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De Marchi & Associates
Barristers and Solicitors
Nationally Accredited Mediator
Dino De Marchi is a Barrister and Solicitor with many years experience providing legal services based in Brunswick. He is greatly involved in the community.
E Conveyancing and Stamp Duty Changes
|Posted by ddemarchi44 on 9 May, 2017 at 2:55||comments ()|
Newsdesk: e-conveyancing, and stamp duty changes—what they may mean for you
Changes to e-conveyancing and stamp duty are now in force. e-conveyancing is now the norm for most property conveyances. Everything from settlement, signature of transfer documents, stamping, and payment of duty will now be online.
Be aware that sales over $750,000 will require a clearance certificate from the ATO.
We sincerely hope that following initial teething problems these changes will lead to a speedier conveyancing process and prove more helpful to first home buyers.
Australia Day Award
|Posted by ddemarchi44 on 1 February, 2015 at 19:10||comments ()|
In 2015 our Principal Dino De Marchi was given recognition for his work with the Ivanhoe RSL. He was granted an Australia Day Certificate from former Minister and Federal Member of Parliament, Jenny Macklin MP.
Watkins v Repatriation Commission
|Posted by ddemarchi44 on 31 July, 2014 at 21:40||comments ()|
A Special rate decision supported by the Federal Court. was later overturned by the full Court.
Bromberg J. delivered his decision on the 29 July 2014. The Decision is attached:
Reid v Repatriation Commission
|Posted by ddemarchi44 on 31 July, 2014 at 21:25||comments ()|
Favourable Special rate decisions are now rare but Reid v Repatriation Commission is one:
We are pleased with our successes in this area of law.
You can download the official document from the AustLII website by clicking the link below:
Summers v Repatriation Commission is a more recent one; we will post the decision shortly.
Has the Federal Court Jurisdiction in Honours and Awards Decisions ?
|Posted by ddemarchi44 on 9 December, 2013 at 19:40||comments ()|
ON THE QUESTION OF JURISDICTION
1. We submit that there are (at least) two bases for the Federal Court’s jurisdiction in these matters: (1) the ADJR Act and (2) the Judiciary Act. The Applicant invokes both avenues, in that order of preference.
2. The Defence Honours and Awards Appeals Tribunal (DHAAT) Fact Sheet 05 explains three important matters:
a. The DHAAT is established under the Defence Act 1903 ...
b. There are strict rules governing eligibility for awards ...
c. An applicant is able to seek review by the Federal Court on questions of law, but not on the merits ...
Administrative Decisions Judicial Review Act
3. The ADJR Act provides for judicial review jurisdiction in respect of decisions of an administrative character made under an enactment.
4. The determination of the DHAAT is a “decision”, namely a decision as to eligibility for an honour or award.
5. The determination is of an “administrative character”, being the consideration of relevant facts and their relationship to fixed criteria, namely “strict rules” governing eligibility.
6. The determination is made “under an enactment”, namely the Defence Act 1903, which establishes the DHAAT.
7. As a result, the Federal Court has jurisdiction to review the legality of the DHAAT determination.
Judiciary Act 1903 s 39B(1)
8. The above sub-section of the Judiciary Act provides for review jurisdiction, inter alia, where certiorari is sought against an “officer of the Commonwealth”.
9. Tribunal members occupy an “office”, namely the office of Members by way of appointment, with the provision of salary, to a Tribunal established under a Commonwealth Act.
10. Tribunal members are therefore “officers of the Commonwealth”.
11. Alternatively, the original determination by the Department of Veterans’ Affairs was made by an employee of the Department, being an “officer of the Commonwealth”.
12. As a result, the Federal Court has jurisdiction to review the legality of the DHAAT determination !
Age Discrimination in Voluntary Organisations: What are your Rights?
|Posted by ddemarchi44 on 14 November, 2013 at 20:45||comments ()|
Age Discrimination in Voluntary Organisations: What are your Rights?
In 2004 the Howard government introduced the Age Discrimination Act, which makes discrimination on the basis of age unlawful. This reform added to existing legislation making it unlawful to discriminate on the basis of race (1975), sex (1984) and disability (1992).
There are, however, exceptions that allow discrimination on a number of grounds. The general rationale for these exceptions is that they are either necessary or do some social good. The Age Discrimination Act, for example, creates exceptions for charities and religious bodies. It also creates an exception for voluntary bodies. If you are an older member of a voluntary organisation, you may have experienced some form of discrimination on the basis of age. You may have wondered, “Is it really lawful?” and “Can I do anything about it?”
That depends on a number of questions:
Is it really a “voluntary body”?
If a substantial portion of the organisation’s activities are for the purpose of making a profit, then they are not a voluntary organisation (even if you are a “volunteer” ) so they are not exempt from age discrimination on this basis.
What actions are exempt?
Even if the organisation is a voluntary body, not all of its actions are exempt from discrimination on the basis of age.
The Age Discrimination Act exempts the following action:
(a) admission as members, and
(b) provision of benefits, facilities and services to members.
So, a voluntary body is allowed to make rules only allowing people of a certain age to become members. It is also allowed to make rules only allowing people of a certain age to receive benefits or use facilities and services.
But, what about other rules? Let’s say someone is already a member. Can there be a rule saying they cannot be appointed as an office holder within the voluntary organisation? To be more specific, what if a voluntary body institutes a rule that members over 80 cannot hold office? Whether or not this is unlawful is not immediately clear.
It might be said that to become an office holder is a “benefit”, and, as noted above, a voluntary body can discriminate on the basis of age in providing benefits. What is a “benefit”, though? Certainly, being an office holder is a responsibility. But, some “offices” come with perks – members of parliament, for example, have a long list of benefits. The matter seems to come down to whether there are tangible benefits in your particular role as office holder. Are some reimbursements for expenses incurred in fulfilling your duties as office holder enough? The bottom line at the moment is that there is no guidance from the Courts on this question.
What should you do?
If you are in this situation, it might be worthwhile making inquiries and possibly a complaint to the Australian Human Rights Commission. Of course, this suggestion is no substitute for more detailed legal advice based on your particular situation.
Blackburn High School Music Awards of Excellence
|Posted by ddemarchi44 on 31 October, 2013 at 0:40||comments ()|
It was a pleasure to attend at Gennazzano's Ladies College music hall on Tuesday the 23rd of October 2013 to attend at the Blackburn High School Seniors Ensembles Concert and to present the ensemble and instrument award of excellence cerfificates to two of the Blackburn High School students.
RSL State Conference
|Posted by ddemarchi44 on 5 July, 2013 at 16:15||comments ()|
by Dino De Marchi
It was a pleasure to attend with veteran Fred Cullen OAM, President of the Ivanhoe sub branch, the recently concluded State Conference of the RSL.
Four important motions in particular were passed which increased potential benefits for entitled veterans:
- The Payment of all hearing aids for entitled veterans. In the past the department of veteran's affairs only approved more economical aids for entitled veterans. The gap between more proficient hearing aids had to be met by individual veterans.
- The generous standard of proof of a reasonable hypothesis has over the years been watered down by Federal court decisions. A motion to ensure that traumatic events and the relationship to operations service are dealt with by the generous standard of section 120 (1) of the Veteran's entitlement's act was passed by the conference.
- Section 24 of the Veteran's entitlement's act deals with special rate pensions. These are various substantial pensions. The 100% general rate pension amounts to $440.00 per fortnight. The special rate pension is in excess of $1200.00 per fortnight. Previously the difference between a veteran who is entitled to a special pension and a veteran who is not entitled depended on chance events, making the law unfair in the case of some veterans. The remit would replaced the requirement of being prevented from working by war-caused injuries or diseases 'alone' with 'substantially', and clarifying under what circumstances one must seek work and under what circumstances one does not have to seek work due to their war-caused incapacity to work.
- The question of matters being determined on a substantial merits of the case without regard to legal technicalities was also discussed and passed by the conference.
If the above motions are taken up by the National executive of the RSL later in the year and pushed as important issues for legislative amendment, veterans should see an improvement in their entitlement determinations.
It is again a pleasure to advance the cause of veterans and I look forward to your comments.
Dino De Marchi