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Anderson Fredericks Turner

Dealing with Police

Dealing with PoliceLegal ResourceKerri Fredericks – Principal Lawyer
30 September 2019

Kerri Fredericks – Principal Lawyer

25 April 2020

Kerri Fredericks Principal Lawyer in Anderson Fredericks Turner. Prior to operating a law firm she worked as a Crown Prosecutor and Barrister in Queensland. With a background of significant courtroom advocacy, she is independently recommended as a criminal defence lawyer in Australia.

Dealing with PoliceMaking a Complaint Against Police in QueenslandIf you are required to deal with police, it is important to know your legal rights and responsibilities. It is possible to be polite and courteous without forgoing your legal entitlements when dealing with police. However, before you, or someone you know, answer questions by police, it may be worth considering the legal options available to you.
There are a number of ways you may encounter police, including:
you are a witness, or potential witness, to a crime;
you are a suspect, or possible suspect, of a crime;
you have information that may be relevant to a police investigation; or,
you have been charged with an offence.
What particular ‘category’ you fit may affect your legal rights and entitlements. You may not know – it may not be clear – you may be mistaken.
We can assist you in dealing with police, including for the following issues (see below):

Search Warrants
Investigation of Criminal Charges
Police Interviews
Arrest by Police
Bail from Watchhouse
Complaints about Police

Getting timely advice from an experienced criminal lawyer can save you from being mistaken about important issues, as well as provide you the guidance you need when dealing with police.
Search WarrantsMaking a Complaint Against Police in QueenslandIn Queensland, police have powers to search people and property. While the police are given the right to search people and property under prescribed circumstances, the law also requires them to observe responsibilities when doing so. In certain cases, police must obtain a search warrant prior to conducting a search. In other circumstances, police may not need to obtain a warrant before proceeding with a search.
In situations where police have not met their responsibilities, or have acted beyond their power or have acted unlawfully, evidence obtained or seized during a search may be ruled inadmissible. A case may be dismissed because police have deliberately or even recklessly acted beyond their lawful power.
Our lawyers have experience in examining the use of police powers and, where necessary, challenging the use of evidence obtained on the basis of illegality or impropriety in the exercise of police powers. If you or someone you know has been the subject of a search and want legal advice, contact one of our experienced defence lawyers for advice about a specific case.
Investigation of Criminal ChargesMaking a Complaint Against Police in QueenslandIf you or someone you know is the subject of an investigation, it can be important to get early advice about the rights and responsibilities you may have in the situation, as well as those you are owed by investigators.
Our lawyers can provide confidential advice, including in urgent situations, which will allow you to understand your legal options. Getting authoritative advice at an early time may ultimately save significant time and resources, as well as reduce the stress that a police investigation can create.
During an investigation, our assistance may cover a range of work, including:

advice about the possible legal options available to you;
gathering witness statements or other evidence; and,
representing your interests when dealing with police or other law enforcement agencies.

Police InterviewsMaking a Complaint Against Police in QueenslandIn Queensland, police interviews can be conducted in a number of ways with a person suspected of committing a criminal offence. An interview may be conducted during the execution of a search warrant, or in a formal setting in a police station. However, if a person suspected of a criminal offence speaks to a police officer, it may later be used against them in a criminal proceeding.
Experience shows that sometimes people panic when speaking to police and, either deliberately or accidentally, leave important details out of an account to police. In other circumstances, a person may be mistaken about an important issue, which is not realised until later.
It is extremely important for people suspected of a criminal offence to contact an experienced criminal lawyer prior to participating in questioning by a police officer. While there are certain questions in Queensland a person is required by law to answer, there is otherwise generally a right to silence. Often, a person exercising their right to silence cannot have that decision used against them in criminal proceedings.
A lawyer can give advice about the rights and responsibilities of a person facing questions from police. Defence lawyers can also explain the duties imposed on police when seeking to question a person suspected of committing an offence.
If you or someone you know is facing questioning by a person in authority, we can provide urgent legal advice that takes into account the particular circumstances of the case. We tailor our advice for the needs of every client.
Arrest by PoliceMaking a Complaint Against Police in QueenslandBeing arrested can be confusing, emotional and unexpected. Often, it happens with no warnings and allows no time for preparations with a lawyer. As criminal defence lawyers, we understand the need to be able to assist people in urgent circumstances, often with an immediate response.
Often we are called by family members who are concerned about their loved one who has just been arrested and taken to a Police Watchhouse. Often, family members cannot speak to a person who has been arrested and taken to a watchhouse, however lawyers may be able to speak to them to provide advice and representation.
If we are engaged to advise or represent a person when they are arrested, our focus is primarily on ensuring that their rights and interests are protected, as well as gaining an understanding of the reasons they may have been arrested. We work with our clients to formulate a strategy to deal with the immediate issues arising from arrest, as well as make representations for bail.
Bail from WatchhouseMaking a Complaint Against Police in QueenslandIn certain circumstances, police officers have the power to grant bail from the ‘watchhouse’. In granting bail to a person charged, police can attach conditions to bail that must be complied with following release. Failure to comply with bail conditions can result in bail offences, which can have significant consequences.
Lawyers from Anderson Fredericks Turner can assist people who have been taken to a police station or watchhouse by making representations for bail to be granted by police.
If bail is not granted by the police at a watchhouse, we assist our clients to make a bail application at the earliest time. In such cases, we can quickly assist people apply for bail in courts across Queensland. At every stage, we work to ensure that the liberty of our client is secured and that they are not unnecessarily detained or denied bail.
Complaints about PoliceMaking a Complaint Against Police in QueenslandThere are many cases in which people who have been the subject of investigation, arrest or prosecution feel aggrieved by their treatment by police. While an experienced criminal lawyer may assist a person in making a complaint about police misconduct or corruption, there are a number of agencies or organisations established whose function is to pursue such issues.
Where a complaint is made about the misconduct of a police officer who is a member of the Queensland Police Service, there are certain duties imposed on police to report the matter to the Commissioner of Police and the Crime and Corruption Commission (see section 7.2 of the Police Service Administration Act 1990 (Qld)). Additionally, the Commissioner of Police has a separate responsibility of reporting complaints of misconduct to the Crime and Corruption Commission (see section 37 of the Crime and Corruption Act 2001 (Qld)).
In Queensland, the Parliamentary Crime and Corruption Committee has oversight of the Crime and Corruption Commission.
In the case of police officers who are members of the Australian Federal Police, the Commonwealth Ombudsman may consider the issues, or it may be dealt with by the Australian Commission for Law Enforcement Integrity.
If you wish to obtain legal advice about possible police misconduct and how to enforce your rights, contact our lawyers to discuss your case.
More InformationMaking a Complaint Against Police in QueenslandThe information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.
Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to dealing with police or any other issue involving the criminal law. Contact us for authoritative advice and representation
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First Court Appearance

Going to Court for the First TimeLegal ResourceKerri Fredericks – Principal Lawyer
27 October 2017

Kerri Fredericks – Principal Lawyer

27 October 2017

Kerri Fredericks Principal Lawyer in Anderson Fredericks Turner. Prior to operating a law firm she worked as a Crown Prosecutor and Barrister in Queensland. With a background of significant courtroom advocacy, she is independently recommended as a criminal defence lawyer in Australia.

Going to Court for the First TimeMaking a Complaint Against Police in QueenslandIf you are going to court for the first time, it is understandable to want information about what to expect at your first court appearance.
Whether you are representing yourself at the first court appearance, or are going to court for the first time being represented by a lawyer, there are a number of things you can do to prepare both before court and at court.
Before First Court Appearance

Get Informed
Ensure Compliance
Protect Your Interests
Dress Appropriately

At First Court Appearance

Bring Relevant Documents
Turn Up Early
Be Respectful
Have a Plan

Getting advice and representation from a lawyer may help ease your concerns.
A common misconception is that you need to wait to speak to a duty lawyer on the day of first court appearance. While duty lawyers can provide basic advice or representation for some offences, they are often constrained by time and resources. Many criminal law firms, including Anderson Fredericks Turner, provide a free initial consultation to people charged with criminal offences. It means that you can get early and authoritative information about your case ahead of going to court for the first time. This can help you to decide whether to represent yourself, rely on a duty lawyer service if it is available, or engage an experienced criminal lawyer to act on your behalf.
Before the First Court Appearance
1. Get Informed
When going to court for the first time, there are a number of things that you can do to get informed. In Queensland, it is likely that if you you will have been provided paperwork and possibly a recording by the police, such as:

Notice to Appear
Bench Charge Sheet
Bail Undertaking
Identifying Particulars Notice

Any documents, notices or other information you have received from the police should be kept for future reference. They may also provide a starting point to research the type of offence you are facing, as well as the possible penalties you may face. If you get advice from a lawyer, it is likely they will want to view any documents you have received from police.
Some people charged with an offence believe there is nothing that can be done until the first court date. Often that belief is simply wrong.
If you get informed about your legal options, you or your defence lawyer may be able to have the case resolved at the first mention. This could include negotiating with police to have the charge withdrawn, pursuing alternatives to criminal prosecution, or to plead guilty. However, if you have not obtained the necessary information, or potentially obtained the right legal advice, you may do something adverse to your interests. For this reason, you should always do what you can to get informed about your situation as early as possible ahead of going to court for the first appearance.
2. Ensure Compliance
If you have been arrested and charged with an offence, or have been given a Notice to Appear, you will have obligations placed on you. Failing to comply with the conditions of your bail undertaking, or failing to appear in court as required, can lead to a number of possible consequences, including the revocation of your bail and a warrant being issued for your arrest.
In Queensland, a person going to court for the first time will also have been required to give their identifying particulars and potentially to supply a sample of your DNA. If you fail to comply with the direction, you may be charged with a further offence by police.
It is important to ensure you comply strictly with your legal obligations, so far as is possible. There are occasions when, due to unexpected or intervening factors, you may not be able to comply with certain conditions or requirements.
If you are in any doubt about your legal rights or responsibilities, or find yourself in a position where you may not be able to comply with them, you should consult with a lawyer to get advice.
3. Protect Your Interests
The time between first dealing with police and the first court appearance can be a crucial time to protect your interests. It may be critical to gather evidence that may be important to your defence, which may be lost or destroyed as time passes. Surveillance footage or other records, as well as the possibility of identifying important witnesses, may all be lost due to the passage of time. In some cases, evidence that could prove important may not be obvious.
There are other risks that people face in seeking to protect their interests. Seeking to pervert the course of justice, destroying evidence or seeking to improperly influence witnesses, may not only be contrary to your interests but could constitute a criminal offence.
Acting quickly to protect your interests ahead of going to court for the first time may make a real difference to your case and the ultimate outcome.
If you believe there is evidence that should be gathered, or are simply unsure as to how to go about protecting your interests, we can help. If you want to get advice from one of our lawyers, or seek assistance to gather relevant evidence to assist in your response to allegations or charges, we can provide responsive advice and representation.
4. Dress Appropriately
Judges and Magistrates in Queensland expect members of the community to dress appropriately for the formal and solemn setting of a courtroom. In a place where the rights, interests and liberties of individuals are altered and changed every day, it is expected that the way people dress for court will match the occasion.
How a person dresses for a court proceeding may say something about how they regard the court process. If you are going to court for the first time, it is worth considering ahead of time what clothing is appropriate for the occasion.
At the First Court Appearance
1. Bring Relevant Documents
If you have engaged a lawyer, it is likely they will bring the relevant documents that they have obtained from you or the prosecution.
If you are preparing to represent yourself in court, having your documents prepared and ordered can assist you to answer any questions from a prosecutor or a judicial officer (Judge or Magistrate).
At the first court appearance, you may be required to apply for bail from the court. Sometimes this is a mere formality and does not require any documents to be provided before bail is granted. In other cases, it may assist you to have evidence to support any arguments that may be made in relation to you obtaining bail.
2. Turn up Early
While you generally need to turn up in person for your first court appearance, there are occasions when a lawyer can appear on your behalf. If you do need to personally attend the first court appearance, whether you are represented by a lawyer or not, there are a number of good reasons to turn up early to court.
Fundamentally, if you fail to turn up to court on time you may be found to be in breach of your obligations to appear in court as required, which could see your bail revoked or a warrant issued for your arrest.
Turning up early can mean that your case is heard earlier than others and provide you or your lawyer an opportunity to negotiate with the prosecution. While people represented by lawyers generally have their case heard first, being early can reduce the time waiting for your case to be called.
Courts across Queensland have different ways of having people ‘check-in’ to note that they are present. In some courts, you must simply wait until your name is called. In others, you need to speak to a clerk of the court, court orderly, or the prosecutor. If you are not represented by a lawyer, contacting the registry of the relevant court ahead of time can help you to understand what to do when you turn up to court to ensure your attendance is noted.
3. Be Respectful
Going to court for the first time is a confronting experience for most people. For most people a courtroom is an unfamiliar place with a lot of formal rules and procedures. If you have a lawyer assisting you, it is common to receive advice about what to expect in the courtroom from start to finish.
A guiding principle for anybody going to a court – in any capacity – is to be respectful.
There are a number of ways to show respect, including:

dressing appropriately for court;
turning up early, or, at the very least, on time;
speaking to court staff with courtesy;
appropriately addressing the judicial officer as ‘Your Honour’; and,
listening to the judicial officer if they are speaking.

4. Have a Plan
In going to court for the first time, you may have an expectation about what will happen. However, something may happen at court that will affect that plan, for better or worse.
In some instances, people expect to be able to have a trial on their first appearance. For criminal law cases in Queensland, trials are generally set down months (sometimes years) after the first court appearance. In other cases, people expect a number of matters that
If you are going to court for the first time and have informed yourself about the court process, either through independent research or by engaging a lawyer, you should know that it is ideal to have a plan about your case.
Generally, having a plan means knowing:

what information you may need from the prosecution in order to know what you want to do in response to the allegations against you;
whether you are in a position to make a decision about the allegations against you;
what the consequences are for making certain decisions, such as pleading guilty; or
if the case is adjourned, whether you will be available to attend the next court date.

What information you need to go to court for the first time, and how such information informs or affects the plan, will vary according to each case.
If you wish to consult with a lawyer about the options you have for your first appearance in court, contact one of our lawyers within Anderson Fredericks Turner.
Magistrates Court of Queensland: Our Work
Experienced Lawyers – Magistrates Court Cases
Lawyers in Anderson Fredericks Turner are experienced in Magistrates Court cases, conducting numerous cases across Queensland on a daily basis, particularly in Brisbane, Maroochydore, Southport and Townsville. Our lawyers also frequently travel to regional towns and centres to represent individuals in cases before the Magistrates Court. Contact us for advice and assistance with your case.
The Magistrates Court deals with an overwhelming majority of all court cases in Queensland. Under the Justices Act 1886 (Qld), it has jurisdiction in relation to criminal law cases, traffic law cases and civil disputes.
Criminal Law
If an adult is charged with an offence, they will generally first appear in the Magistrates Court. If the person is a child, then they will appear in the Childrens Court. While Magistrates form part of the Childrens Court, it remains a specialist court that operates under different rules and many cases are closed to the public.
In Queensland, offences are separated into two categories:

Criminal offences, which generally proceed in the Magistrates Court but some serious charges may only be dealt with on ‘indictment’ in the Supreme Court and District Court.
Regulatory offences that may only proceed in the Magistrates Court.

The Magistrates Court may deal with criminal law cases where the offences does not need to be dealt with on indictment, or is classified as an offence that must proceed in the Magistrates Court. Except for a limited range of offences, Magistrates are able to hear and decide bail applications for when a person is first charged with an offence.
For cases that must proceed to the Supreme Court or District Court, the Magistrates Court generally performs the function of conducting a committal proceeding. Our experienced criminal defence lawyers can assist individuals in all cases before the Magistrates Court.
Domestic Violence Proceedings
The Magistrates Court deals with domestic and family violence proceedings. While domestic violence cases are civil applications, there are criminal consequences for breaching domestic violence protection orders.
Lawyers in Anderson Fredericks Turner have experience in successfully representing individuals dealing with domestic violence proceedings. We understand the importance of the outcomes to people and their families. Our lawyers focus on ensuring that where necessary or desirable in the interests of our clients, orders are obtained that reflect the protection required. Equally, our lawyers work to ensure that people who are accused of committing domestic violence are able to properly test allegations, so unnecessary orders are not made, given the serious consequences that can follow the making of a protection order.
Traffic Law
The Magistrates Court hears most traffic law cases, although some serious traffic offences may only be dealt with in the District Court. While many traffic infringements do not require a court hearing, a person may exercise the option to challenge the infringement notice in court.
Beyond the penalties that may follow conviction for a traffic offence, it is often the consequences of vehicle impounding or licence disqualification that most concerns people. The loss of access to a vehicle, or loss of a driver licence, can have significant personal and financial consequences not just for an individual, but also their family.
Anderson Fredericks Turner can assist people with traffic issues, whether it be a case of drink driving right through to serious cases involving dangerous operation of a vehicle causing death.
Civil Disputes
In the Magistrates Court, people may litigate many civil disputes up to a value of $150,000. For civil disputes, costs can be awarded against unsuccessful litigants so it can be important to get legal advice in relation to civil disputes that may be before the Magistrates Court.
Call Us TodayMore Information
The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.
Anderson Fredericks Turner has lawyers who can provide specific advice with respect to issues involving complaints against police in Queensland. Our lawyers are available for all courts throughout Queensland and we operate from local offices in Brisbane, Beenleigh, Maroochydore, Southport and Townsville.
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NES Entitlements

NES Employment EntitlementsLegal ResourceKerri Fredericks – Principal Lawyer
5 June 2019

Kerri Fredericks – Principal Lawyer

25 September 2018

Kerri Fredericks is a Principal Lawyer in Anderson Fredericks Turner. She regularly assists employees and employers with employment law issues, particularly related to misconduct claims. Kerri is independently recommended by Doyle’s Guide as one of the leading corporate crime lawyers in Australia.

NES – Employee EntitlementsWritten Warnings at Work – Important Information to KnowUnder the National Employment Standards (NES) most employees in Australia are entitled to ten basic rights. Employee entitlements can be enforced if they are not provided. However it is also very important to note that an Award, Enterprise Agreement or Individual Employment Contract might also set out specific entitlements equal to or greater than the NES. For this reason it is strongly recommended that specific advice be obtained so as to ensure an accurate understanding as to employee obligations and individual employee rights and entitlements.
Anderson Fredericks Turner can assist employers to calculate employee entitlements and ensure that they are meeting all of their obligations. We work with businesses to ensure their policies and procedures comply with the national employment standards, as well as other relevant employment law obligations.
Our lawyers also assist employees who believe they have not received their full entitlements or who feel that they have been mistreated as a result of exercising their entitlements. We are able to provide confidential advice about employee entitlements, as well as represent individuals in enforcing their rights.
Hours of work
Anderson Fredericks Turner appreciate the need for employers and employees to be able to achieve a work and life balance in unison with meeting the day to day staffing needs of the business. It is vital that both parties understand their rights and obligations when it comes to overtime hours and the maximum working hours of an employee.
The maximum number of hours and employer can expect an employee to work is set out in the National Employment Standards (NES). These standards form part of the Fair Work Act and are a baseline for the rights of employees in Australia. Your working hours may also be subject to conditions set out in an enterprise agreement or your contract of employment, however these conditions cannot fall below the NES.
The NES sets out that the maximum hours of work per week for a full time employee is 38 hours, and for part time employees, the lesser of 38 hours or their ordinary weekly hours.
The NES sets out that employees can be required to work reasonable overtime, however employees are also able to make reasonable refusal of requests for overtime.
Flexibility
The right to request a flexible working arrangement
An employee is entitled to request a flexible working arrangement to allow them to fulfil personal obligations such as obligations to care for children, or provide support and care to the employee’s immediate family or household.
Annual Leave
A full time employee is entitled to 4 weeks of annual leave for each year of service with their employer. If an employee is deemed to be a shift worker, they will be entitled to 5 weeks of annual leave. An employer must not unreasonably refuse to agree to a request by the employee to take annual leave.
Call Us TodayParental Leave
An employee who has completed 12 months of continuous service with a company is entitled to 12 months’ unpaid parental leave if the leave is associated with the birth of a child to the employee or the employee’s partner and the employee will have the care of the child.
Employees may also be entitled to birth leave or adoption leave.
Compassionate Leave
For each year of service that an employee has with their employer, they are entitled to 10 days of personal or carers leave. This leave accumulates from year to year.
In addition to this, an employee is entitled to two days of compassionate leave if a member of the person’s family or household dies, is gravely injured or contracts or develops an illness which is life threatening.
Service to the Community
An employee is entitled to be absent from work for the purpose of engaging in eligible community service when their absence is reasonable in all the circumstances.
Where the community service is jury duty, an employee is entitled to be paid their base rate of pay, less any payments for jury service pay.
Long Service Leave
An employee in Queensland who has completed 10 years’ continual service is entitled to 8.667 weeks of long service leave on full pay.
An employee who completes at least an additional five years of service is entitled to further long service leave calculated proportionately to 8.667 weeks for every ten years.
Public Holidays
An employee is entitled to be absent from work on a day that is a public holiday in the area that they work. An employer may make reasonable requests that an employee work on a public holiday.
Notice & Redundancy
An employee is entitled to written notice of the date that their employment will be terminated. If an employee has been with the enterprise for less than one year, the employee will be entitled to one weeks’ notice of termination. This notice period increases with the length of service of an employee and may also be effected by an employee’s age.
An employee is also entitled to redundancy pay, is their employment is terminated because their employer no longer requires a person to fulfill their role. An employee’s redundancy pay will be calculated based on the length of their employment, beginning at four weeks’ pay for at least one years’ service up to 12 weeks’ pay for over 10 years’ service.
Information Sheet
A new employee must be provided with the Fair Work Information statement before an employee starts work, or as soon as practicable after an employee starts work.
This information sheet provides employees with vital information about the National Employment Standards, modern awards, the role of Fair Work and other rights and entitlements of employees.
Why Choose AFT?
We understand employment is an important part of life. We seek to resolve matters efficiently and discreetly. Employment law issues can affect reputations and disrupt lives, so we take care to ensure our advice and representation is both practical and precise.
Anderson Fredericks Turner works with businesses and individuals to help them understand their rights and obligations in the workplace. We give advice as to managing policies and procedures, as well as assisting in disputes if they do occur.
Our expertise is demonstrated by the efficient and effective results we achieve for our clients. We have an outcomes driven approach to workplace issues and ensure the needs of our clients are a priority at every stage.
Important Information
The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.
Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving employment law, including for issues relating to written warnings. Our lawyers operate from local offices in Brisbane, Beenleigh, Maroochydore, Southport, Townsville, although we have the capacity to advise and represent people nationally.
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About Andrew Anderson

Andrew is a Principal Lawyer in Anderson Fredericks Turner. He regularly assists employees and employers with employment law issues, particularly related to misconduct claims. Andrew is independently recommended by Doyle’s Guide as one of the leading white collar and corporate crime lawyers in Australia.

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Do I Need a Barrister

Do I Need a Barrister?Legal ResourceKerri Fredericks – Principal Lawyer
30 September 2019

Kerri Fredericks – Principal Lawyer

25 April 2020

Kerri Fredericks Principal Lawyer in Anderson Fredericks Turner. Prior to operating a law firm she worked as a Crown Prosecutor and Barrister in Queensland. With a background of significant courtroom advocacy, she is independently recommended as a criminal defence lawyer in Australia.

The Difference Between Barristers & Solicitors?Solicitors often retain barristers on behalf of clients to represent their interests in complex cases, most often during court proceedings.
Historically, only barristers held rights of appearance in courts and were retained by solicitors for specialist courtroom advocacy – particularly criminal trials. That point of difference has diminished since changes to the law have allowed all lawyers to appear in courts. Since 1938 in Queensland, all solicitors have held a right of appearance in courts.
It means that 80 years ago there was recognition that it was not always necessary to retain a barrister. It remains the case today.
Whilst our firm still routinely retain specialist barristers for complex cases or where it will be beneficial to the interests of our clients, Anderson Fredericks Turner has solicitors with the capacity and training to appear in all courts.
When it is necessary or desirable to engage a barrister, we seek to engage barristers who are leaders in their field. Our practice consistently works with leading barristers from Queensland and throughout Australia.
Anderson Fredericks Turner seeks to ensure its clients understand the range of barristers available in their case, as well as the competitiveness of the rates and terms for which they can be engaged.
Do I Need a Barrister?
Anderson Fredericks Turner is a law firm that is able to represent individuals the courtroom, no matter the simplicity or complexity of the case. We believe in providing a tailored approach for every case – and that includes our advocacy.
When lawyers speak about ‘advocacy’, it is a reference to the ability to persuade. Whether it is at a negotiating table or in the courtroom, all lawyers focus on how to persuade others about the correctness of the case of their client. Clearly, there is no ‘one size fits all’ way to persuade an opponent or the court.
In the courtroom, we understand effective advocacy on behalf of a client begins with thorough preparation and a complete knowledge of the case. We seek to know not just the case of our client but also of the other side in the case. Our lawyers give our clients a strong voice in all cases, which is demonstrated by the results we achieve on a daily basis.
While all solicitors employed by Anderson Fredericks Turner have the capacity to appear in courts as your advocate, we also have lawyers who have undertaken the specialist training of a barrister, which adds to our capacity to appear and advocate on behalf of our clients – both inside and outside of court.
This often results in substantial financial savings to a client in funding their legal representation
Costs of a Barrister
A frequent question we encounter is: How much will a barrister cost?
Simply put, the answer depends on the skill and experience of the barrister, as well as the area of law. Engaging a barrister can be a significant additional cost in a case.
In the first place, there should be some pause for thought as to whether a barrister is needed for your case at all.
If a solicitor can properly represent the interests of a client, it may mean the extra cost of a barrister is unnecessary. In considering that issue, it is important to understand the level of skill and experience of your solicitor.
While all solicitors employed by Anderson Fredericks Turner have the capacity to appear as solicitor advocates, we have lawyers who have undertaken the specialist training of a barrister, which adds to our capacity to appear and advocate on behalf of our clients – both inside and outside of court.
This means clients may choose not to engage a barrister where they do not consider there will be any ‘value’ added to their case. This often results in substantial financial savings to a client in funding their legal representation, without diminishing their ability to obtain the desired outcome.
Contact us if you wish to discuss the options available to you in your case, as well as the likely costs involved.

Call Us TodayMore Information
The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.
Anderson Fredericks Turner has lawyers who can provide specific advice with respect to issues involving complaints against police in Queensland. Our lawyers are available for all courts throughout Queensland and we operate from local offices in Brisbane, Beenleigh, Maroochydore, Southport and Townsville.
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Obstruct Police

Criminal Defence: Obstruct PoliceLegal ResourcePaul Hamilton – Senior Criminal Lawyer
16 October 2018

Paul Hamilton – Senior Criminal Lawyer

18 October 2018

Paul is a Senior Criminal Lawyer in Anderson Fredericks Turner. Having practised exclusively in criminal law and traffic law cases since 2003, Paul is a highly experienced and well regarded lawyer who routinely assists clients with complex traffic cases across Queensland.

Obstruct PoliceThe charge of obstructing police is one of the most common charges seen in Magistrates Courts throughout Queensland. Police will often charge you with obstructing police if you are alleged to have struggled them whilst being handcuffed, if you are alleged to have interfered with the arrest of another person, if you are alleged to have run away from a police officer, refused to comply with a police request, etc.
In Queensland (depending upon the seriousness of the allegations made against you), you can be charged with an offence of obstructing police under one of two different pieces of legislation.
Most commonly, you will be charged under section 790 of the Police Powers and Responsibilities Act 2000. So far as is relevant for present purposes, that section states:-

790 Offence to…obstruct police officer
(1) A person must not-
…
(b) obstruct a police officer in the performance of the officer’s duties.
Maximum penalty-

if the… obstruction happens within licensed premises, or in the vicinity of licensed premises – 60 penalty units or 12 months imprisonment; or
otherwise – 40 penalty units or 6 months imprisonment.

…
(2A) The Penalties and Sentences Act 1992, section 108B also states a circumstance of aggravation for an offence against this section.
(3) In this section-
…
obstruct includes hinder, resist and attempt to obstruct.

(Section 340(1)(b) of the Queensland Criminal Code states that any person “who assaults, resists or wilfully obstructs, a police officer while acting in the execution of the officer’s duty…is guilty of a crime”.
The maximum penalty for an offence of obstructing a police officer, under section 340(1)(b) of the Criminal Code, is imprisonment for 7 years).
What does it mean to ‘obstruct’ police?
It can be seen from the above section that “obstruct” is defined to include “hinder, resist and attempt to obstruct”. However, this is not an exhaustive definition. It is often said that a police officer is “obstructed” by any action which makes his or her substantially more difficult of performance.
“…in the performance of the officer’s duties”
It was said in an often quoted Australian court case that:-
“A police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided he does not do anything outside the ambit of his duty so as to cease to be acting therein”.
It is important to note that the passage above refers to a police officer embarking upon a “lawful” task, and not doing anything outside the ambit of his (or her) duty. In other words, if a police officer is doing something which is not in the performance of his or her lawful duties, or if the police officer is acting unlawfully, you cannot be convicted of obstructing the police officer.
The classic example is of a police officer is effecting an unlawful arrest. If the police officer has sought to arrest you in circumstances in which he or she has no lawful right to do so, you cannot be convicted of obstructing him or her by attempting to resist that arrest (such as by putting up a struggle).
A case which illustrates this point is Police v. Bubbles [2006] QMC 6. Briefly stated, the facts of that case were that Mr Bubbles and his wife were walking through Brunswick Street Mall, Fortitude Valley on a Sunday night, when they walked past a group of 5 police officers. The police officers were laughing. Due to Mr Bubbles’ unusual appearance, Mr Bubbles believed that the police were laughing at him. As he walked past the police, Mr Bubbles muttered the words “f*@king wankers”. One of the police officers immediately told Mr Bubbles to stop, put his hand on Mr Bubbles’ arm, and told him that he was under arrest.
Mr Bubbles attempted to pull his arm away from the police officer. He was then taken back to the Police Beat, where he grabbed onto a door frame as he was being led further into the building.
Mr Bubbles was charged with committing a public nuisance offence (for using the words “f*@king wankers”), and with obstructing a police officer in the performance of his duties for his actions in resisting his arrest.
Mr Bubbles pleaded “not guilty” to both charges.
(The Magistrate hearing the case was first required to determine whether or not Mr Bubbles was guilty of committing a public nuisance offence by using the words “f*@king wankers”. Her Honour ruled that, not only were those words not, in the circumstances, intrinsically offensive, but they did not, and were not likely to, interfere with the peaceful passage through, or enjoyment of, a public place by a member of the public. As such, Mr Bubbles was found “not guilty” of his charge of committing a public nuisance offence).
As to the charge of obstructing a police officer in the performance of the officer’s duties, Her Honour was required to consider the actions of the police officer in arresting Mr Bubbles (as opposed to the police officer taking the less drastic step of issuing him with a Notice to Appear in court). Her Honour examined the provisions of section 198 of the Police Powers and Responsibilities Act 2000, which set out the circumstances in which a police officer may lawfully arrest a person without a warrant, and concluded that none of those circumstances existed.
Because Her Honour concluded that the police officer had no lawful power to arrest Mr Bubbles, it thereby followed that the purported arrest was unlawful. The arrest being held to be unlawful, it also followed that the police officer was not acting “in the performance of the officer’s duties” for the purpose of section 790 of the Act. As the police officer was not acting in the performance of the officer’s duties in attempting to effect the arrest, Mr Bubbles was found not guilty of his obstruct charge..

Running Away from Police
It is my experience that many police officers are of the belief that simply because they ask you to stop, or stay still, you are required to do so. I have lost count of the amount of times I have seen people charged with the offence of obstructing police simply because a police officer has asked a person to stop, and the person has ignored that request and walked (or even run) away.
The simple fact is, that unless you are lawfully arrested, you are generally not required to stay still just because a police officer asks, or tells, you to.
If you are lawfully arrested, this is a different scenario entirely. But simply because a police officer yells out “Stop! Police!!”, this does not mean you are required to do so. It also means that you cannot be convicted of obstructing a police officer by the mere fact that you fail to comply with the demand.
Circumstances of Aggravation

“…within licensed premises, or in the vicinity of licensed premises…”

If the offence is committed within, or in the vicinity of, licensed premises, the maximum penalty doubles from 6 months imprisonment to 12 months imprisonment. Also, the maximum fine increases from 40 penalty units to 60 penalty units.
Section 108B of the Penalties and Sentences Act 1992
Subsection (2A) of section 790 states that:-

“The Penalties and Sentences Act 1992, section 108B also states a circumstance of aggravation for an offence against this section”.

The offence of obstructing police under section 790 is a “prescribed offence” for the purposes of section 108B of the Penalties and Sentences Act 1992.
Section 108B states that if a person is convicted of a “prescribed offence” with the circumstance of aggravation that the offence was “committed in a public place whilst the person was adversely affected by an intoxicating substance”, then the court must make a community service order as all or part of the punishment for the offence.
The number of hours of community service required to be performed is at the discretion of the Magistrate. That being said, section 103(2)(a) of the Penalties and Sentences Act states that a community service order must be for at least 40 hours, but no more than 240 hours.
(Community service is to be performed at the place, and at the times, directed by an authorised corrective services officer. Unless otherwise ordered by the court, the community service hours must be performed, in full, within 12 months of the making of the order).
“Public place” is defined as meaning:-

(a) a place, or part of a place, that the public is entitled to use, is open to members of the public or is used by the public, whether or not on payment of money; or
(b) a place, or part of a place, the occupier of which allows, whether or not on payment of money, members of the public to enter.

From the definition above, it can be seen that even a pub or nightclub falls within the scope of “public place”.
“Adversely affected” is not defined. Whether or not a person who has consumed alcohol or ingested drugs is, in fact, “adversely affected” will depend very much on the person’s outward displays of intoxication. However, if a person’s breath alcohol concentration is 0.15% or more, section 365C of the Queensland Criminal Code conclusively deems the person to be “adversely affected”
Call Us TodayDefending a charge
As can be seen from what I have set out above, there may be many bases upon which an obstruct charge can be contested. It may be that, upon exposing the circumstances to close scrutiny:-

• The conduct complained of does not constitute an “obstruct”;
• The police officer was not acting “in the performance of the officer’s duties”, or had exceeded the lawful scope of his or her duties;
• The offence was not committed in, or in the vicinity of, licensed premises (if that is what alleged); and/or
• The offence was not committed in a public place whilst you were adversely affected by alcohol (if that is what is alleged.

I strongly recommend that you should seek expert legal representation if you are charged with obstructing a police officer in the performance of the officer’s duty. Anderson Fredericks Turner’s expert criminal lawyers have represented dozens of people charged with obstructing police. We have the knowledge and experience to be able to advise you of your prospects of successfully defending an obstruct charge.
By identifying problems or deficiencies in the police case against you, we can seek to have your charge downgraded or even discontinued. Alternatively, if the case against you is a strong one and you wish to plead guilty, our experienced solicitor advocates can provide you with the quality representation you require to ensure the best result possible once you have your day in court.
What if the Police are Lying?
Of course, it may well be the case that you wish to plead “not guilty” to an obstruct charge simply because you have not done what the police claim you have done. Regrettably, my experience in the field of criminal defence has revealed that many charges of “obstruct” are, quite simply, fabrications. What is fortunate, however, is that with the increase in the availability of CCTV, mobile phones and body worn camera footage, it is becoming easier than it was in years gone by to demonstrate a false police case.
If you are charged with obstructing police, contact Anderson Fredericks Turner. We can help.
Summary
It is not possible in this context to cover comprehensively the law relating to a charge of obstruct police. The purpose of outlining this information is to provide a useful starting pint for people who may be seeking a better understanding of charges of this kind.
If you are seeking specific advice or representation regarding this charge, or any other criminal law issue for that matter, you are welcome to contact our lawyers for a free case assessment. Our firm will generally offer fixed fee legal costs for cases of this kind, which helps take the guesswork out of what you ultimate costs may be.

More Information
The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.
Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving criminal offences.
Our experienced criminal lawyers are available for all courts across Queensland. Anderson Fredericks Turner operates from local offices in Brisbane, Beenleigh, Maroochydore, Southport and Townsville.

Call Us TodayShare ArticleShare ArticleMore Articles2020-04-17T17:38:15+10:00Obstruct Police2020-04-17T13:26:25+10:00Grievous Bodily Harm Cases: Penalties and Sentencing2020-04-17T13:09:28+10:00Grievous Bodily Harm: Proof, Defences & Trials2020-04-17T17:38:15+10:00Obstruct Police2020-04-17T13:26:25+10:00Grievous Bodily Harm Cases: Penalties and Sentencing2020-04-17T13:09:28+10:00Grievous Bodily Harm: Proof, Defences & Trials
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Making a Complaint Against Police in Queensland

Andrew Anderson – Principal Lawyer
30 September 2019

Andrew Anderson – Principal Lawyer
30 September 2019
Andrew is a Principal Lawyer in Anderson Fredericks Turner. Prior to operating a law firm he worked as a Principal Crown Prosecutor and Barrister in Queensland. With a background of significant courtroom advocacy, he is independently recommended as a leading criminal defence lawyer in Australia.

Making a Complaint Against Police in QueenslandMaking a Complaint Against Police in QueenslandPolice serve an important role in any society. They are there to uphold and enforce the law. To do so, they are given powers to arrest and detain people, as well as to compel cooperation from people in some instances. Guilty people can walk free from a botched investigation just as an innocent person can be wrongly convicted. As has been said many times before, with great power comes great responsibility.
Today I am going to focus on identifying some options people have when they think the police have overstepped or abused their powers, or simply mishandled an investigation. There will be a particular focus on these processes within Queensland. In some respects, police misconduct or corruption is a tricky subject. The fact is most police officers are committed to the work they do for the right reasons and seek to uphold the law without fear or favour. There are numerous examples, however, of people having their rights, reputations and liberty unfairly compromised by police misconduct and corruption.
While I hope this will be of assistance to people seeking some information about complaint processes, it is certainly not intended to be legal advice and should not be used as substitute for it.

Police Powers & Responsibilities – Queensland
The Police Powers and Responsibilities Act 2000 (Qld) is the law that sets out many of the powers and responsibilities of police in Queensland. Additionally, police are subject to the ‘Client Service Charter’, which sets out the standards that are expected of police officers.
Police abuse of their powers is considered a serious matter by the courts. If a police officer commits an offence while performing their duties, it is generally regarded as an aggravating factor that they have abused the powers and responsibilities given to police. It was said by Justice Pincus in R v Smith; ex parte A-G (Qld) [2000] QCA 390 at page 10:

The cohesion of our society depends on substantial part on public confidence in the honesty of those who administer justice. Police have extensive powers. Their activities can ruin reputations, can put citizens in gaol, or can save them from deserved gaol. The Courts must focus on these considerations when considering sentences for police corruption.

With respect to the use of unjustified force by police, it was said in R v Price; ex parte A-G (Qld) [2011] QCA 87 at paragraph [53] by Justice Muir:

Public confidence will be eroded by the abuse of police powers through the use of excessive and unjustifiable force against citizens within the power of police officers. The public needs to have confidence that the extensive powers and responsibilities reposed in police officers for the protection of the public and the due ordering of society will be exercised carefully and responsibly for the purposes for which they are bestowed.

Given the seriousness with which police misconduct and corruption is treated by the courts, it is fair enough to expect that allegations about it will be properly investigated and considered.
Complaints Against Police
The Queensland Police Service, like most other organisations, has a structure in place that sets out how complaints are dealt with. The Ethical Standards Command overseas all complaints which are managed within the Queensland Police Service.
Complaints about police officers may also be made to the Crime and Corruption Commission, which is responsible for investigating reports of corrupt conduct affecting police and public sector workers in Queensland. The Crime and Corruption Commission is governed by the Crime and Corruption Act 2001 (Qld) and exists to both reduce crime and continue to improve the integrity among police and the public servants within Queensland.
When the Queensland Police Service receive a complaint from the public, they are legally obliged to report any misconduct they are made notified of to the Crime and Corruption Commission, as provided by section 37(2) of the Crime and Corruption Act. Similarly, under section 7.2 of the Police Service Administration Act 1990 (Qld), any police officer whom has knowledge of or reasonable suspicion about the misconduct of another police officer, is required to report the matter to the Crime and Corruption Commission, as well as the Police Commissioner.
The Police Commissioner, as provided by section 41 of the Crime and Corruption Act, is required to investigate all complaints of both corrupt conduct and police misconduct, that is passed on by the Crime and Corruption Commission. The Crime and Corruption Commission must also monitor the way in which the Police Commissioner investigates the alleged misconduct reported, in accordance with section 45 of the Crime and Commission Act.
The Australian Federal Police operate under the Australian Federal Police Act 1979 (Cth). For a person seeking to make a complaint against a member of the Australian Federal Police, the Commonwealth Law Enforcement Ombudsman, governed by the Ombudsman Act 1976 (Cth), is responsible for overseeing the investigation of complaints. However, it is the Australian Commission of Law Enforcement Integrity, governed by the Law Enforcement Integrity Commissioner Act 2006 (Cth), which is responsible for investigating allegations of corruption within the Australian Federal Police.
While it is really beyond the scope of what I was intending to address today, I should note that people may have the ability to sue for wrongful actions by police, such as for false imprisonment or malicious prosecutions. It is also possible for individuals to bring a private prosecution against police, although such proceedings are relatively rare. It is more usual for police to be charged by the State and prosecuted by a Crown Prosecutor.
Potential Outcomes from Police Complaints
A complaint against a police officer, even if substantiated, may not give rise to a criminal offence. In Queensland, complaints against the Queensland Police Service are broken up into three categories:

Corrupt conduct as defined in section 15 of the Crime and Corruption Act. It refers to the actions of someone within a unit of public administration who holds an appointment. Police officers, being public officials, are therefore subject to provisions regarding corrupt conduct, as well as police misconduct.

Police misconduct as defined in schedule 2 of the Crime and Corruption Act. It refers to any conduct (aside from that of corrupt conduct which I mention below) that is disgraceful, improper or unbecoming of a police officer, any conduct showing unfitness to be or continue as a police officer and any conduct which does not meet the standard the community reasonably expects of a police officer. A few examples of this may include police officers acting dishonestly, breaching any level of trust that was placed in them or misusing officially obtained information.

Disciplinary breaches are considered any actions by police that do not amount to either police misconduct or corrupt conduct but are actions that are considered biased, unethical or unprofessional. These kinds of offences are generally dealt with internally by the Queensland Police Service.

If allegations are considered credible, the penalty for police may range from a simple reprimand or counselling through to being charged with a criminal offence and their employment being terminated. For this reason, it is important for anybody seeking to make a complaint to consider how their complaint may be supported by other evidence. Is there camera footage or a recording of what occurred? Did any bruising or injuries get photographed or seen by a doctor? Delay in making a complaint can mean that crucial evidence may be lost.
Call Us TodaySummary
The Queensland Police Service exists to protect its society but its members are not above the law. Like many professions or industries, police are regulated and subject to a variety of laws, policies and procedures. However, unlike many other professions and industries, they are given wide-ranging powers that can see them search, arrest, charge and detain people, sometimes without a warrant. The fact police are entrusted with these powers are the reason they are accountable for the abuse or misuse of those powers.
In seeking to make a complaint about a police officer, it is important to understand there can be consequences for making false or malicious complaints. If you are unsure about your options or seek legal advice to assist you in making a complaint, our law firm offers a free case assessment to determine if we can help in your case.
More Information
The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.
Anderson Fredericks Turner has lawyers who can provide specific advice with respect to issues involving complaints against police in Queensland. Our lawyers are available for all courts throughout Queensland and we operate from local offices in Brisbane, Beenleigh, Maroochydore, Toowoomba and Townsville.
Call Us Today

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More Articles2019-09-30T10:21:30+10:00Making a Complaint Against Police in Queensland2019-09-24T10:05:47+10:00The Right to Silence in Queensland2019-07-06T13:31:18+10:00Grievous Bodily Harm Cases: Penalties and Sentencing

2019-09-30T10:21:30+10:00Making a Complaint Against Police in Queensland2019-09-24T10:05:47+10:00The Right to Silence in Queensland2019-07-06T13:31:18+10:00Grievous Bodily Harm Cases: Penalties and Sentencing

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The Right to Silence in Queensland

Andrew Anderson – Principal Lawyer
24 September 2019

Andrew Anderson – Principal Lawyer
24 September 2019
Andrew is a Principal Lawyer in Anderson Fredericks Turner. Prior to operating a law firm he worked as a Principal Crown Prosecutor and Barrister in Queensland. With a background of significant courtroom advocacy, he is independently recommended as a leading criminal lawyer in Australia.

The Right to Silence in QueenslandThe Right to Silence in QueenslandThe right to silence is something that is better known than understood.
Today I am going try to delve into the place of the right to silence in criminal law proceedings as they apply in Queensland. There are primarily three things I am going to address:

The exceptions to the right to silence in Queensland;

When remaining silent results in no adverse inferences; and,

When remaining silent does result in adverse inferences.

There are two things that I should caution people about from the start. First, there are laws across Australia that modify or qualify the right to silence in a variety of ways. So what I outline about Queensland may be of no relevance to other states or territories in Australia. And second, in providing this information about the right to silence, it is not intended to be and certainly should not be relied on as any form of legal advice, or a substitute for legal advice.
Whether or not to exercise your right to silence in a particular situation depends very much on the specific considerations that apply. If you want to obtain legal advice about a specific situation, our law firm does provide a free case assessment to determine if we will be able to assist a particular issue or concern.

What is the right to silence?
A person who believes on reasonable grounds that he or she is suspected of committing an offence is entitled to remain silent when a person in authority seeks to ask them questions. A person who exercises the right to silence should not have any adverse inference drawn against them for declining to answer questions. The right to silence has been modified and qualified by numerous laws throughout Australia.
While the existence of the right is confirmed for indictable offences by s. 397 of the Police Powers and Responsibilities Act 2000 (Qld), it is also qualified or abrogated by other laws. As such, it is quite wrong to consider the right to silence is ‘codified’ by any law in Queensland.
Why is there a right to silence?
The right to silence is grounded in the principle that it is for the prosecution (often the State) to prove the guilt of the accused person. A person is innocent until proven guilty. An important component of the principle is that people accused of a crime should be free to remain silent in the face of an accusation and demand that it be proved against them. In other words, our system of criminal justice generally demands the prosecution prove its case rather than a person accused of a crime prove their innocence. In essence, you are “innocent until proven guilty”.
The innocent and guilty alike may resort to the right to silence. While I imagine many people think you would only resort to the right to silence if you were guilty, in practice I find there are sometimes good reasons even for innocent people to exercise the right.
In the face of police questioning, it is the case that people do panic and not put their best foot forward, or through panic make matters worse. Sometimes a judgement is made that the investigating police are going to charge someone no matter their explanation, so it is better to wait until a later point to reveal your hand and the flaws in the prosecution case. Each case will depend on its own circumstances.
Exceptions to the Right to Silence
There are exceptions to the right to silence, which are often overlooked or misunderstood. This is where the danger can set in for people who actually need to make a decision. It is why people should seek out a lawyer who knows what they are doing, if they have a decision to make as to whether to speak or remain silent.
One fundamental thing to realise is that the right to silence is generally restricted to people facing questioning by someone in authority, such as a police officer. So, questions by a person not in authority may be treated differently. For instance, an adverse inference may arise against a person who remains silent in the face of an accusation made by a person with whom they are on an equal footing, as was held in the case of R v Alexander [1994] 2 VR 249.
Even if it is a person in authority, there are certain exceptions to that rule. In Queensland, some of those exceptions can involve police officers asking you to:

provide your name and address (in prescribed circumstances); and,

state your age and, if reasonable, produce proof of your age (in prescribed circumstances);

There are other people who hold positions of authority, such as investigators under the Liquor Act 1992 (Qld), who have the power to require people to provide their name, address and age.
For matters involving certain traffic offences, police officers have a wide power to require certain people to identify or help identify the person in control of a vehicle when the offence took place. For ‘relevant vehicle incidents’, which generally involve traffic incidents involving death or harm to a person or animal, additional powers are given to police in Queensland.
In circumstances where people are required by law to provide information, such that the right to silence does not apply, a person may commit an offence that is punishable by imprisonment.
In some cases, a search warrant may also specifically require a person to produce information to a police officer, such as passwords to a computer. In Queensland, failure to comply can result in a charge that is punishable by imprisonment. In the case of Ross v Commissioner [2019] QCA 96, a person who contravened that section received a term of imprisonment for the offence.
There are other circumstances in Queensland where a person may be compelled to speak to people in authority, notwithstanding the general right to silence. Anyone called to any of the following law enforcement and intelligence agencies will generally be compelled to answer questions, even if the answer would tend to incriminate them:

Crime and Corruption Commission;

Australian Criminal Intelligence Commission;

Australian Securities and Investments Commission;

While there may be certain privileges or exceptions to certain questions asked by such agencies, failure to answer questions can result in a person being charged with an offence. Such offences can carry actual jail time as part of the punishment.
Knowing how any exception to the right to silence may apply in a specific case, and the limits of those exceptions, is important for anybody who may be the subject of a police investigation. Frankly, I think anybody facing a police investigation ought to seek advice from a criminal defence lawyer, even if they think they are right as rain. Sometimes storm clouds gather from an unexpected direction.
Call Us TodayHow silence may be used in criminal trials
When people say silence can never be used against you in a criminal case because of the right to silence, they are wrong. For this purpose, I’m going to be referring to both answering police questions, as well as remaining silent and not giving evidence during a criminal trial.
It will help to go through the two different ways silence may be used. One way is when no adverse inference may be drawn against a defendant and the other is when an adverse inference may be drawn.

When no adverse inference may be drawn

As we know, a person who believes they are suspected of committing an offence by police may refuse to answer questions asked of them by a person in authority. We understand that relates to the presumption of innocence but it would be rather meaningless if by exercising the right, some adverse or negative view should be formed from it.
So the law in Australia, including in Queensland, is that in most cases, if a person exercises their right to silence, no adverse inference may be drawn by that fact. The key is exactly that – in most cases.
In many cases in Queensland, where it is an issue, there may even be evidence of a police officer cautioning a person that they may exercise their right to silence. In such cases, a jury is often told that it would be quite wrong to reason that because the accused exercised their right that he or she must have something to hide. Essentially, it cannot be used against the accused.

When adverse inferences may be drawn

Strictly speaking, it may not be an ‘adverse inference’ but there are a number of laws that require a person accused of a crime to positively raise a defence. So if a person remains silent in such a case, they will not raise the defence. An example is a charge of possessing a relevant substance or thing under the Drugs Misuse Act 1986 (Qld), whereby the law requires the person charged “to prove that the person has a reasonable excuse for possessing the relevant substance or thing”.
An adverse inference may be also drawn when a person chooses to remain silent in the face of an allegation made by a person not in authority, where common sense would dictate an innocent person would protest their innocence.
A very important example of an adverse inference may arise from silence comes comes from two cases of the High Court of Australia, Weissensteiner v The Queen (1993) HCA 65 and Azzopardi v The Queen (2001) HCA 25. Where there are additional facts that would given an innocent explanation to the prosecution case against an accused and those additional facts would be known only by them and nobody else, it is possible to more safely conclude the accused is guilty if they elect not to give evidence of additional facts which raise an innocent view of the prosecution evidence.
While the cases of Weissensteiner and Azzopardi raise the notion that adverse inferences may be drawn from silence in limited cases, a jury will still generally be told there may be other reasons for a person not to give evidence in such a case, such as from timidity, prior explanations to police, or fear of retribution just to name a few.
Summary
In all, the right to silence is not a simple, straight-forward area of law. Rather, it is an area where people can be lulled into thinking it presents with obvious answers, only to find getting it wrong has devastating consequences that cannot be undone.
Please remember that this was never intended to be anything other than an overview of the law in Queensland. And I have only just scratched a small portion of the surface.
Being aware of the fundamentals of the right to remain silence, what that right essentially means and what exceptions there are is valuable. However, if you or a family member find yourself in a situation where you are contemplating whether exercising the right to silence is the correct decision in your case, getting legal advice is certainly something to consider.
More Information
The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.
Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving police interviews and the right to silence. Our lawyers are available for all courts throughout Queensland and we operate from local offices in Brisbane, Beenleigh, Maroochydore, Toowoomba and Townsville.
Call Us Today

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More Articles2019-09-24T10:05:47+10:00The Right to Silence in Queensland2019-07-06T13:31:18+10:00Grievous Bodily Harm Cases: Penalties and Sentencing2019-07-06T13:31:31+10:00Grievous Bodily Harm: Proof, Defences & Trials

2019-09-24T10:05:47+10:00The Right to Silence in Queensland2019-07-06T13:31:18+10:00Grievous Bodily Harm Cases: Penalties and Sentencing2019-07-06T13:31:31+10:00Grievous Bodily Harm: Proof, Defences & Trials

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Unfair Dismissal Claim Eligibility Criteria

Kerri Fredericks – Principal Lawyer
10 August 2019

Kerri Fredericks – Principal Lawyer
10 August 2019

Kerri is a Principal Lawyer in Anderson Fredericks Turner. She regularly assists employees and employers with employment law issues, including for unfair dismissal claims. Having previously worked as a Senior Crown Prosecutor, Kerri is an accomplished court advocate and skilled communicator.

Unfair Dismissal Claim Eligibility CriteriaUnfair Dismissal Claim Eligibility CriteriaIf you are contemplating making an unfair dismissal application, or are an employer who has received one, a basic question to ask is “Who is eligible to make an unfair dismissal claim?”. Learning whether you are eligible or ineligible to make an application can allow people to focus on more appropriate claims that are relevant to their situation.
Today I am going to address who is eligible to make an unfair dismissal claim through the Fair Work Commission. I need to add a word of caution that any information I outline should not be interpreted as legal advice or even used as a substitute for legal advice.  If you are unsure about your eligibility to make an unfair dismissal application and you seek professional legal advice, our firm offers a free case assessment on whether we can assist you in your matter.

One Dismissal – Many Potential Legal Claims
It is essential for people to understand that dismissal action by an employer can lead to a range of different types of legal claims and action. There may be a breach of contract claim, or a breach of some protected right or entitlement. A person may have been discriminated against in the workplace, or adversely treated contrary to a workplace protection the law gives them. In such cases, it may not even be in the best interests to pursue an unfair dismissal claim. Some claims are mutually exclusive, meaning if you make one you cannot make the other.
It is for this reason we often sit down with our clients and work out what is the best claims for them. For any person dismissed from the workplace in circumstances they consider harsh, unjust or unreasonable, it can often make sense to begin by thinking about an unfair dismissal claim due to the simplified processes involved.
Who is eligible to make an unfair dismissal claim?
In Australia, the Fair Work Act 2009 (Cth) provides that a person is protected from unfair dismissal if they are an employee who has completed the minimum period of employment, employed under a modern award or enterprise agreement and earns less than the high-income threshold ($148,700 AU).
To replicate the precise language of the Fair Work Act, a person is eligible to make an unfair dismissal claim where:

the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
one or more of the following apply:

a modern award covers the person;
an enterprise agreement applies to the person in relation to the employment;
the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high-income threshold.

In knowing whether you are a ‘protected person’ from unfair dismissal in the eyes of the Fair Work Act, I will break these down further through a series of questions that may clarify these issues a little more clearly.
Are all employees protected from unfair dismissal?
To be protected from unfair dismissal under the Fair Work Act, the employee must be one who is working for an employer that is defined as a ‘national system employer’.  What this means is that you need to be working for an employer who is a recognised company or private business whose purpose is for financial activity or trade nationally or abroad.  However, it will generally not include volunteers, a person on a vocational placement, sole traders or partnership arrangements. Public sector workers (i.e. public servants) are also not necessarily going to fall within this framework due to the operation of other laws.
I should point out that the above definition serves as a basic starting point.  There are further complications that may arise due to differing State or territory laws that may have exclude certain employers as being a ‘national system employer’. So while experienced employment lawyers generally find the answer to this question relatively straightforward, there are certainly occasions where unexpected exclusions apply that can make people ineligible to make an unfair dismissal claim.

Call Us TodayWhat does ‘minimum employment period’ mean?
For a person to be eligible to make an application for unfair dismissal in the Fair Work Commission, an applicant must have worked for 12 months or more for a small business, or 6 months or more in the case of a business that is not a small business.
How you are employed during your period of employment is also an important issue to be aware of particularly in situations where you are employed as a casual employee or perhaps you are in a situation where your previous employer has sold the business to another employer.  While the law strictly states that you must show that that there has been continuous service of employment, there are other complications that are seen that can affect whether a person has served the ‘minimum employment period’.
To illustrate some of the complications that can arise, it will assist to deal with some of the frequently asked questions we seen in this area:
Does being a casual employee affect the ‘minimum employment period’?
Casual employees are protected from unfair dismissal under the Fair Work Act. They are also not subject to any different minimum employment periods. It is common for disputes to centre around whether a ‘casual’ employee was firstly employed on a regular and systematic basis and secondly that they had a reasonable expectation of continuing employment on a regular and systematic basis.
There is a need for employers and employees to understand the nature of the employment relationship and to ensure that employers work within the legal framework set by state and national laws.
Does changing from being a casual employee to a permanent employee affect the ‘minimum employment period?
If a person is employed on a casual basis prior to being made a permanent employee, it is still possible for all the service to count towards the ‘minimum employment period’.
The situation was clarified in a recent decision of the Fair Work Commission ([2019] FWC 3481). In that case, an issue to be determined was whether the calculation of time could be extended to include a two-month period of casual employment prior to 10-month period of permanent employment.  Given the respondent was a small business employer, it was necessary for the applicant to show they had worked a period of no less than 12 months prior to the dismissal.  When determining whether casual employment counts towards the minimum employment period, the Commission stated that:

“The starting point is that a period of employment is also referred to as a period of continuous service…” and that
“a period of continuous service can be made up of a series of periods of service… with an employer that may count words a single period of employment with that employer”.

The Fair Work Commission ruled that while the two-month period was seen as a ‘probationary period’, the hours worked each week was systematic and regular and, on that basis, it could be seen as a period of continuous service.
It should be noted that in this decision, while the Commission heard that there were no excluded periods of service, it is a relevant consideration for the Commission, which brings me to my next question.
Are there any periods of service that do not count towards the ‘minimum employment period’?
The Fair Work Act is makes clear that the minimum employment period does not include any period of unauthorised absence, some forms of unpaid leave or unpaid authorised absences, as well as other periods prescribed under the law.
Issues of this kind are often raised in cases where an employee has suffered an injury, whether in the workplace or otherwise. An example is a decision of the Full Bench of the Fair Work Commission ([2012] FWAFB 3206), in which it was determined that an employee who was receiving benefits from a workers’ compensation scheme could have that time on leave counted as ‘the payments were made pursuant to a legal obligation’
Does a business ownership transfer impact on the minimum employment period?
Employees of national system employers may have their period of employment of service with one employer transfer to their next employer if there is a change of ownership in a business. This means that the employment may be seen as ‘continuous service’.  However, the standard exemptions will carry over to the next employer, meaning, any ‘unauthorised absences’ or ‘unpaid leave’ will not be counted toward the period of employment with the new employer.
There are situations that can arise in the transfer of business ownership that means there is a disruption to the continuation of service, or a change in the employment relationship. Issues of this kind are often highly specific to the individual circumstances.

Modern Awards & Enterprise Agreements
The Fair Work Act states that if you are employed under a modern award or enterprise bargaining agreement, then you meet that eligibility test for making an unfair dismissal claim. That is, if you fall into this category, then you can make an unfair dismissal claim provided you have completed the minimum employment period.
Should your employment not be covered by either an award nor an enterprise agreement, then you will be required to meet the ‘high-income threshold’ test.

What is the ‘High-Income Threshold Test’ for Unfair Dismissal?
Your yearly earnings may impact on your eligibility to a make an unfair dismissal application to the Fair Work Commission.  It reviews the high-income threshold annually and publishes the new threshold at the commencement of the new financial year. As at 1 July 2019, the high-income threshold is $148,700.
In calculating which high-income threshold will apply, it is generally necessary to apply the relevant high-income threshold at the time the dismissal took effect.
A critical requirement is understanding what does and does not count towards an employee’s earnings.  The Fair Work Act states that earnings for the high-income threshold include:

the employee’s wages; and
amounts applied or dealt with in any way on the employee’s behalf or as the employee directs; and
the agreed money value of non-monetary benefits; and
amounts or benefits prescribed by the regulations.

Of the above indicia, the category of ‘agreed money value of non-monetary benefits’ can be far from easy to determine. An example of a non-monetary benefit is the payment of health insurance, which can be construed as meeting this requirements and as such contributes to the overall total earnings of the employee ([2018] FWC 1520).
A car allowance, if exercised, by the employee may also contribute to the overall total earnings of the employee.  However, in the event that an employment package which includes the use of a company car, any private usage of the company vehicle must be construed as forming part of the wages of the employee ([2018] FWCFB 1767).

What if I am ineligible to make an unfair dismissal application?
If a person is ineligible to make an unfair dismissal application under the Fair Work Act, there may be other actions that can be taken if an employer has acted wrongly in dismissing an employee.
One example is public sector employees, such as state or local government employees, may be eligible to make an unfair dismissal claim under a state-based industrial relations commission. For example, in Queensland, public servants may make an unfair dismissal application in the Queensland Industrial Relations Commission.
Other types of actions can include claims involving: –

breaches of contract claims;
misleading and deceptive conduct claims;
adverse action claims to the Fair Work Commission;
discrimination claims to a Human Rights Commission; and,
workers’ compensation claims relating to unreasonable management act.

One of the benefits of the unfair dismissal laws in Australia is the simplified nature of the process and capacity to quickly settle unfair dismissal applications. It is the reason many employees seek to make an unfair dismissal application when they feel the situation is harsh, unjust or unreasonable. Seeking legal advice about what is the right type of claim can be important if people feel they may ‘miss out’ on entitlements, or worry they are pursuing a weaker or less advantageous type of clam.
Summary
While I’ve set out to provide an overview about the unfair dismissal eligibility criteria that applies under the Fair Work Act, it is really nothing more than an overview. Many cases throw up specific issues that require careful consideration and sometimes arguments to be made as to why the eligibility criteria has been met.
Eligibility for an unfair dismissal claim is multi-factorial. Whether you are employed on a permanent, part-time or casual basis, knowing what protections can be afforded to you under the Fair Work Act for a potential unfair dismissal claim is a necessity.
If you want specific advice or representation for your own situation, feel free to contact me or another solicitor in our firm for that purpose. Our free case assessment is designed to help people decide whether it is right for them to engage a lawyer for their case with no cost and no obligation attached.
I just want to end by thanking my colleague, Karen Wilson, for her assistance in researching and preparing this information. It is work that allows our firm to make this kind of information more freely accessible for people interested in the subject matter.
More Information
The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.
Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving employment law, including for issues relating to unfair dismissal. Our unfair dismissal lawyers operate from local offices across Queensland:

Brisbane

Beenleigh

Gold Coast

Sunshine Coast

Toowoomba

Townsville

Our employment lawyers have the capacity to advise and represent people nationally, particularly for unfair dismissal claims.
Call Us TodayAbout Kerri Fredericks

Kerri is a Principal Lawyer in Anderson Fredericks Turner. She regularly assists employees and employers with employment law issues, including for unfair dismissal claims. Having previously worked as a Senior Crown Prosecutor, Kerri is an accomplished court advocate and skilled communicator.

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More Articles2019-08-10T12:58:26+10:00Unfair Dismissal Claim Eligibility Criteria2019-08-06T20:34:47+10:00Unfair Dismissal Claims: Settlements and Resolutions2019-06-29T13:30:17+10:00Time Limits for Unfair Dismissal Claims

2019-08-10T12:58:26+10:00Unfair Dismissal Claim Eligibility Criteria2019-08-06T20:34:47+10:00Unfair Dismissal Claims: Settlements and Resolutions2019-06-29T13:30:17+10:00Time Limits for Unfair Dismissal Claims

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Unfair Dismissal Claims: Settlements and Resolutions

Andrew Anderson – Principal Lawyer
6 August 2019

Andrew Anderson – Principal Lawyer
6 August 2019

Andrew is a Principal Lawyer in Anderson Fredericks Turner. He regularly assists employees and employers with employment law issues. Andrew has successfully assisted individuals and businesses to settle and resolve unfair dismissal applications before the Fair Work Commission.

Settling & Resolving Unfair Dismissal ClaimsSettling & Resolving Unfair Dismissal ClaimsMany people launch into making an unfair dismissal claim without really knowing how it may resolve, and on what basis they may resolve it. When facing any form of dispute – in this case a dispute between an employer and an employee – it can often be an emotional and often draining experience to face. Some cases can only be resolved through a contested hearing – others through agreement.
Today I want to outline some fundamental issues relating to the resolution of unfair dismissal claims in Australia. This information is important to both employers and employees, as some resolutions are only possible by both sides being prepared to come to an agreement. As an employment lawyer, I really see the benefit people getting from having a proper strategy to settling a legal claim on a basis they believe is just and reasonable.
Before I continue, I hasten to add that in addressing these matters, nothing that I outline should be taken as legal advice or used in substitute for legal advice. While I hope the information outlined will be of assistance to anybody interested in resolving an unfair dismissal claim they presently face, there is no substitute for speaking to a lawyer to get specific advice about a case. Our firm offers a free case assessment for people interested in whether we can help in their case.

A Common Mindset: Preparing for a Fight
Due to the time limits for unfair dismissal claims, often the initial focus is on properly preparing the application to be filed with the Fair Work Commission (or, for some public sector employees, a State-based Industrial Relations Commission). In that process, seeing that reinstatement is a possible remedy, many people seek such an order. There are often claims for compensation as well. During this time, people are often mentally preparing themselves for a contested legal dispute with their former employer.
The reality is it is possible to resolve most unfair dismissal applications without needing to go to a contested hearing. As an employment lawyer, I am frequently engaged to try to reach a settlement prior to a matter proceeding to a contested hearing before the Fair Work Commission.  There is an array of dispute resolution processes, both informal and formal, to help litigants settle unfair dismissal claims. Such settlements are often agreed to be confidential in the interests of both parties.
In truth, while it may be beneficial to keep an open mind about settling a claim on an appropriate basis, people involved in a legal dispute must be mindful that you are only in control of your own case. If the other side will not come to an appropriate agreement, you should be prepared to fight for the outcome you think is right through contested litigation.
Settling & Resolving Unfair Dismissal Claims
So, assuming you are eligible to make an unfair dismissal application and have filed a claim with the Fair Work Commission, the obvious question is ‘What happens next?’.
In answering that question, it is worth observing that the Fair Work Commission is supposed to afford both employees and employers less formal, less adversarial and less expensive methods to resolve workplace disputes. Section 577 of the Fair Work Act 2009 (Cth) states that the manner in which the Commission are to perform their role is in a way that:

is fair and just; and

is quick, informal and avoids unnecessary technicalities; and

is open and transparent; and

promotes harmonious and cooperative workplace relations.

While it is certainly common for lawyers to represent a party in different proceedings before the Fair Work Commission, permission must be sought from to allow for this to occur. Often lawyers are permitted to participate because it makes the process more efficient and allows a party to better understand the process. For a legal representative to assist an applicant or respondent in an unfair dismissal application, the Commission has a discretion to permit or deny in circumstances where:

it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Call Us TodayEarly Negotiations
There is generally nothing to stop the parties trying to reach an appropriate settlement of all claims outside of processes provided by the Fair Work Commission.
In trying to settle claims quickly, we are often asked to see if the other party is willing to engage in negotiations to try to reach a settlement. There are a couple of reasons why this makes sense for employers and employees:

Early negotiations reduce the time and cost associated with preparing for a contested hearing;

Early resolutions allow both parties to move past the dispute as soon as possible;

Confidentiality and privacy can often be maintained, which may benefit both parties; and,

Negotiated settlements may involve conditions or terms that would not be possible through a contested hearing.

The types of agreements we try to reach for our clients are often devoted to ensuring they can move forward with as reputational harm, cost and concern as possible. It generally calls for an innovative and tailored approach and a willingness from the other side to settle the dispute.
While we encounter many people who are well equipped to conduct these negotiations themselves, in reality unfair dismissal claims often have other factors associated with them that make that more complicated than is usual. While power imbalances that may exist between an employer and employee may be obvious, often the hurt and distress a person experienced by feeling they have been unfairly dismissed makes it more difficult. A lawyer often provides a separation to allow any negotiations to occur with a clear focus on the legal rights and entitlements of their client.
Conciliation Conferences
For unfair dismissal claims, a ‘Conciliation Conference’ represents an informal, confidential and voluntary opportunity for both parties to resolve a dispute.  The Commission employs a team of trained mediators experienced in resolving workplace disputes to assist parties to an unfair dismissal claim to settle it without a contested hearing.
The role of the Commission Conciliator is to aid in resolving the dispute only.  They cannot offer legal advice, nor do they offer personal opinions. Conciliators do raise issues with the parties and test the arguments underlying an application or the response to a claim. As a ‘neutral third party’, they try to engage in genuine problem solving and interest-based negotiations.
Consistent with the informal and efficient processes required of the Fair Work Commission, conciliations are generally held by the telephone. It reduces travel costs and often means that the different parties, their lawyers and the conciliator may all be in different locations.
The length of a conference is typically an hour and a half, therefore there is only a short amount of time that both parties can potentially resolve the unfair dismissal claim through this process.
If there is an agreement reached, generally the parties will both sign a deed of agreement and release, which formally sets out the terms of the settlement. Confidentiality surrounding the agreement may be one of the matters agreed by the parties.
While finality of a case might be achieved at a Conciliation Conference, there are times that the parties to the matter won’t be able to reach an agreement. In those circumstances, the case will then need to proceed to a more formal method of dispute resolution, namely a hearing.
Hearings before the Fair Work Commission
While a Conciliation Conference is conducted in a confidential setting with agreements generally also being kept confidential, the same cannot be said for contested hearings. In the event a matter is contested and proceeds to a hearing, when the Fair Work Commission makes a decision, the result will generally be publicly accessible. Sometimes, decisions involve important legal issues or novel circumstances, which make them newsworthy. Individuals and businesses often lose control over the privacy of the issues at this point. In my experience, reputational worries for litigants generally increase rather than decrease as disputes drag on.
A hearing is a formal process, which calls on both sides to produce evidence to support their arguments, as well as call witnesses as necessary. It can be a lengthy, time-consuming and costly endeavour. For businesses, it can divert significant time away from ‘getting on with the job’. Experience also shows that the expectations for both sides can be such that when a decision is made by the Fair Work Commission, both sides can be disappointed with the outcome.
For a litigant who is aggrieved by a decision of the Fair Work Commission, it is possible to appeal to the Full Bench of the Fair Work Commission.
Appealing Decisions of the Fair Work Commission
Appeals to the Full Bench of the Fair Work Commission are time specific (within 21 days after a Commission hearing decision) and permission must be sought by the Commission on the grounds that an error of law or fact has been made by the primary decision maker, and it is in the public interest to permit the appeal.
 What should be said is that the when assessing the test of ‘public interest’ it is said to be discretionary one that involved “broad value judgment” where the Commission must not grant permission to appeal unless it consider it is “in the public interest to do so” ([2011] FCAFC 54).
Not all matters will meet the public interest test.  For example, in a recent 2019 decision before the Full Bench ([2019] FWCFB 223), an applicant challenged a Fair Work Commission ruling on the basis that errors of both fact and law had occurred when determining the question of award coverage.  The applicant argued that the provision of equine services he delivered in a private veterinary practice should fall within the coverage of the Animal Care and Veterinary Services Award 2010. The applicant sought to establish that it was in the public interest to allow the appeal because of the injustice and that there was an expectation that an employer would comply with the relevant Award.  The Full Bench was not persuaded, denying the appeal because it did consider the original decision “manifests an injustice or leads to a counter intuitive result when result”.
By contrast in a 2018 decision before the Full Bench ([2018] FWCFB 5960) an appeal was upheld on the basis that it was in the public interest to allow the appeal where errors of fact had occurred when calculating the amount of compensation to be awarded to the applicant.
Decisions of the Full Bench of the Fair Work Commission demonstrate that it will closely examine the legal and factual issues involved but also strictly considers the public interest in permitting appeals.
Summary
However you may think an unfair dismissal application may be best resolved in your case, any resolution short of a contested hearing requires two sides to agree. A successful resolution often requires both sides to think about short-term and long-term objectives. Unless an applicant understands (1) what remedies are actually possible through an unfair dismissal application, and (2) why certain outcomes may not be realistic in their case, it can be difficult to properly negotiate with the respondent former employer.
The key to a successful resolution is to understand the strength of your position and properly advocate for your interests. Any attempts at resolving your unfair dismissal claim before a Commission should have a clear purpose and end goal.  Knowing all potential risks is fundamental in ensuring your future employability in the profession or industry you are working in.
Even if you are one of those people who has an “I’ve got this!” attitude, it can be difficult to foresee all of the risks or possibilities if you’ve never faced an unfair dismissal application previously.  If you want to take advantage of our free case assessment with a member of our team here at Anderson Fredericks Turner, contact us to see how we may be able to help in your situation.
Let me just finish by thanking my colleague Karen Wilson for her work in researching and preparing the information I’ve been able to outline about resolving and settling unfair dismissal claims.
More Information
The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.
Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving employment law, including for issues relating to unfair dismissal applications. Our lawyers operate from local offices in Brisbane, Beenleigh, Maroochydore, Toowoomba and Townsville, although we have the capacity to advise and represent people nationally.
Call Us Today

About Andrew Anderson

Andrew is a Principal Lawyer in Anderson Fredericks Turner. He regularly assists employees and employers with employment law issues. Andrew has successfully assisted individuals and businesses to settle and resolve unfair dismissal applications before the Fair Work Commission.

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More Articles2019-08-06T20:34:47+10:00Unfair Dismissal Claims: Settlements and Resolutions2019-06-29T13:30:17+10:00Time Limits for Unfair Dismissal Claims2019-07-06T13:30:59+10:00Grounds for Unfair Dismissal Claims

2019-08-06T20:34:47+10:00Unfair Dismissal Claims: Settlements and Resolutions2019-06-29T13:30:17+10:00Time Limits for Unfair Dismissal Claims2019-07-06T13:30:59+10:00Grounds for Unfair Dismissal Claims

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Grievous Bodily Harm Cases: Penalties and Sentencing

Andrew Anderson – Principal Lawyer
6 July 2019

Andrew Anderson – Principal Lawyer
6 July 2019
Andrew is a Principal Lawyer in Anderson Fredericks Turner. Prior to operating a law firm he worked as a Principal Crown Prosecutor and Barrister in Queensland. With a background of significant courtroom advocacy, he is independently recommended as a leading criminal lawyer in Australia.

Grievous Bodily Harm: Penalties & SentencingIn thinking about the penalties that apply in grievous bodily harm cases, there are a number of variables that need to be considered. By understanding the factors a court looks at in determining the appropriate sentence in a specific case, lawyers can make predictions about the possible or likely penalties that may apply in a future case.
Today I am going to outline information about some of the primary considerations a court will give when considering punishment for a charge of grievous bodily harm. I’ll also briefly analyse some past cases to show how courts sentence in practice applying the relevant principles. If you are interested in knowing more about pleading not guilty and defending a charge of grievous bodily harm, I have covered that separately.
Before I go on, I should say that any information covered should not be interpreted as legal advice, or a substitute for legal advice. If you (or a friend or family member) are facing a grievous bodily harm charge and want legal advice, or simply a second opinion, our firm offers a free initial case assessment to see if we can assist.

Maximum & Minimum Penalties
The maximum penalty for a charge of grievous bodily harm is 14 years’ imprisonment. A maximum penalty serves as a yardstick and a basis for the comparison between the case before the court and the worst kind of case the offence may involve.
Generally speaking, there is no ‘minimum penalty’ for a charge of this kind, but there are two exceptions:

Exception 1: If a person is convicted of the circumstance of aggravation concerning being a participant in a criminal organisation, there is a significant minimum period of actual custody that can apply.

Exception 2: There is a minimum penalty of community service for an offence that is committed while the offender intoxicated in a public place. That is in addition to any other penalty imposed.

In Queensland, there isn’t a broad system of mandatory minimum penalties. Typically, judges are given considerable discretion in setting the appropriate penalty.
Grievous bodily harm does have a further mandatory aspect about it and that relates to when an offence is declared a ‘serious violent offence’. If that occurs, then the person sentenced must serve at 80% of the term of imprisonment prior to being eligible for release on parole.
Relevant Considerations
In Queensland, the Penalties and Sentences Act 1992 (Qld) is the place to start when seeking to understand how a court may approach a sentence for a grievous bodily harm charge.
Purposes of Punishment
In Queensland, the only purposes for which sentences may be imposed on an offender are—

to punish the offender to an extent or in a way that is just in all the circumstances; or
to provide conditions in the court’s order that the court considers will help the offender to be rehabilitated; or
to deter the offender or other persons from committing the same or a similar offence; or
to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or
to protect the Queensland community from the offender; or
a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e).

So, to understand the emphasis a court may give to particular purposes of punishment in an individual case, it is helpful to understand some of the wider principles that are involved.
Imprisonment is not a ‘last resort’
For many offences, the Penalties and Sentences Act makes imprisonment a ‘last resort’ sentence. However, that is not so with violent offences in Queensland. The law says that principle does not apply for any offence—

that involved the use of, or counselling or procuring the use of, or attempting or conspiring to use, violence against another person; or
that resulted in physical harm to another person.

So, what this means is when sentencing for a charge of grievous bodily harm, courts do not need to prefer a sentence not involving imprisonment nor one that keeps the person in the community as opposed to actual custody.
Primary Factors
The law requires a court sentencing a person for a charge of grievous bodily harm to have primary regard to the following factors:

the risk of physical harm to any members of the community if a custodial sentence were not imposed;
the need to protect any members of the community from that risk;
the personal circumstances of any victim of the offence;
the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence;
the nature or extent of the violence used, or intended to be used, in the commission of the offence;
any disregard by the offender for the interests of public safety;
the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed;
the antecedents, age and character of the offender;
any remorse or lack of remorse of the offender;
any medical, psychiatric, prison or other relevant report in relation to the offender;
anything else about the safety of members of the community that the sentencing court considers relevant.

That may look like a shopping list, but it is actually just a fraction of all the relevant factors that may need to be taken into account by a judge. Preparing for a sentencing proceeding may be seem straightforward enough, but the difference an experienced criminal lawyer can make can be significant. Knowing what information is possible to obtain to assist the court in understanding any relevant context can be crucial to the penalty imposed.
Examples of Past Penalties: Grievous Bodily Harm
Looking at past examples of penalties imposed for grievous bodily harm charges should be done with caution. Even the High Court of Australia has seen fit to remind us all that while sentencing patterns may have considerable significance, such patterns do not necessarily fix the boundaries a court must, or even ought, apply when sentencing.
There are many factors that influence the sentence imposed an individual following conviction for an offence. So, these examples of penalties imposed for grievous bodily harm charges in the past do not necessarily guide the penalties that will be imposed in any future case. If you seek advice about the penalties that are likely to apply in a specific case, feel free to contact one of our experienced lawyers for that purpose.
In looking at penalties imposed in the past, I’m going to break them up into four categories:
Category 1: Over 5 years’ imprisonment
[2001] QCA 37 – 9 ½ years’ imprisonment
Following a conviction after trial, the 54-year-old defendant received a sentence of 9 ½ years’ imprisonment for organising a professional ‘hit’ on a business rival. The injuries to the complainant included multiple skull fractures, which resulted from being struck by a pick handle. It was described as a “most serious crime”.
[2011] QCA 198 – 8 ½ years’ imprisonment
Following a conviction after trial, the 41-year-old defendant received a sentence of 8 ½ years’ imprisonment for striking a long-term friend with a hammer. The complainant suffered serious brain injury as a result. While the sentence imposed was regarded as ‘very severe’ by the Court of Appeal, it was not held to be manifestly excessive.
[2003] QCA 133 – 7 years’ imprisonment (SVO)
The defendant, who was 18 years old at the time of the offence, pleaded guilty to one charge of grievous bodily harm. He had caused a deep laceration to the left wrist and thigh of the complainant, who subsequently lost feeling below his knee. The leg had withered as a result, which may also have led to amputation. The injuries came as a result of the defendant striking the complainant with a samurai sword. The declaration that it was a serious violent offence (SVO) meant that 80% of the 7 years imprisonment was to be served in custody before eligibility for parole.
[2011] QCA 9 – 6 years’ imprisonment (SVO)
The 21-year-old defendant was sentenced on appeal to 6 years imprisonment following a successful appeal by the Attorney General. The Court of Appeal declared it to be a serious violent offence (SVO), meaning that 80% of the 6 years was to be served before eligibility for parole. The defendant stabbed the complainant twice, which resulted in a slash wound to the left ventricle of the complainant’s heart. He almost died as a result of his injuries.
Category 2: Over 3 years’ imprisonment
[2012] QCA 141 – 4 years’ imprisonment (Parole Date: 1/3)
The defendant, a female aged 29 years old, attacked her then partner using a knife following an argument between them. She attacked him with a knife, which resulted in him being struck in the neck. The injuries to the complainant resulted in him suffering a permanent disability to his arm. The defendant received a sentence of 4 years imprisonment with a parole eligibility date after 1/3 of the sentence was served.
[2012] QCA 12 – 4 years’ imprisonment (Parole Date: 1/3)
The complainant had been in a de facto relationship with the sister of the defendant. Following a fight between the couple, the defendant attended the residence of the complainant whereby he hit the complainant multiple times with a torch. The complainant was hospitalised for 11 days and lost sight in his right eye. The defendant received a sentence of 4 years imprisonment with a parole eligibility date after 1/3 of the sentence was served.
[2012] QCA 67 – 3 ½ years’ imprisonment (Parole Date: 1/3)
The complainant remained in hospital for over one month following an assault on him by the two defendants. The defendants chased the complainant down a street from a nightclub following some slight provocation. When caught, the complainant was punched several times in the head, rendering him unconscious and resulting in serious injuries. Following pleas of guilty, both defendants were ordered to serve 3 ½ years’ imprisonment with a parole eligibility date after 14 months.
Category 3: Immediate Release
[2009] QCA 350 – 3 years’ imprisonment
The defendant was aged 17 years old at the time of the offence. He caused grievous bodily harm to his own baby, who was 3 ½ months old. The baby suffered injuries as a result of prolonged, repetitive shaking. There was damage to the child’s retina and bleeding to the skull, although no permanent serious harm was likely to result. The defendant was sentenced to 3 years’ imprisonment but with immediate release on parole.
[2003] QCA 137 – 2 years’ imprisonment
The defendant was 28 years old at the time of conviction following his plea of guilty, was sentenced on appeal to 2 years imprisonment wholly suspended. The operational period of the sentence was ordered to be 3 years. The defendant assaulted the complainant, who was forced to flee over a fence prior to police attending. When police were present, the complainant placed two fingers on the neck of the defendant. The defendant reacted by punching the complainant, resulting in an injury to his eye. At the time of sentence, the complainant still had distorted vision.
[2008] QCA 118 – 18 months imprisonment
The defendant successfully appealed against the original sentence of 18 months imprisonment, which required 4 months to be served before release on parole. On appeal, the defendant was ordered to be immediately released on parole. The defendant punched the complainant who was running in his direction. There had been a fight moments earlier involving the complainant. The actions of the defendant were found to be excessive in the unusual circumstances of the case.
Category 4: Community Based Orders
[2013] QCA 362 – 240 hours of community service
The defendant was charged with wilful damage and grievous bodily harm from the one incident. An altercation commenced between the complainant and defendant as a result of a traffic incident. The spectacles of the complainant were bent, and her finger was bent backwards, causing ligament damage. The Court of Appeal reduced the sentence from a 12-month intensive correction order to 240 hours of community service on the basis that the defendant was a flight instructing commercial pilot. The original sentence was found to make her ineligible for her occupation, otherwise the original sentence was found to be within the appropriate sentencing discretion.
[1997] QCA 480 – intensive correction order (compensation and fine)
The 23-year-old defendant was sentenced to a 12-month intensive correction order. Compensation in the amount of $10,000 was also ordered to be paid to the complainant. A fine of $10,000 was also ordered to be paid. For the charge of causing grievous bodily harm, the defendant threw a glass at the complainant, which cut an artery and constituted a life-threatening injury. After the glass was thrown a struggle ensued between the two and the defendant kicked the complainant in the head.  For the kick the defendant was sentenced to 18 months’ probation.
[2001] QCA 351 – intensive correction order (compensation)
The 27-year-old defendant was sentenced a 12-month intensive correction order. Compensation in the amount of $10,000 was also ordered to be paid to the complainant. The defendant and complainant were known to each other. They were at the same hotel when the complainant sought to calm down the defendant, who was struggling with another person. The defendant, in an unprovoked action, punched the complainant, which resulted in a fractured jaw. The defendant picked up a chair but was prevented from further violence.
When I look at some of those older cases, I do wonder whether they would be decided the same way again today. Different issues can seem more or less important over time. The law can become clearer and the ‘yardstick’ can move by new cases or changes to the law.
Call Us TodaySummary
The interplay of factors that drive the ultimate outcome in a sentencing proceeding can be extremely complex. Simply believing the ‘right’ outcome will result can be misconceived and result in an unnecessarily harsh outcome for people.
When I think about the sentencing factors that apply to grievous bodily harm charges, it shows that there is always something that may make a difference. For some individuals, working out whether they ought to be subject to a ‘serious violent offence’ declaration is critical. For others, it will be whether they can avoid being sentenced to actual custody.
More Information
The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.
Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving grievous bodily harm. Our lawyers are available for all courts throughout Queensland and we operate from local offices in Brisbane, Beenleigh, Maroochydore, Toowoomba and Townsville.
Call Us Today

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More Articles2019-07-06T11:31:34+10:00Grievous Bodily Harm Cases: Penalties and Sentencing2019-07-06T11:27:55+10:00Grievous Bodily Harm: Proof, Defences & Trials2019-06-10T10:26:20+10:00Character Reference for Court

2019-07-06T11:31:34+10:00Grievous Bodily Harm Cases: Penalties and Sentencing2019-07-06T11:27:55+10:00Grievous Bodily Harm: Proof, Defences & Trials2019-06-10T10:26:20+10:00Character Reference for Court

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Grievous Bodily Harm: Proof, Defences & Trials

Andrew Anderson – Principal Lawyer
6 July 2019

Andrew Anderson – Principal Lawyer
6 July 2019
Andrew is a Principal Lawyer in Anderson Fredericks Turner. Prior to operating a law firm he worked as a Principal Crown Prosecutor and Barrister in Queensland. With a background of significant courtroom advocacy, he is independently recommended as a leading criminal lawyer in Australia.

Grievous Bodily Harm: Proof, Defences & Criminal TrialsGrievous bodily harm charges are considered serious criminal offences in Queensland and may be classified as ‘serious violent offences’. That classification can mean a person must serve at least 80% of their jail term before being eligible for release from prison.
Today I am going to outline how this offence is proved, what defences generally apply as well as some of the common issues that arise when defending a charge of this kind. So the focus is really on how this charge is proved or defended at a trial. If you are interested in more information about pleading guilty and sentencing for grievous bodily harm, I have covered that separately.
Before I go on, I should say that any information covered should not be interpreted as legal advice, or a substitute for legal advice. If you (or a friend or family member) are facing a grievous bodily harm charge and want legal advice, or simply a second opinion, our firm offers a free initial case assessment to see if we can assist.

Grievous Bodily Harm – Charge
Section 320 of the Criminal Code (Qld) makes it an offence to unlawfully do grievous bodily harm to another person. The law states:

Any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 14 years.

It is worth noting that a charge of unlawfully doing grievous bodily harm does not require any proof of intent. If the prosecution want to try to prove an intent, there is a more serious charge formally described as ‘malicious act with intent’ in Queensland, although many people refer to it as ‘grievous bodily harm with intent’.
So the key words to consider there are ‘unlawfully’, ‘does’ and ‘grievous bodily harm’. Each of those elements must be proved against the person accused of the crime. I’ll address them in reverse order.
The meaning of ‘grievous bodily harm’
In Queensland, ‘grievous bodily harm’ is defined to mean:

the loss of a distinct part or an organ of the body; or

serious disfigurement; or

any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health;

whether or not treatment is or could have been available.

The phrase ‘whether or not treatment is or could have been available’ is important. In a 2015 decision by the Court of Appeal ([2015] QCA 136), it was confirmed that that qualification applies to each category of alleged harm (such as ‘serious disfigurement’). This means that if a surgery can correct any injury that would have otherwise caused serious disfigurement, it may still amount to grievous bodily harm within the definition.
The difference between a charge of grievous bodily harm and assault occasioning bodily harm generally comes down to the medical evidence.
Quite often, when people are facing a charge they think of a ‘defence’ like self-defence as being the only means by which a case can be defended. That may be so in a particular case, but because of the way the proof operates for a charge of grievous bodily harm, sometimes it is possible to show the charge is wrong by proper scrutiny of the medical evidence. So before moving on to the issue of whether anything occurred was caused unlawfully, it can pay to focus attention on the actual definition of what constitutes ‘grievous bodily harm’.
If a charge is downgraded from grievous bodily harm to assault occasioning bodily harm, it changes a range of things. The maximum penalty goes down, new defences may arise at law and it becomes possible to resolve the case in the Magistrates Court rather than the District Court. A charge of grievous bodily harm cannot go to trial or resolve as a sentence in the Magistrates Court. Due to the seriousness of the offence, it must proceed to the District Court.
The meaning of ‘does’
The word ‘does’ places a focus on causation. Quite obviously, if a person does not cause the injury, why should they be liable to criminal punishment? So the law recognises the prosecution must prove, beyond a reasonable doubt, the person charged causes it. So assuming the prosecution can prove the person charged has been correctly identified as being involved, proof of causation is essential.
Causation is a question of fact that is generally resolved by a jury. Sometimes it becomes clear that the prosecution simply cannot prove the issue and so it may discontinue a case, or a judge may stop it.
It is important to note that it is not necessary for the prosecution to prove that the defendant was the sole cause of the injury. For questions of causation, the High Court of Australia has stated in a case called Royall v The Queen [1991] HCA 27 that the prosecution must prove the defendant’s conduct was a significant or substantial cause.
I’ll return to this issue shortly when speaking about the defence of accident.
The meaning of ‘unlawfully’
For a charge under section 320 of the Criminal Code, it is necessary for the prosecution to prove, beyond reasonable doubt, that the grievous bodily harm was caused ‘unlawfully’.
Unlawfully means not authorised, justified or excused by law. This is where defences come in for consideration, which I’ll address in more detail after outlining some information about the ‘circumstances of aggravation’ that can apply to the charge.
Circumstances of Aggravation
In Queensland, there may be circumstances that, if proved, generally renders a defendant liable to increased punishment. So, for some charges that may increase the maximum penalty, minimum penalty, or both. It may also require a court to treat certain facts as ‘aggravating’ and thereby – as a matter of law – deserving of increased punishment.
A circumstance of aggravation generally forms part of the charged offence. There are three circumstances of aggravation that may apply to an offence of grievous bodily harm.

One is if a person is a participant in a criminal organisation and is convicted of causing grievous bodily harm, it may give rise to a circumstance of aggravation that exposes that person to a greater level of punishment. Generally, a minimum of seven (7) years’ imprisonment in actual custody on top of the sentence imposed for simply unlawfully causing grievous bodily harm.

Another circumstance of aggravation is if it was committed in a public place while the person was adversely affected by an intoxicating substance. If the prosecution can prove that fact then community service must be ordered as part of the punishment, whether or not the court imposes another punishment.

If the charge is found to be a ‘domestic violence offence’, then that will also constitute a circumstance of aggravation. The court must treat that fact as an aggravating factor unless it is not reasonable because of the exceptional circumstances of the case.

So when facing a grievous bodily harm charge, there can be additional parts to the charge that also require careful scrutiny given the consequences that can follow.
What defences apply to ‘grievous bodily harm’?
There are a number of defences that apply to a charge of grievous bodily harm, such as self-defence, defence of another person, and accident. The Criminal Code in Queensland also provides for a number of other defences for a charge of grievous bodily harm, which arise less commonly.
An important difference between ‘grievous bodily harm’ and a number of other violent offences is the fact ‘assault’ is not an element of the offence. In Queensland, the Criminal Code gives the word ‘assault’ a particular meaning. As a consequence of assault not being an element, ‘provocation’ is not a defence to the charge even if it is relevant to the penalty for grievous bodily harm charges.
Generally speaking, for a charge of grievous bodily harm, if there is evidence to raise a defence that ought to be considered by a jury, then it is for the prosecution to disprove it beyond a reasonable doubt. That is, the defendant does not need to prove anything.
It is really important to note that it is essential for any lawyer to consider every defence that may apply. There are many different defences that can apply in a single case. When it comes to the identification and litigation of defences, the difference an experienced criminal lawyer can make to the outcome of a case can be decisive. That is, having a genuine understanding of how different defences may apply and interact can heavily influence not just the advice a person receives, but also how their defence is best conducted.
Given the frequency with which self-defence and accident arise for consideration in cases of this kind, it is worth briefly addressing some important issues as those defences relate to charges of grievous bodily harm.
Accident
In Queensland, an event that is said to occur by ‘accident’ can amount to a defence to a charge, including for grievous bodily harm. These days ‘accident’ is a short-hand way of describing the following part of the law from the Criminal Code:

23 Intention – motive

Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—

…
an event that—

the person does not intend or foresee as a possible consequence; and
an ordinary person would not reasonably foresee as a possible consequence.

It should be noted section 23(1A) of the Criminal Code does state that under subsection (1)(b), the person is not excused from criminal responsibility for death or grievous bodily harm that results to a victim because of a defect, weakness, or abnormality.
So if an ‘event’ occurs that the person does not intend or foresee as a possible consequence and an ordinary person would not reasonably foresee as a possible consequence, then a person may have a defence to a charge of grievous bodily harm.
The law also makes clear there is an exception to the operation of the defence that relates to particular defects, weaknesses or abnormalities that result in grievous bodily harm.
So for ‘grievous bodily harm’, what is the ‘event’? There are actually conflicting opinions from the Court of Appeal on the issue.
On the one hand, in a 2010 decision of the Court of Appeal relating to a case involving a broken jaw ([2010] QCA 117), it was said:

the “event” was the injury suffered by the complainant constituting the factual element of the offence of doing grievous bodily harm, namely, a broken jaw. The issue for the jury was whether an ordinary person in the appellant’s position would reasonably have foreseen the complainant’s broken jaw was a possible outcome of the appellant striking the complainant.

There are other decisions of the Court of Appeal that suggest it are actually somewhat broader than that, and that the event is more broadly referable to an injury amounting to grievous bodily harm. For example, also in 2010 it was stated in unanimous decision of the Court of Appeal ([2010] QCA 6):

It is not necessary that the precise nature of the grievous bodily harm, or the precise mechanism whereby it might be inflicted, be foreseeable. A blow of the kind struck here might not always lead to a fall with serious injuries, but it is readily apparent that injuries of the kind which occurred here might well occur.

There is also a decision of the Court of Appeal from 2005 ([2005] QCA 138), in which it was unanimously held that it was sufficient to disprove this defence if an ordinary person, in the position of the defendant, would have foreseen serious injuries similar to those actually incurred as a possible outcome from the relevant act or acts.
It may be that in time the Court of Appeal will finally settle this issue, or at least address the conflicts in the authorities more directly. Until that time, it can simply be observed that it will generally be more favourable to a defendant if the specific injury must have been foreseen, rather than a broader category of similarly serious injuries.
Self-Defence
In everyday life, we do not think about how the law of self-defence works. We assume we can defend ourselves, or another person, within reason. Generally speaking, it is a fair assumption but that is not the same thing as to say it is the law.
Self-defence is divided into categories where it is either provoked or unprovoked. That is, did the person seeking to claim their actions were in ‘self-defence’ provoke the confrontation or not. Simply put, if you provoke the situation, self-defence operates in a more confined way than if you are simply the subject of an unprovoked attack.
I’ll focus on self-defence against an unprovoked attack. In respect to this defence, the Criminal Code states:

271 Self-defence against unprovoked assault

When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.
If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.

It is often said that there are two limbs to this defence. The first limb (section 271(1)), does not allow the use of force that is not intended, and is not such as is likely, to cause death or grievous bodily harm. The second limb (section 271(2)) provides for a defence where death or grievous bodily harm may eventuate.
As may be obvious, if a person is facing a charge of grievous bodily harm, there is often less scope for the first limb of the defence to apply, although it certainly is relevant in many cases particularly where the force used is more moderate.
It is one of those pieces of information lawyers ought to be mindful of when advising a person charged with grievous bodily harm about their specific case.
Call Us TodaySummary
Too often, I see people jumping to think about the defences that apply without first stopping to ask about whether there is even a proper proof of the essential elements of the charge. For a charge like grievous bodily harm, this can definitely be putting the cart before the horse.
For anybody facing the decision whether to plead not guilty and go to trial or plead guilty and face sentencing, getting legal advice is important. When looking at the charge of grievous bodily harm, the take home message is there are so many variables and questions that arise that getting specific legal advice from a lawyer who knows what they are doing is key.
If you or someone you care about is charged with grievous bodily harm and you seek legal advice, or even just a second opinion, feel free to contact me at this firm.
More Information
The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.
Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving grievous bodily harm. Our lawyers are available for all courts throughout Queensland and we operate from local offices in Brisbane, Beenleigh, Maroochydore, Toowoomba and Townsville.
Call Us Today

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More Articles2019-07-06T11:31:34+10:00Grievous Bodily Harm Cases: Penalties and Sentencing2019-07-06T11:27:55+10:00Grievous Bodily Harm: Proof, Defences & Trials2019-06-10T10:26:20+10:00Character Reference for Court

2019-07-06T11:31:34+10:00Grievous Bodily Harm Cases: Penalties and Sentencing2019-07-06T11:27:55+10:00Grievous Bodily Harm: Proof, Defences & Trials2019-06-10T10:26:20+10:00Character Reference for Court

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Time Limits for Unfair Dismissal Claims

Andrew Anderson – Principal Lawyer
29 June 2019

Andrew Anderson – Principal Lawyer
29 June 2019

Andrew is a Principal Lawyer in Anderson Fredericks Turner. He regularly assists employees and employers with employment law issues. Andrew has successfully argued for time limitation extensions for unfair dismissal claims in the Fair Work Commission by demonstrating his clients had ‘exceptional circumstances’.

Time Limits for Unfair Dismissal ClaimsTime Limits for Unfair Dismissal ClaimsFor unfair dismissal claims in the Fair Work Commission, there is a strict 21-day time limit rule that is only extended in exceptional circumstances. So if you think you have grounds for an unfair dismissal claim and want to know how this time limitation may affect any claim you make, hopefully you will find this information useful. In particular, I’m going to address how the Fair Work Commission goes about determining if the 21-day time limit should be extended in particular cases.
We often encounter clients asking us critical questions around the 21-day time limit such as “When does day 1 begin?”  and also “What if day 21 falls on a public holiday or a weekend?”  These are some great starting questions that you should ask yourself when making an unfair dismissal application in the Fair Work Commission.
Before I go on, I should say that any information covered should not be interpreted as legal advice, or a substitute for legal advice.  If you are unsure about the time limits or need legal advice more generally about unfair dismissal claims, our firm offers a free initial case assessment to see if we can assist.

The 21-Day Time Limit Rule
Section 394 of the Fair Work Act 2009 (Cth) provides that an application seeking a remedy for an unfair dismissal must be made within 21 days after the dismissal took effect, or such further period as allowed by the Fair Work Commission. A further period will only be allowed in “exceptional circumstances”.
I’ll come to what may be considered “exceptional circumstances”, but it is important to first outline how that time period is actually calculated.
When does day one begin?
There are many, many laws that have time limitations. Fortunately, in most cases, there are ordinary rules of interpretation that make it easy enough to work out when the time limit should end. For the purposes of an unfair dismissal application, the Acts Interpretation Act helps us to understand why day one will be the day after the dismissal takes effect. So, for instance, if you are told you are dismissed on the first of January, then the second of January is day one of the 21 days.
In knowing when you have been dismissed it must be clearly communicated to you. Let me give you two common examples how this may occur:

Example 1: Your employer verbally tells you that you are dismissed.  This means that day one, will be the following day.
Example 2: You receive a letter from your employer stating that you have been dismissed.  This means that day one will commence the day after you receive the communication.

All this may seem simple enough to work out – and it is often is – but there are always cases where the answers are not so straightforward. To illustrate that point, in an appeal before the Full Bench of the Fair Work Commission ([2016] FWCFB 5500), an employee received an email, dated 18 January 2016, from their employer informing them of their dismissal with an enclosed dismissal letter that signed and dated 15 January 2016. So when did the 21 days commence; 15 or 18 January? The Full Bench held that the 18 January 2016 was the date the dismissal had been clearly communicated.
I hasten to add each case will turn on its own facts. For example, in that same case it was observed that when an email has been sent, and one simply refuses to read it, such a stance would not justify setting back the date the dismissal took effect.
There is another example that is worth providing, just to illustrate further how these things can sometimes be a little complicated.

Example 3: You get told by your employer that you are dismissed but will receive a ‘lump sum’ payment of wages and remaining accrued entitlements some time later.  Day one may commence the day after you receive the ‘lump sum’, rather than when you were told you were being dismissed.

This example is perhaps best described as a grey area and one that has caused a lot of discussion in the Fair Work Commission. For such issues, there are other complex factors that will likely be relevant, including contractually agreed terms.
What if day 21 falls on a public holiday or weekend?
Another common question we get relates to how public holidays or weekends affect the time limitation period. In these situations, the general rule is that you have until the next business day to lodge your application. There are still some grey areas for these issues and so if you are in doubt you should consult an employment lawyer about the specific facts of your case.
Why is there a 21-day time limit?
To be honest, we don’t really get asked this question but I’ve added it because I think it is important when considering any time limitation period. If you are going to lodge an unfair dismissal application, it is best not to wait until the last minute.
The strictness of the 21-day time limit signals delay may be problematic on a variety of fronts. Businesses make decisions – for better or worse – and within reason need to be able to get on with the job. So the longer someone waits to lodge an application, the less scope there may be to get the remedy you seek because the business has ‘moved on’. That can be a factor particularly for employees who are dismissed but seek to be reinstated into their old job.
Extensions of Time (Applying Out of Time)
The Fair Work Act allows for an application to be made out of time but it faces an additional hurdle before it will be accepted. An extension may be granted by the Fair Work Commission in “exceptional circumstances” taking into account:

the reason for the delay; and
whether the person first became aware of the dismissal after it had taken effect; and
any action taken by the person to dispute the dismissal; and
prejudice to the employer (including prejudice caused by the delay); and
the merits of the application; and
fairness as between the person and other persons in a similar position.

The Fair Work Commission views the test for ‘exceptional circumstances’ as a “high hurdle” for any applicant to meet.  It should be said that while one of the considerations may meet the test, it is often a combination of all of the above factors, when viewed together may produce a situation that could be characterised as ‘exceptional’.
Explanation: “I’m not a lawyer”
People apply out of time and claim to have not known about the 21-day time limit. The argument is essentially, “I’m not a lawyer how was I supposed to know?”
Over the last four years, the Fair Work Commission has consistently expressed the view that should a person make an application for an extension on the basis that they were not aware of the 21-day time limit, or they were not aware of the law, it will not satisfy the exceptional circumstances test.
So while each case will turn on its own facts, people should be aware the ‘I’m not a lawyer’ explanation generally fails the ‘exceptional circumstances’ test.
Explanation: “I live in a rural area”
In a 2019 decision, the Fair Work Commission ([2019] FWC 3133) considered it not to be an exceptional circumstance justifying an extension of the time limit on the basis the applicant lived in a rural location and claimed to have no access to immediate legal advice.  While it was acknowledged that transport difficulties were commonly encountered by those living in rural areas, and that many Australians have no choice but to represent themselves, the Fair Work Commission makes its resources and processes accessible enough that the tyranny of distance was not found a sufficient reason to extend the limitation period.
It really is important to observe, however, each case turns on its own facts. In my mind I can think of situations where a particular place will be unexpectedly affected by a natural disaster that may give rise to exceptional circumstances.
Explanation: “The delay was due to a medical issue”
Medical issues can amount to exceptional circumstances that justify an extension of time. However, medical issues are also frequently rejected by the Fair Work Commission as an adequate explanation for applications filed late.
For example, simply claiming ‘mental health issues’ as a reason for the delay in filing an unfair dismissal claim may be insufficient where it is not supported by medical evidence. Likewise, if you are experiencing stress or grief, or even an inability to cope as a result of your recent dismissal, then unless you have medical evidence to explain the delay, the Fair Work Commission may not find the reason sufficient to justify an extension.
In a 2018 decision of the Fair Work Commission ([2018] FWC 7589) rejecting stress triggered by the loss of employment, it was said:

‘…while I accept that the dismissal caused her great stress, I am afraid that stress and grief associated with job loss is normally encountered by people following a termination of employment.’

To give some contrast to that situation, a 2016 decision of the Fair Work Commission ([2016] FWC 3780) saw an extension of time granted to the applicant who was six days out of time in filing.  It was established that the delay was caused by a reaction to the termination, which ultimately exacerbated a long-standing psychiatric condition.  In that case, there was a psychiatric report to explain the nature of the long-standing condition and to show the impact of the termination on their health.
Being in hospital for a significant portion of the relevant time period may strongly tend in favour of exceptional circumstances being demonstrated ([2016] FWCFB 349 and [2019] FWC 3646)
These cases help to illustrate that the evidence adduced to support the explanation for any delay can be decisive. My own experience is that expert evidence is often critical to properly explaining any medical issue said to be a factor in any delay that saw a person miss the time limits for unfair dismissal claims.
Call Us TodayRepeated Applications
Sometimes, people may think that if they get it wrong the first time they will be able to fix it up and come back again. In law as in medicine, prevention is better than cure.
There is a 2019 decision from the Fair Work Commission ([2019] FWC 3418) that shows what may happen if you try come back to make a further application. In this instance, the self-represented applicant was 135 days beyond the 21-day time limit when filing a third application.  The application was made on the basis that the previous decision made by the Fair Work Commission was ‘unfair’ and that there had been a denial of procedural fairness.  In dismissing the application, it was said:

“There is no reason to expect a different result the second time round… He has not been deprived of his right to have an application heard and determined…”

It is simply an example that instead of seeking to cure a defect in an application a second time round (or third time), it is generally better to prevent the need for a second application by ensuring you put your best case forward from the start. Getting advice can be critical in this respect. Sometimes lawyers cannot cure what could have been prevented in the first place, if only advice had been sought at an earlier time.
Summary
When considering lodging an application for unfair dismissal, the take home message is that the Fair Work Commission strictly applies its time limits for unfair dismissal claims.
If you still aren’t sure whether you have grounds for a successful unfair dismissal claim and want some advice, take advantage of our free case assessment with either myself or our team of employment lawyers at Anderson Fredericks Turner. Even for people who realise they may be out of time for an unfair dismissal application, we have successfully obtained extensions for people in the past and may also assist to identify if there are alternatives claims that you may validly pursue.
Let me just finish by thanking my colleague Karen Wilson for her work in researching and preparing the information I’ve been able to outline about time limits for unfair dismissal claims.
More Information
The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.
Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving employment law, including for issues relating to unfair dismissal applications. Our lawyers operate from local offices in Brisbane, Beenleigh, Maroochydore, Toowoomba and Townsville, although we have the capacity to advise and represent people nationally.
Call Us Today

About Andrew Anderson

Andrew is a Principal Lawyer in Anderson Fredericks Turner. He regularly assists employees and employers with employment law issues. Andrew has successfully argued for time limitation extensions for unfair dismissal claims in the Fair Work Commission by demonstrating his clients had ‘exceptional circumstances’.

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More Articles2019-06-29T13:30:17+10:00Time Limits for Unfair Dismissal Claims2019-06-26T15:47:26+10:00Grounds for Unfair Dismissal Claims2019-06-05T10:32:11+10:00Written Warnings in the Workplace

2019-06-29T13:30:17+10:00Time Limits for Unfair Dismissal Claims2019-06-26T15:47:26+10:00Grounds for Unfair Dismissal Claims2019-06-05T10:32:11+10:00Written Warnings in the Workplace

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Grounds for Unfair Dismissal Claims

Kerri Fredericks – Principal Lawyer
21 June 2019

Kerri Fredericks – Principal Lawyer
21 June 2019

Kerri is a Principal Lawyer in Anderson Fredericks Turner. She regularly assists employees and employers with employment law issues, including for unfair dismissal claims. Having previously worked as a Senior Crown Prosecutor, Kerri is an accomplished court advocate and skilled communicator.

Grounds for Unfair Dismissal ClaimsGrounds for Unfair Dismissal ClaimsIf you have just been dismissed from your job and are wondering whether your dismissal was fair, you are not alone. Many people approach our firm asking, “Is this an unfair dismissal?” It is a question that generally needs to be asked and answered quickly because of the strict time limitations for unfair dismissal claims.
Today I am going to address some of the things to consider when asking the question, “Have I been unfairly dismissed by my employer?” As part of that, I’m going to provide some detail about how you may be able to decide whether to lodge an unfair dismissal claim.
I should just note that in addressing this issue and providing some information to people who might be interested in it, I really want to make clear that this is not – and is not intended to be a substitute for – legal advice. If you think you may have been unfairly dismissed and want legal advice, our firm offers a free case assessment to help us see if we can help in a specific case.

What are the grounds for Unfair Dismissal?
In knowing whether you have been unfairly dismissed, the Fair Work Act 2009 (Cth) provides a national legal standard of what an unfair dismissal is:

The person has been dismissed; and
The dismissal was harsh, unjust or unreasonable; and
The dismissal was not consistent with the Small Business Fair Dismissal Code; and
The dismissal was not a case of genuine redundancy.

In some situations, a person may think they have been ‘unfairly dismissed’ – and that may be so – but there are other legal claims that may be more appropriate or stronger. For an unfair dismissal claim to be successful, all four tests must be met. Some people read the words and think, well that doesn’t apply to me. The answer is not always obvious. I’ll address each test or element in turn.
Have you been ‘dismissed’?
First, let’s think about how your employment may have ended. For example, did it end because your employer made the first move and you received a termination letter? Or did your employer verbally tell you that your employment had ended? Another way employment may end is because you are forced to resign by your employer. The last example is sometimes called an involuntary resignation.
So if you answered yes, to any of those scenarios, then you may well meet the legal definition of being a person who has been ‘dismissed’. It is certainly not the end of the matter.
There are certain situations where the law says that the ‘dismissal’ will not be legally recognised.  These are in situations where:

you are employed for a short-term contract where a clear termination date is known by you and your employer; or

you are employed for the duration of a contract to complete a training arrangement; or

you have been demoted in the organisation but are still employed with your employer.

Now for some people, the situation just isn’t that straightforward.  What if your employer is making your work life so difficult that you have no choice but to resign from the job that you enjoy?  For example,

what if you are forced to resign from your employment because your employer is refusing to pay you overtime, even though you have worked the hours and are entitled to be paid? Or,

what if your employer is refusing to deal with inappropriate workplace behaviour (such as workplace bullying or sexual harassment) and you decide to resign because your employer is refusing to deal with it?

Should you find yourself in one of these situations, your situation certainly starts to become more complex in a legal sense in terms of whether or not it constitutes a ‘dismissal’.
Was your dimissal ‘harsh, unjust or unreasonable’?
So what does it mean for a decision to be ‘harsh, unjust or unreasonable’? First things first, notice that is an ‘or’ not an ‘and’. That is important, because those words mean different things and you only need to establish one of them.
Section 387 of the Fair Work Act provides a checklist of items that must be looked at when considering whether a dismissal was unfair. It reads:
Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
whether the person was notified of that reason; and
whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal; and
the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
any other matters that the FWC considers relevant.

If you do file an unfair dismissal claim that is contested at a hearing, the Fair Work Commission must look at each of these items to determine whether your dismissal was harsh, unjust or unreasonable.
So, in order to illustrate how that goes, I’ll take you through some decisions from the Fair Work Commission. I hasten to add each case really does turn on its own facts so even if something seems similar to your situation, there may be good reason why your case could see a different outcome.
“whether there was a valid reason for the dismissal…”
In a 2018 Fair Work Commission decision ([2018] FWC 3569), a clerical worker was found to be unfairly dismissed by a small business employer of nine (9) employees after it failed to give a reason why they were terminating the employment.  While the worker received a termination letter, it made no mention of previous verbal warnings nor any reason as to why their employment was being terminated.  Instead it said, ‘if we require your services in the new year, we will be in touch’.
The take home message here is that when you are terminated, make sure that your employer clearly tells you why you have been dismissed.  If not, you might have a case of an unfair dismissal on your hands.
            “an opportunity to respond…”
In another 2018 Fair Work Commission decision ([2018] FWC 6666), a small business employer of two (2) employees was described as “jump[ing] the gun” when they demoted an employee without explaining why, or giving them an opportunity respond. The Commission went on to describe what the employer should have done in that situation. Essentially, they should have calmly told their employee in private the performance concerns they had and then given them a short period of time to respond to those concerns.  Had the employer done so, its probable the dismissal would not have been ruled an unfair one.
Call Us TodayWas your employer a ‘small business’?
For unfair dismissal claims, it does matter if your employer was small business. The law recognises that small businesses should be afforded leniency when it comes to unfair dismissal claims (see the Small Business Fair Dismissal Code).
If you work for an employer that employs less than 15 employees, they will be a small business.  And, a small business can legally dismiss you in two types of ways:

by summary dismissal, which means that lose your job immediately because of something illegal or dishonest that you may have done; or

by an ‘other’ dismissal which has occurred from how you perform on the job.

If you have recently lost your job by way of an ‘other’ dismissal the and you are pretty sure that you haven’t been dismissed by way of a summary dismissal, then I ask you to think about the following questions that help you to know if you do fall into this ‘other’ category:

Q 1 – did your employer give you a reason for being at risk of dismissal?
Q2 – Was the reason for dismissal because of your ability to do your job or how you behaved at work?
Q3 – were you given any verbal warnings about your behaviour?  And if you didn’t improve, then were at risk of being dismissed?
Q4 – did you employer give you an opportunity for you to explain your reason to their concerns?
Q5 – did your employer give you any time to try and correct these concerns?
Q6 – did your employer allow you to bring a support person to any discussions around a potential dismissal?

If you think that your employer might have missed any of the steps above when terminating you or are unsure about it, you are welcome to get in touch with our firm to see if we can help in your case.

The dismissal was “not a genuine redundancy”
If a person lost their job because of a genuine redundancy, then it is not possible to succeed in an unfair dismissal claim before the Fair Work Commission. This ‘genuine redundancy’ question was discussed in a 2019 Fair Work Commission decision ( [2019] FWC 3505) where it was confirmed that ‘…a person cannot be unfairly dismissed if the dismissal was a case of genuine redundancy.’  In that decision, it was said a genuine redundancy is one where:

the job is lost because of operational requirements, [What this means is if your business is restructuring, and the type of position you are doing wont’ be continued in the new restructure, then being made redundant will be lawful]; and

that consultation obligations have been met in accordance with an Award or Enterprise Bargaining Agreement [what this means is that your employer should talk to you or provide you with documentation around any proposed changes to the workforce and encourage you to give feedback on those proposed changes].

Should you find yourself in a position where you question whether the redundancy was ‘genuine’ according to these considerations, then you may have been unfairly dismissed.  I should add that it may not be enough to simply think in those terms. It is also worth considering what is required for it to not be a case of genuine redundancy.
Not a genuine redundancy?
What is not a genuine redundancy is when reasonable re-deployment exists in the business but the employer doesn’t offer this opportunity to their employee.  Another example might be if an employer offers an employee a re-deployment option but it is ‘doomed to fail’ from the beginning.
More complex questions arise if a company operates nationally or internationally. Re-deployments in those situations may involve shifting to an entirely new location. Other complex situations arise when the alternative job on offer amounts to lower pay or worse conditions.
When considering redeployment opportunities in the context of an unfair dismissal claim, it will really be assessed on a case-by-case basis. Unfortunately for both employers and employees, there is no ‘one-size fits all’.    
Summary
While I’ve endeavoured to provide an overview about the way unfair dismissal laws operate in Australia under the Fair Work Act, it is just that – an overview. Each case will depend on so many variables – such as the compliance with workplace policies and procedures or prior written warnings.
Hopefully you feel more informed about the laws that apply when people claim that they have been unfairly dismissed. While it is designed to be a simple area of law to follow, the reality is there are often multiple legal options that a person may have available to them. An unfair dismissal claim may be just one of them – and making it – instead of another claim – can then preclude other action being taken.
If you want specific advice or representation for your own situation, feel free to contact me or another solicitor in our firm for that purpose. Our free case assessment is designed to help people decide whether it is right for them to engage a lawyer for their case with no cost and no obligation attached.
I just want to end by thanking my colleague, Karen Wilson, for her assistance in researching and preparing this information. It is work that allows our firm to make this kind of information more freely accessible for people interested in the subject matter.
More Information
The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.
Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving employment law, including for issues relating to unfair dismissal. Our lawyers operate from local offices in Brisbane, Beenleigh, Maroochydore, Toowoomba and Townsville, although we have the capacity to advise and represent people nationally.
Call Us Today

About Andrew Anderson

Andrew is a Principal Lawyer in Anderson Fredericks Turner. He regularly assists employees and employers with employment law issues, particularly related to misconduct claims. Andrew is independently recommended by Doyle’s Guide as one of the leading white collar and corporate crime lawyers in Australia.

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More Articles2019-06-21T16:38:55+10:00Grounds for Unfair Dismissal Claims2019-06-05T10:32:11+10:00Written Warnings in the Workplace2019-06-04T23:13:09+10:00Attending a Disciplinary Meeting

2019-06-21T16:38:55+10:00Grounds for Unfair Dismissal Claims2019-06-05T10:32:11+10:00Written Warnings in the Workplace2019-06-04T23:13:09+10:00Attending a Disciplinary Meeting

The post Grounds for Unfair Dismissal Claims appeared first on Anderson Fredericks Turner.

Definition of Domestic Violence in Queensland

Andrew Anderson – Principal Lawyer
11 June 2019

Andrew Anderson – Principal Lawyer
11 June 2019
Andrew is a Principal Lawyer in Anderson Fredericks Turner. As a former Principal Crown Prosecutor and Barrister, Andrew has experience with cases involving domestic violence from the Magistrates Court right through to the High Court of Australia. He assists people with domestic violence applications.

Definition of Domestic ViolenceIt is important to stress from the outset that the definition of domestic violence varies across states and territories in Australia. My attention is really on the definition in Queensland, although I will also compare the definitions in other parts of Australia as well.
Today I am going to go through some of the decisions by courts that have interpreted the definition of domestic violence in Queensland. Hopefully this will be of benefit to anybody seeking to know a little more about how ‘domestic violence’ is defined in practice. What it is not intended to do is act, in any way, as legal advice or a substitute for legal advice. If you are looking to apply this information to a specific case, you should contact a lawyer for specific advice.

How Domestic Violence is Defined
At one level the definition or meaning of domestic violence for domestic violence proceedings is straightforward. In Queensland, the term ‘domestic violence’ is defined in the Domestic and Family Violence Protection Act 2012 (Qld). However, at the margins, some important decisions from courts have clarified some of the uncertainties around the meaning of ‘domestic violence’ in Queensland.
In Queensland, domestic violence is defined to mean

“behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that—

is physically or sexually abusive; or
is emotionally or psychologically abusive; or
is economically abusive; or
is threatening; or
is coercive; or
in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.

The law does not just capture behaviour directly done by a person. It also captures indirect behaviour as well. A person who counsels or procures (meaning asks, encourages, etc.) someone else to engage in behaviour that, if engaged in by the person, would be domestic violence is taken to have committed domestic violence.
In Queensland specific words are given a specific meaning under the domestic violence laws. For instance, coerce is defined to mean “compel or force a person to do, or refrain from doing, something”. There are specific meanings given to other words used in the definition also, which I want to address in some detail.
Emotional or Psychological Abuse
Guidance is given by the law in Queensland about what is meant by ‘emotional or psychological abuse’, which is defined to mean “behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person”.
In a decision by McGill SC DCJ (GKE v EUT [2014] QDC 248), the notion of something being ‘offensive’ was observed to involve a subjective consideration at [39]:

Indeed, it seems to me that it would be possible for some conduct to satisfy the definition of “domestic violence” even if it would not be generally regarded in the community as involving grave moral delinquency. For example, conduct may qualify as “emotional or psychological abuse” simply because it is offensive to the aggrieved, even if it would not be regarded by the community in general as offensive, if the aggrieved, for idiosyncratic, subjective reasons does regard it in that way. [Emphasis added]
So it can be seen that in interpreting the definition of what is ‘domestic violence’ it is important not to lose sight of the fact parts of the definition certainly take account of the personal experiences of individuals. For what it’s worth, such an interpretation appears consistent with the other parts of the law in Queensland that require a court to consider the subjective characteristics and vulnerabilities of people.
I should also mention that in another decision by McGill SC DCJ (DGS v GRS [2012] QDC 074), in which it was concluded that because domestic violence legislation is remedial in nature, it ought to be given a broad interpretation. So with respect to what may ‘intimidate’ or ‘harass’, it was observed that “as long as conduct does harass or is intimidating, it seems to me that almost anything could in principle amount to harassment or intimidation”. In that same decision, an earlier case (BBB v RAB [2006] QDC 80) was referred to where it was stated:

Intimidation refers to a process where the person is made fearful or overawed, particularly with a view to influencing that person’s conduct or behaviour. There can I think be a single incident of conduct which amounts to intimidation …. Harassment on the other hand involves a repeated or persistent form of conduct which is annoying or distressing rather than something which would incite fear. The other consideration is that I think that the matter needs to be of some significance to qualify as domestic violence, bearing in mind the other elements of the definition, and the examples that are given for paragraph (c) in the Act.

I should also note that the law in Queensland itself provides a list of examples as to what may ‘emotional or psychological abuse’.
See List of Examples: Emotional or Psychological Abuse
Examples of domestic violence:

following a person when the person is out in public, including by vehicle or on foot
remaining outside a person’s residence or place of work
repeatedly contacting a person by telephone, SMS message, email or social networking site without the person’s consent
repeated derogatory taunts, including racial taunts
threatening to disclose a person’s sexual orientation to the person’s friends or family without the person’s consent
threatening to withhold a person’s medication
preventing a person from making or keeping connections with the person’s family, friends or culture, including cultural or spiritual ceremonies or practices, or preventing the person from expressing the person’s cultural identity

Economic Abuse
The term ‘economic abuse’ is defined in Queensland as follows:

Economic abuse means behaviour by a person (the first person) that is coercive, deceptive or unreasonably controls another person (the second person), without the second person’s consent—

in a way that denies the second person the economic or financial autonomy the second person would have had but for that behaviour; or
by withholding or threatening to withhold the financial support necessary for meeting the reasonable living expenses of the second person or a child, if the second person or the child is entirely or predominantly dependent on the first person for financial support to meet those living expenses.

From my experience I can say I see claims involving economic abuse quite frequently and there is often a component during the relationship and often issues become start as a relationship may be breaking down, or if there are any financial difficulties. Often, questions about whether there has been ‘economic abuse’ are highly fact specific and require a careful articulation of the specific context in which any claim may arise.
The law provides a number of examples of what may fall within this definition.
See List of Examples: Economic Abuse
See List of Examples for Economic Abuse

coercing a person to relinquish control over assets and income
removing or keeping a person’s property without the person’s consent, or threatening to do so
disposing of property owned by a person, or owned jointly with a person, against the person’s wishes and without lawful excuse
without lawful excuse, preventing a person from having access to joint financial assets for the purposes of meeting normal household expenses
preventing a person from seeking or keeping employment
coercing a person to claim social security payments
coercing a person to sign a power of attorney that would enable the person’s finances to be managed by another person
coercing a person to sign a contract for the purchase of goods or services
coercing a person to sign a contract for the provision of finance, a loan or credit
coercing a person to sign a contract of guarantee
coercing a person to sign any legal document for the establishment or operation of a business

Call Us TodayExamples of Domestic Violence
In Queensland, the relevant law actually sets out a range of examples of what is to be included as being domestic violence (note it is a non-exhaustive list of examples). So, to quote directly from the law:

…. domestic violence includes the following behaviour—

causing personal injury to a person or threatening to do so;
coercing a person to engage in sexual activity or attempting to do so;
damaging a person’s property or threatening to do so;
depriving a person of the person’s liberty or threatening to do so;
threatening a person with the death or injury of the person, a child of the person, or someone else;
threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;
causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;
unauthorised surveillance of a person;
unlawfully stalking a person.

Associated Domestic Violence
In domestic violence proceedings, the term ‘associated domestic violence’ essentially means behaviour that is alleged to constitute ‘domestic violence’ by a respondent towards:

a child of an aggrieved; or
a child who usually lives with an aggrieved; or
a relative of an aggrieved; or
an associate of an aggrieved.

The term “associate of an aggrieved” really is the catch-all phrase as it incorporates a very wide class of people, essentially:

a person whom the aggrieved regards as an associate; or
a person who regards himself or herself as an associate of the aggrieved

If a person is subject to associated domestic violence, then a court may name them as part of a protection order (domestic violence order).
Comparison of Domestic Violence Definitions (Australia)
In Australia, each State and Territory sets the law for domestic violence or family violence proceedings within its own jurisdiction. Whilst there is now national recognition and enforcement of domestic violence orders, there are still variations between the definitions.
Some time ago – about 20 years now – the Domestic Violence Legislation Working Group proposed a national model domestic violence definition. This has not been adopted, so we are left to look at each State and Territory individually to understand the terms ‘domestic abuse’, ‘domestic violence’ or ‘family violence’.
Australian Capital Territory
Section 8 of the Family Violence Act 2016 (ACT) sets out the definition of ‘family violence’ in the Australian Capital Territory:
Meaning of family violence
(1) In this Act:
“family violence” means—
(a)     any of the following behaviour by a person in relation to a family member of the person:
(i)     physical violence or abuse;
(ii)     sexual violence or abuse;
(iii)   emotional or psychological abuse;
(iv)   economic abuse;
(v)     threatening behaviour;
(vi)     coercion or any other behaviour that—
(A)     controls or dominates the family member; and
(B)     causes the family member to feel fear for the safety or wellbeing of the family member or another person; or
(b)     behaviour that causes a child to hear, witness or otherwise be exposed to behaviour mentioned in paragraph (a), or the effects of the behaviour.
Examples—par (b)
1. overhearing threats being made in another room of the house
2. seeing an assault or seeing injuries on a family member who has been assaulted
3. seeing people comfort a family member who has been abused
Note     An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(2) Without limiting subsection (1), “family violence” by a person in relation to a family member of the person includes the following:
(a)     sexually coercive behaviour;
(b)     damaging property;
(c)     harming an animal;
(d)     stalking;
(e)     deprivation of liberty.
(3)     In this section:
“economic abuse”, of a family member, means behaviour by a person that is coercive, deceptive or that unreasonably controls the family member without the family member’s consent including by the person’s exploitation of power imbalances between the person and the family member—
(a)     in a way that takes away the financial independence or control the family member would have but for the behaviour; or
(b)     if the family member is wholly or predominantly dependent on the person for financial support to meet the living expenses of the family member or the family member’s child—by withholding the financial support.
Examples
1. stopping the family member from having access to money to meet normal living expenses
2. requiring the family member to transfer or hand over control of assets or income
3. stopping the family member from trying to get employment
4. forcing the family member to sign a legal document such as a power of attorney, loan, guarantee
5. forcing the family member to claim social security payments
“emotional or psychological abuse”, of a family member, means behaviour by a person that torments, intimidates, harasses or is offensive to the family member including by the person’s exploitation of power imbalances between the person and the family member.
Examples
1. stopping the family member from visiting or having contact with family or friends
2. stopping the family member from engaging in cultural or spiritual practices
3. repeated derogatory or racist comments
4. threatening to disclose personal information about the family member
5. threatening to withhold medication, personal health care items or other things necessary to the family member’s health or quality of life
6. threatening to self-harm as a way of intimidating the family member

The definition of ‘family violence’ in the Australian Capital Territory is similar to the definition of ‘domestic violence’ found in Queensland and quite similar to the law in Victoria.
New South Wales
New South Wales is the only State or Territory in Australia that does not specifically define ‘domestic violence’ or ‘family violence’ (or like phrases) in legislation. In the Crimes (Domestic and Personal Violence) Act 2007 (NSW), it does define ‘domestic violence offence’ to mean as follows:
11   Meaning of “domestic violence offence”
(1)  In this Act, domestic violence offence means an offence committed by a person against another person with whom the person who commits the offence has (or has had) a domestic relationship, being:
(a)  a personal violence offence, or
(b)  an offence (other than a personal violence offence) that arises from substantially the same circumstances as those from which a personal violence offence has arisen, or
(c)  an offence (other than a personal violence offence) the commission of which is intended to coerce or control the person against whom it is committed or to cause that person to be intimidated or fearful (or both).
(2)  In this section, offence includes an offence under the Criminal Code Act 1995 of the Commonwealth.
Individuals can seek apprehended domestic violence orders in New South Wales, with the court being required to apply the relevant legal tests under the Crimes (Domestic and Personal Violence) Act 2007.
Northern Territory
Part 1.2, Division 2, of the Domestic and Family Violence Act 2007 (NT) sets out the relevant definitions and concepts of ‘domestic violence’ in the Northern Territory.
Domestic violence is any of the following conduct committed by a person against someone with whom the person is in a domestic relationship:
(a) conduct causing harm;
Example of harm for paragraph (a)
Sexual or other assault.
(b) damaging property, including the injury or death of an animal;
(c) intimidation;
(d) stalking;
(e) economic abuse;
(f) attempting or threatening to commit conduct mentioned in paragraphs (a) to (e).
Note
Under Part 2.2, a DVO may be sought, and made, against a person if the person counsels or procures someone to commit the domestic violence, see section 17 .

Without looking further into the definitions set out in the Domestic and Family Violence Act 2007, it may not be clear whether ‘harm’ includes ‘mental harm’. However, there is a clear intent for it to be considered by courts, given the definition of ‘intimidation’ in section 6:
Intimidation
(1)     Intimidation of a person is:
(a) harassment of the person; or
Examples of harassment for paragraph (a)
1. Regular and unwanted contacting of the person, including by mail, phone, text messages, fax, the internet or another form of electronic communication.
2. Giving or sending offensive material to the person.
(b) any conduct that causes a reasonable apprehension of:
(i) violence to the person; or
(ii) damage to the property of the person, including the injury or death of an animal that is the person’s property; or
Example of conduct for paragraph (b)(i)
Sexually coercive behaviour.
(c) any conduct that has the effect of unreasonably controlling the person or causes the person mental harm.
(2) For deciding whether a person’s conduct amounts to intimidation, consideration may be given to a pattern of conduct (especially domestic violence) in the person’s behaviour.
Queensland
The definition of domestic violence is contained in section 8 of the Domestic and Family Violence Protection Act 2012 (Qld). Associated definitions, such as for ‘emotional or psychological abuse’ or ‘economic abuse’ are also contained in the Act.
South Australia
The Intervention Orders (Prevention of Abuse) Act 2009 (SA) covers both ‘domestic abuse’ and ‘non-domestic abuse’. It will be domestic abuse if a relationship is established to fall within the categories defined in section 8(8) of the Act.
The definition of ‘domestic abuse’ is set out in section 8 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
Section 8(1) defines abuse in the following way:
Abuse may take many forms including physical, sexual, emotional, psychological or economic abuse.
Section 8(2) states the following:
An act is an act of abuse against a person if it results in or is intended to result in—
a. physical injury; or
b. emotional or psychological harm; or
c. an unreasonable and non-consensual denial of financial, social or personal autonomy; or
d. damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person.

Tasmania
Section 7 of the Family Violence Act 2004 (Tas) provides the following definition of ‘family violence’:
7. Family violence
In this Act –
family violence means –
(a) any of the following types of conduct committed by a person, directly or indirectly, against that person’s spouse or partner:
(i) assault, including sexual assault;
(ii) threats, coercion, intimidation or verbal abuse;
(iii) abduction;
(iv) stalking within the meaning of section 192 of the Criminal Code;
(v) attempting or threatening to commit conduct referred to in subparagraph (i), (ii), (iii) or (iv); or
(b) any of the following:
(i) economic abuse;
(ii) emotional abuse or intimidation;
(iii) contravening an external family violence order, an interim FVO, an FVO or a PFVO; or
(c) any damage caused by a person, directly or indirectly, to any property –
(i) jointly owned by that person and his or her spouse or partner; or
(ii) owned by that person’s spouse or partner; or
(iii) owned by an affected child.

This definition does cover current or former spousal or partner relationships.
Victoria
Section 5 of the Family Violence Protection Act 2008 (Vic) states that for the purpose of that Act, ‘family violence’ means:
(a) behaviour by a person towards a family member of that person if that behaviour—
(i) is physically or sexually abusive; or
(ii) is emotionally or psychologically abusive; or
(iii) is economically abusive; or
(iv) is threatening; or
(v) is coercive; or
(vi) in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person; or
(b) behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a).
As may be seen, this definition closely resembles the definition in Queensland.
Western Australia
The Restraining Orders Act 1997 (WA) sets out the meaning of ‘act of family violence’ in section 6:
… “act of family and domestic violence” means one of the following acts that a person commits against another person with whom he or she is in a family and domestic relationship —
a. assaulting or causing personal injury to the person;
b. kidnapping or depriving the person of his or her liberty;
c. damaging the person’s property, including the injury or death of an animal that is the person’s property;
d. behaving in an ongoing manner that is intimidating, offensive or emotionally abusive towards the person;
e. causing the person or a third person to be pursued —
(i) with intent to intimidate the person; or
(ii) in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, the person;
f. threatening to commit any act described in paragraphs (a) to (c) against the person.

Summary
The key message to take away from all of this is that the definition is more complex than many people may realise – and is probably more complex than it needs to be. To look back on the fact that more than 20 years ago a group was set up to try to develop a nationally recognised definition – an ambition still far from realisation – shows how far we probably can still go to create more consistency.
My own view is that Queensland has one of the more sophisticated frameworks for defining ‘domestic violence’. It is generally easy to understand and that is probably reflected in the way the law has been interpreted by courts in Queensland.
If you are seeking specific advice or representation regarding a domestic violence proceeding, please contact me or another solicitor from the team at Anderson Fredericks Turner. We offer a free initial case assessment for cases of this kind.
More Information
The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.
Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving domestic violence. Our lawyers are available for all courts throughout Queensland and we operate from local offices in Brisbane, Beenleigh, Maroochydore, Toowoomba and Townsville.
Call Us Today

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Written Warnings in the Workplace

Andrew Anderson – Principal Lawyer
5 June 2019

Andrew Anderson – Principal Lawyer
5 June 2019

Andrew is a Principal Lawyer in Anderson Fredericks Turner. He regularly assists employees and employers with employment law issues, particularly related to misconduct claims. Andrew is independently recommended by Doyle’s Guide as one of the leading corporate crime lawyers in Australia.

Written Warnings at Work – Important InformationWritten Warnings at Work – Important Information to KnowReceiving a ‘Warning Letter’ at work is a signal that your employment may be in jeopardy if you do not improve your performance or conduct.
Today I am going to address some of the most frequently asked questions we encounter about what to do if you get a written warning at work. In doing so, I’ll also address how employees may challenge written warnings that they consider to be unfair or unwarranted.
While I hope this may be helpful to anybody interested in knowing about written warnings in the context of Australian workplaces, it is not intended to be and is certainly no substitute for legal advice. If you or someone you know needs advice or representation from an employment lawyer, our firm offers a free case assessment to see if we may be able to help in your case.

What is a ‘Written Warning’?
A written warning is a document provided by an employer to an employee to formally indicate a concern about a conduct or capacity in the issue in the workplace. It is designed to put the employee on notice that if they do not improve their performance, there may be consequences for their continued employment.
Significance of a Written Warning
A written warning is important for both employers and employees. I think it helps to think of written warnings through the framework of ‘fairness’. The significance of warning letters in the workplace context emerges when the fairness of a disciplinary process is called into question. Issuing – or not issuing – a written warning carries consequences.
Significance of a Written Warning for Employers
Let’s look first at why written warnings are important for employers. In Australia, employers are subject to workplace laws where employees are afforded certain rights and conditions. Now sometimes these things are set in place through contracts, sometimes enterprise agreements and generally through laws passed by governments. When an employer acts unfairly or unlawfully towards an employee, that employee may be able to challenge the decision or action.
To give an example, for small businesses, issuing a written warning (or, alternatively, a verbal warning), may act to protect the employer from an unfair dismissal claim being successfully made. You see, the Small Business Dismissal Code requires a warning to be given for workplace conduct falling short of serious misconduct that warrants summary dismissal.
Significance of a Written Warning for Employees
Turning attention to employees, a written warning is generally seen as a negative thing. It’s not something you want to receive. That may be so, but the warning should also address what needs to happen to ensure no further disciplinary action need result. In that sense, it is only fair that the employee be put in a position to know what the issue is and how it may be avoided or rectified. When an employee is treated fairly, there is generally no cause to take action over decisions that don’t go your way. On the other hand, an employee who is treated unfairly or unlawfully may certainly have a good claim to pursue against their employer – whether they are unfairly dismissed or otherwise.
Written Warnings – Frequently Asked Questions (FAQs)
There are a number of myths that surround warning letters in Australia. I think one of main reasons for that has to do with the fact that widespread practices assumes – for some people at least – the status of the law. What the law is and what people do may be two very different things.
I have compiled a list of five frequently asked questions that relate to written warnings that we see here at Anderson Fredericks Turner.

Can you get a written warning before a verbal warning?

Yes, you can get a written warning before a verbal warning.  Under the Fair Work Act in Australia there is no strict progression for warnings. It is possible for an employer to issue a written warning even if no verbal warning has ever been given. Likewise, an employer may notify an employee of a final warning even if it is the first warning issued.

How many warnings are necessary before dismissal can occur?

In Australia, instant or summary dismissals for serious misconduct do not require an employer to have previously given any warnings – written or otherwise – to an employee. The fact of previous warnings being given to an employee may help fortify against claims of ‘unfair dismissal’ or a breach of the general protections provisions afforded to employees.

What does a ‘final written warning’ mean?

A final written warning is issued by an employer when it is clearly contemplated that any further breaches of workplace policies or procedures, or a failure to improve performance in some way, will result in termination of employment.
It is important to note that an employer may simply provide an employee with a ‘first and final written warning’. Again, this is supposed to signify a genuinely held concern about the trust and confidence the employer has in relation to the employee.

How long does a written warning last at work?

In Australia, there is no law that provides a clear answer to how long a written warning lasts in a workplace. Any warning letter that purports to have effect for more than one year may be considered unreasonable, depending on the circumstances. It is often suggested that an operational period of one to six months may be reasonable, which depends on the nature of the conduct or capacity issue that led to the warning letter being issued.
It is one of those questions that really is dependent on the circumstances.
That said, it is important to note that in any unfair dismissal case any history of previous disciplinary action, including warnings will be relevant to the past conduct of the employee.  The question in such cases will be the weight that might be placed on those previous warnings.  Factors which will be relevant include:-

The period of time that has lapsed between the warning and the issue in dispute;
Whether the previous warning was for same or similar conduct – or for conduct that might be considered minor and unrelated;
Whether the previous warning was given in circumstances which were grossly unfair, or plainly in contravention of procedural fairness.

What happens if you get a written warning at work?

If you get a formal written warning at work, a number of things may happen as a result. Generally, a warning letter is issued by the employer when they have some confidence the employee can address the conduct or capacity concern. If the issue isn’t addressed or new problems arise, the fact that there has been some warning in the past can make it easier for an employer to justify greater disciplinary action, including dismissal. For this reason, performance improvement plans may also follow the receipt of a written warning.
If you receive a written warning, you need to decide whether you accept it for what it is or whether you think you are within your rights to challenge it.
Call Us TodayImportant Information in Written Warnings
So there are a number of things a written warning should do. In Australia, when the Fair Work Commission is asked to consider whether a dismissal was unfair, it looks at (among other things):

…
(c)  whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
…
(e) if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal
…

So that comes from section 387 of the Fair Work Act 2009 (Cth). So that really should focus both employers and employees on what important information should be contained in a formal written warning.
There is no formula for what should be in a written warning, as it will need to reflect the specific situation. However, to my mind, some important information that should be addressed includes:

the issue giving rise to the warning. It is important that an employer makes clear to the employer why the warning letter is being issued. For example, this may be a breach of a particular law, code of conduct, or relate to a specific term in an employment contract.
sufficient detail to inform the employee about how the issue arose. For instance, this may require the times, dates, places and circumstances for each issue giving rise to the warning. Where appropriate, names of witnesses or supporting information (such as documents) should be provided;
if a workplace investigation or disciplinary meeting preceded the warning, a summary or record of what that involved and any outcomes or findings made;
a clear set of expectations or changes that must be addressed. So again, particularly for unsatisfactory performance issues, there should be a path laid out for people to follow in the future to address the issue.

It is really important that a written warning be accurate and not omit or misrepresent any relevant circumstance. I should also add that it worth keeping in mind that any warning given to an employee really ought to pass the fair and reasonable test, having regard to all the circumstances.
Challenging or Appealing a Written Warning
There is a general expectation that an employee will have an opportunity to respond to a written warning, which raises a conduct or capacity issue. As I’ve already noted, it is one of the things the Fair Work Commission will look at if somebody claims they have been unfairly dismissed.
If you are in the position of asking how to challenge a written warning you have been given at work, consider the following in framing your response:

Does the written warning accurately set out the factual background? If it doesn’t, it may be that you are facing disciplinary action on a false premise. So it is important to consider whether you need to correct any errors or omissions.

Has the employer outlined or followed all of the relevant rules that apply? So some workplaces may have formal policies about disciplinary action, or there might be some conditions in an employment contract. Ensuring the rules have been followed is essential to ensuring you get procedural fairness.

Once you know whether the facts are set out correctly and the rules, you need to think about your options. You may feel like quitting straight away. Or you could feel anxious by the process and just immediately sign the warning on the spot, hoping that will be the end of it. Decisions driven by emotion may not be your best option. As an employment lawyer, I often have people come to me and realise their options are greater than they realised. So really thinking about your options before you respond is important.

Once you have worked through these issues in your mind, you are generally in a much better position to effectively respond to a warning letter. That may simply be an acceptance that whatever happened justified a warning and you accept it with a view to improving your performance or conduct. But if that is not the situation and you are going to challenge a formal warning it is worth doing so as best you can.
In some situations, the Fair Work Act 2009 (Cth) will allow an employee to challenge a written warning in the Fair Work Commission. Where a person believes the warning is because of ‘adverse action’, such as because of discrimination, sexual harassment or some other invalid reason, they may appeal the written warning. Strict time limits – in some cases merely 14 days – apply to claims so it is important for people to not delay in seeking legal advice from an experienced employment lawyer.
Summary
In summary, whether you are an employer or employee, written warnings can have important consequences. It is obviously an issue that can place strain on employment relationships.
For employers, in drafting a written warning, it is important to consider whether it is fair and reasonable to address the capacity or conduct issue in that way. Getting it wrong can increase the risk of an employee disputing it and any subsequent disciplinary action taken.
For employees, it is not infrequent that getting a warning letter coincides with other difficulties a person may be facing – either in their personal life or at work. In some cases, warning letters can lead people to feel even more stressed or isolated so it is important to ensure you are looking after your health in facing such issues.
If you want to get some legal assistance for an issue concerning warning letters in the workplace, feel free to contact me at this firm to obtain specific and discreet advice about your particular matter.
More Information
The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.
Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving employment law, including for issues relating to written warnings. Our lawyers operate from local offices in Brisbane, Beenleigh, Maroochydore, Toowoomba and Townsville, although we have the capacity to advise and represent people nationally.
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About Andrew Anderson

Andrew is a Principal Lawyer in Anderson Fredericks Turner. He regularly assists employees and employers with employment law issues, particularly related to misconduct claims. Andrew is independently recommended by Doyle’s Guide as one of the leading white collar and corporate crime lawyers in Australia.

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