Disclaimer: The following answers are provided as information only and should not be relied upon as a substitute for legal advice. For legal advice, please contact our office to arrange an appointment.
Write down a statement of your financial position or consult a financial Counsellor for an income and expenditure statement.
It should include:
This financial statement will help you and your creditors (those people you owe money) understand clearly your position. Then list all your creditors and the amount you owe them. Make an offer in writing to pay them an amount each fortnight. Tell them the personal circumstances of your debts eg sickness, loss of job.
Don’t ignore it. Get legal advice and consult a financial counsellor. A ‘Claim’ is a court form which says you owe money. If you ignore the claim the court assumes that you owe the full amount and will make judgement against you. Judgement is the court’s finding that you owe an amount of money. If you don’t agree with the claim you must lodge a defence or a counter-claim within 21 days.
If the matter goes to court, be sure to attend on time otherwise judgement may be entered against you. If you want to negotiate ‘out of court’, get your creditor’s written agreement that no action will be taken against you while you are negotiating and that no court orders will be made against you. Even if you cannot pay any money you should contact your creditor because they may decide it is not worth their trouble to chase the debt.
You cannot be gaoled for failing to pay your debts. The court can imprison you for up to 40 days for disobeying its orders, such as refusing to attend the court or refusing to pay if you have the money. You still have to pay your debts even if you go to gaol.
A creditor can appoint a Receiver once the matter has been to court and judgement has been made against you. There are five different ways a creditor can attempt to make you pay. Remember, they can still keep pressing you to pay either by letter or through a debt collection agency.
The five ways are:
More information about debt agreements and bankruptcy is available from a financial counsellor and Australian Financial Security Authority on www.afsa.gov.au
Even before an arrest has been made, the police may, without a warrant, search a person or a car if they have reasonable cause to suspect the person holds, or the car contains:
Police holding a search warrant have wider powers to search and enter premises and vehicles. To obtain evidence of an offence, police can, in some cases, break into a house or a car.
The police may arrest any person whom they find committing an offence or have reasonable cause to suspect of having committed, or are about to commit an offence. The police do not need a warrant to arrest you.
The police must make it clear to you by words or by actions that you are under arrest. If you are under arrest you are not free to go. If you are unsure, ask the police if you are under arrest or if you have to go with them. It is an offence to resist a lawful arrest.
Police may use as much force as is reasonably necessary to arrest a person including using handcuffs or restraints. A police officer is not allowed to use violence or threaten to use violence on you. The police are entitled to use whatever force is reasonably necessary if you try to struggle when under arrest, use violence yourself or refuse to be lawfully examined.
The police will probably ask you a lot of questions, but you don’t have to answer them. If you don’t wish to give information apart from personal details like your name, address and date of birth, just politely say so after each question.
You still have the right to remain silent. Remember – anything you say may be brought up later in evidence. There is no such thing as an ‘off the record’ conversation with a police officer.
If you are under 18 years old you should not be interviewed without a parent or an adult friend or a lawyer. However, this is not essential if you are 16 or 17 and the offence is a minor matter.
If you have been arrested, the police may search you and seize anything they find. If the police wish to have you searched by a doctor, you have the right to have a doctor of your own choice present if it is practicable. After you have been charged, you can be photographed, fingerprinted, asked to supply a sample of your handwriting or have your voice recorded. The police may also wish to take a sample of your blood, hair, fingernails, saliva, etc, or have you examined by a doctor or dentist. If you do not consent, tell the police and ask to speak to a lawyer, but do not resist. If the police suspect you have committed a serious offence, they can take a DNA sample by mouth swab even if you have not been arrested or charged. You may also be asked to participate in an identification line up. You do not have to consent, but you should seek legal advice.
You do not have to make or sign a statement. You do not have to respond to someone else’s statement if it is shown to you. It is usually best not to sign anything until you have seen a lawyer.
Any person who has been charged with any offence can apply for bail. Bail means that you may be released from police or court custody on the condition that you promise to appear in court on certain days and at certain times. In some cases you may need another person to be a guarantor for you. A guarantor is a person (usually a relative or friend) who promises to pay an amount of money, called a ‘guarantee’ or ‘surety’, if you do not appear in court next time you have to. It is up to the police whether you are given bail immediately. If you are not given bail immediately, the police must take you to court as soon as possible. If it is evening you will go to court in the morning when you can ask for bail.
When granting bail the sorts of things police and courts consider are:
If you think the police have acted wrongly, you may tell them so, but don’t put up a struggle or argue the point. You can make a complaint to any police officer (apart from the police officer you are complaining about) and they are required to receive your complaint and pass it on to the appropriate person. If you don’t feel comfortable speaking to the police, you can make a complaint to the Office of the Public Integrity or talk to your lawyer. If you are injured, arrange a medical examination and have some photographs taken as soon as possible. As well, contact witnesses who can testify about your condition before your arrest. Write down what happened, who did it, (such as the police officer’s I.D. number or nickname) and when and where it all happened while it is fresh in your mind.
The police have broad powers to stop and ‘breath test’ a driver who:
The test must be conducted within 2 hours of driving or attempting to drive. When police exercise their random testing powers they must be in uniform and use a marked police vehicle, or a vehicle displaying a flashing light or sounding an alarm. Police may also stop and test any driver of a motor vehicle that approaches a breath testing station. If an alcotest shows that the prescribed concentration of alcohol may be present, the driver can be required to blow into a breath analysis machine. The result indicated by the breath analysis is presumed to have been the person’s blood alcohol level for the two hours immediately before the test. If the breath analysis shows that the driver was over the limit, he or she will be charged and summonsed to appear in court. A breath analysis result may only be challenged in limited circumstances, such as if it is found to be inaccurate or if the proper procedure was not followed.
You should seek legal advice before you enter any plea. This should be done as soon as possible as there may be up to a 40% discount for an early guilty plea. To discuss your matter, you can book an appointment with one of our solicitors.
Where a breath analysis indicates the driver is over the limit, the police must advise the driver of their right to have a blood test. If a driver chooses to exercise this right, the police will provide a blood testing kit. The kit contains a statement of the person’s right to have a blood test together with instructions to both the person and a doctor on the blood sampling procedures. Drivers must make their own arrangements to have the blood sample taken although, if outside the metropolitan area and it appears to the police that the person will be unable to travel to a place to have a blood sample taken, the police must provide transport to a suitable place for the blood sample to be taken. If outside the metropolitan area the blood test may be taken by a registered nurse.
The doctor (or nurse) must divide the sample into halves, giving one sample to the person and forwarding a second sample to the police. The police sample will be analysed and the results will be forwarded to the driver, who can have the other sample tested independently. If this is intended, it is important that the sample be kept in a cool place and analysed as soon as reasonably practicable. Legal advice should be sought if the blood test result is significantly different to the breath analysis.
If a person aged 14 years or more is admitted to hospital following a road accident, a doctor must take a blood sample. The blood test must be done as soon as possible after the person is admitted to hospital and within eight hours of the motor vehicle accident. The sample is sent to the police for analysis. If the result indicates that the driver had exceeded the blood alcohol limit, charges will be laid. It is an offence to refuse a blood test without a good medical reason. A person who is not the driver of a motor vehicle involved in an accident faces a $300 fine if he or she refuses a blood test. More serious penalties apply to drivers.
No, a court cannot reduce a licence disqualification below the minimum period unless there are exceptional circumstances, for example the offence was trifling, nor can the court allow a driver to keep a licence for special purposes such as work.
No, a court cannot reduce a licence disqualification below the minimum period unless there are exceptional circumstances, for example the offence was trifling, nor can the court allow a driver to keep a licence for special purposes such as you need it to look after a sick relative.
The court is able to reduce the number of demerit points or order no demerit points if it is satisfied the offence is trifling or some other proper cause exists. These considerations must relate to the circumstances of the offence rather than the offender and the circumstances should be such as to distinguish it from the more serious, or even typical, breaches of the offence.
The police have broad powers to stop and require a driver who:
to submit to a saliva test for drugs. A drug saliva test will detect THC (cannabis) and methamphetamines such as speed. Where a roadside test is positive police will have the power to conduct either a further saliva test or a blood test. Drivers may face charges of driving under the influence or a new offence of driving with a prescribed drug in oral fluid or blood. Before charges can be laid the presence of drugs will have to be confirmed by Laboratory testing. The saliva test will be mandatory with penalties for drivers who refuse to cooperate.