning and woodheaters.

If you have a complaint, an issue or a query, the EPA provides contact via phone and email to lodge a complaint or query. If you are unsure if your problem falls under air, smoke and odour complaints, contact the EPA to find out.

Pollution

Under the Environmental Management and Pollution Control Act 1994 (Tas) the responsibility for pollution falls with the person from who the pollution has been emitted. This means that where a stream or river forms the boundary of two properties or where the watercourse is shared, the occupant who discharges pollutants into the waterway will be liable for damage caused. There may also be an offence committed under the Police Offences Act 1935 (Tas) (s19) in which case the police should be notified.

If the pollution is likely to harm fish, it may be an offence under the Inland Fisheries Act 1995 (Tas) and the Inland Fisheries Commission should be notified.

Information on complaints can be found at the Environmental Protection Agency website.

Noise

Noise that comes from neighbouring or nearby land has annoyed people since we started living in social groups. To the traditional noises of crying babies, barking dogs and raised voices, we have added such modern forms of noise as motor mowers, power tools, televisions, stereos, unattended burglar alarms, and parties. The apparent lack of consideration that some people have for their neighbours has become a significant source of annoyance in today's communities.

Here are some basic time guides from the Environmental Protection Agency website on what noises are permitted, and when:

Lawnmowers and other power garden maintenance equipment

Monday to Friday: 7am to 8pm
Saturday: 9am to 8pm
Sunday and public holidays: 10am to 8pm

Chainsaws (for domestic garden maintenance, on only one day in any 7 consecutive days)

Monday to Friday: 7am to 6pm
Saturday: 9am to 6pm
Sunday and public holidays: 10am to 6pm

Musical instruments and sound amplifying equipment Monday to Thursday: 7am to 10pm

Friday: 7am to midnight
Saturday: 9am to midnight
Sunday and public holidays: 10am to 10pm

Motor vehicles, motor vessels & outboard motors (unless moving in and out of premises)

Monday to Friday: 7am to 6pm
Saturday: 9am to 6pm
Sunday and public holidays: 10am to 6pm

Portable apparatus (e.g. power and percussion tools, compressors, pumps, generators and cement mixers)

Monday to Friday: 7am to 6pm
Saturday: 9am to 6pm
Sunday and public holidays: 10am to 6pm

Mobile machinery, forklift trucks and industrial motor vehicles (e.g. tractors, graders, rollers & cranes)

Monday to Friday: 7am to 6pm
Saturday: 8am to 6pm
Sunday and public holidays: 10am to 6pm

An occupier who wishes to stop a neighbouring or nearby noise can do one or more of the following, depending on various circumstances which include the type of noise, the time of day, and the nature of the premises on which the noise occurs. Remember: the first step should always be a direct and polite conversation with your neighbour! People are just people like you – a friendly solution is always the best solution.

  1. Talk to the neighbour directly. State the objection and request that the noise be stopped, or reduced, or restricted to certain hours of the day.
    If this doesn’t work:
  2. Complain to the police. The noise may amount to a public annoyance if it is in a public place, but not a domestic residence, in which case the police can be notified (s13Police Offences Act 1935);
  3. Complain to the local council. If any noise-related conditions were imposed on a building development, the local council has responsibility for seeing that these conditions are observed.
  4. Complain to the Environmental Protection Agency. Information on making a noise complaint can be found on their website.
    If the situation escalates beyond these measures, it may be possible to:
  5. Take the matter before the Resource Management and Planning Appeal Tribunal, or to the Magistrates Court or the Supreme Court. Legal advice will be necessary.

Nuisance

Nuisance has been mentioned a number of times so far. The legal meaning of the word is not the same as the ordinary meaning. A nuisance can either be litigated in court under the common law, or it can be dealt with under the Local Government Act 1993 (Tas) (LGA), which gives a solid definition of nuisance. This section deals only with the Local Government Act 1993, as pursuing a nuisance action under common law will most certainly require legal advice, whereas a complaint to council under the LGA can be done by a person online or over the phone. However, the legislation is unclear as to whether a nuisance must cause a harm to the person who brings the nuisance to the attention of council. The standard appears to be the health, safety or welfare of the public.

Under section 199 of the LGA, a nuisance is anything that:

  • causes, or is likely to cause, danger or harm to the health, safety or welfare of the public; or
  • causes, or is likely to cause, a risk to public health; or
  • gives rise to unreasonable or excessive levels of noise or pollution; or
  • is, or is likely to be, a fire risk; or
  • constitutes an unsightly article or rubbish.

This could include a number of things, such as possible dangers, as well as stored waste, or fuels. The occupier who is harmed by what appears to be a nuisance caused by a neighbouring occupier may do the following:

  • Talk to the neighbour directly. Request the neighbour to stop the activity or to take action to prevent the nuisance.
  • Take direct action, or self-help. If the thing creating the nuisance extends on to the damaged occupier's land, the occupier may deal with it there, for example, cutting off an overhanging branch back to the boundary line. If the thing creating the nuisance is mainly on the neighbouring occupier's land, the occupier may go on to the neighbour's land, only with permission, and do no more than is reasonably necessary to stop the nuisance. Great care must be taken to limit what is actually done.
  • Contact Local Council. The Council can issue an abatement notice, and take necessary action to abate the nuisance if the nuisance constitutes an immediate danger to person or property, the person causing the nuisance can’t be found, or the abatement notice has not been complied with (Local Government Act 1993, ss200-203).
  • Ask a court for an order. This is called a nuisance order under the Local Government Act 1993 (s201). The court may issue either a nuisance order requiring compliance with an abatement notice issued by Council, or a fine. A nuisance order can require Council or the individual to take action.

Remember, there is no substitute for neighbours talking to each other about their backyard environmental problems in order to achieve a mutually acceptable resolution. Whilst the law may provide remedies to such problems, when the issue has been fought and settled each neighbour must return to their homes and continue to live side by side.

Animals

The Council is responsible for implementing a dog and animal management policy. This covers microchipping of animals, registration of dogs, and areas where dogs can exercise on and off the lead. The current Hobart City Council policy can be found online.

The Dog Control Act 2000 (Tas) creates obligations for dog owners, including registration of dogs over the age of 6 months (s8), the implantation of a microchip (s15A), and certain obligations on dog owners while the dog is in a public place. These obligations are effective control, to prevent the chasing of vehicles or bicycles, and the prevention of attacks, as well as the confinement of bitches on heat, away from public places (s16).

If a dog attacks a person or another person, causing serious injury, a court can order damages and compensation from the owner, as well as that the dog be destroyed (s19). The owner is also obligated to report the attack to the council within 24 hours. An attack can lead to a declaration of a dog as a dangerous dog.

There are powers to seize and detain ‘dogs at large’. If an owner who has been notified of their dog’s detention by council, does not reclaim the dog after five days it may be sold, destroyed, or otherwise disposed of (s35). This time period is reduced to three working days where the owner is not identifiable.

Dangerous dogs

Dangerous dogs are under special provisions that create stricter controls for their management and possible destruction at a later date. This is particularly the case if the dangerous dog attacks a person. These controls include being muzzled, being on a short lead, and being under the control of a person over the age of 18 years (s32) when in a public place. Whether a dog is a dangerous dog is a matter of council declaration. If a dog has caused serious injury to a person or another animal, this can lead to the declaration of the animal as a dangerous dog. The Dog Control Act 2000 requires the owner to de-sex the dangerous dog, as well as to microchip it (s32A). All dogs that guard non-residential premises are considered to be dangerous dogs (s30).

Barking dogs

Complaints about barking dogs should be directed to either to the local council or the EPA. Complaints about dogs at large, including on private property should be directed to the local council so that an authorised person can detain the dog, and notify the owner for collection, and payment of a fine.

See the Hobart City Council website for the three steps that are taken with barking dogs, which include notification letters and ends with fines.

Trees and Possible Dangers

Trees

Trees cause various problems between neighbours: overhanging, blocking sunlight, falling leaves, falling branches, roots which break up paths and block or break drains are typical examples.

If a branch falls on to land after being cut by a neighbour, or is thrown onto land, this will be a trespass. If a branch falls from a neighbour's tree without being cut, the neighbour may be liable for any damage caused. This will be so if, for example, the branch fell because the neighbour carelessly did not notice or did not act to remedy the dangerous condition of the tree. If the falling branch of the neighbour's tree damages the dividing fence, the neighbour must repair all the damage, or pay for the repairs.

Removing tree limbs or roots

The owner of a tree has no right to prevent a neighbour from cutting away the roots or branches of a tree that projects over or on to the neighbour's land. Whilst it is not necessary to give notice to the owner of the tree of the intention to prune, it is preferable to consult with the neighbour prior to taking any such action.

The remains of any branches or roots (including any fruit which was on the encroaching branches) should be returned to the owner of the tree as these remain his or her property. The cost of removing any encroaching tree branches or roots is usually borne by the party wishing to remove them as attempts to recover costs will usually aggravate the situation between neighbours. It may be possible for the owner of the tree to seek damages if the tree in question is deliberately, recklessly or unnecessarily damaged whilst being pruned.

An adjoining landowner is not entitled to lop a neighbour's tree as a precautionary measure before it overgrows his or her land and becomes a nuisance merely because he or she presumes that in the course of time the boughs will probably overhang his or her land.

It is important to check with the council before cutting tree limbs or roots as some trees are protected trees under the City of Hobart Planning Scheme (CHPS) Significant Tree List.

It is also sensible to notify the neighbour before acting to ensure that there is co-operation and no misunderstanding.

The local council can require vegetation to be trimmed if it obstructs the view on a highway (s39Local Government (Highways) Act 1982 (Tas)). There are also requirements to trim vegetation under the Roads and Jetties Act 1935 (Tas) where the vegetation obstructs the view of a person using a road (s42). If a person fails to comply with a direction to do so, the local council or road authority may trim the vegetation.

Possible Dangers

Sometimes a neighbour will do something, or have something, on his or her land that would be dangerous or potentially damaging if it were to cross the boundary. Examples of this are a tree in such poor condition that it may fall, or a wall in a state of collapse. An order from the court (injunction) requiring the neighbour to avoid the potential damage may be obtained.

A neighbour might allow things which would not naturally be on the land to accumulate. If the things would not be there in the ordinary use of the land, and if they cross the boundary and cause damage to the adjacent owner or occupier, there will be certain legal consequences. Although the things need not be dangerous in themselves, common examples of the problem are fire, explosives, flammable substances, things which may give off a damaging gas, stored water and electricity. If the thing is in this category, compensation may be obtained for damage caused (damages). It is a very technical area of law, and legal advice is necessary.

It may be appropriate to inform the council of the existence of anything nearby which is highly dangerous or may cause damage if it were to escape before taking any other action.

Problems Outside the Boundary

Neighbour's Rights: easements and other rights

Sometimes neighbours will have disputes because one disagrees with something that the other is doing entirely on his or her own land and which involves no actual crossing of the boundary. For example, an occupier may object to a neighbour who seems always to be looking over the fence at what the occupier is doing. Most people like to have a certain amount of privacy, and some may feel that a neighbour is interfering with their privacy by looking across, or listening to what is happening.

As far as the law is concerned, there are generally no rights of privacy between neighbours. If the occupier wishes to prevent the neighbour from being able to interfere, then a higher fence, a tree or a hedge, curtains, a closed door or sound-proofing are possible solutions. Any alterations such as fencing or sound proofing may need to be approved by the local council. With boundary fences – anything above 2.1 metres in height must have planning approval.

Sometimes a person will object either to the use a neighbour is making of the land or to the type of building, painting or decoration that the neighbour wants to have. In some circumstances, the neighbour will not legally be able to use the land, or build on it, in this way. In other situations he or she will be perfectly free to do so. In other situations it may constitute a nuisance as an unsightly article or rubbish. Sometimes the land-use or the building will produce effects that cross the boundary such as noise or air pollution, and these have their own remedies, through either the EPA or local council.

The usual reasons an occupier will object to a neighbour's land-use or building include the following:

  • it may be out of character with the area, or different in some other way;
  • it may lower land values, cause more traffic or parking problems;
  • the building may be too tall, block the sun, obstruct the view, be too close (even though on the other side of the boundary); or
  • the building work may cause physical damage to the occupier's land.

In some situations, what the neighbour is doing or proposing to do is contrary to some private right of the adjoining owner. These rights usually arise in the form of easements and covenants that appear on the land title documents. Thus, although under local planning and building controls it may sometimes be a relevant consideration, the simple fact that someone has had the benefit of uninterrupted sunlight to a particular part of their land for many years is not enough to give a right to prevent a neighbour from building so as to block the light. If, for example, there is an agreement between a number of land-owners not to build a building above two storeys height (a restrictive covenant), one adjoining owner will have a private right against another.

Similarly, if there is a private agreement (as there normally is between owners of terrace houses) mutually to support one another's walls (an cross easement of support) there will be a private right. There may be an agreement which ensures open access to light and air, or an agreement which prevents a person building on a certain part of a block of land.

If these types of private rights are infringed, a person may go to court to seek compensation or an order to stop the offending activity.

Objections

What can an occupier or owner do if he or she objects to something a neighbour has done or proposes to do? The broad possibilities are set out below.

  • Talk to the neighbour directly.
  • Perhaps the neighbour has not absolutely decided to do the thing objected to, or can be persuaded not to do so.
  • Contact the local council.
    Most changes in the use of land, and all building work (including alterations), require the approval of the local council. If that approval is not obtained the neighbour cannot go ahead with the use, erection or alteration of the building. Councils may sometimes invite adjoining owners to make comments on proposals, but not always. The council is not obliged to follow the opinion or wishes of an adjoining owner, but will take some notice of them. The more reasonable the submission, the more likely it is to be taken into account. Complaints about traffic, overshadowing, loss of local character and so on are likely to be relevant. If the use of the land, or the construction of the building is being done without the necessary approval, or in breach of conditions of approval, the council can take action to stop it.
  • Take court action.
    Where private rights are infringed, a person may go to court to seek compensation or an order to stop the offending activity.

Community Organisations

What Structure Should an Organisation Choose?

Obviously the structure an organisation should choose is a matter to be determined by the members or proposed members of that organisation. By reading all of the above information the organisation should be in a position to make this decision.

Factors to consider are as follows:

  • the amount of money available for this purpose;
  • the length of time the organisation anticipates being in existence;
  • the type of activity to be carried on;
  • the amount of property to be held or purchased;
  • the types of contracts or transactions that will be entered into;
  • the amount of money or income that will be generated;
  • the extent of liability that members are willing to accept;
  • control and management.

Cheap and simple?

For most community organisations, incorporating as an association will be the cheapest and simplest method of obtaining limited liability for the members. Organisations that wish to distribute a portion of their income to members as dividends or profit are able to do that as a co-operative, but not under the other forms of incorporation described here.

Large amounts of money or property

Large organisations or those responsible for large amounts of money or property that are refused registration as an incorporated association would have to consider the alternative forms of incorporation.

Short Duration

If the organisation is set up for a short time only, and is not entering into transactions of any financial significance, then remaining an unincorporated association may be the best way of operating.

Seeking professional and legal advice

As the registration or incorporation procedure is a most important step for any organisation, professional help may be needed to carry out the organisation’s decision. Again this will depend on the funds available. If the organisation explains the situation, and the solicitor is agreeable, it may be possible to obtain a reduction in the scheduled fees for this type of work. There are a number of community legal centres that may be willing to discuss the pros and cons of the decision the organisation has made and to give an overview of the documents, forms and so on before they are lodged.

In this situation, most of the groundwork should already be done and the legal centre would review the documents to ensure that they are satisfactory. If the centre is unable to help, for whatever reason, they may be in a position to refer the organisation to a solicitor who is likely to charge a reduced fee. When the organisation’s personnel are not in a position to draft the relevant documents, forms, and so on or if it is not possible to have a review of these documents performed by one of the community legal centres, the Law Society of Tasmania may refer the organisation to a solicitor who specialises in this area.

Incorporation as an Association

For a group of people who want to form a community organisation, the first question they need to answer is what sort of organisation they want to form.

Community organisations is a general term including sporting and social groups, action groups, and welfare organisations.

The most important legislation is the Associations Incorporation Act 1964 (Tas) (the Act).

The Office of Consumer Affairs and Trading provides comprehensive information on the process of incorporation.

The following is a brief summary of the process. To be eligible to incorporate as an association under the Associations Incorporation Act 1964 (Tas), a group must have a set of objectives and rules, at least five members and be for a purpose permitted by the Act.

Section 2(1)(a) of the Act states that the types of associations which may be incorporated under the Act include those associations which are formed for the purpose of:

  • religious, educational, benevolent or charitable benefit;
  • providing medical treatment or attention;
  • promoting or encouraging literature, science or art;
  • recreation or amusement;
  • establishing, managing, carrying on or beautifying a community centre;
  • administering superannuation or retirement benefits schemes;
  • promoting any of the above or similar purposes.

Profit-oriented associations

The primary purpose of the association must not be to earn profit for the association’s members. This does not mean that the association cannot provide facilities or services to its members for social, recreational, educational or other purposes.

Nor does it prevent members from receiving a fair payment for services to, or on behalf of, the association, or on money lent to the association.

Payments of wages and interest must be incidental to the running of the association. An association cannot have as an object the paying of wages, salary, interest or any other financial gain to its members.

Many organisations such as ‘Meal on Wheels’ or child care centres have, as their primary activity, the provision of goods or services for which they charge.

Such organisations are eligible to incorporate if their primary function is charitable, that is, if their aim is to provide relief or assistance to the public or a defined section of the public.

An association may conduct trade which helps to support its principal non-trade object. There is no problem with an association having trading or fundraising activities which are not substantial in number or value in relation to the association’s other activities, and so long as profits of those activities are not distributed to members.

Ineligibility

Some groups that would otherwise be eligible to incorporate under the Act may have their applications refused because of their large size, or the nature of the activities.

This is to ensure that groups in positions of great trust, or who are responsible for large amounts of money or property, will have greater duties to audit and to disclose than those required under the Act. Such groups would have to seek incorporation under either the Corporations Act 2001 (Cth) or the Cooperatives Act 1999 (Tas).

How to apply for Incorporation

  1. To apply for incorporation an existing group must hold a general meeting of members, for which the following things must be done:
    all members must be given reasonable notice of the meeting (generally 21 days), and of the fact that two special resolutions are to be considered by the meeting;
    in the notice, members must be informed that those ‘special resolutions’ are that a constitution suitable for incorporation be adopted, and that a person be authorised to apply for incorporation.
  2. Members should be given access to the constitution prior to the meeting. At the meeting, a quorum (as defined by any existing rule of the association, if any) should be present, and at least three-quarters of those who vote must approve a set of rules and objects for incorporation and authorise a person to apply for incorporation.
  3. The constitution adopted should cover all the rule requirements mentioned in section 16 of the Associations Incorporation Act 1964 (Tas) and provided for in Schedule 1 ‘Model Rules for an Association’ of the Associations Incorporation (Model Rules) Regulations 2007 (Tas). Many groups find it convenient to adopt a constitution in the form of the ‘Model Rules’.
  4. Once the group has resolved to incorporate, and has authorised a person to apply for incorporation, the next step is to apply for incorporation.
  5. The relevant form ‘Application for Incorporation of an Association’ must be lodged with the Office of Consumer Affairs and Fair Trading (CAFT) The forms are available at Service Tasmania or online.
  6. See the Office of Consumer Affairs and Trading for more information on incorporation.

Names

An association may not be incorporated under:

  • a name that is identical or similar to the name of an existing company, friendly society, building society, cooperative or an existing registered business name; or
  • except with the consent of the Minister, a name that in the opinion of the Commissioner is undesirable, or of a kind that the Minister has directed the Commissioner not to accept.

The Act requires an incorporated association to have the word ‘incorporated’ or the abbreviation ‘Inc’ at the end of its name.

The Act also requires every notice, advertisement, cheque, receipt, or other document given or issued by the association to contain the name of the association in legible characters.

Costs

The Consumer Affairs website provides a table of costs.

There is an ongoing yearly cost, which is the fee payable on lodgement of the annual return. The Commissioner may waive these fees if the association can establish that they cannot pay these fees. A waiver must be applied for, in writing, to the Commissioner.

Rules of the Association

If the Model Rules are adopted, there is no need to supply a copy when applying for incorporation.

Groups who find the Model Rules too complex or inappropriate for their needs can draft their own rules. In this case, a copy of the rules must be lodged with the application.

The association should seek legal advice to ensure the legality of their constitution, as any rule which is contrary to the Act will be overridden by the Model Rules.

Also, unless expressly excluded, the provisions of the Model Rules are deemed to form part of the rules of the association in relation to those matters which are not dealt with by the association’s own rules.

The Public Officer

Every incorporated association is required to have a ‘public officer’ who must be 18 years or older and a resident of Tasmania (s14). The public officer is the person tasked with keeping the Consumer Affairs and Fair Trading (CAFT) informed of changes in the association and its financial situation by filing the Annual Return.

It is the responsibility of the committee (not the members) to appoint a person to this position.
Unless the rules of the association say otherwise, the committee is free to select whoever they think is best for the job. That person may be a committee member, a member of the association, or even an interested outsider.

Before an application for incorporation is lodged, the committee of the association must appoint a person to be public officer. Details must be provided on the application form.

The public officer’s address is the official address for the service of legal documents on the association.

It is the public officer’s duty to bring all documents received to the attention of the committee.
It is possible for the association to stipulate a postal address different to that of the public officer.
If the public officer changes address, a form notifying this change must be lodged with the Commissioner within 14 days.

It is also the Public Officer’s duty to notify the Commissioner of any changes in the rules of the association and the passing of special resolutions and may have other duties specified in the rules/constitution.

The position of public officer will become vacant if they resign, are removed from office, die, become bankrupt, develop a mental illness, or change residency to outside of Tasmania.

If the office of public officer at any time becomes vacant, it is the responsibility of the committee to appoint a new public officer. This should be done within 14 days of the vacancy occurring.

The new public officer must lodge a form notifying CAFT of their appointment within 14 days of the appointment.

Annual General Meetings

The holding of Annual General and other meetings of the association is governed by the rules of the association.

The timing of the annual general meeting will be dependent upon the statutory requirements for lodging annual returns.

Limits to Limited Liability

The Associations Incorporation Act 1964 (Tas) provides that a member of an incorporated association is not liable, except as provided in the rules of the association, to contribute towards the payment of the debts and liabilities of the association or the costs, charges and expenses of a winding up of the association.

Questions of liability and insurance should be discussed with the association’s legal adviser and insurer.

The Effect of Incorporation on Property, Debt and Contract

Incorporation has the effect of automatically transferring ownership of all property, liabilities and contracts from the members and trustees of an unincorporated organisation to the new incorporated association.

After incorporation, all money and debts that were owed to (or by) the organisation’s members in relation to the activities of the organisation immediately before incorporation become owed to (or by) the incorporated association.

All contracts and arrangements that were lawfully made prior to incorporation become the contracts and arrangements of the incorporated association. The right to sue and be sued is transferred.

Property held in the name of trustees on behalf of an unincorporated organisation passes automatically to the association upon incorporation.

However, it is still necessary for some forms to be filled out so that names on the title deeds or other official documents can be changed from the trustee’s name to the Association’s name.

For general law land the public officer must, after incorporation, deliver a memorial in writing to the Registrar of Deeds setting out:

  • a description of the land or a reference to a plan on which the land is shown;
  • the name of the association in which the land is to be vested;
  • particulars of the nature of the interest in that land that is to be vested;
  • the name of each person who appears by the register to hold that land or interest;
  • a statement that upon registration of the memorial, that land or interest becomes vested in the association by virtue of section 13 of the Act.

For land under the Land Titles Act 1980 (Tas) the public officer must, after incorporation, deliver to the Recorder of Titles notice in writing (on a blank instrument form available from the Land Titles Office) setting out:

  • the title reference of the land to which the notice relates;
  • the name of the association to which the land is to be vested;
  • particulars of the nature of the interest in that land that is to be vested in the association;
  • the name of each person who appears by the register book to hold that land or interest;
  • a statement that, upon the entry by the Recorder upon the grant or certificate of title of that land the land becomes vested in the association by virtue of the operation of section 13 of the Act.

This notice should also be accompanied by:

  • the certificate of title;
  • the certificate of incorporation of the association (or a certified copy);
  • a certificate of the Commissioner stating the name of the public officer of the association; and
  • a statutory declaration of the public officer and of one of the registered proprietors of the land.

Special Resolutions

If an Association wishes to make a decision, it may do so by passing a resolution at a meeting of the members. Because some decisions are of particular importance (for instance, changing the rules or changing the association’s name), the Act demands that this must be done by passing a ‘special resolution’. A special resolution is one which is passed in the following manner:

  • notice must be given to members specifying that a decision requiring a special resolution is to be made;
  • the notice must include details of the proposed resolution and give appropriate notice of the meeting, as outlined in the associations current constitution;
  • a quorum must be present at the meeting; and
  • at least three-quarters of those present must vote in favour of the resolution for it to be passed.

The rules of an association may indicate situations in which a special resolution is required. Regardless of what an association’s rules say, passing a special resolution is always required:

  • to change the association’s name;
  • to change its rules;
  • to change its objects;
  • to amalgamate with another incorporated association;
  • to voluntarily wind itself up and distribute its property;
  • to apply for registration as a company or a cooperative.

Where a special resolution is passed, the public officer must lodge a notice with CAFT within one month of the passing of that resolution.

Amalgamation of Associations and Transfers of Incorporation

Should two or more incorporated associations wish to join together they can ‘amalgamate’ into the one incorporated association.

To do this each of the associations must pass special resolutions stating the terms of the amalgamation and adopting the new objects and rules of the amalgamated association.

Where two or more associations pass special resolutions for the amalgamation of those associations, the public officer of each association must lodge with the Commissioner notice in the prescribed form of the passing of the resolution, and of the name of the association to be created by the amalgamation.

It is possible for an incorporated association to change its incorporation and become either a company or a registered cooperative. However, legal assistance may be required for this change.

Winding Up and Deregistering of Incorporation

The provisions of the Corporations Act 2001 (Cth) relating to the winding up of bodies other than companies apply so far as applicable to the winding up of an association. See the Consumer Affairs site for information on deregistering.

Voluntarily Winding Up

If an association decides that it no longer wishes to continue to exist it may pass a special resolution that it be wound up. An Association contemplating winding up may need to consult a solicitor or an accountant with expertise in that area. Voluntary winding up is an option only for those associations which are able to pay all their debts and the costs of winding up. The cost of winding up will depend upon the complexity of the association’s financial affairs.

Winding Up By The Court

Should a creditor or member of the association wish to have the Association wound up, they may apply to a court, usually the Magistrates Court, to do so. This may be done if the Association is unable to pay its debts, if it has acted inconsistently with its objects, or if it has not operated for at least one year. Individual members will be liable to pay creditors whatever sum is specified in the rules on winding up where liabilities exceed assets. Usually such a sum will be nominal (that is, $1, $2 or $5).

Cancellation of Incorporation

An association may wish to have its incorporation cancelled. If so, it must pass a special resolution to cancel its incorporation. An application for cancellation should be accompanied by the prescribed notice of the passing of the special resolution together with details of the financial position of the association and any other relevant facts. Consumer Affairs may notify an association that it proposes to cancel its incorporation for the following reasons:

  • that it is not in operation;
  • non-lodgement of required documentation;
  • that it is engaged in trade or securing pecuniary gain for its members.

The association has three months from the date on which the notice of intended cancellation is gazetted to object to the proposed cancellation.
When an association is wound up or has its incorporation cancelled, its property must firstly go to pay the liquidator and all outstanding debts.
The association may determine how any surplus assets are to be distributed by passing a special resolution.

Where no such resolution has been passed, a court will order the distribution of those assets as it considers just, having regard to the objects and purposes of the association being wound up.

Penalties

An association, its committee members, members and employees may be liable to certain penalties under the Associations Incorporation Act 1964 (Tas). Enforcement of these penalties takes place in the Small Claims Court of the Magistrates Court.

In most cases, where an offence or breach occurs, the public officer and each member of the committee will be found guilty unless they can show that:

  • they had no knowledge of the breach;
  • they were not in a position to influence the conduct of the association; or
  • they used ‘all due diligence’ to prevent the breach.

Incorporation as a Company Limited by Guarantee

The Australian Securities and Investments Commission (ASIC) is the sole national authority responsible for administering the Corporations Act 2001 (Cth), which regulates corporations as well as securities and future markets.

The Corporations Act 2001 (Cth) and the Corporations Regulations impose various statutory obligations on companies and their officers and prescribe penalties for failure to observe these requirements. Comprehensive information is available on the ASIC website.

Under the Corporations Act 2001 (Cth) a company may be of the following types:

  • a company limited by shares that is, the liability of members is limited to the amount (if any) unpaid on that member’s shares;
  • a company limited by guarantee that is, the liability of members is limited to the amount that the members undertake to contribute to the property of the company if it is wound up;
  • a company limited by both shares and guarantees;
  • an unlimited company, that is, a company where there is no limit on the liability of its members; or
  • in the case of a mining company, a no liability company, that is, where the members cannot be required by the company to pay the amount (if any) unpaid on the members shares.

Limited Liability

A company generally provides limited liability to its members and is a separate legal entity from the persons who constitute it. This means that:

  • it has ‘perpetual succession’, that is, its existence is not terminated or otherwise affected by changes in its membership;
  • it may sue and be sued in its corporate name;
  • it may hold, deal and dispose of property in its corporate name. Title to all assets vests in the company;
  • it has a common seal used for the purpose of signifying its assent to certain formal matters;
  • the liability which the directors and members incur for the debts of a company limited by guarantee, is limited by the amount of guarantee as stated in the company’s Memorandum of Association.

Company Limited by Guarantee

A company limited by guarantee is the most likely type of company for a charitable or community organisation to choose. A guarantee simply means that a member ‘guarantees’ to contribute an amount, up to the specified maximum, should the company need to be liquidated and its assets are not sufficient to pay out its liabilities (that is, a member’s individual liability is limited to the amount of guarantee). A guarantee cannot be changed once the company is incorporated.

The benefits of a company structure are therefore fairly obvious. The decision is whether the costs and administration involved in setting up and operating a company is warranted by the operations of the organisation.

In many cases it will be, but if the organisation does not intend to operate for long and is not entering into financial transactions of any significance, the costs of administration involved may not be worthwhile.

Name

See the ASIC website for details on choosing a name, the requirements to show the legal status of the company, name restrictions, problems with similar names, the use of an Australian company number (ACN), and reserving a company name.

Company Rules

Every company must have a set of rules that govern its internal management All companies must have either:

  • a single set of rules called a constitution, under sections 135 or 136 of the Corporations Act; or
  • a basic set of rules, or replaceable rules – set out at section 141 of the Corporations Act, which apply unless there is a constitution to replace part or all of them.

For a guide to this process see the ASIC website.

Incorporation procedure

The following steps must be taken to incorporate:

  • select and reserve the name of the company (Form 410);
  • prepare and sign the basic set of rules or the Constitution of the company;
  • decide who will be the first director who must be over 18 and consent in writing to act as a director.

These written consents do not have to be lodged with the ASIC but must be kept in the files of the company.

  • Complete and lodge Form 201 – ‘Application for Registration as an Australian Company’ together with the prescribed fee.

In addition to the Form 201 and prescribed fee you must also lodge:

  • the Constitution - if there is one - of the proposed company; and
  • Form 305 listing the persons who have consented to be directors of the company. This form must be signed by one of the proposed directors, certifying the list is correct.

Once the documents have been lodged with the ASIC and approved and processed, a Certificate of registration of the company will be issued to you.

Within one month after incorporation, you must lodge a ‘Notification of Initial Appointment of Officeholders’ (Form 215).

Post-Incorporation Steps

Following incorporation, the following steps should be taken:

  • Form 215 should be lodged at the ASIC – no charge if lodged within 1 month;
  • A common seal for the company must be obtained from a rubber stamp, manufacturer;
  • A bank account should be formed for the company;
  • A tax file number may need to be obtained first and the bank will usually require a copy of the rules and to sight the Certificate of Incorporation;
  • They may also require a copy of the minute authorising the signatories to operate on the account;
  • A secretary and public officer need to be appointed;
  • Notice of the public officer needs to be sent to the Taxation Office stating the name of the person and an address for service of notices;
  • A consent by the secretary is necessary;
  • The company needs to appoint an auditor;
  • Certain books and registers must be established, for example minute books for meetings of members and directors and a register of directors, managers and secretaries.

It is advisable to obtain a loose-leaf company register which conveniently classifies the required documents by way of tab references, for example, tabs for ‘Certificate of Incorporation’, ‘Minute Book… Directors’, ‘Minute Book…Members’, ‘register of Directors/Managers/Secretaries’, ‘Companies Office’, ‘Common Seal Register’ and so on. Such a company register is convenient and is well worth buying.

Most of the above will be done at the first meeting of the company.

Registered Office

Every company must have a registered office within Australia to which all communications and notices must be sent. Where the company has given the ASIC notice of office hours under section 145(2). The office must be open to the public for at least three hours between 9:00a.m. – 5:00p.m. on each business day. If no such notice has been given, the office must be open to the public for at least four hours between such times. 

If you change the place of your registered office you must notify the ASIC within 7 days on ‘Notification of Change of Office Hours or Address of One or More Corporations’ (Form 203). No fee is payable if the form is lodged within this time.

Books and Registers

The Corporations Act 2001 (Cth) requires every company to keep certain books and registers. The registers must be kept in a form that enables them to be inspected and they must be kept at the registered office, principal place of business or other address as prescribed by the Corporations Act.

The book and registers which must be kept by the company include the following:

  • register of members;
  • register of directors, principal executive officers and secretaries;
  • register of charges and mortgages;
  • minutes of all proceedings of general meetings and of meetings of directors;
  • such accounting and other records as will sufficiently explain the transactions and financial positions of the company and enable true and fair profit and loss account.

Notices and Lodgement

While the company remains registered, it must comply with the provisions of the Corporations Act 2001 (Cth), must lodge annual returns even though it may not be carrying on business and must lodge notices with the ASIC from time to time in relation to certain matters, including the following:

  • if there is any change in officeholders or the address of office holders, details must be lodged on Form 304 – ‘Notification Of Change To Office Holders’ within one month of the change and if this is done, no fee is payable;
  • if there is any change in the address or hours of the registered office;
  • details of the passing of any special resolution must be lodged on Form 205 – ‘Notification Of Resolution’ within the time prescribed by the Corporations Act 2001 (Cth) in relation to the subject of the resolution;
  • details of any charge given over the assets of the company must be lodged on a ‘Notification Of Details Of A Charge’ with a copy of the document by which the charge is created (Form 309).

Name and ACN

Any document lodged with the ASIC must clearly identify the name of the Company and its ACN, the title of the document and the name, address and telephone number of the lodging party.

Documents (other than prospectuses, trust deeds, takeover documents and securities industry licence documents) may be lodged over the counter at any ASIC Business Centre or with a local ASIC Representative.

Meetings

There are two types of meetings of the members of a company:

  • the annual general meeting (AGM); and
  • general meetings.

Every company must hold an AGM at least once in every calendar year and within five months (or in the case of an exempt proprietary company, six months) after the end of its financial year. Provided a company holds its first AGM within 18 months of its incorporation (and within five or six months of the end of its financial year) the first AGM need not be held within its first or second financial year. If the company fails to hold an AGM, the company and any defaulting officers are guilty of an offence. In certain circumstances, however, ASIC may grant an extension of time for the holding of the AGM. 

The business before an AGM is to a large extent specified in the Corporations Act 2001 (Cth) and the articles and will include as ‘ordinary’ business of the AGM, the following:

  • consideration of all the accounts and the directors and auditor reports and statements in relation to those accounts;
  • declaration of dividend;
  • election of directors in place of those retiring;
  • appointment (where appropriate) of auditors.

All other business at the AGM is ‘special’ business.

General meetings are meetings of the members of the company other than annual general meetings. The manner and time for calling the AGM or other general meetings of the company and the proceedings at such meetings are governed by the Corporations Act 2001 (Cth) and the articles of the company.

State Control Over Companies

A company has less control exercised by government bureaucracies over its operation than a society registered under the Cooperatives Act 1999 (Tas). The main control is in the requirement to have an audit each year and to lodge an annual return.

Apart from these requirements a company, in framing its Constitution, may determine who can be members, who can vote at meetings and how the company is to be operated. A company structure may be appealing for this reason.

Becoming a Cooperative

What is a cooperative?

The cooperative is formed and registered under the provisions of the Cooperatives Act 1999 (Tas). It is a form of incorporation commonly used by trading and agricultural groups in industries such as dairy, rice and fishing. The cooperative is an option for organisations wanting to apply the cooperative principles. The principles are found in Schedule 2 of the Cooperatives Act 1999 (Tas).

Voluntary and open membership

Cooperatives are voluntary organisations, open to all persons able to use their services and willing to accept the responsibilities of membership, without gender, social, racial, political or religious discrimination.

Democratic member control

Cooperatives are democratic organisations controlled by their members, who actively participate in setting their policies and making decisions.
Men and women serving as elected representatives are accountable to the membership. In primary cooperatives members have equal voting rights (one member, one vote) and cooperatives at other levels are organised in a democratic manner.

Member economic participation

Members contribute equitably to, and democratically control, the capital of their cooperative. At least part of that capital is usually the common property of the cooperative. They usually receive limited compensation, if any, on capital subscribed as a condition of membership. Members allocate surpluses for any or all of the following purposes: developing the cooperative; benefiting members in proportion to their transactions with the cooperative; and supporting other activities approved by the membership.

Autonomy and independence

Cooperatives are autonomous, self-help organisations controlled by their members. If they enter into agreements with other organisations, including governments, or raise capital from external sources, they do so on terms that ensure democratic control by their members and maintain their cooperative autonomy.

Education, training and information

Cooperatives provide education and training for their members, elected representatives, managers and employees so they can contribute effectively to the development of their cooperatives. They inform the general public, particularly young people and opinion leaders, about the nature and benefits of cooperation.

Cooperation among cooperatives

Cooperatives serve their members most effectively and strengthen the cooperative movement by working together through local, national, regional and international structures.

Concern for the community

While focusing on member needs, cooperatives work for the sustainable development of their communities through policies accepted by their members. A cooperative can be formed by five persons (including corporations) and is a body corporate. A registered cooperative is not materially different from a company, except that it is subject to more and different restrictions. A cooperative is subject to the same tax liability as a company operating under similar articles and principles. It is different to a company in the sense that its main purpose is not the profit of its members but the advancement of the cooperative’s activities.

Trading and non-trading cooperatives

There are two types of cooperatives, namely trading cooperatives and non-trading cooperatives. Trading cooperatives are able to distribute surpluses of the cooperative to members by way of bonus shares, dividends or rebates. Non-trading cooperatives on the other hand are able to trade -despite the misleading name - but cannot distribute profits to members or shareholders.

Trading Cooperatives

Trading cooperatives require a minimum of 5 members and in order to register must lodge a number of documents including a disclosure statement and the Rules of the proposed cooperative. Both of these documents must be first approved at a formative meeting. Other requirements which must be addressed at this meeting, include the signing of the Cooperative’s application for membership, the election of Directors and the authorisation of a person to register the Cooperative with the Office of Consumer Affairs and Fair Trading (CAFT). All relevant documents must be lodged along with a filing fee.

The disclosure statement, which must be addressed at the formation meeting, is a means by which members of the proposed cooperative are adequately informed of their financial involvement and liability in the cooperative. A draft of the disclosure statement must be provided to CAFT at least 28 days before the formation meeting is held. Upon receipt of the disclosure statement, CAFT will either approve the draft statement or suggest proposed amendments. Occasionally the statement will be refused. If approval is granted, CAFT will provide notice in writing to the person who submitted the statement.

The major areas that must be considered in any disclosure statement include:

  • the rights and liabilities attached to shares (including the capital required for the cooperative);
  • the nature of the proposed membership of the cooperative including details of active membership requirements and objects;
  • details of how the cooperative will perform its activities;
  • particulars of how the cooperative will be managed, which will include: details of proposed directors; proposed directors' interests in any contract with the cooperative; day-to-day management; responsibility for accounting and financial functions of the cooperative; and the name of auditor together with written consent to appointment.

Detailed financial information will include:

  • details of start up funding showing internal and external source of funds;
  • property and assets;
  • trading stock;
  • market research;
  • estimated costs of formation;
  • any contracts required to be entered into by the cooperative;
  • proposed contacts which the cooperative will assume once formed;
  • projected cash flow budget in the format provided or by annexure; and
  • projected income and expenditure statement in the format provided or by annexure.

Non-trading Cooperatives

Non–trading cooperatives require at least five members as well as a draft set of rules. These rules must be provided to CAFT at least 28 days prior to the initial meeting. The proposed non-trading cooperative must also complete an Application for Approval of Proposed Rules for a Cooperative and along with the prescribed fee and a copy of the draft rules submit to CAFT.

If CAFT is satisfied with the Draft Rules they can then be put to the initial meeting. The proposed rules must be passed by two-thirds of the proposed members attending the meeting.

Other requirements that must be complied with at this meeting include that proposed members must sign the Application for Membership of a Proposed Cooperative and a person must be authorised on behalf of the Cooperative to apply to CAFT for registration.

Once the Application has been lodged with CAFT a certificate of registration will be issued to the cooperative.

Registration as a Charity

In some States (Victoria, New South Wales, and Queensland) legislation exists which requires an organisation established for a ‘charitable purpose’ to be registered.

The legislation regulates the activities of the charitable organisation, and imposes obligations on it. In Tasmania, a charity will be an incorporated association. Some of the activities of a charity are governed by the Collections for Charities Act 2001 (Tas).

For charities not registered in Tasmania, an Approval to Solicit for Charitable Donations within Tasmania may be required.

Whether or not an organisation is charitable is a question of fact to be determined by the nature of the objects of the organisation and its activities.

Unincorporated Associations

What is an Unincorporated Association?

An unincorporated association is an organisation which has no separate legal identity from that of its members. It is simply a group of people who associate for a particular purpose, for example, a group of people who wish to play football or lobby for or against a particular development and have verbally agreed to carry out certain functions. Usually it operates according to a constitution or rules.

An unincorporated association cannot sue or be sued, its assets must be held by trustees on its behalf, contracts must be made for the association by the committee members and the liability of the members (especially the committee members entering into those contracts) is generally personal and not limited to the assets of the association.

Problems with Unincorporated Associations

There are a number of matters that need to be decided irrespective of the formal structure that is to be adopted:

  • the objects of the organisation;
  • eligibility for membership;
  • signatories to bank accounts;
  • composition of the governing board and its method of election;
  • method of proceedings at meetings and the procedure for calling annual and extraordinary general meetings;
  • procedure for ousting an office bearer;
  • defining the quorum for a meeting; and
  • expulsion of members and the procedure for amending the rules.

It is important to remember that the liability of members of an unincorporated organisation is generally personal and not limited to the assets of the association. Hence, committee members may be reluctant to personally bear the financial responsibilities of their unincorporated association.

If any actions are brought against the association, the courts need to place responsibility somewhere, and this responsibility will generally be allocated to the committee, the Secretary or the person signing the document/s. Similarly, if the association wishes to bring an action for, say, the recovery of a debt, this may only be achieved by using the names of individual members, as the association is not a legal entity which can perform such functions.

A further practical matter to be considered is that other organisations (particularly banks) with whom the association deals may fear that if the association is unable to perform its obligations, or pay its debts, it may be necessary to sue personally the entire membership (or some members), which is difficult and costly. Such organisations may require personal guarantees from one or more of the committee members. Further, incorporation is sometimes a prerequisite to government funding.

When is an unincorporated association appropriate?

The most likely situation in which it would be appropriate to have an unincorporated association is where the organisation is undertaking a single short term project that does not require much funding, and it is not intended for the organisation to continue once the project is completed. Examples would be a lobby group to stop a particular development going ahead or a team of people who get together to stage a particular event. In all other instances, serious thought should be given as to what other formal structure an organisation might take.

Dogs, Cats, and Animal Control

Introduction to Animal Care

When a person is attacked and injured or their property is damaged by an animal owned by someone else, it may be possible to obtain compensation for negligence. In such a case, it would be necessary to establish a cause of action as in any other negligence case.

Where the action sought is to destroy or impound an animal, legislation that applies includes the Dog Control Act 2000, the Dog Control Regulations 2010; and the Animal Welfare Act 1993. The Cat Management Act 2009, and the Cat Management Regulations 2012 commenced on 1 July 2012.

A person who has the care or charge of an animal has a duty to take all reasonable measures to ensure the welfare of the animal. (s6, Animal Welfare Act). If an animal is injured, the owner may be able to claim compensation. It is also possible to bring a criminal prosecution against a wrongdoer, including the owner. Intentional injuries to animals fall under the Animal Welfare Act and people found guilty of cruelty or aggravated cruelty face penalties of up to 12 months imprisonment, or fines of up to 100 penalty units (ss8 and 9). Bodies corporate face fines of up to 500 penalty units. A person may also be disqualified from having custody of any animal for a period a court thinks fit if they are convicted under the Animal Welfare Act. There are animal welfare officers under the Animal Welfare Act (s13) who will investigate and may take action if a complaint is laid.

Any person who steals a dog or other animal may be guilty of an offence under the Tasmanian Criminal Code. To injure or kill cattle is an offence punishable by imprisonment (s237, Criminal Code).

If an animal is mistreated by any person, the owner can either go directly to the police or contact the Royal Society for Prevention of Cruelty to Animals (RSPCA). The Society will send an inspector to investigate a complaint, and may even take the appropriate criminal proceedings.  Animals Tasmania provide an independent advocacy service to protect against the abuse, exploitation, and suffering of animals, and may also be contacted.

Dogs

Injuries Caused by Dogs

Under the Dog Control Act 2000 the common law applies and a dog’s owner is not liable unless it can be shown that the owner or keeper of the dog was aware of the dog’s vicious propensity. This may be difficult to prove. Various offences are created by the Dog Control Act and it would be an offence if the owner or person in charge of a dog allowed the dog to attack somebody (s19) but this doesn't in itself give any right to compensation. There are many powers under the Act for authorities to seize and hold dogs. Under the Act, a person being attacked, or who sees a dog attacking another person or another animal or a guide dog may restrain or destroy the dog (s41). Owners of farming property may destroy any dog found at large on their property.

Your Responsibilities as a Dog Owner

You must register your dog (s8, Dog Control Act). The penalty is a fine of up to 5 penalty units, which currently stands at $130 per unit. All dog owners are required to microchip a dog over the age of 6 months (s15A); the general manager of the local council can order microchip implantation if the dog is seized, and the owner is liable for the cost (s15A(3)).

It is an offence, both legally and socially, to not clean up after your dog and remove its faeces in a public place (s45). The penalty is a fine of up to 3 penalty units. Dog owners are also required to prevent their dogs from becoming or creating a nuisance in a public place. This means it must not behave in a way injurious or dangerous to the health of any person, or create noises that persistently occur and unreasonably interfere with the peace, comfort or convenience of any person in any premises or public place. Fines are up to 5 penalty units.

Dangerous dogs and restricted breeds

Dangerous dogs are declared where a dog has caused serious injury to a person or another animal, or there is reasonable cause to believe that this would happen (s29). Restricted breeds under the Act are:

  • Dogo Argentino;
  • Fila Brasileiro;
  • Japanese tosa;
  • American pit bull terrier or pit bull terrier;
  • Perro de Presa Canario or Presa Canario; or
  • Any other prohibited under the Customs Act 1901 (Cth).

Requirements for keeping a dangerous dog or restricted breed include micro-chipping, de-sexing (s32A), and particular restraints while the dog is in public. These include muzzling, wearing a collar at all times, walked on a 2 metre or shorter lead, and being controlled by someone at least 18 years of age (s32). Owners are also required to have a suitable enclosure to prevent a dog leaving premises (s32). There must also be warning signs on premises on which dangerous or restricted breed dogs are kept (s33). Failure to comply can result in fines of up to 20 penalty units (over $3000).

The Act sets out other restrictions, including restrictions on the number of restricted breed dogs to be kept (34C), the requirement for approval to transfer ownership of either dangerous or restricted breed dogs (34A).

Destruction of Dogs

Dangerous dogs can be destroyed if an owner has failed to provide a suitable enclosure. The owner has 28 days to comply with a notice from the general manager of the local council to build a suitable enclosure. Failure to do so can result in the dog’s destruction (s39A(4)). The owner has a right of appeal to the Magistrates Court (Administrative Appeals Division) (s39A(6)).

A person can destroy a dog if the person sees the dog attacking another person, animal, guide dog or hearing dog (s41((1)(b)), or if they themselves are being attacked (s41(1)(a)). Dogs found at large on primary production land relating to livestock (for example, a cattle farm) can be destroyed by a person with the authority to act on behalf of the land owner. (s41(3)). A person who destroys a dog must notify the general manager of the local council within 14 days of the destruction (s41(4)).

Other dogs may be destroyed if an authorised person or veterinary surgeon is satisfied that the dog poses a threat of injury to any person, pr death or serious bodily injury to another animal. This also applies where the injury has occurred (s42(1)). There are also grounds for destruction on humane grounds – if the dog is found distressed or disabled to the point of continued suffering. There is authorisation to enter a premises to carry out destruction of a dog (s42(2)). Situations where this might occur would be where a person has been injured by a dog, and the dog owner refuses to release the dog to a vet or authorised person, or where animal cruelty is observed on a premises and the animals held there have very little chance of rehabilitation to health.

Guide Dogs

Visually or hearing impaired persons are entitled to be accompanied by a genuine guide dog at all times and in all public places and on all public transport. Guide dogs owners and guide dog trainers are issued with an identity card by an approved guide dogs or hearing dogs institution (s3Guide Dogs and Hearing Dogs Act 1967 (Tas)). 

Cats

The Cat Management Act 2009 and Cat Management Regulations 2012 have imposed conditions on cat owners in an attempt to deal with the problems of feral cats, and to encourage responsible ownership. They came into effect on July 1st, 2012. Cats are classified by the Department of Primary Industry, Parks, Water and Environment (DPIPWE) as a priority species for management and a harmful invasive species, as they have serious impacts on native wildlife when both domesticated and when they have turned feral. Feral cats are typically much larger and more aggressive than domestic cats, and can destroy or compete with important, vulnerable fauna, such as quolls and bettongs.

The purposes of the Cat Management Act 2009 are to:

  • Promote the responsible ownership and welfare of cats, including the desexing and microchipping of domestic cats
  • Provide for the effective management of cats, in particular allowing humane handling and management of unidentified, stray and feral cats; and
  • Reduce the negative effects of cats on the environment.

The Cat Management Regulations 2012 are enacted under that legislation. The Regulations detail:

  • cat management facilities, such as cat shelters, and their operations;
  • microchipping and desexing of cats;
  • other requirements for cat owners, such as health checks; and
  • registration for cat breeders.

Microchipping and desexing

Cat owners must ensure that any cat in their care, over the age of 6 months of age is  implanted with a microchip (s12, Cat Management ActReg 14Cat Management Regulations). There are exceptions where a veterinary surgeon certifies that this would adversely impact on the health and welfare of the cat. Details that must be entered into the microchip database include such things as name, residential address and contact number of the cat owner, the name of the cat, the breed, whether the cat has been desexed, its age and colouration (Reg 15).

Desexing is required where the cat is more than 6 months of age except where a vet certifies that the procedure will interfere with the health and welfare of the cat, the cat is for the purpose of breeding by a registered breeder or the cat is a prescribed cat (s14). The Regulations define a prescribed cat as cats registered with an approved cat show organisation (Reg 18). Desexing must be done by a qualified veterinary surgeon.

Cat Breeders

As a first step to reduce the number of unwanted cats that are euthanased each year, it is now an offence to breed cats unless the owner is a registered breeder. A person who seeks registration as a cat breeder must make an application to DPIPWE to be approved. The Secretary of DPIPWE has the power to refuse, approve and revoke cat breeder registrations. If a person is a member of a cat organisation that has been acknowledged by the Secretary of DPIPWE, they are taken to be a registered breeder. Everyone else must make an application for approval (s30). The Secretary must be satisfied that the applicant is a fit and proper person, and that it is appropriate in all the circumstances to grant the application.

Anyone can sell or give away a cat but the animal must be at least 8 weeks of age, microchipped and desexed (unless a care agreement has been entered into), wormed and vaccinated (s15). Cat sales between registered breeders and genuine show cats will be exempt.

Feral and stray cats

Where feral and stray cats are found on ‘Prohibited Areas’ such as Crown land, private timber reserves, reserved land, private land subject to a conservation covenant, or State Forests or Reserves they may be the subject of cat management actions, which include the humane destruction, trapping and desexing of cats found in those areas (ss18-21). Local councils may declare certain areas to be prohibited areas or cat management areas (s21), under sections 19 and 20 of the Act.

Feral and stray cats may also be controlled on rural land and in remote areas as outlined below.

Seized, Unclaimed and Surrendered Cats

Cat management facilities will scan cats to discover microchipping to attempt return of a cat to its owner (s23). However, an aggressive cat, or one that an operator at the facility believes on reasonable grounds to pose a danger to health and safety will not be scanned (s22(3)). If a cat is to be reclaimed, cat management facility operators can microchip and desex cats (s24(2)), except where there is an exemption under the Act, such as for cats kept by registered cat breeders (s24(4)).

If a cat remains unclaimed, whether or not it was microchipped, or it has been surrendered, cat management facilities may find the cat another home, offer the cat for sale or cause the cat to be humanely destroyed (s25).

Destruction of Cats

The destruction of cats may take place in the context of cat management programs (ss17-21), on some private property, or in the context of seized, unclaimed and surrendered cats. An operator of a cat management facility may humanely destroy a cat, or cause a cat to be humanely destroyed if they have a reasonable belief that the cat has cause or is likely to cause serious injury to a person, another animal or itself; the cat is not microchipped is unfit to be placed or offered as a domestic pet; or is not microchipped and the facility is unable to accommodate the cat (s26). This means that microchipped, unclaimed cats can remain indefinitely in a facility if no suitable home is found for them.

Powers of local councils and inspectors

Councils can make declarations that class areas of land as prohibited land or cat management areas (s21). Authorised persons, which include police officers, or persons authorised under the Animal Welfare Act, the Dog Control Act, or the Cat Management Act, have the power to:

  • enter, search and inspect buildings;
  • search for and seize any cat on premises, which they have lawfully entered;
  • set traps on premises lawfully entered;
  • examine and scan cats for the presence of a microchip;
  • desex a cat;
  • microchip a cat; and
  • transfer a cat to a cat management facility.

Other powers of authorised persons are listed at section 7 of the Act. Generally, these are powers related to enforcing compliance with legislation and gathering evidence of any breach of the Act.

Powers of land owners to manage cats on property

Land owners engaged in primary production relating to livestock on rural land have the power to trap, seize, or humanely destroy cats found on their private land. They may also trap, seize or humanely destroy cats found on land that is more than one kilometre away from any place genuinely used as a place of residence, In these circumstances, a land owner can destroy the cat, or return it to its owner (if known), or arrange for the cat to be taken to a cat management facility (s17).

Other provisions

The Act states that cats are not to be abandoned. The penalty for doing so is a fine of 20 penalty units, which currently stands at a fine of over $2000 (s37). The provided alternative is to surrender a cat or cats to a cat management facility (s36). There may be some fees associated with doing so. Cats are also not to be offered as lucky door prizes or a raffle prize or any game of chance. A fine of up to 10 penalty units is associated with breaching this provision (s38).

Cat Management Facilities

In Hobart, the cat management facilities are facilities operated by the RSPCA or the Hobart Cat Centre Inc  Cat management facilities are also local council-run facilities with the capacity to handle and hold cats.

Birds, Domestic Fowl and Livestock

Some native birds, such as the sulphur crested cockatoo, may be kept as pets without the need for a permit, others are totally protected or may only be obtained from a licensed dealer or permit holder.

The Local Government Act 1993 (Tas) allows local councils to make by-laws to regulate health and environmental services. Some councils have by-laws which regulate the keeping of poultry and other animals. It is recommended that you check with your local council to find out if there are any restrictions on keeping poultry and other livestock in a suburban setting.

For example, the Hobart City Council Health and Environment Services By-Law 2008 at by-law 23, provides that:

  • A person must not keep any poultry within six (6) metres of any dwelling-house, or within one (1) metre of any fence line or boundary, or allow any poultry to have access to any area within six (6) metres of a dwelling-house except if the sale of live poultry is part of the usual business of any shop and the poultry is in properly maintained cages.
  • A rooster cannot be kept within 300 metres of a neighbouring dwelling without the written approval of the occupants of that neighbouring dwelling. By-law 20 also provides that approval in writing from the General Manger is required before a person is allowed to keep any horse, pig or any other livestock in a stable, sty lot, paddock or secure premises. 

The Local Government Act at section 194 gives a local council the authority to impound stray animals and to sell, give away or destroy an impounded animal.

Wildlife

The Wildlife (General) Regulations 2010 which are issued under the Nature Conservation Act 2002  regulate the taking and possession of wildlife. 

It is an offence for a person to buy, sell or possess any wildlife taken contrary to the regulations (Reg 38 and Division 5). The regulations provide for permits and licences and set out the different categories of protected and restricted animals. Schedules 2 and 4 of the regulations list the species which are partly protected, protected or specially protected wildlife. These include a wide range of native birds, mammals, amphibians, reptiles, and even invertebrates such as the Tasmanian glow worm.

A number of native birds, such as the  sulphur crested cockatoo or a rainbow lorikeet may be bought, sold or held without a permit (Schedule 3); whereas a permit issued under regulation 24 is required if a person wishes to take, have possession of, buy or sell or otherwise dispose of other protected wildlife. The regulations provide for a number of other permits and licences: for example, a permit to take wildlife for scientific or educational purposes (Reg 25); and wallaby, muttonbird and hunting licences (Regs 1314 and 15).

Injuries Caused by Other Animals

In Public Places

The common law divides all animals into two categories. The first category includes all animals and birds which, by habit or training, live in association with man, for example, cats and all common farm animals. The second category includes all remaining animals, and the law deems them to be ‘naturally wild’. The keeper of an animal which belongs to the second category is liable for any injury that animal causes. In such a case it is not necessary to show that the keeper was negligent or that they knew that the particular animal had shown a ‘previous mischievous propensity’. The category to which a particular species of animal belongs is a question of law, the degree of domestication of any individual animal being irrelevant.

The keeper of an animal which belongs to the first category will only be liable for damage caused by that animal upon proof of the keeper's negligence or of their knowledge of the animal's propensity to cause damage of the kind complained of – hence, an action in negligence must be established. The owners of cattle once enjoyed freedom from liability for damage caused by the cattle straying onto the roadway, whether as a result of the owner's negligence or not. This ancient exception was removed by legislation in Tasmania and in such a situation the ordinary principles of negligence will now apply.

On the Owner's Premises

Responsibility here depends on the principles of ‘occupier's liability’. If the occupier has a public liability insurance policy (nowadays most householders' policies include such cover) this will generally provide cover for liability for damage done by animals.

Exceptions from Liability

No liability exists in situations where damage or injury is due to the fault of the person sustaining it (for example, where a person provokes an attack on themselves) or where a person has otherwise accepted the risk of injury.

Contacts and Resources

Animal management is part of local council responsibilities. The Hobart City Council provides comprehensive information on dogs.

You can also visit The Dogs Home website for information on adopting dogs, and care available for dogs.

Department of Primary Industries, Parks, Water and Environment provides Information for Cat Owners and a Fact Sheet on Cat Ownership and Information on Wildlife Management.

Questions and queries about cat management facilities should be directed to:

RSPCA Launceston
63 Remount Rd,
Mowbray 7248
Ph 6332 8282

RSPCA Hobart
553 Pass Rd,
Mornington 7018
Ph 6244 3033

RSPCA Devonport
108 Tarleton Rd,
Spreyton 7310
Ph 6427 2566

Hobart Cat Centre
12 Selfs Pt Rd New Town 7005
Ph 6278 2111

Animals Tasmania provide an independent advocacy service for animal welfare and may be contacted regarding any concerns about animal exploitation, abuse, and suffering. 

Environment

Introduction to Environmental Law

Resources

The central resource for information on environmental law is the EDO Handbook  which comes out of the Environmental Defenders Office (EDO).

EDO also publishes a resource for litigants seeking to go the Resource Management and Planning Appeal Tribunal without legal representation called ‘Going It Alone: A Practical Guide for Unrepresented Litigants in the Resource Management and Planning Appeal Tribunal’. ‘Going It Alone’ can be purchased from the EDO for $22.00. The Resource Management and Planning Appeal Tribunal also publishes detailed Practice Directions on its website at: http://www.rmpat.tas.gov.au.

What is environmental law?

Environmental law refers to laws that are directed towards protecting natural and cultural resources, including laws relating to pollution, noise, land-use and development, cultural heritage, resource extraction, and threatened species protection.

The following chapter is a brief overview of environmental and planning legislation. For comprehensive information, we recommend the EDO handbook.

Federal environmental laws

Most environmental issues in Australia are dealt with at a State level. However, some environmental issues have been considered important enough to warrant a coordinated national approach. These issues are the subject of Commonwealth legislation and often relate to international treaties to which Australia is a party. Environmental issues dealt with in this way include whaling, pollution at sea, greenhouse gas emissions and management of the Australian territories in Antarctica.

The main statute in federal environmental laws is the Environment Protection and Biodiversity Conservation Act 1999 (Cth). This Act deals with such issues as wetlands of international significance, World Heritage areas, places on the National Heritage List, migratory species, and threatened species. This Act is discussed in greater detail below.

 

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is a Commonwealth Act and can impact on applications and activities within Tasmania. For comprehensive information see Chapter 15 of the EDO Handbook.

The EPBC Act applies where there are actions that may have a significant impact on matters of national environmental significance (including listed threatened and migratory species, wetlands of international significance, places on the National Heritage list, World Heritage areas or nuclear activities). These matters will be assessed by the Commonwealth Environment Minister, unless the actions have been exempted under the EPBC Act.

In deciding whether to permit or deny the action that is being assessed, the Minister will take into account:

  • the impacts on each relevant matter of national environmental significance, or the Commonwealth environment;
  • economic and social matters;
  • the principles of ecologically sustainable development;
  • the precautionary principle,
  • any assessment report, PER or EIS or report of a public inquiry (including a summary of public comments);
  • any comments given to the Minister by another Commonwealth Minister; and
  • the proponent’s history in relation to environmental matters.

The public are able to make submissions regarding whether the Minister should approve or refuse to approve actions, however there are limited avenues to appeal against decisions.

Tasmania's Environmental and Planning Law Framework

The Resource Management and Planning System (RMPS) is an integrated approach to development assessment and environmental planning in Tasmania.

The RMPS is underpinned by the following objectives:

  • To promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity;
  • To provide for the fair, orderly and sustainable use and development of air, land and water;
  • To encourage public involvement in resource management and planning;
  • To facilitate economic development in accordance with these objectives; and
  • To promote the sharing of responsibility for resource management and planning.

The RMPS applies to most legislation dealing with the regulation and management of natural resources, therefore these objectives must be taken into account in most decisions regarding use and development in Tasmania.

Of the suite of legislation included in the RMPS, there are two main components of the integrated approvals process – development control and environmental management. Generally, developments are assessed under the Land Use Planning and Approvals Act 1993 and environmental impacts are assessed and managed under the Environmental Management and Pollution Control Act 1994. Both Acts are discussed in greater detail below.

Exclusions to the RMPS

A number of resource management activities are excluded from the RMPS and regulated under separate legislative and administrative frameworks. These activities include marine farming, mineral exploration, and public and private forestry operations. These industries are discussed separately.

Participants within the RMPS

There are a number of important participants in the RMPS, including:

  • Local councils;
  • Tasmanian Planning Commission;
  • Resource Management and Planning Appeal Tribunal;
  • Board of the Environment Protection Authority;
  • Department of Primary Industries, Parks, Water and Environment; and
  • The community.

Local councils

Local councils (which are often referred to as ’planning authorities’ in relation to development decisions) , are responsible for developing, administering and enforcing planning schemes to regulate land use and development within a local government area. Most development decisions in

Tasmania are made by planning authorities.

Every local council in Tasmania (currently 29 in total) has a planning scheme that is available for public viewing at council offices and on the council website. Some council areas have more than one planning scheme. While there is currently little consistency between these schemes, the Tasmanian Planning Commission has developed a standard template which planning authorities must adopt. All planning schemes are expected to be more consistent by mid-2013.

Local councils also have a statutory responsibility to prevent and control pollution under the Environmental Management and Pollution Control Act 1994  and a host of environmental obligations under the Local Government Act 1993 and the Public Health Act 1997.

The Tasmanian Planning Commission

The Tasmanian Planning Commission (TPC) took over from the Resource Planning and Development Commission in 2009.

The TPC performs a variety of functions in respect of land-use planning and development under several pieces of legislation including: the Land Use Planning And Approvals Act 1993, the State Policies and Projects Act 1993, the Public Land (Administration and Forests) Act 1991, the National Parks and Reserves Management Act 2002  and the Water Management Act 1999

The principal functions of the TPC are to:

  • Assess planning schemes (including amendments) ,
  • Prepare the State of the Environment report,
  • Advise the Planning Minister and planning authorities on planning schemes and planning issues,
  • Review State policies,
  • Assess Projects of State Significance (such as Basslink and Lauderdale Quay),
  • Review water management plans, and
  • Review management plans for national parks and reserves.

Resource Management and Planning Appeal Tribunal

The Resource Management and Planning Appeal Tribunal (RMPAT) was established under the Resource Management and Planning Appeal Tribunal Act 1993 to consolidate a number of Tribunals dealing with planning and resource management decisions. The Tribunal is now the most important forum for the resolution of environmental and planning issues in Tasmania and nearly all land use disputes are heard in the Tribunal in the first instance. However, the Tribunal cannot hear disputes relating to forestry or the granting of mining or marine farming leases.

The Tribunal is less formal than a court and is intended to make it easier for members of the public to appeal against administrative acts and decisions. For example, the Tribunal is not bound by the rules of evidence, conducts public hearings and has a simpler, less technical hearing process. Comprehensive information can be found at: http://www.rmpat.tas.gov.au/

Board of the Environment Protection Authority

The Board of the EPA reviews development applications that are submitted to a planning authority where the activity proposed is a Level 2 activity (that is, activities listed in Schedule 2 of EMPCA, such as abattoirs and sewerage treatment plants) or has been called in for assessment because of its potential for significant environmental impacts. The Board of the EPA assesses applications on the basis of their potential environmental impacts, such as impacts on biodiversity, cultural heritage, pollution, effects on groundwater, and waste management.

Planning authorities are bound to implement a decision of the EPA Board so, if the Board recommends refusal the planning authority must not grant a permit for the development.

Department of Primary Industries, Parks, Water and Environment

The Department of Primary Industries, Parks, Water and Environment (DPIPWE) is the principal agency responsible for administering the Environmental Management and Pollution Control Act 1994. Authorised officers of DPIPWE have the power to issue an Environment Protection Notice, serve an offender with an Environmental Infringement Notice and to institute civil enforcement proceedings or criminal proceedings for breaches relating to causing environmental harm.

DPIPWE also administer legislation relating to water management, threatened species, marine farming, contaminated sites and agricultural chemicals.

Community participation

There are numerous opportunities for public participation in planning and management processes under the RMPS. For example, a member of the community may:

  • Request an amendment to a local planning scheme or make a representation about a proposed amendment;
  • Recommend that a species be listed as threatened;
  • Object to proposed developments in their neighborhood;
  • Appeal against council decisions to grant planning permits;
  • Request a local council or DPIPWE to issue an Environment Protection Notice against a polluter;
  • Comment on environmental impact assessments;
  • Make submissions regarding development applications, Projects of State Significance and Projects of Regional Significance;
  • Comment on proposed Water Management Plans; and
  • Take civil enforcement proceedings to stop breaches of environmental and planning legislation.

Development Control - Land Use Planning and Approvals Act 1993

The major legislation relating to the regulation and control of development in Tasmania is the Land Use Planning and Approvals Act 1993 (LUPAA). LUPAA establishes a system of planning schemes that provide a framework for regulating the use and development of land, and some resources, within local government areas.

Planning Schemes

A planning scheme regulates the use, development, protection and conservation of land within a specific geographical area (generally the whole of the local council area, however some councils have more than one scheme. For example, Hobart City Council has separate planning schemes for Hobart, Battery Point and Sullivans Cove). A planning scheme must:

  • further the objectives of the RMPS;
  • be prepared in accordance with State Policies; and
  • be prepared in accordance with the Statewide Planning Scheme Template;
  • be consistent and coordinated with planning schemes in adjacent areas.

Generally, planning schemes regulate development by dividing land into specific zones and setting out objectives and development standards for land uses within each zone. For each zone, planning schemes identify land uses and developments that are exempt, permitted, discretionary or prohibited.

For example, a Landscape Protection Zone may have the overall objective of protecting and maintaining landscape values, including flora and fauna and scenery. To protect these values, industrial developments may be prohibited within the zone, agricultural activities may be permitted and commercial developments may be discretionary to allow Council to assess the likely impact of each proposed development. There may also be restrictions within the zone on building heights and a general policy to retain tree and vegetation cover.

Exempt Use and Development

If a use or development is exempt, no council approval is required.

Permitted Use and Development

If a use or development is permitted within a zone, the planning authority must approve the development application, provided it meets relevant development standards. A development application for a permitted use is not open for public comment, however conditions may be imposed under the planning permit.

Discretionary Use and Development

If a use or development is discretionary, the planning authority has the discretion to approve or reject the application, having regard to its potential impacts. The public are able to make representations in respect of applications for discretionary uses and the planning authority must consider all representations when assessing the development application and determining what (if any) conditions to apply.

Prohibited Use and Development

If a use or development is prohibited within a zone, a development application for the use will be refused. However, a developer can also seek an amendment of the planning scheme to rezone the land so that the use or development is no longer prohibited.

Planning schemes also set out what information an applicant must provide, and what a planning authority must consider when assessing a development application.

Obtaining development approval

Other than exempt development, any use or development (including new developments and the expansion of existing developments) needs to obtain planning approval from the local council.

To obtain planning approval, a developer must lodge a development application (including plans of the proposed development) with the planning authority, who assess the development against the planning scheme objectives and development standards, such as maximum building height or minimum lot size. After assessing the development application, the planning authority may issue a permit (with or without conditions) or reject the development proposal. It may also be required to refer the application on to the Board of the Environment Protection Authority (EPA) or a regional water corporation (such as Southern Water) for further assessment.

The basic process under the LUPAA

The basic process for the assessment of a discretionary development under LUPAA is as follows:

Further information

The planning authority may seek further information from the developer, to make sure that the planning authority properly understands the potential impacts of the proposal.

Public notice

The planning authority gives notice of the proposed development by:

  • placing an advertisement in the local newspaper;
  • displaying the application in the local council offices;
  • mailing a notice of the application to neighbouring properties;
  • placing notice posters on the development site (s57(4)).

Representations

Any person can make a representation to the planning authority regarding the proposed development within the time limit set out in the notice (this must be at least 14 days from the date of the advertisement).

Council must consult with other agencies

Planning authorities may consult with relevant government agencies (such as the Department of State Growth or Tasmania Fire Service) to make sure that all potential impacts of the development are addressed. In addition, the planning officer will consult with all relevant council officers with an interest in the proposal, for example engineering, transport, environmental health and waste management.

If the proposal is for a Level 2 activity, it must be referred to the Board of the EPA. If the proposal will have an impact on water or sewerage infrastructure, the application must be referred to the regional water corporation.

Decision

Following consultation with relevant agencies and reviewing all representations received, the planning authority may grant a planning permit for the development (with or without conditions) or refuse to grant the permit. Conditions imposed on a planning permit should reflect any advice from relevant agencies and aim to ensure that all potential impacts of the development are appropriately managed. Any conditions recommended by the EPA or a regional water corporation must be included in the permit.

Appealing against the decision

The developer and any person who made a representation can appeal to the Resource Management and Planning Appeal Tribunal against the decision of a planning authority. An appeal must be lodged with the Tribunal within 14 days of being notified of the decision and accompanied by a filing fee (currently fees vary).

A person who did not make a representation regarding the development, may still be able to join an appeal if the Tribunal is satisfied that:

  • they are a person whose interests are affected by the decision (such as a neighbouring landowner); and
  • it was unreasonable for them to have made a representation (for example, if they were away when the development application was advertised).

The Tribunal will re-examine the decision that is the subject of the appeal. That is, it will look at the development proposal and associated considerations as if the first decision had not been made. The Tribunal has the power to make any decision that the planning authority could have made, including imposing conditions on the development proposal, rejecting or approving it (see s23 Resource Management and Planning Appeal Tribunal Act). The Tribunal also requires parties to participate in mediation, and often resolves planning disputes by consent agreement.

It is not always necessary to have legal representation in the Tribunal. However, planning and environmental law issues can be tricky, especially for people who have not had any experience with these matters. For complex matters, or where the other party has professional advice or representation, it may be advisable to get at least some initial advice from a professional experienced in environmental or planning law. Advice can come from a variety of sources, including lawyers, planners and engineers. You can contact the Tribunal to obtain a list of professionals willing to give you 15 minutes of free advice. Hobart Community Legal Service’s Planning Aid programme also provides free planning advice.

The only avenue of appeal against a decision of the Tribunal is to the Supreme Court of Tasmania based on a question of law.

Building Control

 

Building permits are often required in addition to a development permit. The regulation of construction, alteration, or demolition of buildings is prescribed by the Local Government Act 1993, the Building Act 2000, the Local Government (Building and Miscellaneous Provisions) Act 1993 and related regulations and standards. Part 6 of the Building Act 2000 also sets out building practice standards relating to materials, building methods, fire safety designs, and energy efficiency requirements.

The definition of building work is extensive and covers the demolition or partial demolition of any building, structural alterations to houses, car parks and some fences and sheds. Only very minor work (such as gardens, low fences and retaining walls) is likely to fall outside the definition of building work, so it is desirable to check with the council to see whether you need building approval. Regulation 4 of the Building Regulations 2004 also provides a list of buildings and building work that are exempt from the need for planning approval.

Applications for building permits are lodged with the local council and must be accompanied by an application form and detailed plans and specifications. If work is done without approval, penalties may be imposed and orders may be issued preventing any further work being carried out or requiring unauthorized works to be removed.

In general, approval of the local council is required before any building work may be undertaken.
The regulation of standards of building practice is contained in the Building Regulations 2004, made under the Act. The regulations, which apply throughout Tasmania, include standards for certain materials, building methods and contain stringent design and management requirements for fire safety.
It should also be noted that councils are entitled to have regard to the design of the building and general aesthetics when assessing an application for building work.

Civil enforcement of planning laws

Civil enforcement proceedings may be brought under section 64 of LUPAA against a person who does not comply with a planning scheme or with the provisions of LUPAA. For example, civil enforcement proceedings may relate to:

  • the failure of a local council to enforce its planning scheme;
  • a use or development being carried on without a development permit; or
  • a use or development being carried out in breach of the conditions of the permit.

Civil enforcement proceedings may be brought by:

  • the planning authority;
  • the Tasmanian Planning Commission; or
  • any person who has a ‘proper interest in the subject matter’. The Tribunal will determine whether a person has a ‘proper interest’. This generally infers that the applicant will be personally, professionally or financially affected by a certain activity.

Civil enforcement proceedings involve making an application to the Tribunal for an enforcement order. The Tribunal has broad powers to make orders, including orders requiring the respondent to:

  • temporarily or permanently refrain from the relevant activity (for example, to stop construction until a permit is obtained);
  • stop carrying out any use or development on the land;
  • make good any damage resulting from the breach (for example, replanting an area of vegetation cleared without a permit).

Civil enforcement proceedings must be brought within 2 years of the alleged offence.

Councils, individuals or other relevant authorities may also enforce planning or building controls by seeking an injunction in the Supreme Court preventing unlawful conduct.

The Environmental Management and Pollution Control Act 1994 (EMPCA)

The Environmental Management and Pollution Control Act 1994 (EMPCA) is part of the integrated development assessment process and addresses the environmental harm associated with development activities. EMPCA provides for a variety of management tools to prevent, remediate and mitigate environmental impacts.

What is environmental harm?

EMPCA defines environmental harm as “any adverse effect on the environment” (s5). Environmental harm is divided into three categories – serious, material or environmental nuisance.

Serious environmental harm

This involves an actual adverse effect on the health or safety of human beings or on the environment that is of a high impact or on a wide scale; or results in actual loss or property damage exceeding ten times the threshold amount (the threshold amount is currently $5,000).

Material environmental harm

This consists of an environmental nuisance of a high impact or on a wide scale; or involves an actual adverse effect on the health or safety of human beings, or on the environment that is not negligible; or results in actual loss or property damage exceeding the threshold amount (currently $5,000).

Environmental nuisance

‘Environmental nuisance’ means the unlawful emission of a pollutant that unreasonably interferes with, or is likely to unreasonably interfere with, a person's enjoyment of the environment. For example, noise, dust and odour problems may constitute environmental nuisance.

Environmental harm may be caused by pollution. To ‘pollute’ is defined in EMPCA as: to discharge, emit, deposit, disturb or fail to prevent the discharge of a pollutant. A ‘pollutant’ includes:

  • a gas, liquid or solid; or
  • an odour; or
  • an organism (whether alive or dead), including a virus; or
  • energy, including noise (see below), radioactivity and electromagnetic radiation; or
  • a combination of pollutants that may cause environmental harm.

In addition, a person is taken to be responsible for polluting if they are “the occupier or person in charge of a place or vehicle at or from which a pollutant escapes or is discharged, emitted or deposited” (s6, EMPCA). Importantly, company directors can be personally liable for the pollution offences of a company. Maximum penalties are four years imprisonment and/or up to $250,000 in fines.

Noise

Noise pollution is regulated under EMPCA and the associated Environmental Management and Pollution Control (Miscellaneous Noise) Regulations 2004 (the Noise Regulations). Noise may constitute an environmental nuisance if it ‘unreasonably interferes with a person's enjoyment of the environment’ having regard to:

  • its volume, intensity or duration; and
  • the time, place and other circumstances in which it is emitted; and
  • in the case of noise emitted from residential premises, whether it can be heard in a habitable room in any other residential premises’ (s53).

The Noise Regulations prescribe acceptable noise levels and permissible hours of operation for various activities. See ‘Neighbours’ for a table of permissible activities and hours of operation. For example, lawnmowers can be operated between 7am and 8pm Monday to Friday, 9am and 8pm on Saturdays and 10am and 8pm on Sundays. Noise emitted from an average lawnmower should not exceed 74dB(A). Provided the noisy activity operates within these limits, it will not constitute an environmental nuisance.

If a neighbour is carrying on an activity that you consider makes an unreasonable noise, it is advisable to first contact the neighbour to try to resolve the issue informally. If no resolution is possible, contact your local council, or the police if it is after hours.

Local council officers and the police have powers under the EMPCA to investigate possible noise pollution incidents on domestic and commercial premises, and can issue an Environmental Infringement Notice (EIN) or an Environment Protection Notice (EPN) upon a person or business causing noise pollution. These enforcement options are discussed in detail below.

Please note, special legislation exists to deal with nuisance caused by barking dogs. Under the Dog Control Act 2000 a dog owner must not allow their dog to unreasonably interfere with the peace, comfort and convenience of other people. If you are concerned about barking dogs, contact your local council.

The defence of due diligence

It will be a defence to a claim that a person has caused environmental harm, including environmental nuisance, to show that all reasonable and practicable measures were taken to prevent the environmental harm.

Environmental Management Tools under the EMPCA

A major component of EMPCA is a variety of management tools for the prevention and/or reduction of environmental harm. Other than environmental impact assessment, there are a number of management and enforcement options available to regulate activities that cause environmental harm, including:

  • Environmental Infringement Notices;
  • Environment Protection Notices;
  • Environmental Agreements;
  • Environmental Improvement Programmes;
  • Civil Enforcement

Environmental Infringement Notices (EINs)

If DPIPWE or a local council is satisfied that environmental harm has occurred, an authorised officer may serve the offender with an environmental infringement notice in respect of the offence (s67). An EIN imposes a penalty (usually less than $1,000) for the offence. However, an EIN does not impose any obligations to remedy the environmental harm.

If the person disregards the EIN, they can be liable for prosecution for the offence.

Environment Protection Notices (EPNs)

EPNs may be issued by the Director of the EPA or a local council. An EPN requires an offender to implement measures to prevent, control, reduce or remedy environmental harm. An EPN can also be used to vary permit conditions where it becomes necessary to address unexpected environmental harm. The EPN will override a development permit to the extent that they are inconsistent.

The EPN will state what the environmental harm is, how the environmental harm is to be managed and may impose conditions on the polluting activity. For example, an EPN may require the offender to:

  • remediate damage resulting from the pollution;
  • cease the use of particular types of chemicals;
  • carry out detailed water quality monitoring; or
  • limit operating hours at the premises.

Environmental Agreements

The Board can enter into Environmental Agreements with developers, with the approval of the Minister. These agreements set out management, investment, monitoring and reporting functions that require the developer to perform to higher environmental standards than those required by law. In return, developers are given exemption from certain taxes and charges.

Environmental Agreements may be made in respect of individual operations, premises, areas or regions and may apply to industry or activity groups. Environmental Agreements are legally binding documents and a party can be prosecuted if the agreement is breached.

Environmental Improvement Programmes (EIPs)

An environmental improvement programme is a specific programme to assist a person to achieve compliance with EMPCA by reducing environmental harm or transitioning to a new environmental standard. For example, if new noise regulations are introduced, the Board can require a developer to prepare a draft EIP to show how it will change its operations to achieve compliance with the new requirements.

EIP must specify the objectives to be achieved, set out a timetable for achieving the objectives and indicate how monitoring and reporting will be carried out. Once approved, the developer cannot be prosecuted for failing to comply with legislative requirements, provided the developer is complying with the EIP.

Civil Enforcement of environmental laws

Civil enforcement proceedings may be brought under section 48 of EMPCA to address breaches of the environmental legislation. For example, civil enforcement proceedings may relate to:

  • unreasonable noise emissions from a small industry in a residential area, such as a tannery or workshop;
  • discharge of chemicals into a stream used for domestic consumption or stock watering; or
  • leaching of chemical waste from a refuse site into the water table.

Civil enforcement proceedings may be brought by:

  • a local council;
  • the Director of the EPA; or
  • any person who has a ‘proper interest in the subject matter’

The Tribunal will determine whether a person has a ‘proper interest’. This generally infers that the applicant will be personally, professionally or financially affected by a certain activity.

Civil enforcement proceedings involve making an application to the Tribunal for an enforcement order. The Tribunal has broad powers to make orders, including orders requiring the respondent to:

  • temporarily or permanently refrain from the relevant activity (for example, to stop industrial activities until a new smoke stack is installed);
  • comply with an EIP or EPN;
  • make good any damage resulting from the breach (for example, cleaning up a contaminated site);
  • pay costs and expenses incurred by the Board in taking action to prevent or mitigate the environmental harm; or
  • pay an amount into the Environment Protection Fund as a penalty.

Civil enforcement proceedings must be brought within 3 years of the alleged offence.

Assessing Environmental Impacts

Under the EMPCA, development activities are classified according to three levels, depending on the environmental risk presented by the activity. The assessment process for each level varies, and is outlined below. An excellent resource is also available on the EPA website, detailing the EIA process.

Level 1 Activities

Level 1 activities require a permit under LUPAA but generally pose a lower risk of environmental harm than Level 2 activities. Examples of Level 1 activities include some light industries, small water treatment plants and commercial premises.

The assessment of Level 1 activities, including the likely environmental impacts, is generally the responsibility of local councils (‘planning authorities’). Environmental controls are generally imposed through conditions on the planning permit issued for the activity (for example, limiting hours of operation or requiring ongoing monitoring of water quality).

Where the Director of the EPA thinks that the activity may cause environmental harm, he or she can require a planning authority to refer the development application to the EPA for assessment (this is called “calling in” a development). Calling in the development changes the status of the development to a Level 2 activity for assessment purposes.

Level 2 Activities

Level 2 activities are uses specifically identified in Schedule 2 of EMPCA on the basis that they are likely to pose a significant environmental risk without proper management. Level 2 activities include most large industrial and extractive activities, such as pulp and paper works, coal processing and sewerage treatment. Many Level 2 activities are classified according to capacity or output, so that developments only become Level 2 activities if they operate at a particular level. For example, mineral works becomes a Level 2 activity if it involves the processing of 1,000 tonnes or more per year of raw materials.

Level 2 activities must be referred to the Board of the EPA for an environmental impact assessment before a permit to operate can be issued. Following its assessment, the Board can require a planning authority to refuse a development application or specify conditions that must be included in the permit. DPIPWE is responsible for the ongoing regulation of Level 2 activities.

Level 3 Activities – Projects of State Significance

The government can declare a development proposal to be a Project of State Significance if it has at least two of the following attributes:

  • significant capital investment;
  • significant contribution to the State's economic development;
  • significant consequential economic impacts;
  • significant potential contribution to Australia's balance of payments;
  • significant impact on the environment;
  • complex technical processes and engineering designs;
  • significant infrastructure requirements.

Examples of Projects of State Significance have included the Mt. Lyell Copper Mine at Queenstown and the Oceanport development in Hobart.
Projects of State Significance are assessed by the Tasmanian Planning Commission (TPC) under the State Policies and Projects Act 1993, rather than by local councils. The TPC undertakes an integrated assessment of level 3 activities, considering all environmental, social, economic and community issues relevant to the project. The developer prepares a draft Integrated Impact Statement (based on guidelines set by the TPC), which is available for public comment. The TPC then holds a public hearing to consider the IIS, before making recommendations to the government about the Level 3 activity.

The final decision regarding a Project of State Significance rests with the government. The Minister has no obligation to follow the advice of the TPC, however, where the Minister’s decision is contrary to the TPC’s recommendation, the order allowing the development to proceed must be passed by both Houses of Parliament. Once passed by parliament, the Governor is ultimately responsible for declaring that a Project of State Significance can proceed.

If approval is given for a Level 3 activity, the conditions will specify who is responsible for ongoing regulation of the activity.

The EIA process

Environmental impact assessment (EIA) aims to evaluate the likely impacts of a development on the surrounding environment. In particular, an EIA is used to establish the information base for decision-making regarding these impacts to determine whether the development should proceed and any conditions that should be imposed to minimise or control its impacts.

 

For level 2 activities, or ‘called-in’ Level 1 activities, the Board of the EPA will determine what level of assessment is required. Smaller projects may only be required to prepare an Environmental Effects Report (EER), while projects which are larger, located in sensitive areas or subject to a high level of public interest may be required to prepare a detailed Development Proposal and Environmental Management Plan (DPEMP). The EPA has set general guidelines for the content of a DPEMP and the Board may also set project specific guidelines that must be addressed.

If a proposed development is likely to affect a heritage site under the Historic Cultural Heritage Act 1995 a threatened species under the Threatened Species Protection Act 1995 or an aboriginal site under the Aboriginal Relics Act 1975 the developer must also fully investigate the likely impacts of the development upon these areas.

The draft EER or DPEMP is assessed by the Board and released for public comment (between 14 -42 days, depending on the level of assessment category). Any person may make a written submission regarding the proposal and associated impacts. The Board considers all public submissions when making its final assessment of the proposal. The Board may recommend to the planning authority that the development (with or without conditions) or can require the planning authority to reject the application. Any conditions recommended by the Board must be included in any permit issued for the project.
 

Industry Codes of Practice

Codes of Practice

Industry codes of practice regulate and manage the physical operations and activities of the relevant industry. These Codes are commonly developed and regulated by the industry itself (such as the Forest Practices Code) and usually include general principles and objectives for planning and management, as well as specific management actions.

In some cases, the Code will be a legal requirement for the industry (the Forest Practices Code via the Forest Practices Act 1985 (Tas)) and in others it will be merely a best practice document (the Quarry Code of Practice or Code of Practice for Mineral Exploration), where compliance with the whole document or certain sections of it may be required by a licence, permit or Environment Protection Notice. Often, even where a Code is legally binding, not all of its provisions require absolute compliance. For example, the Forest Practices Code contains ‘will’, ‘should’ and ‘may’ statements whereupon only the ‘will’ statements must be observed, raising the possibility of varying degrees of compliance.

Forestry

For the purposes of planning, forestry is divided into two categories – public and private forestry. Public forestry refers to forest operations conducted on public or Crown land, with the responsibility for planning and management of these areas lying exclusively with Forestry Tasmania. Private forestry refers to operations conducted on private land, and includes a variety of logging operations from large-scale operations conducted by a large forestry or investment company, to the smaller-scale operation of an individual landowner. Both types of forestry operate within an essentially self-regulated industry – while the forest practices system is overseen by the Forest Practices Authority, most planning, management, monitoring, research and enforcement is generally carried out within the industry itself.

Legislation

The major legislation relating to forestry operations in Tasmania is the Forest Practices Act 1985. This Act establishes a number of important planning and management components, including:

  • Forest Practices Plans (FPP) – these are site-specific operational plans that describe how forestry activities must be carried out. An FPP must be submitted and certified before any forest practices can be carried out. Subject to some exemptions, it is an offence to carry out forest harvesting without a certified FPP, and an offence to purchase timber harvested without an FPP. It is a statutory requirement that a Forest Practices Plan be prepared in accordance with the Forest Practices Code. See the EDO Handbook entry for a comprehensive list of exceptions to requirements for an FPP (such as small scale harvesting, harvesting associated with approved buildings or utilities), and what constitutes ‘vulnerable land’ on which any amount of clearing requires an FPP.
  • Forest Practices Code – This is the major management document applying to forestry operations in Tasmania. The Code provides management prescriptions for forest practices to ‘provide reasonable protection for the environment’, including the width of streamside reserves, road construction, threatened species and cultural heritage protection. It is an offence to carry out forestry operations in breach of the Code, but the only means of making a complaint as a member of the public is to make a complaint to the Forest Practices Authority (FPA). You can download the Forest Practices Code from the FPA website. 
  • Private Timber Reserves – Private Timber Reserves (PTRs) are the major planning unit for private forestry in Tasmania. A PTR is an area set aside for private forestry activities and must be used for establishing forest, harvesting timber and associated activities. Forestry activities carried out on a PTR are exempt for the provisions of a planning scheme under the Land Use and Planning Approval Act (LUPAA) and do not require a planning permit (although an FPP is still required). The local council, relevant State agency or a owner of adjoining property within 100m who will be ‘directly and materially disadvantaged’ may object to the declaration of a PTR..
  • Forest Practices Authority (previously the Forest Practices Board) - The FPA is responsible for administering the forest practices system. The FPA certifies Forest Practices Plans, assesses applications for PTRs, develops and monitors compliance with the Forest Practices Code.
  • Forest Practices Tribunal – The Tribunal is an independent body responsible for determining appeals brought under the Act, including applications for PTRs or appeals regarding a Forest Practices Plan. Rights of third parties to appeal to the Tribunal are very limited. 
    You can find current information on the composition of the Tribunal, and the Forest Practices Authority at the FPA website.

Access to State forests

Forestry Tasmania has the right to deny public access to timber production areas, in particular, the use of forestry roads. The Forestry Act 1920section 20B states that Forestry Tasmania “must exercise its powers so as to afford members of the public access to State forest for such recreational purposes as are not incompatible with the management of State forest.” Importantly, Forestry Tasmania is empowered to prevent access in certain instances. A forest management plan may specify that the whole or any part of the land to which it applies is a restricted area to which the public does not have access.

In addition, Forestry Tasmania may close a forest road or any section of forest road to vehicular or pedestrian traffic if it considers the closure necessary to discharge its responsibilities or in the interests of safety. This closure may be temporary or permanent, however there is an obligation for Forestry Tasmania to consult with a local council if it intends to close permanently a road that is subject to significant public usage. It is an offence to walk onto, drive or use a vehicle on a forest road or a section of forest road designated by Forestry Tasmania as closed to the public.

Mining Activities

The EDO provides a comprehensive overview of the legal regulations around mining in Tasmania in Chapter 11 of the EDO Handbook. Government bodies that are significant include: the Mining Tribunal, the Registrar of Mines, local councils, and Mineral Resources Tasmania.

Mining has been a significant industry in Tasmania, and continues to have environmental impacts.  There are two principal activities that fall within the ‘mining’ sector: mining (including exploration) and quarrying.  Both activities can occur on public or private land, subject to relevant permissions being obtained.

Mining

The primary Acts regulating mining in Tasmania are: the Mineral Resources Development Act 1995 and the Environmental Management and Pollution Control Act 1994 (EMPCA). Environmental impacts of mining are assessed, and regulated, under EMPCA.  Planning permits under the Land Use Planning and Approvals Act 1993 are not required for mineral exploration where a mining lease, exploration or retention licence has been issued.

If mineral exploration proves that there is an economic mineral resource, with sufficient financial and technical resources for exploitation mine, a mining lease may be granted. The mining lease application will be subject to an environmental impact assessment, including public submissions.  The applicant must provide a rehabilitation bond and, where the mine is on private property, must demonstrate that a compensation agreement has been entered into with the landowner.  Mining leases are generally for 5-10 year terms, and determine rights of access, and land areas to which access is granted.

Objections to mining leases are heard in the Mining Tribunal, but are generally limited to the applicant or persons with a direct interest in all or part of the land which is the subject of the lease. 

Once approved, mining operations are required to be conducted in accordance with the Mineral Exploration Code of Practice. Conditions of a mining lease, and any permit issued under EMPCA, must also be complied with – any breaches should be reported to the mine operator, the Director of Mines and the EPA.

Some limited opportunities may exist to also take action where emissions from the mine (such as noise, dust or vibrations) are causing environmental nuisance. For more information, see Chapter 11 of the EDO Handbook.

Quarrying

Quarrying specifically refers to the extraction of construction materials, such as rock, sand, and gravel. Quarries that extract less than 1,000 tonnes of mineral per annum, or 5,000m3 of sand or stone are ‘Level 1’ activities and require approval from the local council (see above). Larger quarriesare classified as ‘Level 2 activities’ and must be assessed by the EPA under EMPCA. 

A mining lease may also be required for some quarrying activities, but is not required for the following:

  • Quarries operated by the Crown in State forest, for the purpose of supplying materials for road construction within the State forest (these operations must be carried out in accordance with the Forest Practices Act 1985);
  • Quarries within a State forest that sell less than 100 tonnes of minerals per year;
  • Quarries on private land mined for the use of the landowner, or that sell less than 100 tonnes of minerals per year.

Quarrying activities must be carried out in accordance with the Quarry Code of Practice. Conditions of any planning permit (including conditions imposed by the EPA) must also be complied with.  Breaches should be reported to the quarry operator and the local council or EPA (depending on the size of the operation).  If environmental harm is being caused, any person with a proper interest can also apply to the Tribunal for civil enforcement orders in respect of the quarry.

For more information, see Chapter 11 of the EDO Handbook.

Parks and Wildlife Service

The Nature Conservation Act 2002 regulates the conservation and protection of flora, fauna and geological diversity within Tasmania. This Act also classifies reserved lands in Tasmania and establishes values and objectives for each reserve class. The National Parks and Reserves Management Act 2002 ensures that reserves are managed in accordance with the management objectives for each reserve class. This Act also provides for the development and implementation of management plans for reserved land, which are reviewed and approved by the Tasmanian Planning Commission.

Pursuant to this legislation, the Parks and Wildlife Service (the PWS) is responsible for managing approximately 30% of Tasmania’s land through various land classification units, including national parks, coastal reserves, and game reserves. National parks account for the largest proportion of reserved land, with approximately 21% of land in Tasmania classified in this way.

The Director of PWS also has obligations and responsibilities under a number of other Acts, including managing and maintaining identified protected sites under the Aboriginal Relics Act 1975 and membership of the State Fire Management Council, the Tasmanian Heritage Council and Wellington Park Trust. Authorised parks officers also have roles under the Fire Service Act 1979Threatened Species Protection Act 1995, and the Wildlife (General) Regulations 2010.

Marine Farming

In many of Tasmania’s coastal areas, marine farming is now a significant development activity. However, the nature of marine farming operations and the planning and regulatory framework governing these operations has meant that marine farming has also become a source of community concern. Concerns have included the possible impact of marine farming operations on marine ecosystems, loss of visual amenity, and noise pollution.

Marine farming is regulated under the Marine Farming Planning Act 1995 and the Living Marine Resources Management Act 1995. This Marine Farming Planning Act 1995 provides for the preparation of Marine Farm Development Plans, which identify suitable areas for marine farming and incorporate these areas into a marine farm zone.

Public meetings are held in relation to draft Marine Farming Development Plans (notice of the meeting will be advertised in the local newspaper),and draft plans are placed on public exhibition up to two months, during which time any person can make a representation or comment. A draft Plan must contain an Environmental Impact Statement (s23, Marine Farming Planning Act), outlining the expected environmental impacts of the proposed operations.

After the public comment period has expired, DPIPWE prepare a report for the Marine Farming Planning Review Panel. The Panel may hold public hearings in relation to the draft plan (or draft amendment to the plan), but it has no statutory obligation to do so. The Panel then makes a recommendation to the Minister regarding the draft. The Minister is not required to adopt the Panel’s recommendations, but must provide a statement of reasons to Parliament for any decision that is contrary to the Panel’s advice.  There is no right of appeal against the Minister’s decision.

Importantly, land-based marine farming operations are still subject to planning schemes under Land Use and Planning Approval Act (LUPAA). Therefore, where issues relate to operations on land, there is recourse to the Tribunal through the Resource Management and Planning System (RMPS).

Heritage

There are specific Commonwealth and State legislation designed to protect significant heritage places, including natural, built and cultural environments.

Commonwealth legislation

Two lists of significant heritage places are maintained under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act):

  • National Heritage List - places of national heritage significance (such as Port Arthur); and
  • Commonwealth Heritage List - heritage places managed by the Commonwealth (such as Parliament House).

Developers need to seek approval under the EPBC Act for any development activity that is likely to have a significant impact on the heritage values of listed places. Commonwealth agencies are also required to develop and implement management plans for heritage places under their control.

Any person may nominate a property for listing on the National Heritage List by completion of a nomination form, available from the Australian Heritage Council. The nomination must identify the place being nominated, the location of the property and the reasons why the property should be listed. The Australian Heritage Council then reviews the nomination and makes a recommendation to the Minister about whether the property should be included in the List.

Tasmanian Heritage Council

In Tasmania, heritage properties are listed on the Tasmanian Heritage Register, maintained by the Tasmanian Heritage Council under the provisions of the Historic Cultural Heritage Act 1995.

Eligibility for entry onto the Register is based upon a number of criteria, listed within the Act. For example, a place may be listed because it is important in demonstrating the evolution or pattern of Tasmania's history or is representative of the characteristics of a broader class of cultural places. It is an offence to carry out works on a listed heritage property or within a listed heritage area, that may affect the cultural heritage significance of the property, without the approval of the Tasmanian Heritage Council (s32(1)).

Under the Act, the public has the opportunity to object or lodge submissions in relation to either the permanent listing or removal of a property from the Register.

Any person can make a representation opposing or supporting the permanent listing of a property on the Register within 60 days of public notice of the Heritage Council’s intention to list the property. Objections to the proposed listing can only be made on the basis that a property does not satisfy the criteria on which its entry is based.

Any person can make a representation opposing or supporting the removal of a property from the Register within 30 days of public notice of the Heritage Council’s intention to remove the property.

The Heritage Council will consider all comments received before making a final decision on whether to permanently list a property on the Register, or to remove a property from the Register.

Appeals

Any person who made an objection or submission regarding the removal or inclusion of a property in the Register may appeal to the Resource Management and Planning Appeal Tribunal against the Heritage Council’s decision. The appeal must be lodged within 30 days of public notification of the decision.

An appeal against the permanent entry of a place on the Register may only be made on the basis that the property does not satisfy any of the required criteria on which the entry was based.

Parks and Wildlife Service

The PWS is an important body in the conservation of Tasmania’s heritage, having primary responsibility for the protection of indigenous heritage under the Aboriginal Relics Act, the management of heritage reserves, and the conservation of flora and fauna, which contributes to natural heritage conservation.

Local Councils

Many local councils in Tasmania maintain a register of locally important heritage properties. Once identified in a planning scheme, such properties may have controls placed upon them in addition to obligations under State or Commonwealth heritage legislation. A local council’s heritage register may identify heritage properties not listed on any State or Commonwealth heritage register.

Local Government Issues - Rates

General

The major source of revenue for local government is the rating system. Rates are levied on almost all privately owned land and buildings in the State. In effect, all land and buildings are rateable, unless coming within the prescribed exceptions named in section 87 of the Local Government Act 1993 (LGA) such as public reserves and park lands, land used for churches, hospitals, libraries or recreation grounds.

The most important rate is the ‘general rate’. Normally the rate is levied in a uniform manner over the whole council area but councils have power to levy a separate rate for different classes of land. Councils have power also to fix ‘special rates’. Before a council is entitled to recover rates it must issue a rate notice which complies with the requirements of the LGA. Failure to issue a proper notice will jeopardise its ability to recover payment.

In each financial year the council must declare the rates for that year.

Valuation of Land

All rates and taxes in respect of land or buildings are based on an assessment of the value of the land and buildings. The Valuer-General usually values land in three ways:

  • Land Value - broadly speaking, this is the value of the land itself disregarding a house or any other improvements upon it.
  • Assessed Annual Value - this is an amount equal to the rent which the land and buildings might be expected to realise if rented.
  • Capital Value – this is the value the land might be expected to realise if sold.

Values are determined on the basis of sales of comparable property which have been recently made. The value of one house in a street or in a suburb will be affected by the sales price of other houses in that street or suburb.

Values are also based on the ‘highest and best use’ of the land or buildings which is legally possible or which may become legally possible. This means that a piece of land with one house upon it in a zone which permits residential flats may be valued as if it had residential flats upon it. Or a large block of land may be valued at the price for which it could be sold, if subdivided into smaller blocks. These valuation techniques have led to increases in assessments in recent years.

Councils have power to base their rates upon any of the above modes of valuation or upon a differential value approved by the Minister. The LGA permits either method of assessment as the base on which to levy rates but if a council wishes to change from one form of assessment to another, it must pass a special resolution accordingly.

Challenging a Valuation

The Valuation of Land Act 2001 requires notice of the valuation made by the Valuer-General to be given to each landowner. It is possible to lodge an objection with the Valuer-General against an increased (or decreased) valuation. The objection must be lodged in writing within one month after service of the valuation notice and must contain a full and detailed statement of the grounds of the objection. The Valuer-General may then alter the valuation or disallow the objection. If the objection is disallowed, or is allowed only in part, there is a right to require reference of the objection to the Land Valuation Court. The appeal must be instituted within one month of the service of the notice from the Valuer-General disallowing objection.

Enforcing payment of Rates

Once levied, the rates form a charge on the land. Councils have various powers to enforce payment of rates, which include a power of sale in cases where rates have not been paid for three years or more. Late payment of rates automatically results in a fine equal to three percent of the amount of the rate, plus interest.

Rate Certificates

A certificate may be obtained from a local council stating that there are no rates or other money outstanding on a parcel of land and this certificate is deemed to be conclusive proof of that fact. It is desirable for a purchaser to obtain such a certificate.

Immigration and Citizenship

Introduction to Immigration

Immigration is a huge area of law. The purpose of the Immigration Department is not to prevent people from immigrating to or visiting Australia, it is intended to regulate the movement of people in and out of Australia. Regulation of migration is an important part of the nation state system.

The Department of Immigration and Border Protection (DIPB) regulates immigration because it is important to manage Australian resources, to know the population demographics for management of resources, to prevent the spread of contagious diseases, such as tuberculosis, and to ensure that people entering Australia can be identified.

Immigration law in Australia is the responsibility of the Commonwealth government. Immigration law is created by federal, not state, legislation. This means that immigration law is the same across Australia – from Tasmania to the Northern Territory the same laws apply.

This section deals with procedural issues and problems migrants may have with the immigration law system. It also addresses some queries Australian citizens heading abroad may have before departing Australia.

In Australia, immigration is regulated by the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). The Act provides the framework of laws, and the  Regulations provide the procedures around all aspects of migration, including visa applications, entry, stay, removal and exclusion of non-citizens.

The government department in charge of migration is the Department of Immigration and Border Protection (DIPB). The name of the department has changed several times in the last twenty years, and will continue to change as each government attempts to put their stamp on the meaning of Australia's attitude toward immigration. Every government has a different emphasis, or policy outlook.

Reference to the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) and the Department of Immigration and Multicultural Affairs (DIMA) are out of date, as is Department of Immigration and Citizenship (DIAC), but in the context of immigration, reference to any of these refer to powers now exercised by DIPB.

Travel document requirements for ALL travellers, who are entering Australia, are available at the DIPB website.

WARNING

For current information on ALL immigration and visa information, please refer to the Department of Immigration and Border Protection website. Immigration law changes may not be reflected in the information contained here. This information is of a general nature and not intended to be legal advice. It may not reflect current law.

Australian and New Zealand Citizens

Australian Citizens

Heading overseas - holidaying

Australia has reciprocal arrangements with many countries for entry and temporary visits. All of these agreements exclude the right to work, except the agreement with New Zealand. For advice on specific countries, travellers should consult www.smartraveller.gov.au and the relevant embassy website.

Europe: UK

Australians can enter the United Kingdom for up to six months as a tourist if they have sufficient funds and do not intend to work. A stamp in the passport given by immigration officers in the airport is evidence of permission to enter. Gaining a work permit is relatively simple for Australian citizens who wish to work in the UK. They must apply to the British High Commission in Canberra.

Europe: The Schengen Convention

The Schengen Convention permits Australian tourists planning to spend less than a total of 90 days within a 180 day period in the Schengen area without a visa. Countries in the Schengen area are: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, The Netherlands, Norway, Poland, Portugal, Slovenia, Slovakia, Spain, Sweden, and Switzerland. There is a separate arrangement with the United Kingdom. The United Kingdom, Ireland, Albania, Belarus, Bosnia & Herzegovina, Bulgaria, Croatia, Cyprus, Former Yugoslav Republic of Macedonia, Moldova, Montenegro, Romania, Russia, Serbia and Ukraine are not part of the Schengen area.

Asia

Requirements for entry into countries in Asia differ. Popular destinations, such as Thailand and Vietnam have very different requirements. Before entering Vietnam, Australian citizens must obtain a valid visa. Thailand requires that travellers have at least six months validity remaining on their passports. When Australians enter through an international airport on an Australian passport they may enter for up to 30 days without obtaining a visa. This period is 15 days if the travellers enters overland. Visas are required for longer stays, or for purposes other than tourism. Consulting the relevant embassy page is always important before making departure plans.

Emigrating or working overseas

Applying for permanent residence or a working permit, or emigrating to another country with a spouse or with family can be complicated. For information on permanent immigration, or work permits it would be best to consult the embassy website of the country to which you are intending to go. Often, if employment has been secured beforehand, the employer will help to organise visas and sponsorship.

Working holidays

The DIAC website provides a list of embassies and other official government bodies that process working holiday visa applications. There are numerous countries with who Australia has arrangements so that Australian citizens can work and holiday abroad, these are as diverse as Bangladesh, the Republic of Korea and Malta.

New Zealand Citizens

General

Since the 1920s, various legal arrangements have provided New Zealand and Australian citizens with the right to enter each other’s country to visit, live, and work, without the need to apply for a visa. In 1994, changes to the Migration Act 1958 meant that while this basic right is unchanged, the Special Category Visa (SCV) was created for New Zealand citizens. When New Zealand citizens enter Australia on a valid New Zealand passport they are considered to have applied for the SCV. A stamp in their passport is evidence that a New Zealand citizen is holding a SCV.

Exceptions: Social Security Payments and Permanent Residence

While New Zealand citizens can enter Australia without applying for a visa, if they intend to stay and access certain social security payments, obtain Australian citizenship, or sponsor family members for permanent residence, they must first apply for and obtain a permanent residence visa.

There are also exceptions based on character and health considerations, such as possessing a criminal record. For more detailed information on New Zealand citizens in Australia see the DIAC website. 

Citizenship

Becoming a citizen

There are ten steps in the process to become an Australian citizen. While permanent residents share the rights and duties or citizens, there are some rights and duties unique to citizens. Becoming a citizen entitles a person to:

  • An Australian passport
  • The right to stand for public office and election for Parliament
  • The right to vote in federal, state, and local electrons
  • Serve on juries
  • Claim diplomatic protection while overseas
  • Serve in the Australian defence force

Citizenship is governed by the Australian Citizenship Act 2007 (Cth). Citizenship can be obtained in several ways:

  • Birth - in Australia to Australian citizens, or in Australia to non-Australian citizens if the child is ordinarily resident in Australia for their first ten years, 
  • Descent – through the citizenship of one’s parents
  • Adoption
  • Permanent residence and application for citizenship
  • Resuming Australian citizenship
  • Children born in Australia automatically receive Australian citizenship once their birth is registered with the Registry of Births, Deaths and Marriages in the State in which they are born.
  • Children adopted overseas

The process of applying for citizenship as an adopted child is available online. There are several requirements, including compliance with the Hague Convention on Inter-country Adoption, and compliance with domestic Australian law.

Children born overseas to Australian citizen parents

The requirements are fairly straightforward – if born after January 26, 1949, to an Australian citizen parent, a person is eligible to apply for citizenship. This category also applies to individuals whose responsible parent was an Australian citizen by descent and spent periods of two years during their lifetime in Australia.

Permanent residents

This category includes: spouse or partner of an Australian resident; New Zealand citizen living in Australia; child of a former Australian citizen, refugee or humanitarian entrant, Commonwealth Child Migrant Scheme arrival, or a person born in Papua before Independence in 1975. Detailed information is available online.

Loss of Citizenship

Citizenship can be lost if a citizen renounces their citizenship; serves in the armed forces of a country at war with Australia; is a child of a person who loses citizenship; or who acquired citizenship on a fraudulent basis, and it is against public interest to allow them to retain their citizenship.

Regaining Australian Citizenship

If you surrendered your citizenship in order to become a citizen of another state, it is possible to regain Australian citizenship, as Australia now recognises dual citizenship. Regaining Australian citizenship is governed by several rules. Details are available online. The process is also available online.

Australian Visas

An Overview of Visas

Visas and passports are a means of identifying and regulating people within a country. Immigration is part of the greater workings of the State system, upon which the global economy, and global politics is dependent. States have a responsibility to ensure they know who is leaving and entering their borders. The questions that must be asked are: who is seeking to enter Australia? Why are they coming here? How long will they stay? How will they support themselves? What will they do here? Visas address these questions.

An important thing to keep in mind with immigration is that in Australia there are approximately 350 different visa types. This means that if an applicant’s migration requirements are complicated, they may need to consult an immigration lawyer.

Example

If an applicant is the Lithuanian partner of an eligible New Zealand citizen, resident in Australia, who seeks a long term working visa to work in Australia for over a year, what visa do they apply for? What visa does the New Zealand citizen have? Is there more than one option? What if they are in New Zealand and not Lithuania? What if they are in Australia on a tourist visa already?

To make things much easier on everyone, the Department of Immigration and Citizenship (DIAC) provides the Visa Wizard – an online questionnaire that helps to determine which visa or visas an applicant may be eligible for.

Granting a visa

Whether or not a visa will be granted will depend on only one issue: does the applicant satisfy the criteria set out in the visa? There is no variability based on whether the decision maker is having a bad day, or doesn’t like the applicant’s spelling. The decision maker makes their decision on whether the applicant has satisfactorily addressed all the criteria necessary for a successful visa application. If the applicant has done so, then the visa will be granted. The only situation in which this is not true is where there are a limited number of visas in that particular subclass, and then it is whether the applicant has satisfied all the requirements of the visa, and the number of visas hasn’t been exceeded.

Understanding visa language

Language around immigration and citizenship include: ‘subclass’, which refers to the type of visa, for example a tourist visa could be Subclass 976 ETA (Visitor). ‘Decision maker’ is the term used to refer to the employee of DIAC who processes a visa application.

Citizens and Non-citizens

Other language includes ‘citizen’, ‘non-citizen’, ‘permanent resident’, ‘unlawful non-citizen’. A basic identifier of a citizen of Australia is whether they are eligible for an Australian passport. A permanent resident is a person who has the right to reside in Australia on a permanent basis, and can usually apply for citizenship. A non-citizen is not eligible for an Australian passport but when they are present in Australia they are present on the authority of a visa. An unlawful non-citizen is a non-citizen who is present in Australia without a valid visa – be it whether they entered without a visa, or have remained when a visa has expired.

DIAC provides its contact details for those who can’t find their visa on Visa Wizard or who have questions or problems that need attention. They also provide a call back service if the lines are busy.

In Australian law there is a basic distinction between citizens and non-citizens. Citizens are not directly affected by immigration laws. Non-citizens of Australia fall under immigration regulation. An example of when a citizen and non-citizen will both be involved with immigration law is when a citizen acts as a sponsor for a spouse visa for a non-citizen spouse. There are a set of procedures and rules that non-citizens must follow in order to obtain visas, whether temporary or permanent. If a non-citizen enters Australia without a visa they are classed as unlawful non-citizens.

Applying for a Visa to Enter Australia

Applying for a visa

It must be remembered by visa applicants that every aspect of the application is as important as the next. Fulfilling the criteria of a particular visa application will be just as important as lodging the application at the correct address, or using the correct application form. The Migration Regulations consist of seven volumes; they are lengthy and complicated. It is best to seek legal advice on visa applications before proceeding.

There is a Reader’s Guide to the Migration Regulations included in earlier versions of the Migration Regulations. It is still a useful beginner’s introduction to visa and other information.

Common Visa Requirements

There are several requirements that are common to all visas – these are the requirements of health and good character. Health requirements may differ where an applicant is applying for a medical visa to seek treatment in Australia. See Medical Visa below. There is a website that provides information on all visa charges associated with the application process for each visa type,

Health

The health requirement is part of protecting the high standards of health and health care available to Australian citizens and permanent residents. The process involved in meeting the health standard will vary according to the applicant’s personal circumstances and the visa applied for. For example, tourist visa applicants no longer a re required to pass a chest x-ray examination. A more rigorous health examination may be attached to permanent rather than temporary visas, depending on the country of origin of the applicant, and other factors – such as whether they already have been residing in Australia for a period of time.

A major focus of the health requirement is to prevent tuberculosis spreading into Australia. The tuberculosis risk rating will bear on the health examinations required of an applicant. The requirements for temporary entry are available on the DIBP website. The requirements for permanent entry include a medical examination, a chest x-ray (for signs of tuberculosis) and an HIV test.

Good Character

Good character requirements are usually in the form of providing police certificates for each country you have lived in for 12 months or more over the last ten years since turning 16. Applicants outside Australia do not have to provide this information when applying, but will be advised if they are required to provide it at a later date. People applying from within Australia will have to provide this information with their application.

There are several information pamphlets on establishing good character: See the general information about character and police checks, as well as Fact Sheet 79 – The Character Requirement on the Department of Immigration website.

Exclusion periods and re-entry bans

Exclusion periods and re-entry bans are sometimes attached to visas. For example, an exclusion period can mean that a person can not apply for an extension to a visa, such as a tourist visa, and will have to depart the country. If a person has overstayed their visa they will often be subject to an exclusion period for return, or a total ban: a re-entry ban. Sometimes, an exclusion period is a regular condition of a visa, such as a tourist visa with a ‘No further stay’ condition attached. This will mean that a tourist visa holder will have to depart Australia.

Visa Conditions

Each visa has its own conditions. A tourist visa is just this: a tourist visa. The conditions attached are that you cannot work while in Australia, and must not study for more than three months. A student visa allows the student to work 20 hours a week whilst their course is in session – they cannot exceed this, or they will be breaching the conditions of their visa.

Student visas and minor offences or convictions

The Hobart Community Legal Service is often asked about the effect of minor convictions, such as a speeding fine, or driving over the limit, and how these will affect the validity of a student visa. Generally, minor offences are not going to affect a visa. DIAC looks at criminal offences involving violence, trafficking or distribution of drugs, injury to or corruption of young people, and sex offences against children as the most serious offences warranting deportation. However, any offence that results in a conviction of 12 months imprisonment or more can lead to deportation.

Under the Migration Act 1958 (Cth) section 201 a person who is not an Australian citizen but has been a permanent resident for less than 10 years, and who is convicted for an offence for which they are imprisoned for one year or more may be deported by DIAC. Section 501 of the Act provides much broader discretionary grounds and allows the Minister of DIAC to cancel a temporary or permanent visa on character grounds. Character grounds includes terms of imprisonment of 12 months or more as a substantial criminal record (s501(7)).

Temporary Visas

Visitor visa

There are several classes of visa available for people seeking to enter Australia for tourism or family/friend visiting purposes. Broadly speaking, tourist visas allow visitors to come to Australia to visit friends or family, or to travel and visit Australia. The four visa options are ETA(Visitor) visa, eVisitors, Tourist visa, or Sponsored Family Visitor visa. For information on each of these, visit the DIBP website section on tourist visa options.

The requirements to qualify for a tourist visa include having health/travel insurance, financial means to support yourself whilst in Australia, and meet the health and character requirements. The DIBP website provides a total overview of the requirements of a tourist visa.

There are options for some tourists to lodge an online application. For example, the eVisitor visa is available as an online application, and the application process costs nothing. There are restrictions on this visa – it is not for repeat visits, or for stays longer than 3 months.

A traditional Tourist Visa (subclass 676) has now been replaced by Visitor Visas, Sublasses 600, 601, 651. These have many of the same conditions as the subclass 676 and can authorise a stay of up to 12 months for both business and tourist purposes. There are costs associated with applying for these visa. The 600 visa has a base charge of between $135 and $335, the 601 is an electronic travel authority and has a $20 service charge while the 651 e-Visitor visa also carries a service charge of $20 but is only available to passport holders of certain countries.

Working holiday visas

Working holiday visas fall into two categories – Working Holiday Visa (Subclass 417), and Work and Holiday Visa (Subclass 462). There are a limited number of countries with which Australia has working holiday visa agreements. Some countries fall within the 417 visa, and others within 462.

Both visas are for young people aged between 18 and 30. The fee at time of writing for a working holiday/work and holiday visa application was $270. The eligible countries under the 462 visa are: Argentina, Bangladesh, Chile, Indonesia, Iran, Malaysia, Thailand, Turkey, and the USA. The 417 visa is for people from Belgium, Canada, Republic of Cyprus, Denmark, Estonia, Finland, France, Germany, Hong Kong, Republic of Ireland, Italy, Japan, Republic of Korea, Malta, Netherlands, Norway, Sweden, Taiwan, and the United Kingdom.

The 417 visa has consistent requirements. It is for a period of up to 12 months, where the primary purpose is a holiday, and employment is for supplementing the holiday income. There is a non-refundable charge associated with the visa application. Under this visa, a visa holder can leave and re-enter Australia any number of times and study for up to four months while the visa is valid.

The 462 visa has different application requirements for each of the different countries. There are a limited number of visas available to most countries in this Subclass. The purpose of the visa is the same as the 417 in that it was for a period of 12 months, there is a non-refundable visa application fee, and the visa holder can study for up to four months, and leave and re-enter Australia any number of times while the visa is valid.

Student visas

Eligibility for a student visa depends on the an applicant’s passport country and the courses of study. These determine the Assessment level under which the student’s eligibility for a visa will be assessed. There are eight subclasses of Student (temporary) visa, under which courses of study are classified. Whether an applicant is undertaking a course of undergraduate or postgraduate study will also influence the type and duration of their visa, as well as the rights that are granted under that visa. The Department of Immigration and Border Protection provides a comprehensive advice booklet online at: http://www.immi.gov.au/allforms/pdf/applying-student.pdf It is possible to apply for a student visa electronically, as well as manually. Student visas allow multiple entry into the country. The cost of student visas is generally over $500 (AU), but see the DIBP website for exact costs.

Medical Treatment Visa

The medical treatment visa allows a person to visit for treatment once until the treatment is completed, or as many times as the visa permits, or to visit for study for a period of up to three months. 

Transit visas

Transit visas are applicable for people transiting through Australia for 72 hours or less. Any period over 72 hours (3 days) will require a different visa, such as a tourist visa. Some non-citizens do no require a visa in transit. Non-citizens who require a Transit visa can apply for one free of charge.

Event Organisers and Participants

People who are coming to attend, speak at, perform in, or compete in an international event, conference of meeting in Australia will need to apply for a Business Visit visa. Participants can go to the DIBP website for comprehensive information on the process.

For organisers of international events, the International Event Coordinator Network (IECN) Service is available to provide free advice on visas. Enquiries can be made on the DIBP website.

Family Visas

Overview

The Department of Immigration and Citizenship classifies options for fiancés, partners, children, parents and other family members of Australian citizens, permanent residents or eligible New Zealand citizens under the category of Family Members as an information class. The visa options section provides a useful short quiz to guide you to the information you are looking for.

Australian immigration does recognise gay and lesbian relationships when applying for a de facto relationship visa. The two questions are whether the family migrant is a partner, parent, child, or other family member, and whether the visa applicant will be in Australia or outside Australia.

Family Violence and Permanent Visa Applications

The following information was provided by the Department of Immigration and Citizenship, from their Factsheet 38. The information was produced by the National Communications Branch, Department of Immigration and Citizenship, Canberra.

Introduction

The Family Violence Provisions allow certain people applying for permanent residence in Australia to continue with their application after the breakdown of their married or de facto relationship, if they or a member of their family unit have experienced family violence by their partner.

The provisions were introduced in response to concerns that some partners might remain in an abusive relationship because they believe they may be forced to leave Australia if they end their relationship.

Recent amendments to the Family Violence Provisions

The provisions were amended on 24 November 2012 to streamline the evidence that applicants need to provide when making a non-judicial claim of family violence.

Eligibility

The Family Violence Provisions apply to the following visa subclasses:

Family stream

Primary applicants for:

  • Partner (permanent) (subclass 100) visa
  • Spouse (permanent) (subclass 100) visa*
  • Interdependency (permanent) (subclass 110)*
  • Partner (temporary and permanent) (subclasses 820/801) visas
  • Spouse (temporary and permanent) (subclasses 820/801) visas*
  • Interdependency (temporary and permanent) (subclasses 826/814)*.

*These visas have been closed to new applicants from 1 July 2009, existing applicants are covered by family violence provisions.

Skilled stream (business):

Partners of primary applicants for:

  • Established Business in Australia (subclass 845)*
  • State/Territory Sponsored Regional Established Business in Australia (subclass 846)*
  • Labour Agreement (subclass 855)*
  • Employer Nomination Scheme (subclass 856)*
  • Regional Sponsored Migration Scheme (subclass 857)*
  • Distinguished Talent (subclass 858).

* These visas have been closed to new applicants from 1 July 2012, existing applicants are covered by family violence provisions.

Resolution of Status visa

Partners of primary applicants for Resolution of Status (subclass 851) visas only, who lodged their application before 9 August 2008. All applicants must also satisfy all other relevant legal requirements, including health and character requirements.

How the family violence provision works

Partner visa applicants

Partners of Australian citizens, Australian permanent residents and eligible New Zealand citizens who apply to live permanently in Australia undergo a two-stage visa application process.

If the applicant's relationship breaks down after they have applied for permanent residence, the applicant can still be considered for permanent residence if they provide acceptable evidence that they or their dependants have been the victim of family violence committed by their Australian partner.

The applicant will also have to satisfy the delegate that their relationship was genuine until it ceased and that the family violence took place during the relationship. There are some variations within the Partner category visas regarding eligibility to access the Family Violence Provisions. The provisions can only be accessed by Partner visa applicants who are already in Australia and by Prospective Marriage visa holders who are already in Australia and have married their sponsor.

A permanent visa may also be granted if your relationship breaks down and you and your partner have custodial rights under the Family Law Act 1975 for any children aged under 18 years that you and your partner may have.

Prospective Marriage visa holders

Some Prospective Marriage visa holders may be eligible to apply for permanent residency under the Family Violence Provisions. If the visa holder married their sponsor before their Prospective Marriage visa ceased and the marriage breaks down, they can still lodge a Partner visa application and seek access to the provisions if they or their dependants have been the victim of family violence committed by the sponsoring partner.

Skilled stream (business) visa classes

The partners of primary applicants for certain business visa classes may be considered for permanent residence if both of the following apply:

  • the married or de facto relationship broke down after the application for the business or skilled visa had been lodged
  • they provide acceptable evidence that they or their dependants have been the victim of family violence committed by the primary applicant.

If the primary applicant is granted permanent residence then the partner may be granted permanent residence at the same time under the Family Violence Provisions.

Definition of relevant family violence

Relevant family violence is defined as:
' conduct, whether actual or threatened, towards:

  • the alleged victim, or
  • a member of the family unit of the alleged victim, or
  • a member of the family unit of the alleged perpetrator, or
  • the property of the alleged victim, or
  • the property of a member of the family unit of the alleged victim, or
  • the property of a member of the family unit of the alleged perpetrator,

that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety'.

Relevant family violence is not limited to physical harm. It may also include other forms of abuse such as psychological and/or financial abuse, which is consistent with the above definition.

Forms of acceptable evidence

For the purposes of the Family Violence Provisions, acceptable evidence may be judicially or non-judicially determined.

Acceptable judicially determined evidence

Any one of the following is acceptable judicially determined evidence:

  • certain court injunctions under the Family Law Act 1975
  • certain court orders against the partner made under an Australian state or territory law
  • evidence that the partner has been convicted (or has recorded a finding of guilt) of an act of violence against the visa applicant or their dependants.

Acceptable non-judicially determined evidence

The requirements to provide non-judicially determined evidence for family violence claims have been streamlined and the new requirements are effective from 24 November 2012.

The minimum evidence required from an applicant who is making their first written claim of family violence on or after 24 November 2012 are the following:

  • a statutory declaration using Form 1410 — Statutory declaration for family violence claim or a generic statutory declaration completed by the alleged family violence victim, which sets out the allegation of family violence and names the person alleged to have committed it
  • at least two documents from the list of evidence specified in the legislative instrument.

Alternatively, evidence of a family violence claim can be in the form of a joint undertaking by the visa applicant and their partner, related to an allegation that is before the court that the partner has committed an act of violence against the visa applicant or their dependants.

Any other evidence, in addition to the minimum requirements outlined above may be provided to the department for consideration. This additional evidence cannot be in place of the minimum evidence that is required.

Instrument IMMI12/116 lists the acceptable forms of evidence that can be provided in support of a non-judicial family violence claim.

Form 1410 — Statutory declaration for family violence claim

For family violence claims first made on or after 24 November 2012, applicants who have suffered family violence may use Form 1410 for the purpose of providing a statutory declaration under the family violence provisions.

Other generic statutory declarations are acceptable as long as the following information is provided:

  • details of the allegation of the relevant family violence
  • name of the person who allegedly committed the relevant family violence

if the relevant family violence was not committed towards the applicant the statutory declaration must also

  • provide the name of the alleged victim
  • identify the relationship between the maker of the statutory declaration and the alleged victim
  • identify the effect the alleged family violence has had on visa applicant.
Agencies, services, professionals and other bodies
 

If evidence (such as a statutory declaration or official letter) is being provided by a professional or other agency as required under the legislative instrument it is expected that such a statement will include detailed information about the family violence claim.

The statement should include the following information:

  • details of the allegation of the relevant family violence
  • the name of the person who allegedly committed the relevant family violence
  • the name of the alleged victim
  • evidence or reasons that have informed this opinion or assessment
  • details about their professional relationship with the alleged victim or their family members and information about any services or support they have offered in relation to the alleged family violence.

Note: There are penalties under both the Statutory Declaration Act 1959 and the Migration Act 1958 for providing false information. 

Persons who first made a family violence claim prior to 24 November 2012.

Where the first family violence claim was made before 24 November 2012, the relevant version of Form 1040, Statutory Declaration relating to family/domestic violence, should be used for the purpose of providing a statutory declaration under the Family Violence Provisions.

See: Form 1040 (07/07) Statutory declaration relating to domestic violence (for partner category visa applications lodged before 15 October 2007); or Form 1040 Statutory declaration relating to family violence (for applications lodged on or after 15 October 2007).

Referral for independent assessment

Where there are reasonable doubts regarding the strength of a non-judicially determined claim of family violence, the department may refer the evidence supporting the claim to an independent expert for assessment. The independent expert will provide an opinion to the department either that family violence has or has not occurred. An independent expert's opinion must be accepted by the department.

The referral of evidence to an independent expert only applies to non–judicially determined claims of family violence. Acceptable judicially determined claims are not referred.

Information regarding a claim of family violence is provided to the independent expert on the understanding it will be treated in confidence.

Help and support for family violence victims

The Beginning a Life in Australia booklet contains useful information for new migrants in Australia, including services and support for people suffering family violence. It is available in a number of languages.

The department is not in a position to provide emergency assistance or social support to victims of family violence. However, family violence victims are encouraged to seek professional assistance.

For general visa-related enquiries

The department's national general enquiries line.

Telephone: 131 881

Hours of operation: Monday to Friday from 8.30 am to 4.30 pm. Recorded information is available outside these hours.

Fiancé, spouse or de facto partners

The three types of relationship to which these visas apply are:

  • people intending to get married (fiancés)
  • married (de jure) partners
  • de facto partners (including those in a same sex relationship)

The charges associated with these visas range between $300+ and $3000+. A tool to calculate all visa charges is available online.

Applying Outside Australia

For applicants applying from outside of Australia there are three visa possibilities: Partner Visa: Offshore Temporary and Permanent (Subclasses 309 and 100); Prospective Marriage Visa (Subclass 300); and the Humanitarian Program – Split Family Provisions.

  • The Prospective Marriage Visa (Subclass 300) permits entry into Australia for nine months for the purpose of marrying your intended fiancé. It is only for applicants who apply from outside of Australia. The visa holder can work and study in Australia, and apply for a Partner visa once they have married their fiancé.
  • The Partner Visa: Offshore Temporary and Permanent (Subclasses 309 and 100) is for married and de facto couples. It requires first a two year waiting period to see if the spousal relationship is still intact, and then a permanent visa can be applied for. An applicant who has entered under a prospective marriage visa and wishes to apply from within Australia for a Partner Temporary Visa can apply for a Subclass 309 or a Subclass 820 Partner Temporary Visa.
  • The Special Humanitarian Program – Split Family Provisions are for immediate family members of the holder of any permanent humanitarian visa (including Permanent Protection visas). These visas apply to partners, dependent children and parents of sponsors within Australia. For partners, the spouse or de factor partner and the proposer must be in a relationship recognised as valid for the purposes of the Migration Act 1958. This would exclude bigamous relationships, and relationships of temporary duration. If the visa is granted it will usually be the same visa as the sponsor’s visa.

Applying from within Australia

If applying from within Australia, the partner of an Australia citizen, permanent resident, or eligible New Zealand citizen can look at the Partner Visa: Onshore Temporary and Permanent - Partner Temporary Visa (subclass 820) and Permanent Visa (subclass 801). The first visa authorises a stay of two years. After that period if the spousal relationship is ongoing, a permanent visa may be granted.

Parents and Children

Parents

Charges for parent visas can run over $30,000. Presumably this is indicative of the costs associated with caring for an ageing population. There is also a significant waiting list for the determination of parent visas. For a comprehensive list of charges see the DIBP website.

Applying Outside Australia

There are several categories of visa options open to parents applying for a parent visa from outside of Australia who wish to reside in Australia either permanently or temporarily. These are listed below. All visas require that a child or eligible sponsor in Australia sponsor the applicant. ‘Child’ includes a stepchild. A partner and dependent family members can be included on all applications. Permanent and temporary visa applications that include a partner or other dependent family members attract a second visa application charge per person on the application if successful, after the initial visa application charge.

  • Parent (Permanent) Visa (Subclass 103): This is for parents seeking permanent migration to Australia. It entails numerous rights, including to work and study, receive subsidised healthcare through Medicare and the pharmaceutical benefits scheme (PBS), and be eligible to apply for citizenship. There are waiting periods for certain social security payments, and the ability to sponsor others for permanent residence into Australia. 
  • Contributory Parent (Migrant) Visa (Subclass 143)This is a permanent migration visa. It includes partners and dependent family members. In most circumstances, the child must have been lawfully resident in Australia for two years. The same rights as Visa 103 apply.
  • Contributory Parent (Temporary) Visa (Subclass 173)This allows for a residence of two years, access to the Australian health care system, and the right to work and study. After entry, the visa holder can apply for a 143 visa, a protection visa (permanent) or a medical treatment (temporary) visa. The visa holder can work, and study, and has access to Medicare. They are not eligible for social security.
  • Aged Parent (Residence) Visa (Subclass 804)Only elderly parents of a child or stepchild are eligible to apply for this visa. The rights associated with this visa are the same as listed above at Visa 103.
  • Contributory Aged Parent (Temporary) Visa (Subclass 884): This is a two year temporary visa for elderly parents, but visa holders can apply from within Australia for an 864 Visa – a permanent visa, a Protection (permanent) visa, or a Medical Treatment (temporary) visa. The rights associated with this visa are the same as those under Visa 173.
  • Contributory Aged Parent (Residence) Visa (Subclass 864): This visa is for elderly parents. At least half of your children must be Australian citizens, Australian permanent residents or eligible New Zealand citizens who are usually resident in Australia. More of these children have to live in Australia than in any other country. The permanent visa rights are the same as those under Visa 103.
  • Humanitarian Split Family Provisions: Only children under the age of 18 who have been granted permanent residence can apply to bring their parents or step-parents to Australia. There is a three way division:
    • Africa:
    • The Middle East and parts of South West Asia:
    • All Other Countries:

Applicants from Africa need to look at the ‘Lodging Certain Humanitarian Applications in Australia from applicants in Africa’ information. Applicants from the Middle East and parts of South West Asia need to look to ‘Lodging Certain Humanitarian Applications in Australia from applicants in the Middle East and parts of South West Asia’ information. All other countries must seek further information from immigration offices outside Australia.

Applying from within Australia

Parents applying from within Australia, as noted above with several of the temporary visas, have the opportunity to apply for permanent residency whilst their temporary visas are still valid.

Children

Generally, a child visa application charge covers all applicants in the same application. A summary of the application charges can be found online.

Applying Outside Australia

Children applying from outside Australia have five options:

  • Child (Permanent) (Subclass 101): this is for children under the age of 25. The parent acts as a sponsor for the child and can lodge a visa application on the child’s behalf. The child can live permanently in Australia and travel to and from Australia for five years from the date the visa was granted.
  • Orphan Relative (Permanent) (Subclass 117): This is for children under the age of 18, who are overseas and whose parents are unable to care for them. The child must be going to an Australian relative. The rights associated with this visa are the same as those in Visa 101. 
  • Adoption (Permanent) (Subclass 102): This is for children under the age of 18 years who have been or are about to be adopted from outside Australia by an Australian citizen, permanent resident or eligible New Zealand citizen. The adoptive parent acts as a sponsor and usually lodges the application. The rights are the same as above. The Department of Immigration can not assist with the adoption procedure, only the migration application. 
  • Dependent Child Visa (Subclass 445): This is a temporary visa for a child or stepchild of a parent holding a temporary partner/spouse visa and is applying for a permanent partner/spouse visa. The visa will either be a temporary Partner visa, a temporary Spouse visa, or a temporary Interdependency visa. The sponsor of the visa applicant will be the same person sponsoring the parent with the temporary visa. The child can only remain in Australia as long as the parent on the temporary visa. The child must also lodge a separate application for a permanent visa to their parent’s application. The visa is valid as long as their parent’s temporary visa, or until the parent’s permanent visa application is finalised. This finalisation depends on the child’s separate application being decided first.

Applying from within Australia

Applying from within Australia there are three options:

  • Dependent Child Visa (subclass 445): Dependent children are able to be sponsored by their visa-holding parent for this temporary visa. See above.
  • Child (Permanent) (Subclass 802): This visa allows a child to remain in Australia with their parent. The child must be under 25 years of age. The parent must be an Australian citizen, a permanent resident, or eligible New Zealand citizen. Such a situation might arise where a child who was born overseas to an Australian citizen, but has not acquired citizenship has come to Australia from a parent in another country and now wishes to stay with the Australian parent. 
  • Orphan Relative (Permanent – Onshore) (Subclass 837): This is similar to the Orphan Relative Visa (Subclass 117). The requirements are the same – there must be a relative in Australia with who they can remain, and their parents are unable to care for them. 

Other Family

Other family members – meaning anyone except a spouse or partner, or parent. Other family members generally means brothers, sisters, and parents. The applicant would be a non-dependent child of the parent, i.e. over the age of 18. The charges associated with applications range between approximately $4,000 and $5,000, depending on whether it is an offshore or onshore application. For a full list of charges see the DIAC website. 

Applying Outside Australia

There are several categories for relatives applying from outside Australia:

  • Remaining Relative Visa (Offshore) (Subclass 115): This visa requires sponsorship from within Australia by a resident Australian citizen, a permanent resident or eligible New Zealand citizen. The two requirements for this visa are: a brother, sister, parent or step-equivalent who is eligible, and the applicant has no other brothers, sisters, non-dependent children, parents (or step-equivalents) other than those in Australia. Partners and other family members may be included in the application, depending on circumstances.
  • Aged Dependent Relative (Subclass 114): for relatives for rely on a relative in Australia for all or most of their living costs, this visa category is available. The three requirements are: being aged (old enough to receive an Australian pension – ages range between 60 and 67, depending on birth date.); financial dependency (see ‘dependent’); and being single – either never coupled, or widowed, separated or divorced. There are a range of benefits associated with this visa, and a range of responsibilities also.
  • Carer Visa (Offshore) (Subclass 116): where an Australian relative needs the care of the applicant for a medical condition. The applicant must be sponsored by the relative or the relative’s partner. If this visa is granted it means the applicant can live in Australia as a permanent resident. This visa class can include a partner or other family members in the application.
  • New Zealand Citizen Family Relationship Visa (Subclass 461) (Temporary): this visa is specifically for non-New Zealand citizens seeking to travel to and live in Australia with a New Zealand citizen who holds a Special Category (444) visa, which is a temporary visa. Applicants are family members who are not New Zealand citizens and are therefore not eligible for the Subclass 444 visa. This visa is valid for up to five years.

Applying from within Australia

The categories for onshore applications are:

Work Visas

General

This section doesn’t cover the categories ‘Air and Sea Crew’ or ‘Specialist Entry’. Specialist Entry is covered under Temporary visas. This section is a general overview of the visa categories open to people seeking work in Australia. Almost invariably there is a requirement that the applicant be skilled, that these skills be in shortage, or their work be of a specific nature, such as with the Seasonal Workers Scheme. The visa categories include:

  • Employer sponsored workers – Temporary
  • SkillSelect - Skilled Migrant Selection Register
  • Doctors and Nurses
  • Regional Employment
  • Skills Australia Needs Events
  • Seasonal Workers Scheme

Recent changes have seen the introduction of ‘SkillSelect’, which is a new management scheme for skilled migration. This program began on 1 July 2012. Applications that were submitted before this date will be assessed according to the previous rules.

DIBP provides a number of useful internet tools for people looking to work in Australia, such as the Visa Options Comparison Charts.

Employer sponsored workers: Temporary

DIBP provides a comprehensive website for temporary skilled workers.

SkillSelect – Skilled Migrant Selection Register

DIBP has introduced a new skilled migration management scheme called ‘SkillSelect’, a points based assessment system for skilled migrants. This affects independent and family sponsored skilled migrants, state and territory sponsored visas, business innovation and investment visas, and employer sponsored visa programs.

SkillSelect has closed many previous categories of the general Skilled Migration (GSM) stream and introduced a system that utilises Expression of Interests (EOI) to generate a points based assessment of potential migrants who, if selected, can apply for a visa. It is a more restrictive process than the GSM system, and gives more control to the government over who can apply for a visa.

Offshore visa applications in previous categories closed from 1 July 2012, and all new potential applicants will be assessed via SkillSelect. Onshore visa applications close from 1 January 2013 to give time for onshore applicants holding current working visas to apply under the SkillSelect system for reassessment. Transitional arrangements are available for certain subclasses.

For people in Australia who do not have eligibility under the transitional arrangements, while they can submit an EOI from within Australia, the EOI will not grant a bridging visa as the EOI is not a visa application. An invitation to lodge a visa application and meeting the requirements of that visa application will lead to a bridging visa. Bridging visas preserve your rights under the previous visa while your new visa application is processed.

An Expression of Interest (EOI) by an interested person is not a visa application, nor does it cost anything to lodge an EOI. Skilled workers who would like to be considered for a visa record their details for consideration for an invitation to apply for a skilled visa. From there it is a matter of either being invited to apply for a visa by a state or territory government, or being nominated by an approved Australian employer.

Details required for an EOI are:

  • Basic personal information (name, country of origin, age, sex, etc)
  • Qualifications
  • Relevant work experience
  • English language test results
  • Skills Assessment outcome – assessing authorities’ details are available from DIAC

Points are awarded on the basis of this information and DIBP will periodically invite the highest point scoring applicants in each Skilled Occupation to lodge a visa application. There is a fee attached to making a visa application. Skilled Occupation Lists are provided by DIBP. These determine what categories of skilled people can lodge an EOI. DIBP provides some relevant information in the Reports section of SkillSelect on ‘Occupation Ceilings’. Occupation ceilings are quotas for each occupation group, and once a quota is met, no new applications will be considered for that program year. For example, in the 2012-2013 year, engineering managers have an occupation ceiling of 960, middle school teachers have an occupation ceiling of 60, and structural steel and welding trades workers have an occupation ceiling of 4860.

SkillSelect has introduced two notable changed – the first is an age limit. Only persons under the age of 50 years can be invited to lodge a visa. The second is a significant change concerning review rights. As an EOI is not a visa application there is no right to a review of your EOI before the Migration Review Tribunal. A person who has moved beyond the EOI process and been invited to apply for a visa may access review rights as visa applications attract those rights.

Professionals and other skilled migrants as a visa class is now governed by SkillSelect. This does not include doctors and nurses or the Seasonal Workers Scheme. From 1 July 2012 the following visas are closed to new applications:

  • Skilled – Independent (Migrant) Visa (Subclass 175)
  • Skilled – Sponsored (Migrant) Visa (Subclass 176)
  • Skilled – Regional Sponsored (Provisional) Visa (Subclass 475)

Further visas – subclasses 886, 885 and 487 will be closed to new applications from 1 January 2013, as these are the onshore visa categories.

The new visa categories introduced by SkillSelect are:

  • Skilled Independent (subclass 189) visa
  • Skilled – Nominated (subclass 190) visa
  • Skilled – Nominated or Sponsored (Provisional) (subclass 489) visa
  • Subclass 475 visa
  • Employer Nomination Scheme (subclass 186)
  • Regional Sponsored Migration Scheme (subclass 187)
  • Business Talent (Migrant) (subclass 132)
  • Business Innovation and Investment (Provisional) (subclass 188) visa
  • Business Innovation and Investment (Residence) (subclass 888) visa

Please see the SkillSelect information page for more detail.

Doctors and Nurses

Visa options for doctors are either temporary or permanent. They require sponsorship from a hospital or practice, or settlement in a regional area. Temporary visa options are either long stay or shorter stay. 

For registered nurses, there is requirement to be registered by State or Territory nurse regulatory bodies. Visa options are plentiful, as currently nurses are in high demand in Australia.

Nurses require sponsorship to come to Australia, or to settle in a regional area. It is also possible to come on a working holiday. See the DIAC website for visa categories open to registered nurses  There are also places for nurses undertaking supervised, workplace-based training in Australia under the Occupational Trainee Visa.

Regional Employment

There are several opportunities for regional employment under the regional initiative. These include: employer sponsored workers, family sponsored workers, state or territory nominated skilled workers, government approved skilled workers establishing businesses in regional or rural areas, and general skilled migration. Information on all these areas can be found on the DIBP website. This is a brief summary of the available visas.

Seasonal Workers Scheme

Citizens from Kiribati, Papua New Guinea, Tonga and Vanuatu can work in Australia under the Seasonal Worker Scheme. To make a visa application will cost $300+, under the Special Program visa (subclass 416) visa charge. The visa allows a 4-6 months period for work in Australia. Visa holders can enter and leave multiple times during that period. There is no right to apply for another visa whilst in Australia, however, if the visa requirements were complied with, there is the opportunity to return on the same class of visa. Other conditions of this visa include: must maintain private health insurance, can only work for Approved Employers, must pay for own living expenses and incidentals, and cannot bring dependents with them. See the Department of Employment for more information.

Humanitarian Visas

Refugees and Special Humanitarian Programs

As with other classes of visa, there are processes and fees associated with offshore and onshore applications.  The two classes are: Offshore – Resettlement, and Onshore – Protection. The visa classes of Temporary Protection Visa and Temporary Humanitarian Visa have been abolished, and there are now mechanisms for resolving the status of those people holding one of these visas. There are minimal fees associated with these visas. Onshore applicants living in the community must pay a $30 visa charge, a nominal fee.

Services provided within Australia for successful applicants include accommodation services, case management, and orientation programs. The orientation programs provide detailed information about life in Australia to help new immigrants settle into Australia. Case workers are also available to help refugees settle into Australia. See the Onshore Booklet for more detailed information.

Australia collects biometric data – meaning, physical information on certain people entering Australia. This only applies to people applying for Protection visas in Australia. A digital photograph and fingerprints will be collected.

The Refugee Convention defines who is a refugee, their rights, and the obligations of states who have signed the Convention. For information on the Refugee Convention, and the text see: http://www.unhcr.org/pages/49da0e466.html

Offshore – Resettlement

There are two categories in this visa category: Refugee and Special Humanitarian Program (SHP). Refugee is for people subject to persecution in their home country, and the SHP is for people who are outside their home country, and are proposed for an SHP visa by an Australia citizen, resident, eligible New Zealand citizen, or an organisation operating in Australia. Detailed information is available at: http://www.immi.gov.au/visas/humanitarian/offshore/

There are five categories of Offshore – Resettlement visas available under the Refugee and Humanitarian Visas heading. These are:

  • Refugee Visa (Subclass 200): the three requirements to be eligible for this visa are that the applicant be living outside their home country but not have entered Australia without a visa, be subject to persecution in their home country and have compelling reasons for resettlement to Australia. The application can include a partner/spouse, dependent children and certain dependent relatives. There is no charge for this visa. This is a permanent visa.
  • In-country Special Humanitarian Program Visa (Subclass 201): this visa has limited places. The applicant must be living in their home country (unable to leave or seek refuge elsewhere), and be subject to persecution in their home country.
  • Global Special Humanitarian Program Visa (Subclass 202): this visa class is for people who are not refugees but are subject to substantial discrimination and human rights abuses in their home country. They must be proposed for entry by an Australian citizen or permanent resident over the age of 18, and must be living outside their home country. Partners, dependent children and some dependent relatives can be included in the application. Application is free.
  • Emergency Rescue Visa (Subclass 203): this visa subclass has limited places. The cases are referred to Australia by the United Nations High Commission on Refugees (UNHCR). The applicant must be in a situation where normal processing times would put their life or freedom at risk. 
  • Women at Risk Visa (Subclass 204): this visa class is for women. Only women can apply. This visa class has an annual target of 12% of all refugee places. To qualify the applicant must be living outside her home country, subject to persecution in her home country, or registered with the UNHCR as being ‘of concern’, without the protection of a male relative, and in danger of victimisation, harassment or serious abuse because she is female. Dependent children, some relatives, and partner can be included in the application. This is a permanent visa.

Onshore – Protection

This is a highly politicised area of immigration. The controversy stems from the processes associated with the detention of people seeking asylum – including slow processing of applications, and some adverse outcomes that have seen asylum seekers returned to their countries of origin and suffering the persecution, and sometimes death, from which they had sought to escape. The conditions of the detention of asylum seekers have also raised issues as asylum seekers. Detention centres are compounds, surrounded by high, electrified fences, topped and surrounded with razor wire, often in the middle of the desert.

So-called ‘boat people’ is issue that is highly divisive, and there are two very antagonistic points of view on the subject of the processing and detention of so-called “boat people”. The facilities where asylum seekers are detained are run by private companies, not the government, which minimises accountability of staff for treatment of detainees. Detainees are often called by their number, not name, and there have been numerous allegations of abuse. The length of the process is also uncertain, meaning some people will be in detention for several years.

The Australian government does not immediately class people arriving in Australia by boat, without a visa, as refugees. Considering the need for verifying the identity of a person, their health, and the basis of their claims where there is very little paper work available to the immigration authorities, there is little doubt that processing a claim will take some time. The process is of indeterminate length, but the validity of the applications are assessed according to the administrative standards set by DIAC. That said, there have been several examples of Australia rejecting applicants who have arrived in Australia, and sending them back to their home countries, where they were subsequently persecuted afresh, and often killed.

There have been several attempts to speed up the process for applicants in immigration detention. The DIAC website provides a huge amount of information on this subject.

  • Protection Visa (Class XA) (Subclass 866): there are several requirements for eligibility for this visa. The applicant must: be a refugee as defined under the Refugees Convention, be in Australia, pass character and security checks, undergo health examinations, and sign the Australian Values Statement. There are requirements for identification also. This protection visa gives permanent residence to a successful applicant. There is a sharp divide between people in immigration detention and those who have already entered Australia and are seeking protection. The latter category will usually be given a bridging visa whilst their Protection visa is determined, allowing them to work in the community. A good summary is available online.

Bringing family to Australia – refugees

Sometimes, family will be included in the initial visa application – immediate family such as  a spouse and dependents, but there are many migration options for fiances, partners, children, parents and other family members of Australian citizens. This means that the easiest way to obtain visas for family is to become a permanent resident and then an Australian citizen. Once holding a permanent humanitarian visa (including a permanent protection visa) it is possible to apply for immediate family to join you, under the ‘split family’ provisions. Full information is available on the immigration website.

Unlawful Non-Citizens, Removal and Deportation

Who are unlawful non-citizens?

A lawful non-citizen is a person who holds a visa and is within Australia Classification of an unlawful non-citizen is simple: an unlawful non-citizen is someone who enters Australia or remains in Australia without a valid visa.

Becoming an unlawful non-citizen

Entering Australia without a visa will make you an unlawful non-citizen, but so will overstaying a visa, or breaching the conditions of a visa. It can also occur if the Department of Immigration cancels your visa. For example, if on a tourist visa and found committing an offence, you will be subject to detention and removal. There are also circumstances where a visa may be cancelled, making an individual an unlawful non-citizen.

Cancelling a visa

A visa can be cancelled if:

  • incorrect information was provided by an applicant to DIAC;
  • visa conditions were breached;
  • a business skills visa holder failed to establish the business or participate in management;
  • the person has committed a criminal offence after they became a permanent resident; or
  • the person is of bad character.

Generally, the power to cancel is discretionary. In most cases the visa holder will get prior warning of DIAC's intention to cancel the visa. The visa holder is then able to give all the reasons why their visa should not be cancelled.  If DIAC decides to cancel, the former holder will usually have a right of review. If a tourist visa holder has breached Australian law, this right of review is highly unlikely.

Options

Unlawful non-citizens have three options:

  • to try and stay in Australia unlawfully and hope to avoid detection;
  • depart voluntarily; or
  • attempt to change their status and obtain a visa.

Unlawful citizens should obtain confidential advice from a registered migration agent when considering their options.

Detention and Removal

DIAC has the power to question people who they suspect are unlawful non-citizens, get information from other government departments such as Centrelink and the Australian Tax Office, raid and search homes, work-places, and other premises, and sometimes search people.

Unlawful non-citizens who have been arrested will be placed in immigration detention. An unlawful non-citizen will only be released from detention if they obtain a bridging visa. DIAC may issue bridging visas in the following circumstances:

  • when the detainee has made a valid application for another visa;
  • when the detainee has agreed to depart Australia voluntarily.

A refusal to grant a bridging visa may be reviewed by the Migration Review Tribunal. More information on the conditions of the bridging visa are available online.

Generally, a person in detention has only two days in which to make an application.  People in immigration detention are only entitled to independent legal advice if they ask for it.

Criminal Deportation

People who have been permanent residents (including New Zealand citizens resident in Australia) for less than a total of 10 years can be deported if they are convicted of an offence and sentenced to prison for at least one year.

Criminal deportation decisions may be reviewed by the AAT.

Review of Migration Decisions

Migration Review Tribunal

The Migration Review Tribunal (MRT) constitutes the second tier of the review system.  The MRT is independent of the Department of Immigration but must still apply relevant migration law. (Note: The MRT and the Refugee Review Tribunal are proposed to be amalgamated with other tribunals into the Administrative Review Tribunal. This move has currently stalled in the Senate.)

The MRT can review most decisions made by the Department of Immigration where the applicant is onshore or has an onshore sponsor/nominator and also some other decisions, including decisions relating to detention and removal of illegal entrants and cancellation of visas.  The MRT office should be telephoned to ascertain whether a decision may be reviewed by them.

Strict time limits apply to lodgement and applications for review.  Applications for review must be lodged:

  • within 21 days of the receipt of the Department of Immigration decision if the applicant is in Australia;
  • within 70 days of the receipt of the decision if the applicant is overseas.

The application fee is currently $1400. The MRT may waive the application fee if it would cause financial hardship.

Applications for review of decisions relating to detention and removal must be made within two days of the decision.

The MRT conducts a merits review of the original applications in an inquisitorial fashion and not the more usual adversarial manner.  The MRT procedure involves two steps.  The first is a consideration ‘on the papers’, at which the MRT will consider the applications and, if appropriate, grant the application.  If not, the applicant is informed of the reasons why not and invited to attend a full hearing.  The applicant then attends a full hearing before the MRT, and has the opportunity to provide verbal evidence.  Witnesses may be called at the discretion of the MRT.  Legal advisers may not address the MRT except in unusual circumstances.

Administrative Appeals Tribunal

The Administrative Appeals Tribunal (AAT) can only review the following migration decisions:

  • refusals and cancellations of visas on the grounds of ‘bad character’;
  • cancellation of business visas;
  • criminal deportation orders;
  • freedom of information decisions;
  • Australian citizenship decisions;
  • decisions forcing the repayment of income support payments made to people covered by an Assurance of Support (after these have first been reviewed by the Social Security Appeals Tribunal).

An application for review to the AAT must be made within 28 days from the time the applicant receives notice of the decision.

Refugee Review Tribunal/Migration Review Tribunal

There is no merits review available for decisions made under the overseas Refugee and Humanitarian program.  Applicants who are refused refugee status should assess the reasons for the decision and consider whether to re-apply with additional evidence to address the grounds of refusal.

The Refugee Review Tribunal (RRT) deals exclusively with refugee applications for review. It reviews refusal of on-shore refugee applicants only.  Applications for review must be lodged within 28 days of receiving the refusal.  The refusal letter is deemed to be received five working days after the date of the refusal letter.

RRT hearings follow very simple procedures and are conducted in an informal way.  After an initial explanation of what lies ahead, any outstanding procedural matters are dealt with.  The RRT then proceeds to question the applicant and any witnesses.  Opportunities are provided for witnesses to discuss matters about which they had been questioned.

The RRT will also allow applicants to submit additional written evidence after the hearing has concluded.

The Migration Review Tribunal (MRT) also assesses visa and visa-related applications. The name is less controversial than the RRT, and is concerned with all other aspects of the migration review outside the Refugee and Humanitarian Program.

Federal Court of Australia and the Federal Circuit Court

Unlike the above tribunals, the Federal Court conducts judicial review of some migration decisions.  This means that it can determine whether a decision is unlawful and, if so, order the decision maker to remake the decision.  Judicial review is very complex and normally requires the assistance of an experienced lawyer. The Federal Circuit Court also has jurisdiction over immigration and refugee matters.

High Court of Australia

The High Court of Australia is the final court of appeal in Australia. There have been several important decisions that have come down from the High Court bench concerning refugee rights and the interpretation of immigration legislation. The High Court will only consider a case if there is an important point of law to consider. For example, in one refugee case, the High Court considered the validity of indefinite detention, – being held in custody with no known release date. This was an important legal issue because it raised questions about the Constitution, and whether the indefinite detention of asylum seekers violated the Australian Constitution.

Commonwealth Ombudsman

The Commonwealth Ombudsman can review a decision made by the Immigration Department when some mal-administration has occurred.  However, the Ombudsman cannot substitute their decision for that of the Department.  They may only recommend corrective action if they believe that there has been some failing in the administration of departmental policy.  Their recommendations can include stating that the action was unreasonable or oppressive or that there was undue delay in making the decision.

The Ombudsman is precluded from reviewing action taken by the Minister but can investigate a recommendation made by the Department to the Minister.

Any person who is adversely affected by a decision has a right to complain to the Ombudsman, even if there is no right of appeal to the MRT, RRT, AAT or Federal Court. An overseas applicant affected by an adverse decision may also complain.  The overseas complainant need not be an Australian citizen or permanent resident of Australia.

Minister’s Discretion

The Minister has wide discretionary powers. However, even in cases with no automatic right of review, there must still be compelling reasons for the Minister to change a decision of the Department.  Cases that could be considered to show compelling reasons for review could be those where:

  • circumstances have materially changed since the Departmental decision was made;
  • there is evidence that the Department has not applied policy; and
  • there are special compassionate factors.

Interpreters

Interpreters are available through the Department of Immigration and Citizenship 24 hours a day, seven days a week on a telephone interpreting service: 131 450. There are facilities for a three way conference call between the English-speaker, the non-English speaker, and an interpreter. A large range of services is available, including translation of documents to aid in the settlement of migrants in Australia.

Internet Law and Internet Commerce

Acknowledgments

We would like to thank Elizabeth Beal, Consultant at Ashurst Australia, for contributing this chapter through the Fitzroy Law Handbook Online. A particular thanks to the Fitzroy Legal Service for permission to reproduce this chapter here.

Introduction

The internet is a network of computers. No one owns it and it has no central location or administration. For most users connection is made through a company that offers internet access. These companies are known as internet service providers (ISPs).

The three types of people or organisations involved in accessing content on the internet are:

  • the content provider, who creates the material, which is then uploaded onto a website;
  • the internet content host (ICH), who provides the website (the space on the internet for this content) and has control over what is uploaded (published).
  • the ISP, who supplies internet carriage services so that the material can be transmitted to individual computers, and then viewed and downloaded by members of the public.

Legal issues relating to internet use are usefully divided into three main functions:

  • the publication of information or provision of content including text, sound, images and film;
  • the sale of goods and services, known generally as e-commerce; and
  • communication and networking services, most commonly email and related services such as Twitter, Voice over Internet Protocols (VoIP) (such as Skype), and social networking sites such as Facebook.

These functions raise many legal issues including copyright, consumer protection, prohibited content, defamation and privacy, and the legislation that regulates e-commerce and telecommunications.

This chapter deals with the law from the perspective of the individual who is using the internet to find information, publish material and engage in e-commerce or communication with others. It also offers guidance from a legal perspective on managing children's internet access.

There are numerous pieces of legislation that have an impact on internet use, or which govern issues that arise from the use of the internet. At the Commonwealth level we have:

Tasmania

Laws of other Australian states and territories, and some overseas laws, may also be relevant.

Copyright Issues

The internet is often used to share material – pictures, text, ideas. Many issues of copyright arise out of the ease with which individuals can now share material. Here are some particular issues of copyright.

Website design

The design and layout of a website can be protected by copyright. This is a separate matter to copyright ownership of the various components of the site such as the text, images and sound. To maintain control over the future development and operation of a website, rights should be obtained from the website developer/designer. This could be an assignment of copyright or a licence to make changes to the site as required.

Using others' material

When using content that you do not own, i.e. that you have not created yourself, the copyright owner should be identified and their permission sought. Potentially copyright protected material includes text, graphics, photographs, animations, film, music compositions, sound recordings, software and database material.

Once permission has been obtained the website owner or manager should keep records of each authorisation or licence to use a copyright protected work on the website. It is important to identify the scope of such a licence, including any limits on use and factors that relate to termination of the right to use others' work.

Linking or framing

There are possible legal ramifications in linking to or framing a third party website. In the absence of specific permission, it is safest to link to the homepage of a third party website.

Hypertext linking to or framing a third party website that includes copyright infringing material may constitute an endorsement or republication of the infringing material, and expose the website owner to liability under the copyright legislation.

Hypertext linking to pages deep within other sites, and the use of frames on a website, can raise issues for which you may be liable under copyright and trade practices legislation.

Case Example - Linking: Cooper v Universal Music Australia Pty Ltd [2006] FCA 642

The provision of links from a website known as mp3s4free.net was sufficient for a finding of copyright infringement on the part of the website's owner and operator, the ISPs (website hosts) and the director of the ISPs that hosted the website, for authorising the copying and communication of copyright-protected songs.

The website did not contain any music files but provided links to remote computers that allowed users to download copyright-protected music files. The court’s finding of infringement was subsequently upheld by the full Federal Court against all but the technician, who was found to be a mere employee and therefore not liable.

The court found that despite legal disclaimers on the site, by providing the links (and supporting a site which provided the links) the website owner and ISPs had "authorised" infringement because the links were for the purpose of downloading music files and nothing was done to prevent infringements occurring. The disclaimers were not seen to have any effect in terms of limiting liabilitybut rather were seen as evidence that the website owner was well aware of the likelihood of infringing content being made available via the links on the site.

Protecting your material

If you have material on your site that you wish to protect, i.e. to prevent others from copying, you should clearly attach notices stating:

  • who owns copyright in the material;
  • what the copyright owners permit and do not permit visitors to the site to do with this material; and
  • who to contact for a copyright clearance in relation to any of the material on the site.

In addition to legal protections there are technical protection measures such as:

  • advising your ISP of restrictions that you wish to place on access to protected material on your site;
  • making protected material accessible only on payment of a fee or acceptance of contractual terms of use. This can often be achieved using rights management information technology (which inserts information that identifies the work, the owner and the terms of use for the work). The Copyright Act 1968 (Cth) ("Copyright Act") makes it unlawful to alter or remove rights management information or to deal with technological protection measures without permission; and/or
  • encrypting (using a technological means to prevent copying) or other copy control mechanisms.

Scanning and uploading images

Scanning an image to produce a digitised version involves making a reproduction, and uploading to a website or emailing the digital version involves communication of the image.

Both reproduction and communication of a copyright protected work are specific rights of the copyright owner as provided in the Copyright Act, and both require the permission of the copyright owner.

Downloading and manipulating images

Copying part of an image or photograph from the internet may still be infringing copyright if you copy what is considered a substantial or important part of the image or photograph. What is important to consider is the image itself and not the website or page where it was found.

Altering or adding to a digital image to create a new image will require the permission of the copyright owner if an important part of the first image is recognisable in the new image. Additionally, you may be in breach of the creator's moral rights if the work is not properly attributed to them or you alter the work in a prejudicial manner.

Downloading music or films

Music, film and television programs can be downloaded from the internet in many ways: from a website, bulletin board, email, blog, or a file sharing or peer-to-peer (p2p) network (e.g. Kazaa, BitTorrent or LimeWire). Copyright infringement occurs if the copyright owner has not given permission for the song or film to be distributed freely on the internet (unless one of the limited exceptions to copyright infringement applies. Permission has usually not been granted and infringement may therefore occur if music or film is downloaded from a p2p network.

Legitimate Australian online sites or stores that authorise access to music, TV shows and films do exist (e.g. i-view, ninemsn music, iTunes and bigpondmusic.com). Such sites enable content to be downloaded with the permission of the copyright owners. When you download content from these sites (usually for a fee) the copyright owner grants you permission (licence) to use the digital music file in a particular way. The terms of the licence will usually outline how many times you can copy or burn the song to a CD or computer and for what purpose you can do so.

If you copy or share the content in a manner that is different to the terms of the licence then you may be infringing copyright. You should carefully consider the terms of the licence prior to purchasing because different sites can have different rules regarding the way you can use the content they offer.

Sharing / distributing music online

Copying and sharing digital content is relatively quick and easy. For example, a Microsoft's Windows Media Player allows users to "rip" (copy or reproduce) a song from a CD by converting it into an MP3 file (or other file format) on the user's personal computer. The music file is then easily shared by email; downloaded to a portable digital music player (e.g. iPod); posted to a website/facebook page/blog; or made available on a p2p network.

However, if you do any of these things without the permission of the song's copyright owner, you will be infringing copyright. Usually the licence accompanying your purchased music will outline the details of the permission granted by the copyright owner.

Case Example - File Sharing: Universal Music Australia Pty Ltd v Sharman License Holdings

The case of Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1587 was high-profile Australian litigation involving music labels suing the developers and distributors (collectively referred to as "the Sharman parties") of software that enabled access to the Kazaa p2p network. The software, which was made available for free, enabled users to upload and download digital files (such as MP3s). However, unlike earlier p2p networks (such as Napster) the Kazaa network did not require operation through centralised servers, nor physical involvement in the transmission of the files.

The essence of the litigation concerned the responsibility of the developers and distributors for authorising copyright infringement by providing the means by which users were able to infringe copyright by sharing copyright-protected works without permission, i.e. the provision of the software authorising the users to infringe copyright. Based on what the Sharman parties knew was occurring on the network, as well as an ability to put in place filters to reduce the amount of infringing traffic that was occurring, the court decided there had been authorisation. An appeal was heard, but the parties settled before the Full Federal Court handed down a decision. Part of the settlement required substantial changes to the Kazaa network.

Recently the High Court in Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16 dealt with another file-sharing case. In the iiNet case the respondent was an internet service provided ISP, alleged by a number of copyright owners to be authorising the copyright infringement of films facilitated by P2P file-sharing software. The ISP had not refused access by terminating the relationship if access had been used unlawfully – the copyright owners claimed that that ISP had “countenanced” the infringing activity. The argument was unsuccessful because the court found that the authoriser (in this case the ISP) must have power to prevent the infringements.

Case Example - YouTube

A US case ruled that the YouTube website was not liable for copyright infringing material that had been posted on the site. The court held that YouTube was only under a duty to take action to remove infringing material in the event that it has knowledge of specific infringing material.

Equivalent Australian legislation (i.e. the safe harbour provisions of the Copyright Act) means that copyright owners should promptly inform any website if it contains any material that infringes copyright. 

Podcasting

"Podcasting" allows users to subscribe to and download digital audio files onto their computers and portable digital music players. If you wish to podcast material (i.e. make it available online) so that others can download it, then the audio content you use must not infringe the copyright owned by someone else. Infringement will occur if you use audio content that you do not own the copyright for or clear permission to use, for example, including in your podcast a song ripped from a CD without permission from the copyright owner of the track.

If you download podcasts provided by others that infringe copyright then you will also be technically infringing copyright. Amateur podcasts that contain commercial audio content are more likely to infringe copyright than podcasts from well-known broadcasters such as the ABC. It can be difficult to determine whether a podcast infringes copyright. However, the risk of personally incurringliability for downloading a podcast that contains infringing content may not be great. It is likely that the risk increases if you re-publish in a podcast infringing content.

Defamation Issues

For information on defamation generally see the Defamation chapter under Rights.

The internet is primarily a means of communicating. It is a public space in which opinions are shared. This can give rise to issues of defamation, just as much as when a newspaper or magazine publishes an opinion or article that might be construed as defaming a person’s character.

In the 2002 decision of Dow Jones and Company Inc v Gutnick [2002] HCA 56  the High Court confirmed that the same laws govern defamation on the internet as govern defamation in other types of publications and that publication (one of the elements of defamation) occurs where the material is downloaded, read and comprehended by the reader. This case has been confirmed in subsequent decisions.

Unintentional meanings

The nature of the internet allows users flexibility in the ways in which they access and publish information. It is easy to add to a website's comments pages or chat rooms, or publish content in blogs or on twitter. Unintentional imputations (the meaning conveyed by the material) may arise from words or images on a website that are linked to words or images on a different site or a different part of the same site. Independently words or images can be innocent, but when linked they may give rise to a defamatory meaning. In certain cases the publisher of one site may be responsible for the replication of defamatory materialappearing on a linked site.

Liability of ICHs and ISPs

Uniform defamation Acts that came into effect in January 2006 include a defence of "innocent dissemination" for subordinate distributors. This means that defamation actions can be defended provided the ICH and ISP:

  • was not the first or primary distributor of the matter;
  • was not the author or originator of the matter; and
  • did not have any capacity to exercise editorial control over the content before it was published.

Other Protection Issues

As well as intellectual property and defamation, other issues regarding online activities can affect legal rights. If we think of the internet as a community of people who do not meet face to face, but communicate through the written and digital media, we can see that many of the same issues that arise in communities can arise on the internet. However, there are also unique issues that arise with the internet, such as domain squatting, phishing, internet dumping and social networking site problems. Spam, however its form may have changed, is much like unwanted advertising in the mail box, albeit of an often saucy nature.

Harassment and discrimination

Certain online communication practices, including bestowing unwanted attention or offensive material on another, may constitute discrimination or harassment under discrimination and workplace relations law.

Repeated email contact, chat room messages or posting messages to social networking sites such as Facebook pages with the intention of causing psychological harm or arousing in the recipient a reasonable fear for their safety (or that of others) may constitute the offence of stalking, punishable by fine or imprisonment.

Other types of material - vilification, discrimination and gambling

Material that denigrates a particular group of people may be prohibited under the Racial Discrimination Act 1975 (Cth)  The Australian Human Rights Commission (AHRC) assesses this type of content. Complaints of racial vilification have been upheld against the publishers of online content. In Jones v Toben [2002] FCA 1150 the Federal Court upheld a decision of the AHRC, which found that the Respondent had engaged in unlawful conduct by publishing on a website material that vilified Jews.

This decision has been applied in later cases, for instance Silberberg v The Builders Collective of Australia Inc. [2007] FCA 1512  Although the posters of the offensive content were found liable, the website host was found to be not liable, because the failure to remove offensive content, despite having knowledge of it, was not necessarily connected to race.

In Eatock v Bolt [2011] FCA 1103 the Federal Court found that section 18C of the Racial Discrimination Act had been contravened by the publication of articles (print and online) discussing the aboriginal identity of identified individuals.  The offensive conduct was assessed from the point of view and circumstances of the identified persons and not general community standards. The publications were found to exhibit inflammatory and provocative language and the good faith exemptions for fair comment and genuine purpose in the public interest were not made out.

Case Example - Domain Names

WIPO determined a complaint brought by the Melbourne 2006 Commonwealth Games Corporation concerning an attempted sale to the State of Victoria of a collection of registered domain names, which included melbourne-2006.com, melbourne2006.com, melbourne2006.info, melb2006.com and melb2006.info. These domain names were found to be either identical or confusingly similar to at least one of the trademarks in which the complainant had rights.

It was found that the respondent had no rights or legitimate interests in the domain names. The relevant date for determining whether the respondent to a domain name dispute has registered the domain name in bad faith is generally the date on which the respondent first acquired the domain name. In this case the respondent's offer to "rent" the various domain names to the complainant for a fee of $50,000 per month was found to be sufficient evidence that the respondent registered and used the disputed domain names in bad faith. WIPO ordered the domain names be transferred to the complainant.

For further information on the registration of domain names go to the auDA site at www.auda.org.au.

Privacy laws

The Privacy Act 1988 (Cth) imposes information privacy principles (IPPs) on the federal public sector and on private sector organisations. The principles set the minimum standards for the collection and handling of personal information by businesses and other private sector organisations. There is a current exemption for small business and for media organisations acting "in the course of journalism". The IPPs are relevant, for example, when collecting personal information from contributors to an online forum.

Providing a privacy policy for your website as well as terms and conditions of use are the mechanisms commonly used to manage the various legal risks associated with online publishing.

Social Networking Sites and Personal Information

Social networking sites on the internet enable members to use a personal profile to interact with other people online. Examples of popular social networking sites include Twitter, Facebook and LinkedIn.

Most social networking sites have a privacy policy governing how they store and control access to the information that users upload on their profiles. In many instances these policies provide that such information can be viewed by other site users or anyone who has access to the internet. Social networking sites can give rise to privacy and safety concerns, as it can be difficult to confirm the identity of other social networking site members. Users should always exercise caution when sharing personal information online.

All existing publication laws apply on social networking sites - including defamation, copyright, vilification, contempt and other restrictions around publication such as identification of Children's Court or Family Court matters and victims of sexual offences. Using a profile that identifies you as an employee or associate of a particular organisation will usually bring into effect social media and professional conduct guidelines of that organisation.

A common problem on social networking sites is the establishment of false or impersonation profiles that are designed to mislead users as to the identity of the person posting the information. An online reporting facility exists on Facebook and Twitter where requests can be made to remove or modify the "false" page or user.

Internet dumping

Internet dumping (also known as "modem jacking") is the practice of switching a user from their current ISP to a premium rate telephone number without their knowledge or consent. Internet dumping can occur when certain websites are accessed. Such a practice is likely to breach the Australian Consumer Law or various state Fair Trading Acts, and may also be a breach of the customer's ISP contract.

If the ISP cannot resolve a complaint concerning internet dumping or an aspect of the ISP service, complaints can be made to the Telecommunications Industry Ombudsman tel: 1800 062 058 (free call) or online at www.tio.com.au.

Spam

Spam is a generic term used to describe unsolicited commercial electronic messaging generally delivered by SMS or email (electronic junk mail). The Spam Act 2003 (Cth) came into effect on 10 April 2004 and requires that spam can only be sent withconsent, although consent can be reasonably inferred from a business relationship. Subsequent commercial messages must include an "unsubscribe" facility.

Phishing

Phishing is a form of identity theft where fake emails and websites, designed to look like legitimate businesses, financial institutions and government agencies are used to deceive internet users into disclosing their bank and financial account information or other personal details. More information about spam, including making complaints about spam and phishing, can be obtained from the ACMA.

E-Commerce: Online Shopping

There are no laws in Australia that specifically deal with online shopping. Legally the same requirements exist whether the purchase is conducted over the internet or offline (e.g. shopping at a retail outlet). Therefore, when you buy goods or services over the internet from an Australian trader, Australian consumer protection laws apply.

Consumer protection laws

The most significant issues in protecting the rights of an Australian consumer shopping online are:

  • unconscionable conduct;
  • misleading or deceptive conduct and passing off; and
  • conditions and warranties.

Actions you can take if you believe any of these rights have been breached are covered under Australian Consumer Law.

Other consumer protection

If you are buying goods and/or services over the internet, other consumer protection laws may also apply, depending on your circumstances.
Consumer credit laws regulate the purchase of goods and/or services by credit e.g. credit cards, home loans, personal loans, associated mortgages and leases.

Electronic Funds Transfer Code of Conduct (EFT Code) is a voluntary code that protects consumers and applies to member organisations. The EFT Code regulates methods of access during an electronic transaction, such as the use of an ID number, password, personal identification number (PIN) or digital signature; and transactions that utilise stored value facilities and digital coins for electronic payment.

The Electronic Transactions Act 1999 (Cth) relates to dealings between individuals and Commonwealth government agencies. It provides that if commonwealth law requires information to be given in writing, the requirement is deemed to be met if the information is given electronically. Similarly if written records are required to be kept an electronic version of that document will satisfy the requirement. The equivalent state legislation is the Electronic Transactions Act 2000 (Tas).

Protect yourself when shopping online

Before you buy a good or service online, you should find out the following information.

Who is the Trader?

Establish who is selling the good or service, including details of the trader's business: physical address; business registration details (e.g. business name and/or ACN/ABN number) and contact details.

The Australian Securities & Investments Commission (ASIC) has a free service on its website allowing users to search for registered business names.

What are the details of the transaction?

Knowing the full details of the transaction before entering into an agreement with the trader will help you to know what to expect if you buy the good or service. Details you should obtain include:

  • a clear description of the good or service;
  • the full cost in Australian dollars of the good or service being purchased, including costs like delivery, insurance and credit card charges;
  • any return, exchange, refund and warranty policy that the trader has regarding the transaction;
  • when you will receive the good or service;
  • the terms of any insurance over the good or service bought (e.g. whether it includes damage of the good while being delivered);
  • the terms and conditions of the agreement. Read them carefully as they outline what you agree to be bound by. Always print out any terms and conditions that you agree to because traders may change them subsequently. Keep any correspondence (including emails) between you and the trader, and print out any forms that you fill in and any offers on web pages that you accept, as they will be relevant to your transaction; and
  • the trader's policy on handling complaints and resolving disputes.

Are there any privacy and security concerns?

Always check for a privacy policy on the trader's website. The policy should outline why the trader collects your personal information and how that information will be used. Traders might want to use your personal information for marketing purposes or even to sell it to third parties. The trader's privacy policy should tell you if this is so. If there is no privacy policy on the trader's website then you should be concerned, because the trader is not informing you of what will happen to any personal information that you submit.

Consumers often use credit cards when shopping online. This involves having to submit your credit card details over the internet. The nature of the internet means that transmitted information may be intercepted by a third party. In order to minimise the risk, you should make sure that the trader is using a secure system for transferring information during a transaction. The most common method of security used in online shopping is the Secure Sockets Layer (SSL) technology. SSL technology encrypts data transmitted in order to protect the information being sent, including your credit card details.

An unbroken key or padlock at the bottom of your web browser will indicate whether there is a secure connection, and whether the information you will send will be encrypted. To obtain information about the security used by the website, you can double-click on the unbroken key or padlock.
Internet auctions

Consumer Protection Laws

Internet auction sites (e.g. eBay) provide a mechanism for individuals to enter into transactions with each other, often referred to as consumer-to-consumer (C2C) transactions.

If the website operator has control over the goods being auctioned it is likely to be regarded as a business-to-consumer (B2C) transaction. If the website is acting as a trading centre it is more likely to be a C2C transaction provided that the vendor is not a business using the site to clear stock. C2C transactions conducted through internet auctions may be regarded as private sales between individuals, and not as trade or commerce (and therefore not caught by the TPA). This does not mean that the consumer has no rights in this situation, but they have fewer rights than if consumer protection laws applied.

If you buy a good or service through an internet auction and consumer protection laws do apply (because you bought from a business or in the course of trade or commerce) you may still have lower protection than if you had not bought the item at an auction. This is because some of the implied conditions and warranties (as discussed above) do not apply when the goods are purchased at an auction. The specific law varies from state to state.

Before Bidding at an Internet Auction

Read the auction site's terms and conditions, policies and rules, to understand the service the auction site is providing and what to expect. If there is a "how to use" tutorial on the auction website, take it in order to familiarise yourself with the services offered. Look at how frauds and complaints are handled by the auction site. Some auction sites offer protection to successful bidders in the form of free insurance of up to a specified amount when things go wrong, e.g. if the item purchased is not delivered. Verify the seller's identity and contact details.

Make arrangements with the seller about what to do if there is a problem. If you have any queries, contact the seller for answers. If their answers are unsatisfactory, do not make a bid.

Check for any feedback comments or ratings about the seller on the internet auction website. Comments from previous purchasers will help you decide whether to participate in the auction.

Know the product that interests you. Look at the market or retail price, written descriptions and any photographs of the product, and any warranties.

Find out the terms of sale, including who pays for shipping and handling; whether there is insurance, what it covers, who pays for it and what it costs; whether there is a return policy; and what payment mechanism can be used.

Bidding at an Internet Auction

Set the maximum price that you are willing to pay for the good and do not exceed that price in your bid. The maximum price will include all costs, including items like insurance, taxes, shipping and handling. Setting limits on what you are willing to pay will help to prevent you from bidding excessive amounts for an item where its bidding price has been inflated by fake bids. Although fake bids are not allowed by auction websites, such activities do occur and are a concern.

A good method of payment when shopping online is to pay the supplier when the product has been delivered (cash on delivery). If the seller does not agree to such an arrangement, then a credit card should be used, because of the "charge-back" service that many financial institutions attach to their credit cards (reversing the card charge if the seller fails to deliver the product).

Sending a bank cheque or money order before receiving goods exposes you to higher risks of fraud. If sellers will not send the product unless there is such a payment, then you have to be willing to take the risk.

PayPal is an electronic payment system commonly used on auction sites and is essentially an alternative to cheques or money orders. The recipient of a PayPal payment gets a financial transfer from PayPal, which processes payments for a fee.

An alternative is to use an escrow agent. The escrow agent's role is to hold the payment for the buyer until they receive the product. Escrow agents are used to protect both parties from fraud, and usually charge the buyer a percentage of the cost of the product for the service. If you use an escrow agent you should be familiar with the terms of the service offered, and check to see whether the agent is reputable.

Always keep records, either by saving on your computer or printing out details of the transaction, including the product description (written and photograph), the seller's identification, every bid made, all emails between you and the seller and every receipt/record provided.

Consider using insurance offered by the auction site or another organisation, to protect yourself if something goes wrong.

If Something Goes Wrong

Post feedback about the seller on the auction website.

Many auction websites have feedback services allowing you to post a comment and/or ranking about the trader who sold you something. This allows subsequent users to be warned about the seller, but will not provide you with any refund or exchange.

Make a claim to the auctioneer

Some internet auction sites offer free insurance up to a specified amount. Check the terms and conditions of the insurance policy on the auction website to see if you can make a claim. You will probably need to make a "charge-back" application with your payment card provider (see: "Bidding at an internet auction", above) before you can make a claim with the auctioneer.

Make a complaint against the auction website

Although you did not purchase something from the auction site, they might have breached your rights as a consumer; for example, if the auction site misled or deceived you by making misrepresentations about the site's safety regarding fraud.

Purchasing from Overseas

Consumer Protection Laws

When you buy a good or service over the internet from an overseas trader, it can be uncertain whether Australian consumer protection laws apply or whether an Australian court has any jurisdiction. The ACL applies to overseas traders carrying on business in Australia, but it is not clear whether this includes sales made over the internet by overseas traders.

If an internet overseas trader is found to have been carrying on business in Australia, then Australian consumer protection laws will apply, even if the contract states otherwise, e.g. "This contract is governed by the laws of California". If there is no Australian consumer protection (i.e. the trader is found not to have been carrying on business in Australia), then only the consumer protection laws of the trader's country (if any) will apply. These may offer you lesser rights than if you had purchased the good or service within Australia.

Even if Australian consumer protection laws apply and an Australian court has jurisdiction over an overseas trader, it may be too difficult and/or too expensive to enforce a judgment against a trader who has no assets in Australia.

Australian Customs Service and GST

When overseas traders supply physical goods to consumers, the Australian Customs Service (ACS) checks the goods in order to decide whether they should be cleared for entry. Imported goods that are prohibited or restricted are seized, and others may require a permit. Imported goods may also be subject to customs duty. The ACS classification of the good, and the country of origin, is relevant in determining the rate of duty payable by the importer (the consumer).

In addition, the ACS levies a Goods and Services Tax (GST) on imports. Low value thresholds apply. The method of ordering (electronic, phone or mail) does not affect whether GST is payable.

Further Tips When Purchasing from Overseas

Find out from the ACS whether you can legally import the good you wish to buy, and whether it is subject to GST or any other taxes.

Goods bought from overseas can have significant delivery expenses, so always check the delivery charges carefully.

Overseas traders may not list the purchase price in Australian dollars, so you should do the conversion.

Always check the overseas trader's website for any terms and conditions that state which country's laws apply, and which country's courts would be relevant to your bringing an action in case of dispute. It is common practice for an overseas trader to designate the law and courts as being in the country in which the business is located. However, as noted earlier, there is some legal uncertainty in this area.
Internet scams

The internet is subject to fraud just like the offline world. Because the internet allows for cross-border transactions it may be difficult to seek redress if you suffer an online fraud. When shopping online, it is wise to be particularly alert to potential scams.

Your options when things go wrong

Contact the Trader

Contact the trader (in internet auction purchases, the seller) to try to resolve the dispute, via telephone, fax, post or email. Explain the problem and what you want (e.g. a refund, or return of the goods). Keep records of all your communications with the trader. It is recommended that you write a letter so that there is a record of your complaint, which can be used if further action is taken.

For help in writing a complaint letter, follow the "How to make a complaint or solve a consumer problem" link (from the consumer assistance portal) on the Australian Competition and Consumer Commission (ACCC) website.

Contact your Payment Card Provider

If you purchased the good or service with a payment card (e.g. credit card, debit card, stored value card), there may be protections available for you. For example, some credit cards have a "charge-back" facility (see: "Bidding at an internet auction", above).

Contact and Industry Body or Professional Association

Many traders are members of an industry body or association that follows a code of conduct. If the trader at issue belongs, that organisation may be able to help resolve your dispute.

The ACCC's Consumer and Business Directory (CBD) allows you to search for the contact details of community and government organisations that offer consumer and business complaint-handling services and includes industry associations, businesses, government agencies and independent mediation services.

If the trader is based overseas, the relevant consumer protection agency of that country may be able to advise you whether the trader belongs to an appropriate organisation.

Seek Help from a Consumer Protection Agency

If the problem is not resolved, contact the Consumer Affairs/Fair Trading agency for the state or territory where the trader is located (see: "Further information", below). If you are in a different state or territory from the trader, you can also contact the ACCC. The ACCC may also be able to help you if the trader is overseas. When dealing with overseas traders you can also visit www.econsumer.gov, a joint project of consumer protection agencies from around the world that provides information for international consumers and facilitates cross-border complaints.

Take Legal Action

If your dispute has not been resolved, you may want to take your matter to the relevant court or tribunal. However, legal action can be costly and may only be worth pursuing if the dispute concerns a significant sum of money. Legal action against an overseas trader is significantly more expensive than against a local trader, and even if you are successful a judgment may be too difficult toenforce.

Before proceeding with legal action obtain specific advice as to your prospects of recovering damages and a likely estimate of your legal costs.

Managing Access to Internet Content

Concerns about children encountering inappropriate material on the internet are common, and with good reason. Research has shown that in the digital age, large percentages of children are exposed to sexually explicit, violent, or otherwise adult material, unsuitable for their age group. This section outlines how internet material is regulated in Australia, how children can be kept safe, and where to find more information.

Australia's internet content regulation scheme

Australia's scheme for regulating internet content is administered by the Federal Government. It is co-regulatory, meaning that the internet industry and the community are also involved. The scheme is guided by industry practicalities and the principle that what is restricted offline should also be restricted online.

Internet content is regulated by a public complaints procedure, laws, and industry codes of practice.

What Material Can Be Complained About?

Anyone can complain about internet content they feel is objectionable. The specific procedure and solutions vary, depending on the nature and source of the material. Complaints are usually made to the Australian Communications and Media Authority (ACMA).

Classifications

Internet content is generally classified using the same categories as used for films and computer games, as follows.

RC (Refused Classification) content cannot be legally hosted on an internet site in Australia, just as a RC film cannot legally be brought into the country. For example, material that is deemed to deal with sensitive topics like sex, drug misuse, crime and violence in a way that offends against the standards of reasonable adults, or offensively depicts a person who is or appears to be under 16, will be refused classification.

X-rated material (depictions of actual sexual activity) is also prohibited on the internet, just as are X-rated films in most states (except the ACT and the Northern Territory). Content which contains real depictions of actual sexual activity between consenting adults, and is classified as unsuitable for a minor to see, and does not fall into the RC category, is classified X. However, some films can be exempt from classification; for instance where they might be screened in a particular film festival, or made for scientific purposes.

Other types of content may only be illegal if children can easily get access to them.

R content is material that is not RC or X but is unsuitable for a minor to see. Accordingly, there must be a Restricted Access System to prevent access to the content by people under 18. If there is not, this material can also be the subject of a complaint.

Internet Filter

The Federal Government has announced plans to require Australian ISPs to block access to Refused Classification (RC) rated content on the internet.

Under the current version of the National Classification Scheme, RC-rated material includes any material that depicts child sex abuse, bestiality, sexual violence and the detailed instruction of crime. The Government has said that it will review the Refused Classification category before the mandatory filtering legislation is introduced.

It is anticipated that the RC Content list will be compiled from complaints made by members of the public that are then assessed using criteria set out in the National Classification Scheme. In addition to such material, the Government also plans to block access to specific internet addresses of known child abuse material, which it obtains from select agencies overseas.

It is already illegal under the National Classification Scheme and related legislation to distribute, sell or make available for hire RC-rated films, computer games and publications; however, such measures are only effective when content is hosted in Australia. The Government claims that by requiring ISPs to block access to RC content it will be able to more effectively restrict access to RC content hosted overseas.

Filters, labels and safe zones

Email and internet content provided in real-time (e.g. chat rooms, live audio or video streaming) are not generally covered by the classification procedures or the industry codes.

Filters are programs that in some way block access to inappropriate material from websites, newsgroups, chat rooms and email. Filters can also restrict the results from search engines.

Labelling tools help filters by creating lists of sites. "Black" lists use the names of sites with offensive content to block access to them. "White" lists block everything except inoffensive sites. Content-based filters block access to sites based on key offensive words or on some photographic content which might be unsuitable for children. The different types of filter can be used in combination depending on what is required.

Filter programs can operate on a home computer or via an ISP. Your ISP is obliged to provide information about filtering software and the filters they offer. ISPs must provide a filter approved in the internet Industry Association Codes of Practice. The NetAlert, Internet Industry Association and Internet Content Rating Association sites give more background information.

Safe zones are networks suitable for young children and separated from the rest of the internet. They are available via subscription or through some ISPs. Specific children's zones may also be hosted on commercial sites or supported by advertising.

It is important to remember that no tool is completely infallible. The consumer advice websites can help parents and guardians to choose the best strategy.

Chat rooms

Chat rooms are places where real-time conversations take place in a text mode. They are usually public, although private chat rooms are offered on some sites. Most people, including children, use pseudonyms in chatrooms so that a person's real identity is not apparent. This means that sometimes a child may believe they are chatting to another 12 year-old, when it may in fact be a much older person. There have been instances where adults have attempted to exploit children by contacting them in chat rooms.

The current regulatory approach emphasises education and guided information for children. It is important that children know what personal details they can give out when they are online, for their general safety and for the security of the household as a whole.

Complaints to ACMA

How to Make a Complaint

Complaints to the Australian Communication and Media Authority (ACMA) must be in writing and must include the following details:

  • your name and contact details;
  • internet address of the content and any other details required to access it (e.g. a password);
  • description of the internet content; and
  • the reason/s you feel the content is objectionable.

complaint form can be filled in and submitted via the ACMA website.

Alternatively you may post or fax your complaint to:

The Content Assessment Hotline Manager
Australian Communications and Media Authority
Level 44, Melbourne Central Tower
360 Elizabeth Street
Melbourne Vic 3000

Postal address: PO Box 13112 Law Courts, Melbourne Vic 8010

Tel: 9963 6800 Fax: 9963 6899

TTY: (03) 9963 6948

Email: via the website

What Happens to Complaints?

Once ACMA receives a complaint it is obliged to investigate it. If the content is hosted in Australia and is prohibited or likely to be prohibited, ACMA will direct the ICH to remove the content from their service. Prohibited content is that which is or would be classified RC or X by the Classification Board. As part of an investigation ACMA may request the Classification Board to classify the content according to its guidelines for the Classification of Films and Computer Games.

If an Australian site hosts the RC or X material, ACMA will issue a "take-down notice". If the ICH is aware of the content and does not comply, they will be fined. In serious cases (e.g. involving child pornography), state or territory police can also become involved. Depending on the state or territory, the content provider, the ICH and the ISP, if they knew the content was illegal, may all be prosecuted and face a fine or a jail term.
If the RC or X content is hosted outside Australia, the Australian co-regulatory scheme does not apply to the off-shore ICH. However, Australian ISPs are subject to the scheme. When an ISP is issued an "access-prevention notice" by ACMA, it must comply with Internet Industry Codes of Practice or an industry standard, or take reasonable steps to block overseas-hosted material.

The Codes of Practice require an ISP to have an approved filter on its system for this purpose. ACMA will forward the content details to the filter makers or suppliers so that they can update the software. ACMA also regularly notifies ISPs about prohibited or potentially prohibited content. In serious cases the Australian Federal Police or the relevant overseas law enforcement agencies may become involved.

R content hosted without a restricted access system will be removed until the ICH installs an appropriate one. A restricted access system must have a registration process where applicants prove that they are at least 18. Subscribers have to input a special PINnumber or password before they can access the R material. Depending on the state or territory and the particular situation, if children have accessed the material, police may prosecute the content provider, the ICH and the ISP.

What else can be done?

Besides the complaints system, the shared effort to regulate internet content includes Codes of Practice developed by the Internet Industry Association. While the Codes are largely voluntary and self-regulated, ACMA can direct particular ISPs and ICHs to comply with their responsibilities under the Codes. ACMA can also implement mandatory industry standards where there is no code or the code is inadequate. Compliant ISPs are registered with ACMA and entitled to display a "family-friendly" Ladybird seal.

Education and information are another aspect of the co-regulatory scheme. This is justified on the principle that industry and the community have their own responsibilities to comply with the codes and to help prevent inappropriate access by children.

It should be noted that ACMA and the Internet Industry Association regard parents and teachers as being in the best position to advise children and monitor their access, using the information resources available. Other information and advice sites are listed under "Further information", below.

Contacts and Resources

National

Australian Communications and Media Authority (ACMA)

ACMA is the regulator for the telecommunications industry and has an information portal that provides consumer information on internet services.

Web: www.acma.gov.au

ACMA also hosts 'Cybersmart' 

Cybersmart is a website that provides resources and advice to help parents and young people safely enjoy the internet.

Web: www.cybersmart.gov.au.

Australian Competition and Consumer Commission (ACCC)

Follow the links from 'Consumer rights, shopping and pricing' for helpful information about Internet auctions, including what they are, how to protect yourself, and what rights you have.

The ACCC's Consumer and Business Directory (CBD)

This Directory allows you to search for the contact details of community and government organisations that offer consumer and business complaint-handling services. Follow the links from the consumer portal.

Web: www.accc.gov.au

SCAMwatch

SCAMwatch is a website owned and maintained by the ACCC and is also the campaign portal for the Australasian Consumer Fraud Taskforce. It has information relating to lottery and competition scams, chain letter and pyramid selling, investment scams, job and employment scams and more.

Web: www.scamwatch.gov.au

Australian Consumers' Association (ACA) 

An independent non-profit national consumer organisation. Includes consumer alerts of scams.

Web: www.choice.com.au

Australian Customs Service 

Information on imported goods, GST and customs.

Web: www.customs.gov.au

Australian Privacy Foundation 

Australian privacy interest group.

Web: www.privacy.org.au

Australian Securities and Investments Commission (ASIC) (see: FIDO)

Consumer information service on financial matters, including scams.

Web: www.fido.asic.gov.au

Communications Law Centre: An independent, non-profit, public interest organisation specialising in media, communications and online law and policy.

Web: www.comslaw.org.au

Department of Broadband, Communications and the Digital Economy (DBCDE): This site provides information on support and resources for consumers of Internet, broadband, telephone and related services, especially home, small business and rural users.

Web: www.dbcde.gov.au

Electronic Frontiers Association: Australian privacy interest group.

Web: www.efa.org.au

Internet Industry Association:

Web: www.iia.net.au

ICRA

ICRA was formerly the Internet Content Rating Association. ICRA is part of the Family Online Safety Institute, an international, non-profit organisation of internet leaders working to develop a safer internet.

Web: www.fosi.org/icra

NetAlert 

Provides information about internet content filters.

Web: www.netalert.gov.au

Office of the Australian Information Commissioner 

An independent office that gives general advice about individuals' rights under Commonwealth privacy legislation, and handles complaints under the Privacy Act 1988 (Cth). (Also see: Chapter 21*5 Privacy Rights, for further information).

Web: www.oaic.gov.au

The Classification Website 

Government website that provides information on the National Classification Scheme. It includes information about the Classification Board, Classification Review Board and the Attorney-General's Department.

Web: www.classification.gov.au

Young Media Australia

Web: www.youngmedia.org.au

Tasmania

Office of Consumer Affairs and Trading

www.consumer.tas.gov.au

Other states and territories

State consumer affairs/fair trading organisations:

ACT: www.ors.act.gov.au

NSW: www.fairtrading.nsw.gov.au

NT: www.nt.gov.au/justice/consaffairs

QLD: www.fairtrading.qld.gov.au

SA: www.ocba.sa.gov.au

VIC: www.consumer.vic.gov.au

WA: www.docep.wa.gov.au

International

eConsumer.gov 

A joint project between consumer protection agencies from around the world that provides information for international consumers and facilitates cross-border complaints; provides links to overseas consumer protection authorities.

Web: www.econsumer.gov

US Federal Trade Commission 

United States federal consumer protection agency. Includes advice for buyers and sellers at internet auctions, and information on internet scams.

Web: www.ftc.gov/bcp/consumer.shtm

Road Rules for Cyclists and Skaters

Who and What are Covered by the Road Rules 2009?

The Road Rules 2009 define various words in the text as well as in the Dictionary at the end of the Rules.

A cyclist is included within the definition of a rider, who is a ‘person who is riding a motor bike, bicycle, animal or animal-drawn vehicle’. This does not include a passenger or a person walking beside and pushing a bicycle. A bicycle is defined as: ‘a vehicle with 1 or more wheels that is built to be propelled by human power through a belt, chain or gears (whether or not it has an auxiliary motor). This includes a pedicab, penny-farthing, and tricycle.

The definition does not include a wheelchair, wheeled recreational device (e.g. a skateboard), wheeled toy or any vehicle with an auxiliary motor capable of generating a power output over 200 watts (this has been increased to 250 watts in Australian Road Rules but hasn’t yet been adopted in Tasmania).
A ‘wheeled recreation device’ includes skateboards, in-line skates, roller skates or similar wheeled devices, but does not include a wheeled toy, unless ridden by a person 12 years or older.

Persons riding ‘wheeled recreation devices’ are considered to be pedestrians.

References to ‘driver’ and ‘driving’ in the Rules include a reference to ‘rider’ and ‘riding’, unless otherwise stated. Therefore, cyclists are subject to the general road rules that govern all traffic on the road and, in particular, to the rules governing speed limits, pedestrians and traffic control devices (signs and signals).There are also a number of Rules dealing specifically with bicycles and their riders.

The Rules only apply to vehicles and road users on roads and road related areas (rule 11). However, these terms are quite broadly defined (rules 12 and 13), a ‘road’ being ‘an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles’. A ‘road related area’ includes footpaths, nature strips, areas that divide roads, and areas that, while not roads, are open to the public and designated for use by cyclists or animals or used by the public for driving, riding or parking motor vehicles.

The following summary is in three parts. The first covers the law as it relates specifically to bicycles (how they should be ridden, roadworthiness, helmets, use of bicycle carriers); the second relates to skaters; and the third covers the general road law concerning stopping and turning behaviour as it applies to bicycles.

The General Road Rules that apply to Cyclists

The general road laws apply to all vehicles and hence also to bicycles. But the unspoken rules of cooperation, respect and a positive attitude between cyclists and drivers are important to safety on the roads for everyone, as well.

Cyclists are far more vulnerable to accidents than people in cars, as they are only protected by a helmet and their clothing. It is important that drivers are willing to recognise that cyclists have the right to be on the road as much as drivers. Cyclists need to be aware that sometimes it is safer to give way to drivers by pulling to the side of the road if they are on narrow and winding roads rather than persist in cycling when cars behind them cannot overtake.

Keeping left and safe distances

A rider must ride as close as practicable to the left side of the road (rule 129; maximum 5 penalty units). This does not mean that a rider has to ride in the ‘door zone’ of parked cars, or allow for cars to overtake them. Safety is always the most important consideration with road rules.

‘Practicable’ allows what is reasonable in order to maintain safe progress along the road. Practicable does not mean ‘stay out of the way, cyclist, there’s a car coming through’. Roads are for shared use, and ‘practicable’ carries an important element of safety in it.

‘Close’ may be interpreted as about 1m from the curb if there are no parked cars and the lane is wide enough to still allow vehicles to safely pass you. In the common situation where there is insufficient width for vehicles to safely pass when you are riding a safe distance (1 to 1.5m) from parked cars, then the practical position is just far enough right so that drivers will have to acknowledge that you are occupying the lane, and overtaking will only be possible by changing lanes.

It is not practical to weave in and out of parked cars because you become unsighted and often cannot safely re-merge with traffic, Maintaining a consistent position on the road is safest.This rule also applies to drivers. This is worth noting as drivers are often not aware that this rule applies to all road users except motorbikes.

As well as Road Rule 255 (‘riding too close to the rear of a moving motor vehicle’), Road Rule 126 would seem to apply equally to riders and drivers. It states that ‘a driver must drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle’ (maximum 10 penalty units).

Overtaking to the left

A bicycle MAY overtake a vehicle to the left of the vehicle. The rider of a bicycle must not ride past, or overtake, to the left of a vehicle that is turning left and is giving a left change of direction signal (Rule 141).

Stop signs and traffic signals

Failure to observe the rules concerning stopping and turning is the source of  many of those bicycle accidents where the rider is at fault. Cyclists, like other road users, are obliged to stop:

  • where indicated to do so by any of the following: a red traffic light, twin red lights, a red arrow, a stop sign or other traffic control signal; or
  • when instructed to do so by a police officer or an authorised employee (rule 304; maximum 15 penalty units); or
  • where the lights are yellow, if it is possible to safely stop before reaching the lights or intersection (rule 57; maximum 5 penalty units).

The above also applies to shared footpaths, separated footpaths and bicycle paths and where there are bicycle crossing lights (rule 260; penalty: $100+). A rider must stop before reaching a yellow light if it is possible to do so safely (rule 261; penalty: $100+).

At a give way sign, there is no legal obligation to stop fully. Since riders often have better visibility than drivers it can be easier to keep feet on the pedals and proceed if the road is clear, rather than coming to a complete stop, although this is recommended as a safe practice for riders. See below for more instances where riders are legally obliged to give way.

Signalling and turning

All vehicles should be turned in a predictable manner. Cyclists should turn left by moving over towards the left kerb, signalling and then making the turn. It is not a legal requirement to signal a left hand turn and in some instances it is safer to keep both hands on the handlebars. To turn right, they should look back to check what is coming and, if the way is clear, signal in the manner described below, merge towards the centre of the road and turn when appropriate.

Road Rules 46(5) and 52 remove the obligation on riders to signal an intention to, respectively, turn left and stop or suddenly slow. Nevertheless, for the sake of safety it is recommended that riders still use hand signals to alert drivers to their intentions. The Rules also state there is no need to use indicators when entering or leaving a roundabout (rule 44). Again, for cyclists the safest option is to always signal an intention to change direction.

When turning right, riders must signal their intention to other road users by giving a hand signal. How to do this is explained in Road Rule 50: extend the right arm and hand horizontally and at right angles to the bicycle, with the hand open and palm facing forwards.

A similar approach is used with the left arm for signalling to turn left.

To signal an intention to stop or rapidly decrease speed, it is possible to use either arm. The arm is outstretched with the upper arm horizontal and the forearm and hand pointing upwards and with the hand open and palm facing forwards (rule 55).

Road Rule 31 sets out the three means by which a driver (or rider) is to approach a right turn from a road:

  • if the road has a dividing line or median strip, the driver must approach and enter the intersection from the left of, parallel to, and as near as practicable to, the dividing line or median strip; or the median can provide ‘refuge’ for a cyclist waiting to turn. So does a designated ‘turn right’ lane.
  • where there is no dividing line or median strip, the driver must approach and enter the intersection from the left of, parallel to, and as near as practicable to, the centre of the road. This can be a vulnerable position for cyclists, particularly on busy roads as there is a risk of being struck from behind. On quiet local roads it is an easy manoeuvre for bike riders.

The third option under Road Rule 31 is:

  • where the road is a one-way road, the driver must approach and enter the intersection from as near as practicable to the far right side of the road.

Alternatively, riders may feel safer to get off their bikes and walk across the intersection using a marked foot crossing. There is also Road Rule 35 which permits a hook turn where it is more practical for bike riders. This allows a broader turn for cyclists so that there is less chance of skidding. A hook turn is a broad approach from the left, in a full arc to the right.

Giving way

A rider must give way:

  • when changing lanes (rule 148; maximum 10 penalty units);
  • at uncontrolled intersections (rule 72 and 73; maximum 10 penalty units);
  • at give way signs or give way lines (rule 6971; maximum 10 penalty units);
  • to any vehicle leaving a roundabout, where the rider is in the far left marked lane of a roundabout with two or more lanes (rule 119; maximum 5 penalty units);
  • when making U-turns (rule 38; maximum 10 penalty units);
  • when in the left lane of traffic, to buses displaying a ‘give way to buses’ sign where they are merging into traffic after having recently stopped (rule 77; maximum 5 penalty units);
  • at any pedestrian crossing with a pedestrian on it (rule 81; maximum 15 penalty units).At ‘children's crossings’ (which always have ‘stop lines’, i.e. a continuous line marked on the road with pedestrians on them, the driver or rider must come to a full stop and not proceed until the crossing is clear (rule 80; maximum 15 penalty units);
  • to pedestrians on footpaths or shared footpaths (rule 250(3); penalty 2 penalty units).

Bicycle and cyclist specific laws

The road laws for cyclists in Tasmania are contained in the Road Rules 2009. ‘Vehicle’ includes bicycles, and the person riding a bicycle is a ‘rider’. This definition does not include a person wheeling a bicycle. For the purposes of the Road Rules, a driver includes a reference to a rider, and driving includes reference to riding. This means that driving offences are also cycling offences. This means that if a cyclist fails to observe road rules, penalties that apply to drivers also apply to cyclists. However, there are some rules that apply specifically to cyclists. See the Road Rules at rules 245 – 262 for a full list.

What is a roadworthy bicycle?

All bicycles must have ‘at least one effective brake and a bell, horn or similar warning device, in working order’ (rule 258; penalty up to 5 penalty units).

Some of the most severe cycling accidents occur at night and in many cases, the bike has no lights. To combat this, the Rules (rule 259) state: ‘The rider of a bicycle must not ride at night, or in hazardous weather conditions causing reduced visibility, unless the bicycle, or the rider, displays –

  • a flashing or steady white light that is clearly visible for at least 200 metres from the front of the bicycle; and
  • a flashing or steady red light and reflector that is clearly visible for at least 200 metres from the rear of the bicycle; and
  • a red reflector that is clearly visible for at least 50 metres from the rear of the bicycle when light is projected onto it by a vehicle's headlight on low-beam’ (maximum 5 penalty units).

Bicycle Helmets

Road Rule 256 states that all bicycle riders, and their passengers, ‘must wear an approved bicycle helmet securely fitted and fastened’ on their heads (maximum 2 penalty units). All approved helmets are labelled.

Under Road Rule 379 it is possible to obtain a written exemption from Service Tasmania stating you do not have to wear a helmet. It is likely the person applying for the exemption will have to show it is ‘extremely difficult’ to comply with the requirement of wearing a helmet (as under the previous Regulations).  An exemption may be subject to conditions such as being carried and produced when demanded by an ‘authorised person’ or a police officer.

Paying passengers on 3- or 4-wheeled bicycles do not have to wear helmets (rule 256(3)).

How a Bicycle Should be Ridden

Riders must ‘sit astride the rider's seat facing forwards (except if the bicycle is not built to be ridden astride), with at least one hand on the handlebars’ and, if the bike is equipped with a seat, not ride the bike seated in any other position on the bike (rule 245; maximum penalty 5 units).

‘The rider of a bicycle must not carry more persons on the bicycle than the bicycle is designed to carry’ (one may query whether the metal footrests on many BMX wheels are designed for transporting extra persons or just for trick performances by the actual rider) (rule 246; maximum 5 penalty units). No reference is made in the current Rules to child seats on bicycles, however it is assumed this Rule would cover the previous Regulation which permitted the carrying of a child under 5 years old in a properly constructed and fitted seat attached to the bicycle. As a passenger, that child would require a helmet.

‘A rider is not permitted to ride within 2 metres of the rear of a moving motor vehicle continuously for more than 200 metres’ (rule 255; maximum 5 penalty units). Riders are not permitted ‘to cause a traffic hazard by moving into the path of a driver or pedestrian’ (rule 253; maximum 5 penalty units). Riders are not permitted to be towed by another vehicle or hold onto a moving vehicle (rule 254; maximum 5 penalty units).

A rider is permitted to overtake a motor vehicle on the left except where that vehicle is turning left or indicating it will be turning left (rule 141; maximum 10 penalty units).

Riders are prohibited from riding ‘across a road, or a part of a road, on a children's crossing, marked foot crossing or pedestrian crossing’ (rule 248; maximum 2 penalty units). This means riders must dismount and walk their bicycles across.

Cycling on the Road, Footpaths, and Bicycle Paths

Bicycle riders of any age may ride on a footpath in Tasmania unless such a use is prohibited (usually by signs) (rule 250(1); maximum 2 penalty units). There are some paths which will indicate that they are either shared or separated. This is evidenced by sign posts or painted symbols on the path.

On shared paths, the same etiquette as with footpaths applies – keep to the left, and give way to pedestrians. Riders using separated or ‘bicycle paths’ (areas signposted with bicycle path signs – (rule 239(4)) must, wherever practicable, keep to the left of those paths (rule 251; maximum 2 penalty units), on the bicycle designated path. They must not ride in the part of the path designated for use by pedestrians. This can be confusing, as it can appear that there are two lanes created, much like on the roads. However, each lane is bicycle or pedestrian specific.

When a rider reaches a crossing, a rider of a bicycle must not ride across a road at a children’s or pedestrian crossing, or cross a road at a foot crossing where there are no bicycle crossing lights (rule 248). The cyclist must dismount.

Wherever there is a designated ‘bicycle lane’ (rule 153(4)) on a road, riders must use the lane, unless impracticable to do so (rule 247; maximum 2 penalty units). Drivers are not permitted to drive in the bicycle lane except for up to 50 metres if about to park (provided parking is permitted adjacent to the bike lane) or if driving a bus, taxi or the like and setting down or picking up passengers (rule 153; 10 penalty points).

Section 151 of the Road Rules states that cyclists cannot ride more than two abreast unless one cyclist is attempting to overtake the other two cyclists. Two cyclists may ride side by side, but the distance between them can be no greater than 1.5m.

Other rules include:

  • Cyclists on footpaths must give way to pedestrians and keep to the left where practicable
  • Cyclists must keep a distance of 2 metres from the rear of a moving motor vehicle over distances of greater than 200m (rule 255);
  • The fines for bicycle specific offences are between 2 and 5 penalty units, so between $260 and $650;
  • The fine for cyclists who fail to stop at a red light or a stop sign or give way at a give way sign is up to 10 penalty units – this means a cyclist can be fined up to $1300 for failing to stop or give way.

Important rules for cyclists and drivers

Cycling South provides an excellent resource on Tasmanian road rules and guidelines to promote knowledge of the law so that cyclists and drivers can work toward a courteous and cooperative sharing of the roads. These rules are what you should keep in mind when you’re cycling or driving so that everyone can be sure of their obligations and rights on the road.

  • A recent amendment means that drivers can now cross continuous single white lines on a straight stretch of road in order to safely overtake a cyclist. This amendment does require that the driver can safely maintain a 1 metre distance from cyclists in a 60 zone, or a 1.5m distance in zones of higher speed (Rule 139A).
  • Cyclists can make hookturns at all intersections unless signage prohibits hook turns by bicycles (Rule 35);
  • Cyclists riding through multi-lane roundabouts who travel on the farleft line of traffic must give way to any vehicle leaving the roundabout (Rule 119);
  • A driver must not overtake a vehicle unless the driver has a clearview of any approaching traffic; and the driver can safely overtake thevehicle (Rule 140);
  • A driver (except the rider of a bicycle) must not overtake a vehicle to the left of the vehicle (with some exceptions);
  • The rider of a bicycle must not ride past, or overtake, to the left of a vehicle that is turning left and is giving a left change of direction signal (Rule 141);
  • A driver overtaking a bicycle must pass at a sufficient distance to avoid a collision or obstructing the path of the bicycle; and  must not return to the marked lane or line of traffic where the bicycle is travelling until the driver is a sufficient distance past the bicycle to avoid a collision or obstructing the path of the bicycle (Rule 144);
  • A person must not cause a hazard to a cyclist by opening a door of a vehicle, leaving a door of a vehicle open, or getting off, or out of, a vehicle (Rule 269);
  • Cyclists can not ride more than two abreast unless overtaking. When riding two abreast riders should not be more than 1.5m apart. This rule also applies on bike paths, shared paths and shoulder of the road (Rule 151);
  • A driver must not drive in a bicycle lane unless the vehicle is entering or leaving the road, avoiding an obstruction or right turning vehicle, stopping or parking or a bus or taxi picking up or dropping off passengers. The driver should not travel for more than 50 metres in the bike lane (Rule 153 & 158);
  • A bike rider must have at least one hand on the handlebar (Rule 245);
  • The rider of a bicycle must not carry more persons on the bicycle than the bicycle is designed to carry eg: no dinking (Rule 246);
  • The rider of a bicycle riding on a length of road with a bicycle lane designed for bicycles travelling in the same direction as the rider must ride in the bicycle lane unless it is impracticable to do so (Rule 247);
  • The rider of a bicycle must not ride across a road, or part of a road, on a marked foot crossing, unless there are bicycle crossing lights at the crossing showing a green bicycle crossing light (Rule 248);
  • The rider of a bicycle riding on a footpath or shared path must keep to the left of the footpath or shared path unless it is impracticable to do so; and give way to any pedestrian on the footpath or shared path (Rule 250);
  • The rider of a bicycle riding on a bicycle path, footpath, separated footpath or shared path must keep to the left of any oncoming bicycle rider on the path (Rule 251);
  • The rider of a bicycle must wear an approved bicycle helmet securely fitted and fastened on the rider's head, and any passengers (eg: child in child seat) must also wear an approved helmet (Rule 256);
  • The rider of a bicycle must not tow a bicycle trailer with a person in or on the bicycle trailer, unless the rider is 16 years old, or older; and the person in or on the bicycle trailer is under 10 years old, the bicycle trailer can safely carry the person; and the person in or on the bicycle trailer is wearing an approved bicycle helmet securely fitted and fastened on the person's head (Rule 257);
  • The bike must have at least one effective brake and a warning device such as bell or horn (Rule 258);
  • In poor light conditions or at night the bicycle must have a flashing or steady white light that is clearly visible for at least 200 metres from the front of the bicycle; and a flashing or steady red light that is clearly visible for at least 200 metres from the rear of the bicycle; and a red reflector that is clearly visible for at least 50 metres from the rear of the bicycle when light is projected onto it by a vehicle's headlight on low-beam (Rule 259).

Skateboarders and Others

Skateboarders are defined as pedestrians for the purposes of the Road Rules. The rules that apply specifically to skateboarders or users of ‘wheeled recreational devices’ are contained in rules 240A – 244.

  • Skateboarders on footpaths or shared paths must give way to pedestrians on foot, and also must keep to the left of a footpath (rule 242);
  • The fine for pedestrians (including skaters) who breach such rules as walking against a red ‘Don’t Walk’ sign or a red light, crossing a road within 20 metres of a marked crossing, walking along the road where there is a footpath that could be used and walking across a level crossing when a boom gate is down or the red lights are flashing carries a maximum of 5 penalty units;
  • The fine for intersection window washers carries a penalty of up to 2 penalty units (rule 236(4)); and
  • Fines for roller bladers and skaters for offences such as riding along a road (other than a road with a speed limit of 50km/h or less and no centreline or median strip) can incur a penalty of up to 5 penalty units.

Skateboarders can travel on roads where the speed limit is 50 km/h or less, and there is no median strip, and it is not a one-way street with more than one marked lane. This means that many smaller roads around Hobart are open to skateboarders.

Road Law for Skaters

As mentioned above, skateboards, in-line and other roller skates and scooters are all included in the Road Rules' definition of ‘wheeled recreational devices’. Users of these items are considered to be pedestrians and not riders or drivers. Accordingly, the majority of the Rules discussed above do not apply. For example, there is no requirement for skaters to wear protective headgear. However, skaters are strongly urged to invest in a helmet and protective guards for elbows, wrists and knees.

Wheeled recreational devices may not be used on roads ‘with a dividing line or median strip, or on one-way roads with more than one marked lane’ (rule 240(1); maximum 5 penalty units) or on a road where they are prohibited (rule 240(2); maximum 5 penalty units). This includes the ‘shoulder’ (rule 12) of the road but does not include paths, car parks, off road areas, footpaths etc.In addition, the devices must not be used on a road without due care and attention and reasonable consideration for other road users (rule 366; maximum 5 penalty units).

On a road, the skater must keep as close to the left hand side as practicable and must not travel more than two abreast with other pedestrians or vehicles, unless overtaking (rule 241; maximum 5 penalty units).

When travelling on a footpath or shared path, the skater must keep as far left as practicable and give way to any pedestrians (‘pedestrian’ here does not include other skaters or children on ‘wheeled toys’) (rule 242(1); maximum 5 penalty units).

For skaters using a separated footpath (defined above), Rule 243(1) says that skaters must not be on that part of the path designated for pedestrians unless the skater:

  • is crossing the path by the shortest, safe route; and
  • does not stay on the path for longer than necessary to cross safely (maximum 5 penalty units).

Skaters using a bicycle path also must keep out of the way of any bicycle (rule 243(2); maximum 5 penalty units).

Finally, skaters are prohibited from being towed by a moving vehicle (rule 244; maximum 5 penalty units).

There are many other prohibitions contained in the Road Rules that also apply to skaters because they fall within the definition of ‘pedestrians’. These include:

No Wheeled Device Zone

Skaters and other users of recreational devices should keep an eye out for ‘No Wheeled Devices Zones’. These will have pictures of skate boards and scooters with a diagonal red line through them. Pedestrian malls and shopping areas will often be No Wheeled Device Zones. There is a 5 penalty unit penalty for ignoring these signs (rule 366).

Often the same areas will prohibit bicycles. Many streets in the Hobart CBD are bicycle and skateboard free zones during daylight hours.

Contacts and Resources

A primary resource for cyclists in Tasmania is Bicycle Tasmania. Their email contact is at: infor@biketas.org.au 

Another Tasmanian resources is Cycling South where you can find a range of resources:

Another helpful resource is the Australian Bicycle Council.

Local councils also provide some resources for cyclists. Some examples are:

Launceston City Council provides information on walking and cycling tracks in the area.

The Hobart City Council also provides information on cycling in Hobart.

The Department of State Growth provides some basis information for cyclists and pedestrians.

Transport Tasmania also provides guidance on road rules, and resources for drivers and cyclists alike.

Disclaimer

This does not constitute legal advice and the Tasmanian Law Handbook should not be used as a substitute for legal advice. No responsibility is accepted for any loss, damage or injury, financial or otherwise, suffered by any person acting or relying on information contained in it or omitted from it.