Selling

Anyone selling a dog or cat is required to ensure that the advertisement includes the animal’s unique microchip registration number. While not necessary if the pet is being offered for free, failure to include the registration number when advertising a dog or cat for sale can result in penalties of $610.70.

Breeding

Under the amendments to the Domestic Animals Act 1994, anyone who has three or more fertile female cats or dogs and sells cats or dogs (whether or not for profit) needs to be registered as a domestic animal business.  However, when a breeder belongs to an applicable breeding organization, the threshold is raised to ten or more fertile cats or dogs.

To make sure that you are complying with these new laws, visit the Department of Primary Industries’ website at http://www.dpi.vic.gov.au/pets/about-pets/legislation-and-regulation/domestic-animal-businesses2, or contact us at Hutchinson Legal on (03) 9870 9870.

Australia’s ‘territorial sea’ is defined as extending ‘12 nautical miles from the territorial sea baseline’.   A nautical mile is expressed as 1,852 metres.  UNCLOS states that the ‘sovereignty of a coastal State extends, beyond its land territory and internal waters and in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea described as the territorial sea’.  The ‘contiguous zone’ lies adjacent to Australia’s territorial sea and extends up to ‘24 nautical miles from its territorial sea baseline’.  Inside that zone, Australia is able to exercise the control necessary to prevent or punish infringements of its customs, fiscal, immigration or sanitary laws and regulations.

Australia’s ‘continental shelf’ is defined as an area of seabed and subsoil which extends beyond the territorial sea for up to 200 nautical miles from the baseline and beyond that distance to the outer edge of the continental margin.  Australia has sovereign rights over the continental shelf for the purposes of exploring and exploiting the mineral and other non-living resources of the seabed and subsoil, together with sedentary organisms.  Australia also has jurisdiction with regard to marine scientific research.

Australia’s ‘exclusive economic zone’ lies on the outer edge of the territorial sea and up to 200 nautical miles from the territorial sea baseline.  Australia has the sovereign right to explore and exploit, conserve and manage the natural resources of the waters, seabed and subsoil.  In the case of the three Australians who boarded a Japanese ship in Australia’s exclusive economic zone, jurisdictional issues are prevalent.  Article 56 of UNCLOS states that the coastal State has ‘sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds’.  Arguably, the three men may have been trying to ‘conserve’ the ‘natural resources whether living or non-living’.

Article 59 of UNCLOS states that ‘in cases where [the] Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole’.  Arguably Australia has universal jurisdiction over the three men as they committed an offence on board a ship of another nationality.  The incident occurred outside Australian territorial waters, however, but still within Australia’s exclusive economic zone.  This would indicate that the conflict must be resolved using equitable principles, proving to be a complex jurisdictional issue.

Speed Limits

Section 21(1) of the Road Safety Road Rules 2009 (Vic) (“the Rules”) states that the ‘speed limit applying to a driver for a length of road to which a speed limit sign applies is the number of kilometres per hour indicated by the number on the sign’.  The sign in question indicated that the speed limit was 70km/h and should therefore be seen as the appropriate speed limit, as per rule 21(1).  Section 21(3) of the Rules states that a ‘speed limit sign on a road applies to the length of road beginning at the sign’.  It seems logical to assume that this would apply to the 70km/h speed limit sign in question.  Section 25(1) of the Rules states that ‘if a speed limit sign does not apply to a length of road and the length of road is not in a speed limited area or shared zone, the speed limit applying to a driver for the length of the road is the default speed’.  The default speed for a built up area is 50km and 100km for any other length of road.  Section 25 of the Rules, which indicates the default speed limits, would not apply because the length of road was a ‘speed limited area’ i.e. it had signage which indicated 70km/h to drivers, but was considered to be 60km/h by enforcement authorities.

Avenues of Appeal

Section 16 of the Infringements Act 2006 (Vic) (“The Act”) states that a person may elect to have a matter heard in Court.  The Court holds the discretionary power to take into account all factors and conclude as to whether the infringement notice is valid or not.  Section 18(2) of the Act states that an infringement notice may be withdrawn if the enforcement agency determines that the ‘matter should be abandoned’.  The sign indicated that the speed limit was 70km/h despite it being zoned as a 60km/h limit, and this ‘mistake’ by the authorities could possibly lead to the abandonment of the notice.

Section 22(1) of the Act states that a person served with an infringement notice or a person acting on that person’s behalf may apply to the relevant enforcement agency for review of the decision to serve the infringement notice if the person believes the decision was contrary to law (section 22(a)(i) of the Act).  Section 25 of the Act allows for a review of an infringement notice by an enforcement agency.  Upon this review, the enforcement agency may decide to confirm the decision to serve an infringement notice (section 24(1)(a) of the Act) or withdraw the infringement notice (section 24(1)(c) of the Act).  Arguably, the decision to issue such infringement notices could be seen as contrary to law and withdrawn because the sign indicated that the speed limit was 70km/h. Standard and electronic speed limit signs are enforceable as per section 20 of the Rules and should be followed, indicating that the speed limit was, at the time of the issuing of the infringement notices, in fact 70km/h. 

If you have been served with any such infringement notice, you are welcome to contact Hutchinson Legal for further information.

Driving

Whilst there will be no double demerit points this year, there will certainly be plenty of police out on the roads: either in booze buses or random patrols trying to keep the roads free of accidents and mishaps on a day when everyone needs to be everywhere, so:

A. If you’re going to have a drink make sure someone else is going to drive you around; and
B. If you feel like you’ll be in a hurry between Christmas lunch and Christmas dinner call ahead and tell them you’ll be 15 minutes late. Trying to make up 15 minutes in transit could be expensive and make you even later if you are stopped and have to try and explain to the Police why you were travelling over the speed limit.

With busy roads, accidents can, and will, happen with consequences stretching beyond the holidays…and not just for yourself.

Dodgy presents:

By this our main concern is the TV, the DVD player, or the Sandwich press which breaks the minute it leaves the safety of its wrapper and not so much the thrice-presented DVD or Fluoro Yellow parachute pants. Under the newly established Australian Consumer Law if something is not an ‘acceptable quality’ you are entitled to have the gift:

i. Replaced with a brand new version of the gift; or
ii. Request a refund of the value of the gift; but

If you decide to return a gift be careful how it’s treated. Once you decide to return the gift – it becomes the property of the manufacturer immediately. So please be careful not to damage the gift or they can claim it was your fault not theirs.

Work:

If you have to work over the Christmas period please keep in mind Christmas Day, Boxing Day and New Year’s Day (and Monday, 2 January 2012 because New Year’s Day falls on a Sunday) are all listed Victorian public holidays entitling you to decide whether or not you want to work.

If you are a full-time or part-time employee, you have two options available:

1. You can work and receive penalty rates, typically this is double-time but not always; or
2. If your rostered shift is on one of the Christmas public holidays, you dont have to work and you can still receive your ordinary pay.

This is just a list of the common Christmas legal dilemmas and with a bit of luck they won’t come up.

But we are sure you will be pleased to know that Hutchinson Legal will be open for business, as usual, over the Christmas break to deal with any legal issues that may arise for you or your family.

The incidents of dog attacks this year led to the Government reforming the law in this area. The Crimes and Domestic Animals Acts Amendment (Offences and Penalties) Act 2011 commenced operation in September of this year. It provides local Councils with the power to seize and destroy a dog that looks like a restricted breed (i.e. American Pit Bull Terrier, Japanese Tosa, Dogo Argentino, Fila Brasileiro and Perrp De Presa Canario).

Moreover, from November 2011, the owner of dangerous dog, menacing dogs and restricted breed dogs could be liable for more serious penalties if their dog kills someone (maximum 10 years imprison) or place another person in danger of death (maximum of 5 years imprisonment). This is a wake up call for those owners who have been ignoring the use of a muzzle and leash when it is required by the law.  

As the owner, you are responsible for your domestic animal. Accordingly, we would recommend that all safety issues be taken into account when deciding what domestic animal is perfect for your family and the community. 

If you cannot bear the responsibility of registering, microchiping, training or controlling your dogs, guinea pigs might be a better option!

For more information, please visit the website of Department of Primary Industries: http://www.dpi.vic.gov.au

Andrea can also assist with reviews for visa applications that have been refused by lodging a review with the Migration Review Tribunal. We provide you with a link to the Code of Conduct for registered migration agents which is a requirement under migration law – https://www.mara.gov.au/Code-of-Conduct/Code-of-Conduct/default.aspx.

It is imaginable that this last question instils an amount of fear into every parent. A lot of organisation and effort goes into planning celebrations. And particularly if your child wants to have a party you’re confronted with the choice of whether to allow drinking.

If you choose to allow alcohol at a party, it is important to note that as of November 2011 it is an offence to serve alcohol to a minor in a private residence without the consent from a parent of guardian. The law already states that it is an offence to serve alcohol to a minor unless in a private home but the new law removes this exemption unless a parent or guardian gives consent.

Victoria Legal Aid suggests that guests at the party require permission from parents in writing to avoid any potential legal issues.

Alternatively hiring a function venue for your child’s party is a way to ensure that you have no legal liability if minors consume alcohol, although the price attached for hiring a room can at times be hefty.

At Hutchinson Legal we would suggest that parents try to avoid a situation where minors and alcohol could both be present. This could mean becoming more creative with ideas for celebrating your teen’s birthday! A paintball day for boys, high tea and fancy dress for girls etc! Something unique and tailored to your child’s interests would be a refreshing alternative to the party scene!

The new Act will introduce a single national register to replace the existing 40 registers and will provide uniform rules for all security interest in personal property. It will introduce rules that govern how security interests are created and enforced and rules which determine priority between competing interests.

The legal position is that all plants and trees belong to the owner of the property. If the plants and trees are on a common pathway, they are on Council land. Therefore, the bottom line is that unless the property is owned by you, it is against the law to remove anything from the property unless you have permission from the owner. However, if part of a plant or tree in your neighbour’s property overhangs into your property, you have the right to remove the overhanging part. The cost of having it removed is to be met by you, unless your neighbour agrees to pay for the removal.

And I can almost hear you ask, “But what about mushrooms on the nature strip?” even for mushrooms, the same rule applies! To be on the right side of the law you will need to contact the local Council and ask for permission to pick them.