Legal News

Application for Special Hardship Orders

A Special Hardship Order allows you to continue to drive under your Queensland Drivers Licence, with certain restrictions, following a suspension of your Queensland Drivers Licence for an accumulation of points or a high speed suspension.  You are eligible to apply for a Special Hardship Order if your Queensland “P”, “P1” or “P2” provisional, probationary or open licence has been suspended and the application relates to a licence in the same class as your suspended licence.

A driver will not be eligible to apply for a Special Hardship Order if, in the five years prior to the Application being made:-

• Your Queensland Drivers Licence was suspended or cancelled; or
  
  
• You have been disqualified from holding or obtaining a Queensland Drivers Licence.
  
  
• You were made ineligible to apply for a Queensland Drivers Licence due to exceeding your demerit point threshold.
  
  
• Being convicted of speeding more than 40 kph over the speed limit at a time when you were unlicensed or you have been convicted of an offence where it was determined that you operated a motor vehicle dangerously.
  

There are certain circumstances where prior suspension, cancellation or disqualification will not affect your eligibility to obtain a Special Hardship Order.  These include driver licences suspensions for a medical condition, suspensions under the State Penalty Enforcement Act 1999, Section 105, amongst other exceptions.

In order to obtain a Special Hardship Order, you must satisfy the Court that you are a fit and proper person to continue to drive having regard to the safety of other road users, and that the refusal to grant the Special Hardship Order would cause extreme hardship to you or your family by depriving you of your means of earning a living, or severe and unusual hardship to you or your family other than by depriving you of your means of earning a living.  An example of severe and unusual hardship is where the suspended driver is the only person available to take a family member with a medical condition to their treatment appointments. 

An application for a Special Hardship Order must first be lodged with the Magistrates Court district in which the applicant lives within 21 days after the licence suspension comes into effect.  The application must then be lodged with Queensland Transport, along with supporting affidavits, at least 7 days prior to the hearing of the matter.  Once the application has been lodged with Queensland Transport, the licence suspension will be stayed until the day before the application is heard. 

If a Special Hardship Order is granted, the Court may impose restriction on the licence including:-

• The purposes for which the driver may operate a motor vehicle.
  
  
• The class of motor vehicle which the driver may operate.
  
  
• The times that the driver is allowed to operate a motor vehicle; and
  
  
• a restriction on driving unless the driver is carrying a copy of the Order.
  

If the application is not successful, the licence will be suspended for the remainder of the original licence suspension.  Any time in between the date that the licence suspension is stayed, and the date of the application, is not included in the suspension period.

If the application is successful, the Order will remain in place for the length of the suspension period detailed in the suspension notice.  The Order begins on the date of the Court Order.  When the Special Hardship Order period ends, the licence will be reinstated.  Special Hardship Order restrictions may be varied by application to the Court.

If a driver is convicted of an offence of failing to comply with their Special Hardship Order, a fine of $3,000.00 as well as the disqualification of the driver from holding or obtaining a drivers licence for a stated period may be imposed by a Court.

We recommend that on receiving your Notice of Suspension, you contact us in order to make arrangements to apply for a Special Hardship Order if that is your intention so that the application may be lodged with Queensland Transport as soon as practicable to ensure that the licence suspension is stayed until the application can be heard. 

Paid Parental Leave Scheme

The Paid Parental Leave Bill 2010 has passed the Senate, making Australia’s first government funded Paid Parental Leave Scheme law.

Eligible parents of babies born or adopted on or after 1 January 2011 are entitled to (eighteen) 18 weeks of government funded paid parental leave at the minimum wage.

The new scheme is subject to a parent satisfying each of three (3) tests, namely:-

1. Work Test – The primary carer must have been engaged in work continuously for at least ten (10) of the thirteen (13) months preceding the birth or adoption.  That carer must have also undertaken at least 330 hours of paid work during that ten (10) month period.  This equates to an average of one (1) day per week.
   
   
   
2. Income Test – Eligibility is subject to an income test of not more than $150,000.00 in the financial year before the claim.
   
   
   
3. Residency Test – The Primary Carer must be an Australian resident living in Australia, although some others may be eligible.

Until 1 July 2011, eligible parents will make their claim directly from the Family Assistance Office.

However, after that date, the Family Assistance Office will pay benefits to the employer, who will then pay the employee as part of its normal pay roll.

New Restrictions on Building Covenants in QLD

The Queensland Government has recently enacted legislation which will prevent Bodies Corporate and other developers who regulate building in estates from stopping owners incorporating certain features in houses to be built within those estates.

Quite commonly, purchasers of vacant land were prevented by Building Covenants in the Contract from incorporating certain features or designs in the construction of a house, or were compelled to build a house with a prescribed minimum floor area.

As a consequence of the new legislation, the following provisions are of no force or effect:-

1. Light Coloured Rooves – Provisions which prohibit the use of a light coloured roof or mandate a particular colour of roof.
   
   
   
2. Energy Efficient Windows – Provisions which would prohibit energy efficient windows or window treatment in a house or attached garage.
   
   
   
3. Occupation before Completion of Landscaping – Provisions prohibiting a person from occupying the house before landscaping, fencing or driveways or other work is complete.
   
   
   
4. Minimum Floor Areas – Any provision requiring a particular minimum floor area, or a minimum number of bathrooms or bedrooms.
   
   
   
5. Completion of Construction – A provision requiring construction of a house or any associated landscaping, fencing and driveways etc to be completed within a particular period.
   
   
   
6. Garages – A provision requiring more than one garage.
   

Certain other provisions are of no effect if the intent of the provision is merely to enhance or preserve the external appearance of the building, that is, the provision would need to be justified on a ground other than the aesthetic appearance of the building:-

1. Roof Pitch – A provision requiring the minimum pitch of the roof of the house.
   
   
   
2. Orientation – A provision requiring a house or a garage to be oriented in a particular way.
   
   
   
3. Surface Finishes – a provision prohibiting the use of a particular material or a particular surface finish for a garage, for example, a provision preventing the use of a colourbond or galvanised iron roof.
   
   
   
4. Solar Hot Water Systems or Solar Cells – A provision prohibiting the installation of a solar hot water system or solar cell, particularly where it may be viewed from the street.
   

Our property team is always happy to review and advise you on the enforceability of any covenants.