The Law Handbook

YOUR PRACTICAL GUIDE TO THE LAW IN NEW SOUTH WALES

15th EDITION

REDFERN LEGAL CENTRE PUBLISHING

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 Published in Sydney
by Thomson Reuters (Professional) Australia Limited
ABN 64 058 914 668

19 Harris Street, Pyrmont NSW 2009

First edition published by Redfern Legal Centre as The Legal Resources Book (NSW) in 1978.
First published as The Law Handbook in 1983
Second edition 1986
Third edition 1988
Fourth edition 1991
Fifth edition 1995
Sixth edition 1997
Seventh edition 1999
Eighth edition 2002
Ninth edition 2004
Tenth edition 2007
Eleventh edition 2009
Twelfth edition 2012
Thirteenth edition 2014
Fourteenth edition 2016
Fifteenth edition 2019

Note to readers: While every effort has been made to ensure the information in this book is as up to date and as
accurate as possible, the law is complex and constantly changing and readers are advised to seek expert advice
when faced with specific problems. The Law Handbook is intended as a guide to the law and should not be used as
a substitute for legal advice.

ISBN: 9780455243689

© 2020 Thomson Reuters (Professional) Australia Limited asserts copyright in the compilation of the work
and the authors assert copyright in their individual chapters.

This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the
Copyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying,
photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior
written permission. Inquiries should be addressed to the publishers.

This edition is up to date as of 1 October 2019.

The Law Handbook is part of a family of legal resource books published in other states:
Vic: The Law Handbook by Fitzroy Legal Service, ph: (03) 9419 3744
SA: Law Handbook by the Legal Services Commission of South Australia, ph: (08) 8111 5555
Qld: The Queensland Law Handbook by Caxton Legal Centre, ph: (07) 3214 6333
Tas: Tasmanian Law Handbook by Hobart Community Legal Service, ph: (03) 6223 2500
NT: The Northern Territory Law Handbook by Northern Territory Legal Aid Commission,
Australasian Legal Information Institute and Darwin Community Legal Services, ph: (08) 8982 1111

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 1
About the Legal System
Catherine Bryant – Legal Information Access Centre,
State Library of NSW

Andrew Haesler – District Court NSW

Simon Rice – University of Sydney Law School

Natalie Ross – Kingsford Legal Centre

[1.10] Fundamental concepts ............................... 2 [1.370] Representing yourself in court ................. 16

[1.20] Common law and statute law ....................... 2 [1.420] Legal documents ........................................ 18
[1.60] Criminal law and civil law ............................. 4 [1.430] Agreements and deeds ............................... 19
[1.80] State and territory law and federal law ......... 5 [1.450] Birth, death and marriage certificates ......... 20
[1.100] Courts.......................................................... 7 [1.480] Changing a name ....................................... 21
[1.110] State courts .................................................. 7 [1.550] Statutory declarations ................................. 23
[1.150] Federal courts ............................................... 8 [1.610] Affidavits .................................................... 26
[1.200] Juries ............................................................ 9 [1.660] Notices to attend court .............................. 28
[1.230] Tribunals and commissions ......................... 11 [1.690] Passports .................................................... 29
[1.270] Time limits.................................................. 13 [1.780] Power of attorney ....................................... 31
[1.300] Appeals ...................................................... 13 [1.870] Doing legal research ................................. 33
[1.340] Enforcing the law ....................................... 14 [1.880] Finding legislation and cases....................... 34

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 2 The Law Handbook

FUNDAMENTAL CONCEPTS
[1.10] Every law in Australia is: Every law also has a particular jurisdiction. The
• either common law or statute law; and jurisdiction of a law means:
• either criminal law or civil law; and • the geographical area it covers (eg, NSW or the
• either federal law or state/territory law. whole of Australia);
• its subject matter (eg, family law).

Common law and statute law

[1.20] Australian law comes from either: interpreting Acts of parliament are precedents that
• the common law (judge-made law or case courts can later use.
law); or
• an Act of parliament (statute law). The doctrine of precedent in Australia
Aboriginal and Torres Strait Islander customary
Some of the rules that make up the doctrine of
law also has some limited application (see precedent in Australia are:
Aboriginal and Torres Strait Islander law at [1.50]).
• in the hierarchy of the court system, a decision of
a higher court is binding on lower courts;
[1.30] Common law • most courts are not bound to follow their own
previous decisions, although they are expected
The centuries-old tradition of English law is that to do so;
judges decide each dispute (a “case”) as it comes
• the highest court in Australia, the High Court, is
to court, and give reasons for their decision. These not bound to follow its own decisions;
reasons, or judgments, are published in books
• the decisions of courts outside Australia are not
called law reports (and now also on the internet). binding on Australian courts. However, Australian
The accumulation of judges’ decisions over many courts can refer to them, often from the United
years is what is called the common law – law made Kingdom, for guidance or comparison if, for
by judges in deciding common disputes. example, a case is unusual or difficult;
NSW inherited the English common law, and • when a court makes a decision, it gives reasons
from early in the 19th century, judges in NSW have for its decision. Another case with similar but not
been developing the common law in Australia. identical facts can be decided differently (ie, it can
be distinguished). It is often said that “each case
will be decided on its own facts”.
The doctrine of precedent
Judges are bound by a strong tradition to decide
cases consistently with earlier decisions based
on similar facts. This approach to decision-
making is called the doctrine of precedent, and
[1.40] Statute law
the principles and rules generated by the earlier Acts of parliament
decisions form, collectively, the principles and There was no parliament in NSW until 1823. Before
rules of the common law. If the facts of a case then, the NSW Governor had very wide powers to
are completely new, without precedent, a judge run the colony. English Acts of parliament applied
will develop a new principle as consistently as in NSW from 1828, and thereafter the British
possible with similar cases. In this way, judges government gradually increased the role of the
develop common law rules in areas not covered NSW parliament while reducing the power of the
by legislation. Governor.
In 1855, the British government gave NSW clear
Interpreting the law powers to make its own laws, and Australia’s
Judges also have an important role in interpreting parliament-made laws (statutes or Acts) date from
legislation (see [1.50]). The decisions they make in that time.

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 1 About the Legal System 3

Each Australian state has power to make its It is important always to check the currency of
own laws. Since 1901, the federal government has an Act you are reading to make sure that it has not
had power to make laws for the whole of Australia been amended.
within its powers under the Constitution (see
[1.90]). Delegated legislation
There are also laws associated with Acts that go
Bills
into more detail than the more general terms of
While a state or federal parliament is considering
an Act. These are often called Regulations, but can
whether or not to pass an Act, the draft Act is
have other names, including rules, ordinances and
called a Bill. A Bill must be agreed to by (“passed
by-laws. They are collectively known as delegated
by”) parliament and receive royal assent (approval
legislation, and they always relate to the Act under
by) the Governor-General or the relevant State
which they are made.
Governor) before it becomes an Act.
Delegated legislation such as Regulations
When does an Act come into effect? needs to be considered, along with the Act, when
After a Bill becomes an Act, it does not necessarily researching the law.
become operational or “commence” immediately. It How is delegated legislation made?
may commence on a date specified in the Act itself, An Act often empowers some authority (a local
or by proclamation (publication in the Government council, parliamentary minister, public authority
Gazette). Different parts of an Act may commence or public servant) to make delegated legislation
at different times. If no time is specified, an Act from time to time, although it must be submitted
commences 28 days after receiving the royal to parliament before it becomes law. In NSW, the
assent. minister with the relevant responsibility usually
In practice, some Acts or parts of an Act never has to give public notice of proposed delegated
actually come into operation because, for a range legislation and call for comments. Most delegated
of practical or political reasons, they are never legislation automatically expires five years after it
proclaimed to commence. is made.
Once an Act, or part of it, commences, it
becomes law.
Publication of Acts and Regulations
Names of Acts The most up-to-date versions of Acts and Regulations
An Act is identified by name, date, and jurisdiction; are most easily available on the internet (see [1.870]).
for example, the Fair Work Act 2009 (Cth) or the As well, they are printed in statute books for each year,
Bail Act 2013 (NSW). The name usually indicates available in the State Library of New South Wales.
its content, the date is the year it passed through
parliament (which is not necessarily the date it
commenced), and the jurisdiction is the parliament
that passed it. How statute and
[1.50]
Definition of the terms used in an Act common law affect each other
Most Acts have a “definitions” section at the
beginning (around s 4), or a Schedule at the end Interpretation of Acts
called the Dictionary, to explain what is meant Acts are sometimes drafted in very broad terms.
by words and phrases used in the Act. These Courts must often decide their meaning, and the
definitions are crucial to understanding the Act. court’s interpretation becomes part of the common
law in that area. For example, the law on families
Repeals and amendments is found not only in the Commonwealth Family
From time to time, a parliament repeals (cancels) Law Act 1975 (Cth), but also in the decisions courts
or amends (changes) an Act, usually by passing have made on matters controlled by the Act.
an Act with a similar name indicating the nature
of the amendment. For example, the Real Property Interpretation Acts
Act 1900 (NSW) was amended by the Real An Act is interpreted according to rules and
Property Amendment (Electronic Conveyancing) Act definitions set out in an “interpretation”
2015 (NSW). statute in each jurisdiction, such as the Acts

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 4 The Law Handbook

Interpretation Act 1901 (Cth) and the Interpretation Where the law is unclear
Act 1987 (NSW). Occasionally, the courts are uncertain about the
meaning of an Act, or make unclear or unhelpful
The purpose rule of interpretation decisions about it. Only a later court decision, or
an Act of parliament, can authoritatively clarify
A very important rule made to assist in the
interpretation of Acts is the “purpose” rule of the uncertainty.
interpretation, which says that Acts are to be It is particularly important to seek advice from a
interpreted in a way that promotes the underlying lawyer when the law is unclear.
purpose or object of the Act.

Unconstitutional Acts
The High Court of Australia or a state Supreme
Can a judge overrule an Act? Court can declare an Act invalid and of no
An Act is binding on all courts and judges. Judges effect if (and only if) the Act is found to be
can overrule or challenge the validity of an Act unconstitutional (ie, the parliament did not
only in rare circumstances (see Unconstitutional actually have the power to make it – see [1.80]).
Acts at [1.50]). The ACT and NT Supreme Courts can do the
same under the federal self-government laws.
Which takes priority? Under human rights legislation in Victoria,
If an Act and a common law rule apply to the Queensland and the ACT, but nowhere else in
same subject matter, and they are inconsistent, Australia, a state or territory Supreme Court can
the Act overrides the common law to the extent declare that an Act is in breach of human rights,
of the inconsistency. If, for example, the courts but that declaration does not invalidate the Act.
create a new common law principle, parliament
can overrule it or vary it with an Act. The common For information on how to find statute and common
law principle of native title which was recognised law using a range of legal tools and resources, see
by the High Court in the Mabo case was varied by [1.870].
the subsequent Native Title Act 1993 (Cth).

Aboriginal and Torres Strait Islander law

The customary laws of Aboriginal and Torres Strait As a result of the High Court decision in Mabo in
Islander peoples were given little recognition by the 1992, there is now limited recognition of Aboriginal
legal system until recently. ownership and use of land (native title). As well, there
When the English colonised Australia, they ignored is now limited recognition of indigenous customary
Indigenous ownership of land. This continued until law, which has some influence in the sentencing
quite recently, assisted by the legal fiction that of Aboriginal offenders and in areas such as family
Australia was terra nullius (land belonging to no-one) relationships and the protection of sacred sites.
at the time of colonisation. The legal argument, now The law as it particularly concerns Aboriginal people
discredited, was that Australia was “settled” (because is discussed in detail in Chapter 2, Aboriginal People
it was considered vacant) rather than conquered. and the Law.

Criminal law and civil law

stealing, assault, fraud, failing to lodge tax
[1.60] Criminal law returns, and polluting.
A crime, or offence, is conduct that is contrary The government has the role of prosecuting or
to the criminal laws that reflect society’s enforcing the criminal law against a person or
expectations of personal conduct, such as company, usually through the police, the Director

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 1 About the Legal System 5

of Public Prosecutions or some other government Civil law cases usually involve individuals,
body, such as SafeWork NSW. companies or government bodies taking legal
A person who is being prosecuted in criminal action against other individuals, companies or
law is called the defendant or the accused. government bodies, often for doing something
that is alleged to be unfair, harmful, or contrary to
The burden of proof an agreement.
In criminal law, the burden (or onus) of proof is A person bringing a civil case is called a
on the prosecution. The accused is presumed to plaintiff or, sometimes, an applicant or complainant.
be innocent until and unless the prosecution can A person against whom a civil action is taken is
prove them guilty. called a defendant or respondent.

The standard of proof Administrative law

In criminal law, the standard to which a prosecutor Administrative law is a form of civil law that
must prove an alleged offence is “beyond usually involves legal action between a person or
reasonable doubt”. company and a government agency, something
that has become much more common in the last
Penalties 40 years. Some administrative law actions seek
A penalty, such as a fine, a bond or imprisonment, review of a government decision, and others try to
can be imposed on a person or company found to compel or prevent action by the government.
have committed a criminal offence.
It is possible to be found guilty but to have no The standard of proof
conviction recorded or penalty imposed. In civil law, the standard to which a person
must prove their allegation is “on the balance
Criminal law is discussed in detail in Chapter 14, of probabilities”, meaning it must be proved
Criminal Law. that something is more likely than not to have
happened.

Court orders
[1.70] Civil law In a civil case, the plaintiff or applicant can seek
Broadly speaking, civil law is all law that is not an order for compensation (damages) from the
criminal law. Examples of matters that come under defendant, and/or an order that some conduct
the heading “civil law” are the law of negligence, of the defendant be required or stopped (eg,
family law, employment, debt, discrimination and an injunction). In administrative law, the court
contract law. (The term “civil law” also refers to can order that a government decision under
the type of legal system that is found in many review is affirmed, varied or set aside, or that a
European, Asian, African and South American government agency must act or cease from acting
countries, in contrast with the “common law” in a certain way.
system of England, the United States and the
British Commonwealth.)

State and territory law and federal law

Act, or part of it, can be declared by the relevant
State and federal
[1.80] Supreme Court to be invalid.
constitutions The Australian Capital Territory and the
Northern Territory are in a different position.
Australia and its states all have constitutions.
They are created by the Commonwealth
These are the source of the various parliaments’
government and, although they make their own
power to make legislation. If an Act goes beyond
laws under self-governing powers, those powers
the power given in the constitution, then the

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 6 The Law Handbook

are given and can be limited by Commonwealth to international treaties signed by the federal
legislation. government.
For example, the Racial Discrimination Act 1975
(Cth) gives effect to Australia’s obligations under
What state, territory and
[1.90] the United Nations’ Convention for the Elimination
federal laws cover of all Forms of Racial Discrimination.
The laws of the federal parliament apply to
everyone in Australia, while NSW law applies to State and territory legislation
people and things in NSW or having a connection Under their own constitutions, state parliaments
with NSW. Generally, federal and state legislation have the general power to make a law on any
deal with different matters. matter as long as it is for “the peace, welfare and
good government” of the state – a very wide
power. This means that states can make a law on
Federal legislation any matter, including matters listed in s 51 of the
The federal parliament can only make laws about
Constitution, as long as the law is not inconsistent
matters listed in s 51 of the Australian Constitution.
with a Commonwealth law.
If a matter is not listed, the power to make laws
Matters dealt with by the states commonly
about it lies with the states.
include:
Matters about which the federal parliament can
legislate include: • health;
• defence; • education;
• taxation; • roads and traffic;
• customs; • building;
• migration; • local government;
• social security; • the environment.
• marriage. The Australian Capital Territory and the Northern
Territory make laws on similar matters under their
These powers reflect the world as the drafters of
self-governing powers.
the Constitution saw it in the 1890s. For example,
the “marriage” power does not cover the families
of de facto couples, which means it is a state Inconsistent legislation
concern. But under s 51, the states can agree to A state Act and a Commonwealth Act can
hand over powers to the federal parliament, and cover the same matter as long as they are not
they have done so for de facto couples to avoid inconsistent (eg, as well as the Commonwealth
confusion and duplication. Racial Discrimination Act, all states have laws
prohibiting racial discrimination). If the laws are
The external affairs power inconsistent, the federal law prevails to the extent
Section 51 of the Constitution also gives the federal of the inconsistency (Australian Constitution,
parliament the power to make laws in relation s 109). The same is true of territory legislation, not
to “external affairs”. It is this power that enables because of s 109 but because of the terms of self-
federal parliament to make laws giving effect governing powers given to the territories.

Inequities in the law

The law works differently for different people. Some may use processes and make decisions that are
groups are consistently disadvantaged in our system; insensitive to those people;
for example: • legal advice and resources are not readily available
• the legal system operates in English, which is not to people who do not have the means to pay
the first language of many Australians; for them.
• most judges are not familiar with the day-to- To a large extent, these inequities have occurred
day circumstances of, for example, people with because people from these groups are not usually
disabilities and indigenous peoples, and they included among the law-makers.

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 1 About the Legal System 7

Measures to improve access to the legal system legal centres, plain language publications, promoting
include law reform, the ongoing education of judges, pro bono work among lawyers and providing
the availability of interpreters, the work of community legal aid.

COURTS
[1.100] Many courts – state and federal –
operate in NSW. Court process is considered in detail in Chapter 14,
Criminal Law.
A court’s decision is binding on the people
involved in a case (known as the “parties” to a
case) and must be complied with. Further court
proceedings can be taken to force compliance.

Summary offences, indictable offences and committal hearings

Summary offences Court) unless the prosecution (or in some cases the
Summary offences are common offences such as accused) objects. Doing this reduces the length and
stealing, assault and possession of drugs, and are expense of the hearing and limits the jail term that
dealt with in the Local Court. can be imposed if there is a conviction.

Indictable offences Committal hearings

Indictable offences are more serious offences, such At a committal hearing for an indictable offence, the
as assault occasioning actual bodily harm and drug magistrate decides whether there is enough evidence
dealing, and are dealt with in the District or Supreme to send the accused for a trial in the District Court or
Courts after a committal hearing in a Local Court (see Supreme Court.
below).
Indictable offences dealt with summarily
Some specified indictable offences can be dealt with
as if they were summary offences (ie, in the Local

The law relating to committal for trial and the

classification of crimes as summary and indictable is
in the Criminal Procedure Act 1986 (NSW).

State courts
[1.110] The three main courts in NSW are:
• the Local Court (which used to be called
[1.120] The Local Court
the Court of Petty Sessions, and is called a The Local Court has jurisdiction to deal with:
Magistrates Court in some other states); • small civil claims where the amount claimed is
• the District Court (which is called a County up to $20,000;
Court in some other states); and • civil claims where the amount claimed for
• the Supreme Court. personal injury or death is up to $60,000;

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 8 The Law Handbook

• all other civil claims such as contracts or motor The maximum jail sentence a judge can impose
vehicle damage where the amount claimed is is usually more than the maximum that can be
up to $100,000 or, if the parties agree, up to imposed by a magistrate.
$120,000;
• bail applications; Appeals
• summary offences; A single judge of the District Court decides
• some indictable offences; appeals from the Local Court, and decides
• committal hearings for other indictable offences. appeals in criminal and care matters from the
All cases in the Local Court are decided by a Children’s Court.
magistrate (not a judge), without a jury. The
maximum jail sentence a magistrate can impose is [1.140] The Supreme Court
usually two years – less for some offences. The Supreme Court decides civil and criminal
matters under state laws that are outside the
Other courts at the Local Court level jurisdiction of the Local and District Courts and
specialist tribunals (see [1.230]). The Land and
Other NSW courts at the same level of the hierarchy
Environment Court is a specialist court with the
as the Local Court include the Coroner’s Court,
the Children’s Court and the Chief Industrial same status as the Supreme Court.
Magistrate’s Court.
Civil matters
In civil law, the Supreme Court hears civil claims over
[1.130] The District Court $750,000, commercial disputes, and matters relating
to probate, judicial review of administrative decisions,
The District Court has jurisdiction to deal with: and admiralty. Civil cases in the Supreme Court are
• most indictable criminal cases (see [1.140]); decided by a judge alone except in defamation trials
• appeals from decisions of magistrates in most and special circumstances (see [1.200]).
criminal matters;
• motor accident personal injury claims and work Criminal matters
place injury damages claims for any amount; The Supreme Court hears bail applications, and
• civil cases where the amount claimed is up to some serious indictable offences such as murder
$750,000, or more if the parties agree. and manslaughter, complex drug cases, and serious
breaches of the Corporations Law. Criminal cases
Civil matters in the Supreme Court are decided by a judge and
Civil cases in the District Court are decided by a a jury (unless it is a non-jury trial, in the same way
judge alone except in defamation trials and special as for District Court criminal matters – see [1.130]).
circumstances (see [1.200]).
Appeals
Criminal matters A single judge of the Supreme Court decides
Criminal cases in the District Court are usually appeals from the District Court and some tribunals.
heard by a judge and jury, with the judge deciding Sitting as the Court of Appeal (with a panel of
the law and the jury deciding questions of fact. three judges), the Supreme Court decides appeals
In some circumstances, a case can be heard from single judge decisions in the Supreme Court.
by a judge alone, without a jury, but only if the Sitting as the Court of Criminal Appeal (with
accused requests it after getting legal advice, and a panel of three or five judges), the Supreme
the prosecution agrees. Court decides criminal appeals from single judge
decisions in the Supreme Court and from decisions
in the District Court.

Federal courts
[1.150] Federal courts in NSW deal with or involve NSW people or companies. Areas of
federal laws when the circumstances arise in NSW federal law include:

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 1 About the Legal System 9

• family law; • actions under the Australian Consumer Law;

• discrimination; • bankruptcy;
• bankruptcy; • taxation;
• consumer protection; • judicial review of government decisions;
• privacy; • appeals from federal tribunals and the Federal
• actions under the federal Competition and Circuit Court.
Consumer Act 2010 (Cth); An appeal from a single judge of the Federal Court
• taxation; is decided by a “full bench” of the Federal Court,
• review of decisions made by federal which comprises three judges.
government officers.
The main federal courts are: The Family Court of
[1.180]
• the Federal Circuit Court (formerly the Federal
Magistrates Court); Australia
• the Federal Court of Australia; The Family Court deals with:
• the Family Court of Australia; • cases concerning property and children of a
• the High Court of Australia. marriage (see Chapter 24, Family Law);
• cases concerning property and children of
opposite-sex and same-sex de facto couples.
[1.160]The Federal An appeal from a single judge of the Family
Circuit Court Court is decided by a “full bench” of the Family
The Federal Circuit Court was established (initially Court, which comprises three judges. In late 2019
as the Federal Magistrates Court) to offer a lower a proposal to merge the Family Court with the
level, simpler federal court and ease the workload Federal Circuit Court had not been resolved.
of the Federal Court and the Family Court. It
shares the jurisdiction of both those courts, but is The High Court of
[1.190]
independent of them. It deals with a wide range of
matters, including: Australia
• family law (a large part of its work – but see The High Court sits permanently in Canberra but
[1.180]); from time to time in other capital cities. It was
• consumer protection; established by the Constitution as the highest
court in Australia.
• discrimination;
Some matters (eg, constitutional matters) start
• bankruptcy;
in the High Court. The High Court also hears
• copyright; appeals from:
• migration; • state and Territory Supreme Courts;
• privacy. • the federal courts.
The High Court is the final court of appeal for
The Federal Court of
[1.170] Australia, and its decisions are binding on all
Australia courts and tribunals. It is possible to appeal to
the High Court only if the High Court gives
The Federal Court’s business includes: permission (“special leave”).

Juries
[1.200] Juries are most commonly used in selected members of the public, can bring the
indictable criminal matters. Occasionally they are conscience of the community to bear on issues in
used in civil matters, usually defamation. a trial in a way that a judge cannot do; and that
It is considered that the jury system enables the jury service promotes public understanding of the
democratic participation of the community in the system and confidence in it.
administration of justice; that jurors, as randomly

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 10 The Law Handbook

[1.210] What the jury does [1.220] The jury roll

The jury listens to and looks at the evidence, and Jury rolls are generated randomly by computer
decides the facts of a case. The judge decides legal from the electoral rolls, so everyone enrolled as a
issues that arise in the case and gives the jury voter in NSW is available for jury service.
guidance and directions. Anyone on the jury roll may be summonsed to
The procedures for a jury are described in the court for jury duty. The NSW Sheriff’s Office is
Jury Act 1977 (NSW). responsible for arrangements relating to juries.
People on the jury roll are advised by post. The
Criminal juries notice advises the period of inclusion on the jury
In indictable cases, tried in the District or Supreme roll (generally 12 months).
Courts, a jury consisting of 12 people decides
whether criminal guilt has been proved beyond
reasonable doubt. If an accused is found to be guilty,
Who is excluded?
There are many categories of people excluded
the sentence is decided by the judge, not the jury.
from jury service under the Jury Act (in Sch 1) and
If a juror is unable to continue, then the number
the Commonwealth Jury Exemption Act 1965 (Cth).
can be reduced to 10, or even eight if the trial has
The long list of excluded people includes:
been going for more than two months or both the
prosecution and defence agree. The jury’s decision, • parliamentarians, lawyers, police officers,
called a verdict, must be unanimous. If, after trying members of the Defence Force, and some public
to reach a verdict for at least eight hours, the jury servants;
cannot reach a unanimous verdict, then the court can • prisoners, and people who have committed
allow a majority verdict of 11 out of 12, or 10 out of 11. certain serious offences;
A jury of fewer than 11 must always be unanimous. • people who have been imprisoned, for up to
10 years after their release;
• undischarged bankrupts.
Non-jury trials
It used to be mandatory to have juries in serious
criminal cases. However, it is now possible to have
Who is exempt?
a District or Supreme Court trial with a judge sitting The Jury Act (in Sch 2) allows people in some
alone (without a jury) when the accused requests it categories to claim exemption from jury service.
after getting legal advice and the Director of Public These include:
Prosecutions agrees. • practising doctors, dentists and pharmacists;
• employed members of the emergency services;
• clergy and vowed members of a religious order;
Civil cases • full-time, live-in carers of sick, infirm or
Juries are never used in the Local Court. They are disabled persons.
used in civil cases in the District and Supreme Sections 14 and 14A of the Jury Act allow any
Courts very rarely. They are used in defamation person to claim exemption for “good cause”,
cases if a party requests it and the court agrees. They which means:
can be used in other cases when a party requests it, • jury service would cause undue financial
the judge thinks it is necessary “in the interests of hardship or serious inconvenience;
justice”, and the party pays the cost of it. • a disability which, without reasonable
A civil jury usually consists of four people, but accommodation, means that a person cannot
can be 12 in the Supreme Court. effectively be a juror;
• a conflict of interest;
Coroner’s cases • any other reason “that would affect the person’s
A jury can be used at a coroner’s inquest into the ability to perform the functions of a juror”.
cause of a death in certain circumstances, but If summonsed to jury duty, a person can complete
only if the State Coroner considers that there are the appropriate section of the summons and return
sufficient reasons to justify it (Coroners Act 2009 it with proof of their claim to be excluded or exempt.
(NSW), s 48). If the application is rejected, the person must
A coroner’s jury consists of six people. attend for jury service as required, although

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 1 About the Legal System 11

they can then apply to the judge or coroner to be Office and judges are reluctant to excuse people
excused. from carrying out their civic duty of jury service.
Only very good reasons for exemption, such as
a medical condition or a threat to the viability of Further information on jury service is available from
a business, are likely to be accepted. The Sheriff’s the NSW Sheriff’s Office.

Tribunals and commissions

[1.230] Many state and federal tribunals and Formal and informal hearings
commissions operate alongside the court system. The style of hearing varies between tribunals, but
Whether they are called tribunals or commissions, in most tribunals, particularly the large ones such
they are specialist bodies created by Acts of as NCAT and the AAT, hearings resemble those of
parliament to deal with particular issues. courts – lawyers represent the parties, witnesses
Tribunals and commissions are usually intended are cross-examined and so on. Differently from
to be easier to use, cheaper and faster than courts. courts, tribunals often allow non-lawyers to assist
For example, unlike courts, they are usually not people in hearings.
bound by the rules of evidence (see Chapter 14,
Criminal Law).
To understand the powers and procedures of a Appeal from tribunal decisions
specific tribunal, it is necessary to look at the Act In most cases there is a right, set out in the relevant
that created it, regulations and rules, and practice Act, to appeal to a court from a tribunal decision.
notes issued by the tribunal. Usually appeals are restricted to legal questions – it is
very rare that the court can come to new conclusions
[1.240] How tribunals operate about the facts that have already been decided.
Even if there is no right of appeal in the Act, a
Tribunals usually hold hearings to decide cases, person may be able to go to the Supreme Court
where people are obliged to attend to give to seek judicial review of a tribunal decision.
evidence. This is possible if the tribunal has acted outside
its jurisdiction or has not complied with the
NSW tribunals formal requirements of procedural fairness (see
Chapter 9, Complaints).
Tribunals and commissions established by a NSW law
deal with NSW law. Most previously existing NSW
tribunals have been consolidated into a single “super”
tribunal, the NSW Civil and Administrative Tribunal [1.250] Commissions of inquiry
(NCAT). Federal tribunals located in NSW deal with Occasionally, commissions of inquiry are set up
federal law. Some previously existing federal tribunals
by governments for a limited period to investigate
(eg, the Migration Review Tribunal, the Refugee
Review Tribunal, and the Social Security Appeals particular issues or areas of concern. They gather
Tribunal) have been merged with the Administrative information in various ways, including by holding
Appeals Tribunal (AAT). hearings and calling witnesses.
They differ from courts and tribunals in that
they do not make legally binding decisions, but
instead produce reports on their findings with
Who conducts tribunal cases? recommendations for future action.
In some tribunals, cases are conducted (heard) Recent commissions of inquiry in NSW
by two or three tribunal members, at least one of include a Special Commission of Inquiry Concerning
whom has legal training. The other members have the Investigation of Certain Child Sexual Abuse
relevant expertise. Allegations in the Hunter Region (2014) and a Special
In many tribunals, such as the AAT, it is usual Commission of Inquiry into the Greyhound Racing
for just one member to conduct the hearing. Industry in New South Wales (2014).

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 12 The Law Handbook

Powers of royal commissions

Law reform commissions The state and federal Royal Commission
There is a law reform commission at both state and Acts confer wide-ranging powers on royal
federal level. They usually investigate questions commissions, including the power to summon a
referred to them by the relevant Attorney-General. person to give evidence and produce documents.
In NSW, individuals and groups can approach the Law It is an offence to fail to comply, and a warrant
Reform Commission and suggest areas where reform can be issued for the person’s arrest. It is also an
is needed. With the Attorney General’s approval, the offence not to answer questions or to knowingly
commission can then investigate these areas and give false or misleading evidence.
make recommendations. Members of the public can
also contribute to the process by making submissions
on matters being investigated. The evidence of Who can appear
community groups with direct experience of people’s
It is up to the commissioner to decide whether to
problems with the law is particularly valuable.
allow a person to appear or be represented before
Once a commission has investigated a matter, it a commission. This will be authorised if:
makes recommendations for reform. It is then up
to the government to decide whether to turn those • the person is “substantially and directly”
recommendations into law. interested in the subject of the inquiry; or
• their conduct has been challenged to their
detriment (Royal Commissions Act 1923
(NSW), s 7).
Each tribunal and commission operates differently.
For information about a particular tribunal, contact
it directly. Legal assistance
Both state and federal governments may provide
funding for legal assistance and representation
for some people appearing at royal commissions,
[1.260] Royal commissions or as witnesses. This funding is at the discretion
Royal commissions are commissions of inquiry of the government and is not part of the legal aid
that have particularly strong powers to investigate budget.
matters and to call and question witnesses. Royal commission reports
Although people often call for a royal commission At the end of an inquiry, the royal commission
to inquire into an issue, royal commissions are produces a report containing conclusions and
not commonly held. Recent topics for royal recommendations; for example:
commissions include, at the Commonwealth level,
• suggesting reform to laws or practices;
the Royal Commission into Institutional Responses
• recommending that criminal or other
to Child Sexual Abuse (2013), the Royal Commission
proceedings be taken against individuals.
into Misconduct in the Banking, Superannuation and
Financial Services Industry (2017), and the Royal A royal commission can also refer evidence to law
Commission into Aged Care Quality and Safety (2018). enforcement agencies.
In NSW, royal commissions have been held into,
for example, corruption in the NSW Police Service The ICAC and the PIC
(1997) and deep sleep therapy (the Chelmsford The NSW Independent Commission Against
Inquiry) in 1990. Corruption (ICAC) and the Police Integrity
Commission (PIC) have powers of investigation
Terms of reference very like those of a royal commission, but they are
permanent bodies. In some respects, they are like
The state or federal government sets a royal
ongoing royal commissions, investigating one matter
commission’s agenda (its terms of reference). after another, but setting their own agenda under the
general heading of “corruption”.
Royal commission staff
The government appoints a commissioner (or
more than one) – usually a senior barrister or
The ICAC and the PIC are discussed in Chapter 9,
judge. The commissioner’s staff includes lawyers, Complaints.
investigators and administrative personnel.

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 1 About the Legal System 13

Time limits
[1.270] Usually there are time limits for making For personal injury, the limit is usually three
a claim in a court or tribunal. For many court years, although it can be longer or can be extended
actions, these are set out in the Limitation Act 1969 in certain circumstances, and does not apply to a
(NSW); some are set out in the relevant legislation, minor until they turn 18.
such as the Anti-Discrimination Act 1977 (NSW).
It is very important to get legal advice about Time limits in other Acts
time limits as soon as something happens that There are also limits set out in other Acts. For
could lead to a claim. The discussion below example, compensation claims under the Motor
indicates only the types of limits that may apply Accidents Act 1988 (NSW) have to be made within
and should not be relied on. six months of the accident unless the person
can give a full and satisfactory explanation
[1.280] Criminal cases for the delay, and claims under the NSW Anti-
Police must commence a prosecution within six Discrimination Act must be made with 12 months.
months for summary offences, but there is no time Always check the relevant Act for any time limits.
limit for indictable offences.
Extensions of time
[1.290] Civil actions Sometimes – not always – the law allows a time
limit to be extended if special conditions are
Under the Limitation Act, a civil claim must usually satisfied (eg, Limitation Act, ss 52–56). However,
be commenced within six years after the date on it is not safe to rely on getting an extension. It is
which it could first have been made; that is, after important to find out what the relevant time limit
the date the incident happened or the damage is and to take steps to resolve a legal problem
became apparent. without delay.
There are exceptions to this. For example, claims
based on a deed (see [1.440]), or to recover money
Time limits for various matters are discussed
or other property under a court judgment, have a throughout the book.
12-year limit.

Appeals
[1.300] A person who is dissatisfied with the
decision of a court or tribunal can sometimes What courts hear
[1.320]
appeal to a higher court for a review, although
there are restrictions on the right of appeal.
appeals?
The decision of the highest court that makes a Appeals from NSW courts and tribunals
decision is final. • Appeals from the Local Court, the District
Court and most tribunals are heard by the
[1.310] Appeals in civil matters Supreme Court.
Appeals in civil matters must be lodged within a • An appeal against a decision of a single
short period, usually 21 or 28 days. Appeals are Supreme Court judge may be made to the
usually limited to a review of errors of law; a Court of Appeal, consisting of three members
higher court will very rarely reconsider findings of the Supreme Court.
of fact that have been made. • In criminal cases, appeals from the Supreme
The higher court can either affirm or overrule and District Courts go to the NSW Court of
the lower court’s decision (“uphold” or “dismiss” Criminal Appeal.
an appeal), or send the case back to the lower court • Appeals from the NSW Court of Appeal and
(“remit” it) to be decided again. the NSW Court of Criminal Appeal can, in

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 14 The Law Handbook

special circumstances, go to the High Court of first to a full bench of the full Federal Court
Australia. (three judges), then, in special circumstances,
to the High Court.
Appeals from federal courts and tribunals
• Appeals from a judge of the Family Court go Appeals to the High Court
first to a full bench of the Family Court (three Appeals to the High Court are possible only if the
judges), then, in special circumstances, to the High Court gives permission. This is called special
High Court. leave, and is given only if two or three judges
• Appeals from federal tribunals go to the of the High Court consider that the issues are
Administrative Appeals Tribunal and then to sufficiently important in the development of the
the Federal Court. law in Australia to justify considering the appeal.
• Appeals from the Federal Circuit Court go to a
single judge or a full bench of the Federal Court
or Family Court.
[1.330] Appeals in criminal cases
See Chapter 14, Criminal Law, for information on
• Appeals from the Federal Court, where
appeals in criminal cases.
normally one judge decides a case, can be taken

Enforcing the law

• issuing an infringement notice;
[1.340] Criminal law • requiring someone to answer questions and
The police and the Director of Public Prosecutions produce documents for examination;
(DPP) prosecute criminal charges on behalf of • prosecuting the person in court.
the state.
Some regulatory bodies do their own prosecutions,
while others ask the Director of Public Prosecutions
Prosecutions by individuals to carry them out.
Private individuals may prosecute criminal offences.
However, this is rare; crimes must be proved beyond Infringement notices
reasonable doubt – very difficult without the
resources and powers of law enforcement agencies – Infringement notices are on-the-spot fines. They give
and there is the risk of having to pay the legal costs of the person the option of paying the fine or defending
an unsuccessful prosecution. the matter in court. Examples of matters for which
an infringement notice might be issued are parking
A person should get legal advice before beginning
and driving offences, littering, and failing to file a
private criminal proceedings.
company’s annual return.
The notice usually sets a time limit, for example of
28 days, to pay a fine or to choose to defend the
Government regulatory bodies matter in court.
A number of bodies created by parliament enforce Anyone who receives such a notice and is not sure
the legislation they administer; for example: what to do should seek legal advice.
• SafeWork NSW is responsible for work health
and safety laws;
• the Australian Competition and Consumer
Commission enforces the federal Australian [1.350] Civil law
Consumer Law. Civil law is enforced by people and companies
who claim they have been harmed, misled, or
How government bodies enforce laws treated unfairly. If one person’s negligence injures
Regulatory bodies use a range of strategies to another person, for example, it is up to the injured
enforce the law, including: person to sue to obtain compensation.
• pointing out to someone that they are in breach Generally, only the wronged or injured person
of the law and requiring something to be done; (“plaintiff” or “applicant”) is allowed to enforce

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 1 About the Legal System 15

the law against the other side (“defendant” or Administrative law

“respondent”). If a person is unable to participate Administrative law governs the processes, powers
in a case because, for example, they are under 18 and decisions of government bodies.
or lacking the intellectual ability to handle their Whether and how government obligations
own affairs, the court can agree to someone else under an Act can be enforced is generally
acting on their behalf. discussed in that Act. If review of government
decisions is available, it is usually through an
How civil cases are commenced administrative tribunal, such as the NSW Civil
Civil cases are commenced in a number of and Administrative Tribunal (NCAT) for NSW
different ways, depending on the type of case and law and the Administrative Appeals Tribunal
the particular court or tribunal that will deal with (AAT) for federal law.
it. Each has its own forms, rules and procedures. Usually a person who is adversely affected by
The usual procedure is for a plaintiff to fill out a government decision can take action to have
an application or a “statement of claim” and to that decision reviewed. There are rules about
deliver it to (“serve”) the defendant. The two standing that say who can enforce the law by
sides – plaintiff and defendant (or applicant and taking government authorities to court; these are
respondent) – are called the “parties”. discussed in Chapter 9, Complaints.
Court and tribunal staff can usually provide
information about what a person needs to do. [1.360] Legal assistance
Anyone who has to defend themselves in criminal
Paying the other party’s costs proceedings, or make or defend a civil claim, or
A common rule in enforcing a civil claim is that the apply for administrative review, should get advice
losing party pays the winning party’s legal costs. from a qualified lawyer in legal practice. Legal aid
This is intended to discourage people making may be available.
claims that lack merit. The rule usually applies
only to legal costs and witnesses’ expenses, not to
For information about people and services who
compensating the person for their own time and
can give legal advice and assistance, see Chapter 4,
effort. Assistance With Legal Problems.
The rule is usually enforced in courts, but often
does not apply in tribunals.

Finding out about the law

There are many resources for finding out the law, tenancy, buying a house, and defending yourself in
and getting explanations of the law (see [1.870]). court. It always includes the latest edition of The Law
These may provide all the information required and Handbook.
are likely to be easier to read than statutes and law Other resources
reports. You will find many of them in your local
public library. Useful internet sites are listed in [1.910] and the
Contact points of Chapter 4, Assistance With Legal
The Legal Tool Kit Problems. See also [1.870], for how to locate
All central public libraries in NSW have a collection statutes, case law and other legal materials and use
of up to 20 plain language law books called The them effectively.
Legal Tool Kit, covering subjects such as family law,

For free online legal information, visit the NSW State

Library’s legal information site at www.legalanswers.
sl.nsw.gov.au and the NSW Government’s free service
at www.lawaccess.nsw.gov.au.

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 16 The Law Handbook

REPRESENTING YOURSELF IN COURT

[1.370] You do not always need a lawyer when to take the case pro bono (ie, for free or for a
you have a legal problem. Most legal problems reduced fee).
do not end up in court, and often people can sort
issues out for themselves. How confident will you be speaking in court?
However, keep in mind that the law on any If you do not speak English well or are nervous
particular issue can be complex, and you should about speaking in public, you should probably get
always get advice from a lawyer about the action a lawyer to represent you.
you propose to take.
Will the other side in the case have a lawyer?
It can put you at a disadvantage if you represent
Where to go for advice yourself and the other side has a lawyer.
Free advice is available from the Legal Aid Commission,
community legal centres, chamber registrars at Local Where will your case be heard?
Courts and the LawAccess phone line (see Contact It is much more difficult to represent yourself
points of Chapter 4, Assistance With Legal Problems, in higher courts such as the District or Supreme
for a comprehensive list). Courts where procedures are very formal and
A lawyer at a community legal centre or Legal Aid matters are more serious.
Commission office can give you advice on what Self-representation is more common in the
action is needed and may be able to help negotiate Local Court and various tribunals, where the
with the other side, draft letters and fill in forms. They
proceedings are usually less formal.
can advise you in person or by phone.

Going ahead
Having considered all these points, you may decide
[1.380] Do you need a solicitor? that you can represent yourself. Every day in NSW,
people successfully represent themselves in Local
If your matter goes to court, you must decide Courts and tribunals. If you are properly advised and
whether you need to be represented by a lawyer. well prepared, you may do just as well as if you had a
lawyer acting for you, or better.

Matters to consider
In making a decision, you should consider the
questions discussed below. [1.390] Preparing for court
There are some basic preparations you should
How much time do you have? make if you have a case coming up in court. These
Court proceedings often involve a good deal of are discussed below.
preparation and hours of waiting around in courts
for a case to be heard.
Find out when your case will be heard
There is often a first date in court for the magistrate
What are the consequences of losing? or judge to decide whether a case is ready to go to
If they could be serious – for instance you could a hearing. If you are notified that your case is on in
go to jail, be evicted from your house or have to court on a particular day, check with the court that
pay large sums of money – you should definitely it will actually go to a hearing on that day.
use an experienced lawyer. If you can’t afford If the case is not listed for a hearing, ask the
one, find out whether legal aid is available (see court office what the initial appearance will
Chapter 4, Assistance With Legal Problems). If involve so you have any necessary information
you are not eligible for legal aid, see a lawyer ready. If the case is listed for a hearing, you will
at a community legal centre who may be able to need to be prepared to present your evidence and
represent you or help you find a lawyer willing call any witnesses.

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 1 About the Legal System 17

Do you need more time? Prepare details of your income and

If you have received a notice saying you have to go expenses
to court and have not been given enough time to If your case is about a debt matter or the magistrate
prepare for the hearing, seek an adjournment – that is considering giving you a fine in a criminal
is, ask the court to set another date for the hearing matter, the court will find it very useful to have
so you have more time. full details of your income and any debts.
Ask a community legal centre or Local Court Prepare a list showing how much money you
duty solicitor for advice about this before the date. get every week, what you pay out, for example on
rent, electricity, travel, food and so on, and how
Prepare your case much you have available to pay a debt or fine.
Work out exactly what you want the court to know You should also consider how long it would
about your case. It is a good idea to write this take you to pay back any fine or debt – the court
down so that you don’t forget anything. will generally give you time to pay. You could pay
Check your information with a lawyer at a a set amount every fortnight, for instance.
community legal centre or Legal Aid office before
your case is on. Arranging for an interpreter
If you are not confident about speaking English,
Prepare your witnesses you should think carefully before deciding to
Once you have a confirmed date for the hearing, represent yourself. If you decide to go ahead, you
make sure that all your witnesses can come to court can arrange an interpreter through the court.
on that day and bring any relevant documents For criminal cases, this should be free.
with them. For a civil case, you may have to pay, although
If a witness important to your case does not sometimes assistance is given on the grounds of
want to come you may be able to get a subpoena – hardship. Ask the court staff for details. (See also
that is, a court order requiring witnesses to appear the section on interpreters in Chapter 4, Assistance
in court or produce documents. With Legal Problems.)
Ask at the court office for advice about this as
soon as possible, as a subpoena needs to be issued Consider possible costs
a certain time before a hearing. If you are representing yourself, you will not have
to pay a lawyer, but often in civil cases if you lose
you have to pay the other side’s costs. If the other
Get information about the law side is represented by a lawyer, the costs may be
Find out as much as you can about the law and very high.
your legal position. In some cases, you may also have to pay court
One way to get this information is from a costs – for example, part of the court’s costs
lawyer at one of the free legal services described associated with conducting a hearing. Check with
in Chapter 4, Assistance With Legal Problems. the court to see if this applies in your case.
You can also find information in libraries, in You may also have to pay your witnesses to
particular the Legal Information Access Centre come to court – for example, if you are using
in the State Library of NSW, which was set up expert witnesses to give an opinion on something.
specifically to provide access to plain language
legal information for non-lawyers. Local public
libraries can also help with this information. [1.400] The hearing
Many government departments have The following points might help you present your
pamphlets and booklets on various regulations case on the day of the hearing:
and legal requirements. The Legal Information • pay careful attention to what is being said by
Access Centre has a list of these on their website. everyone in court so that you can respond
Just remember that the law can be complex, and accurately;
it is always a good idea to check your opinion of • take notes during the hearing to help you
what the law is with a lawyer. remember not only what was said, but when;

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 18 The Law Handbook

• be polite and courteous, especially if you are – your age, financial circumstances and
under stress. If you get angry or are rude to the occupation;
magistrate or other people, this may affect your – how you came to commit the offence and
case badly; any explanations you have;
• only one person can speak at a time. If you – medical information relevant to your
are not sure whether it is your turn to speak, circumstances (supported by a letter from
simply ask “May I say something please?” your doctor);
This will ensure that you have your say at the – why you need your driver’s licence, if you
appropriate time; are in danger of losing it;
• address people as “madam” or “sir” if you do • have character references ready.
not know how else to refer to them. Generally
magistrates and judges should be addressed as
Character references
“your honour”;
If you are charged with a criminal offence and you
• it may not seem important, but you will make
are pleading guilty, your references will give the
a better impression on the court if you wear magistrate some knowledge of your character. (You
clean, neat clothes on the day of the hearing. also need references if you are pleading not guilty –
the magistrate will take these into account before
Pleading guilty on a
[1.410] deciding on a sentence if you are found guilty.)
Get references from people the magistrate will regard
criminal charge as “respectable” members of the community, such
Before deciding to plead guilty to a criminal as teachers, ministers of religion, sports coaches and
community workers.
charge, you should get advice from a lawyer on
whether you are in fact guilty according to law, References should be addressed to the court.
and what the penalty is likely to be. If the matter is What the reference should say
serious, you should get a lawyer to represent you. In the reference, the referee should say:
If you decide to represent yourself on a guilty • how long they have known you;
plea, take the following steps: • how they know you (eg, as a family friend or
• ask the police to show you their statement of teacher);
facts or brief, so that you can check that you • that they know you have been charged with the
agree with the facts as the police have described offence;
them. If you do not agree, tell the magistrate • their opinion of your character;
which matters are not correct; • what the court should take into account when
• check the police details of your criminal record, considering your penalty.
if you have one. Again, tell the magistrate if the Get references especially for the case – don’t use
details are incorrect; references you have been given for other purposes
• be prepared to give the magistrate full details of such as job applications.

LEGAL DOCUMENTS
[1.420] This section explains some commonly elsewhere in the book; for example, Chapter 40,
used legal documents. There are many others not Wills, Estates and Funerals.
covered here. Some are discussed in more detail

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 1 About the Legal System 19

Agreements and deeds

Execution by a company
Oral and written
[1.430] A company executes a deed by affixing the
agreements company seal on the document in the presence
Legal agreements such as contracts (see Chapter 11, of both a permanent officer of the company and
Contracts) may be oral or in writing. a member of the governing body (eg, a director),
who then sign the deed as witnesses (s 51A).
The Australian Securities and Investments
Agreements that must be in writing Commission (ASIC) requires company seals to
Some agreements, such as agreements for sale of display the company’s Australian company number.
land and leases for a fixed period of more than
three years, must be in writing (Conveyancing Act Stamp duty
1919 (Cth), s 23C). When stamp duty must be paid
Stamp duty must be paid on:

[1.440] Deeds • deeds executed before 1 July 1998, which are

not valid and cannot be enforced in a court
A deed, also called an agreement under seal, is a unless they have been stamped; and
document that has been witnessed and signed, • deeds that convey or transfer property,
sealed and delivered, which means that the regardless of when they were executed (see
parties have: also Chapter 27, Housing).
• signed the document in front of a witness
(executed it); and
Revenue NSW can advise whether duty is payable on
• written the words “signed, sealed and a document.
delivered” on it (s 38).
Deeds can be enforced by the courts.
How is stamp duty assessed?
Why a written agreement is better The duty on a deed that conveys or transfers any
property of value is assessed according to the
If there is a dispute, an oral agreement has to be
value of the transaction.
proved in court by evidence from the parties about
what they recall and understood was said. A written When must a deed be stamped?
agreement is itself evidence of what the parties
intended to happen. A deed must be stamped within two months of the
date of execution.
If a person does not pay stamp duty within two
months, they may face a fine (up to 100% of the
stamp duty) as well as a criminal charge.
What deeds are used for
Deeds are used to make something legally binding; How to get a deed stamped
for example, to transfer property from one person A deed may be stamped by lodging it at
to another, to settle a dispute or set up a trust. Revenue NSW.
Unlike a contract, a deed is legally binding even
though there is no consideration (this is explained Title deeds
in Chapter 11, Contracts) between the parties. The term deed is often used to describe documents
relating to ownership of land, houses and units.
Executing a deed This is because deeds are used for transactions
A deed must be signed or marked in the presence involving the sale of land.
of a witness who must then also sign it. Deeds The formal names of these documents are:
for some purposes (eg, for certain powers of • certificate of title (for Torrens title land);
attorney – see [1.780]) have additional witnessing • abstract and chain of title (for old system land)
requirements. (see Chapter 27, Housing).

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 20 The Law Handbook

Who holds title deeds? When the loan is repaid, the mortgagee’s name
The original title deeds are usually held by the is removed from the deed and the deed returned
property owner. However, if there is a loan with to the owner.
the property as security (such as a mortgage), the A copy of the title deed is always held by
deed is held by the lender (the mortgagee) and the NSW Land Registry Services (formerly Land and
mortgagee is named on the deed. Property Information NSW).

Birth, death and marriage certificates

[1.450] Registration [1.460] Obtaining copies of
All births, deaths and marriages in NSW must be
registered by the NSW Registrar of Births, Deaths
certificates
and Marriages. Certified copies of a birth, death or marriage
A birth, death or marriage certificate is certificate can be obtained from the registrar by:
completed from information supplied to the • lodging an application; and
registrar, or to another authorised person such as a • paying a fee; and
marriage celebrant. • proving your identity.
It is an offence to supply false or misleading Either an extract or a full copy of the certificate
information to the registrar. can be obtained. If an application does not ask
specifically for an extract of the certificate, a full
copy will be provided.

What identification is accepted?

A person can prove their identity for the purpose • an Australian passport;
of obtaining a birth, marriage or death certificate • a firearms licence;
by producing three forms of identification from the
• a foreign passport;
following categories 1, 2 and 3. If you don’t have ID
from categories 1 and 2, you must provide at least • proof of age card.
two from category 3 and one from category 4 if
necessary: Category 3

Category 1 • a Medicare card;

• a Centrelink or Department of Veterans’
• Australian birth certificate;
Affairs card;
• Australian citizenship certificate;
• a security guard/crowd control licence;
• New Zealand birth certificate;
• a tertiary education institution ID card.
• New Zealand citizenship certificate together with
passport. Category 4

Category 2 • a recent utility account (such as gas or electricity)

rates notice or tenancy agreement with current
• an Australian driver’s licence; residential address.

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 1 About the Legal System 21

Children born outside NSW

[1.470] Changing birth
In some circumstances, the birth of children outside certificate details
NSW may be registered in NSW; this may be
appropriate, for example, if the birth is not registered Change of name
elsewhere and the parents usually live in NSW. The registrar may change the name recorded on a
birth certificate when:
• a person registered at birth in NSW lawfully
Lodging the application changes their given name or surname (except
Applications can be made by lodging a standard where the change is the result of marriage);
application form (available from the registry and • parents change the given name or surname of a
all Local Courts, NSW Government Service Centres child whose birth is registered in NSW.
and the registry’s internet site), or applications can
How to apply
be lodged at the Registry of Births, Deaths and
A person can apply by registering an application
Marriages, any NSW country Local Court, Service
for change of name (available from the registry)
NSW centres or online.
and paying the required fee (currently $195, which
includes the issue of a new certificate).
Proof of identity A person under 18 should have the consent of
A person must provide proof of their identity (see both parents. If both parents cannot make a joint
What identification is accepted? at [1.460]) when application, you can contact the registry to discuss
applying for a copy of: your circumstances.
• their own or their child’s birth certificate;
• their own marriage certificate; Effect of the change on the certificate
• the death certificate of a next of kin. Once the change is recorded, the new name is the
only name to appear on an extract of the birth
A person applying for a copy of a certificate
certificate. A copy of the full certificate shows the
other than those listed above must also provide
history of name changes and previous names.
identification and authorisation relating to the
person whose certificate they are seeking or, in the
case of a death certificate, their next of kin. Change of sex
Anyone who cannot produce the required A person born in NSW may have the record of
documents should contact the registry for advice. their sex altered if the person:
Photocopies of suitable documents may be • is over 18; and
delivered, posted or faxed with the hard copy • has undergone a sex affirmation procedure; and
application or attached to the online application. • is not married.
The current fee (July 2019) is $135.
Fees Effect of the change on the certificate
Current fees (July 2019) are:
The new certificate will not show that the person
• $60 for a standard certificate;
has changed their sex.
• $88 for an urgent certificate.

Changing a name
[1.480] By usage [1.490] By registration
A person may change their name simply by use, If, as well as changing their name by usage, a
without taking any formal steps. Except for the person wants to formally record the change, a
purpose of opening and operating bank accounts, document showing the change of name can be
a person may use any name they wish, provided registered at the Registry of Births, Deaths and
the name is not used to deceive or defraud. Marriages. This may be necessary when proof

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 22 The Law Handbook

of the change of name is required (eg, to obtain

a passport). You may register a change of name
[1.510] Changing a child’s name
once in a 12-month period, and three times in A child under 18 cannot change their name
your lifetime. Some people are not permitted to without consent.
register a change of name, including inmates in
correctional centres, and former inmates on parole Who must consent?
or subject to a supervision order. If the names of both parents are recorded on the
If a person was born overseas, they need to have birth certificate, both parents must consent to a
lived in NSW for three consecutive years before change in the child’s surname.
they can register a change of name. If the father’s details are not shown on the birth
certificate, only the mother’s consent is required.
Procedure However, where the child uses the father’s
A statutory declaration called an application for surname, the mother needs the father’s consent
change of name must be completed. The name is to change the name. Similar considerations in
changed as soon as the document is registered. relation to the mother’s consent apply if it is the
father who wishes to change the name.
Fee
The fee for registering a change of name is $195. If consent cannot be obtained
The applicant is issued with a birth certificate If consent cannot be obtained, the mother, father
(if they were born in NSW) or a change of name or child can apply for a court order.
certificate. What the court takes into account
The court regards the child’s welfare as the
Children paramount consideration when deciding by what
Children over 12 must give their consent to any name they should be known. Factors the court will
registered changes of their name. consider are:
• the need to retain a connection with the parent
[1.500] Bank and other accounts the child does not live with;
Under the Financial Transaction Reports Act 1988 • the likelihood of the child experiencing
(Cth), it is an offence, punishable by a fine and/or confusion of identity;
imprisonment, for someone to open or operate “an • any embarrassment to the child caused by
account for cash purposes” in a name other than having a different surname from the parent
that by which they are commonly known. they live with.

What is an “account for cash purposes”? When a child’s father dies

When a father dies, a child who used the father’s
An “account for cash purposes” is very broadly defined surname may retain it, adopt whatever surname is
in the legislation, ranging from bank and building
society accounts to accounts with bookmakers.
used by the mother, or use any other name.

The effect of the Act is to restrict the previous Change of name on

[1.520]
law whereby a person could operate a bank
account in any name if there was no fraudulent marriage
intention. There is no law requiring a woman to change her
If a person changes their name, presumably surname on marriage. If a woman does adopt her
the banks with which they deal would need to husband’s name, all that is required is that she
be satisfied that the change was for all purposes, should inform certain institutions of the change
not just banking purposes, and that the person is (see [1.540]).
commonly known by the new name. Banks have In some situations, such as applying for
introduced their own procedures for determining a passport, the marriage certificate must be
identity when accounts are opened. presented to allow use of the different name.

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 1 About the Legal System 23

Using more than one name Other agencies can be notified of the change
A woman may use her previous family name for when the occasion arises (eg, when an election is
some purposes (eg, professional or financial) and imminent, or a tax return is due).
her husband’s name for others, as long as there is
no intention to deceive. Property owners
After a divorce, a woman may use her former Property owners do not need to do anything until
husband’s name, her original name or a different their land is dealt with in some way (such as
name. If she remarries, she may use her new through a sale or mortgage).
husband’s surname, her first husband’s surname,
her original name or any other name, as long as Old system title
there is no intention to deceive. If the property is held under old system title, the
new name is used but the old name is referred to
on the relevant documents.
[1.530]Change of name on a
Torrens title
driver’s licence If the property is held under Torrens title (see
To change the name on a driver’s licence, it Chapter 27, Housing), the documents are signed
is necessary to take the old licence and some in the new name, and evidence of the change
documentary evidence of the change of name to a (such as the registered name change or a statutory
Service NSW centre. A licence will then be issued declaration) must be provided.
in the new name. With Torrens title land, the change of name may
be noted on the certificate of title, though this is
[1.540] Bodies to notify not essential.
A change of name becomes effective through
use. Certain agencies (such as NSW Roads and For information about changing a birth certificate,
see [1.470].
Maritime Services, banks, credit card providers,
medical funds and employers) should be notified
immediately of a name change.

Statutory declarations
[1.550] A statutory declaration is a written • the Oaths Act 1900 (NSW);
statement of fact declared by a person (the • the Statutory Declarations Act 1959 (Cth).
declarant) to be true, in the presence of a person An Act may require a statutory declaration for
authorised to be a witness (see [1.590]). certain procedures, such as some applications
Usually an affidavit, not a statutory declaration, under the Migration Act 1958 (Cth).
is used in court (see [1.610]). When an affidavit In some cases, statements are considered true
is not required, a statutory declaration may give simply because they are in the form of a statutory
a statement weight; for example, in support of a declaration; for example, under s 15 of the Oaths
plea in mitigation. Act and s 53(2) of the Conveyancing Act 1919.

False statements What should be in the

[1.570]
A person who knowingly makes a false statement
in a statutory declaration can be fined, imprisoned, declaration
or both.
Statements of fact
The declaration should contain only statements of
fact. This can include the fact of holding a belief;
[1.560] Legislation for example: “To the best of my knowledge and
The relevant laws are: belief the will was made in 1958”.

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 24 The Law Handbook

Each fact should be stated in a separate • the Registrar-General or a deputy

numbered paragraph, and it is advisable to list registrar-general;
them in chronological order. • the Principal Registrar or a deputy principal
registrar of Births, Deaths and Marriages;
Statements of opinion • anyone else authorised by law to administer
Statements of opinion such as: “I think the will an oath.
may have been made in 1958” should not be used.
Under the Statutory Declarations Act
The jurat A statutory declaration under the federal Statutory
The place (ie, the name of the town, suburb or Declarations Act may be made before a person listed
locality) and date of the declaration, and the name in Sch 2 of the Statutory Declarations Regulations
of the witness before whom it is made, must be 2018, including:
stated at the end of the statutory declaration. This • a clerk of court;
is called a jurat. • a person before whom a declaration may be
made under the law of the state in which it is
made – see [1.590] under the Oaths Act;
[1.580] Is a form necessary? • an Australian consular officer or diplomatic
Printed statutory declaration forms are available officer (defined by the Consular Fees Act 1955
from law stationers and newsagents, but there (Cth), s 2);
is no legal requirement to use them as long as • any judicial officer;
the correct form of words is used (see Standard • a member of the professions, including lawyers,
form of a statutory declaration at [1.600]). The accountants, engineers and teachers.
declaration need not be typed, as long as the
writing is legible.
Finding a witness
Form of words A justice of the peace is usually available at a Local
Court or a bank, among many other places. Lawyers
Under the Oaths Act
are available at legal aid offices, private firms and
Statutory declarations under the Oaths Act may community legal centres. The NSW Department of
be in the form of either Sch 8 or Sch 9 of the Act. Communities and Justice has an online list of justices
This is set out in Standard form of a statutory of the peace.
declaration at [1.600].

Under the Statutory Declarations Act

A statutory declaration made under the Statutory
Declarations Act should be in accordance with the
[1.600] The role of the witness
form set out in Sch 1 of the Statutory Declarations The witness must be satisfied, through questioning
Regulations 2018 (Cth). This is set out in Standard or observation:
form of a statutory declaration at [1.600]. • that the declaration is in the form prescribed by
the Act under which it is made; and
• of the identity of the person making the
[1.590] Who can be a witness? statutory declaration and certifies that fact; and
A statutory declaration must be declared before a • that the declaration is signed and witnessed
person referred to as the witness. properly; and
• that the signature is that of the declarant.
Under the Oaths Act Under changes to the NSW legislation in 2012,
Statutory declarations made under the Oaths Act witnesses to a statutory declaration under the
can be declared before: Oaths Act are required, under s 34 of that Act, to
• a justice of the peace; have seen the face of the declarant (unless there
• a solicitor or barrister admitted to practice is a special justification, eg, a medical reason),
in NSW; and either have known the declarant for at least
• a notary public; 12 months, or confirmed their identity based on
• a commissioner for affidavits; an identification document (such as a drivers

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 1 About the Legal System 25

licence or passport). The authorised witness must X His mark

then certify on the statutory declaration that the Arthur Brown
requirements of the Oaths Act have been complied
with. See the Standard form of a statutory Children
declaration at [1.600] for an example of this. Children between six and 10 are not considered
The witness should not read the declaration competent to swear in court that what they say is
(unless the person making the declaration cannot true. They are, however, considered old enough
read it – see below). to make a statutory declaration, as long as the
witness is satisfied that the child understands:
Signing • what they are saying;
The witness should say to the declarant words • that they should tell the truth; and
such as: “Is this your name, and do you declare the • what the truth of the situation is.
contents of this declaration to be true and correct A statement to this effect should be added to the
to the best of your knowledge and belief?” jurat (see The jurat at [1.570] for what this is).
The declarant should then say “yes” and sign
the declaration in the presence of the witness. Interpreters
If the declarant is hearing or speech impaired, does
If there is more than one page not know English or has difficulty understanding
If there is more than one page, both declarant and English, the declaration must be translated by an
witness sign at the bottom of each page. interpreter. The witness administers an oath as
follows:
Alterations
The witness must initial any alterations in the You shall truly and faithfully interpret the
margin. The declarant need not do this. contents of the statutory declaration and
all other matters and things relating to the
People who cannot read the declaration declaration, and render the English language
If the declarant is blind or illiterate, the person into the [other] language, and the [other]
taking the declaration should: language into the English language, according
• read the document to them or have someone to the best of your skill and ability.
else read it aloud in their presence; and
• be satisfied that the declarant fully understands Annexures
and agrees with the contents. Any annexures (attachments to the declaration)
The following statement, signed by the witness, must each be certified by the witness as follows:
should be included in the jurat (see The jurat at I hereby certify that this [and the following
[1.570]): [number] page[s]] is/are the annexure marked
It appearing to me that the declarant is blind (A), referred to in the statutory declaration of
[or illiterate], I certify that this declaration was [name] declared before me at [place] on [date].
read to her/him in my presence and that s/he
seemed to understand it. If the annexure has more than one page
If the annexure is more than one page, that fact
If the declarant cannot sign their name should be referred to in the text of the declaration
If the declarant cannot sign their name, the (but not necessarily in the witness’s certification).
witness should write it next to the jurat, and ask The witness may sign each additional page. The
the declarant to make a cross or mark like this: declarant need not sign annexures.

Standard form of a statutory declaration

Under the Oaths Act and I make this solemn declaration conscientiously
I, [full name] of [address], [occupation], do solemnly believing the same to be true, and by virtue of the
and sincerely declare: [set out the statements in point provisions of the Oaths Act.
form, i.e. OR
1 ............................ and I make this solemn declaration, as to the matter
2 ............................ etc.] aforesaid, according to the law in this behalf made,

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 26 The Law Handbook

and subject to the punishment by law provided for identification document and the document I relied
any wilfully false statement in any such declaration. on was [describe identification document relied on].
............................ [signature of declarant] [insert signature of authorised witness]
Declared at [place] this [day] of [month], [year] Date:
before me ............................ [signature of witness] Under the Statutory Declarations Act
............................ [title of witness] I, [full name] of [address], [occupation], make the
Standard form of certification of Identity following declaration under the Statutory Declarations
Certificate under section 34(1)(c) of Oaths Act Act 1959: [set out the statements in numbered
paragraphs, ie
*Please cross out any text that does not apply
1 ............................
I [insert name of authorised witness], a [insert qualification
to be authorised witness], certify the following matters 2 ............................ etc.]
concerning the making of this *statutory declaration/ I understand that a person who intentionally makes
affidavit by the person who made it: a false statement in a statutory declaration is guilty
1 *I saw the face of the person or *I did not see of an offence under section 11 of the Statutory
the face of the person because the person was Declarations Act, and I believe that the statements in
wearing a face covering, but I am satisfied that the this declaration are true in every particular.
person had a special justification for not removing ............................ [signature of declarant]
the covering. Declared at [place] this [day] of [month], [year]
2 *I have known the person for at least 12 months before me ............................ [signature of witness]
or *I have confirmed the person’s identity using an
............................ [title of witness]

Affidavits
[1.610] Affidavits are written statements of fact
sworn or affirmed by a person (the deponent) to be [1.630]What should be in the
true, in the presence of a person authorised to be a
witness. Affidavits are used in court proceedings in
affidavit
Affidavits are used like spoken evidence, and the
place of spoken evidence. A statutory declaration
rules of evidence apply:
is usually enough in other situations.
• the text of the affidavit should be divided into
An affidavit used in court proceedings must
numbered paragraphs. Each paragraph should
be served on all other parties involved in the
relate to a distinct matter;
proceedings. The person who made the affidavit
may still be required to attend court to be • the facts in the affidavit should be relevant;
questioned on its contents. • the affidavit should be in the first person (eg, “I
met the defendant ............................”);

[1.620]Who can make an • conversations must be reported in direct speech

(eg, “I said ‘............................’, then she said ‘......
affidavit? ......................’?”);
Like a statutory declaration, an affidavit may only • the text should contain only facts of which the
be made by someone who understands: deponent has first-hand knowledge (ie, not
• what they are doing; and known only by hearsay);
• the nature of the oath or affirmation. • statements of opinion, unless it is expert
opinion, should be avoided.
Children
A child aged between six and 10 cannot legally Annexures
swear an oath, and therefore cannot make an Documents referred to in the affidavit, or copies
affidavit. If necessary, a child’s statement may of them, should be attached and marked as
(usually) be put in a statutory declaration. “Annexure A”, “Annexure B” and so on.

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 1 About the Legal System 27

[1.640] Who can be a witness? Signing

The witness should see the deponent signing:
Affidavits may be sworn/affirmed in the presence of:
• the end of the document, in the jurat (see The
• a commissioner for affidavits;
jurat at [1.570]); and
• a justice of the peace;
• the bottom of each page.
• a solicitor or barrister.
The witness then also signs the jurat, adding their
title, and signs the bottom of each page.
Standard form of an affidavit As with statutory declarations under NSW
The usual form of an affidavit is: legislation, witnesses to an affidavit in NSW
On [date], I, [full name] of [address], [occupation] are required to certify on the affidavit that the
requirements of the Oaths Act have been complied
affirm/say on oath that:
with. See the Standard form of an affidavit at
[set out the statements in point form, i.e. [1.640].
1 ............................
2 ............................ etc.] People who cannot read the declaration
sworn/affirmed at [place] If the deponent is blind or illiterate, the witness
Before me ............................ [signature of witness] should add, and sign, the following statement:
Justice of the Peace/Solicitor It appearing to me that the deponent is blind
[or illiterate], I certify that this affidavit was
............................ [signature of deponent]
read to him/her in my presence and that he/
I [insert name of authorised witness], a [insert
she seemed to understand it.
qualification to be authorised witness], certify the
following matters concerning the person who made
this affidavit: Interpreters
1 *I saw the face of the person or *I did not see the If the deponent is hearing and/or speech impaired
face of the person because the person was wearing a or does not know English, the affidavit must first
face covering, but I am satisfied that the person had be interpreted (see Interpreters at [1.600]).
a special justification for not removing the covering.
2 *I have known the person for at least 12 months Alterations
or *I have confirmed the person’s identity using an Alterations must be initialled by the witness. In
identification document and the document I relied some jurisdictions, the deponent must also do
on was [describe identification document relied on]. this.
[insert signature of authorised witness]

Annexures
Any annexures (attachments to the affidavit) must
[1.650] The role of the witness each be certified by the witness as follows:
This [and the following [number] page[s]] is
The witness should make sure that the affidavit
the Annexure marked (A) referred to in the
is legible and certify the identity of the deponent
Affidavit of ............................ [name] sworn on
(see Standard form of certification of identity at
............................ [date]
[1.600]).
Before me ............................ [signature of
witness]
Administering the oath
The witness administers the oath or affirmation Justice of the Peace/Solicitor.
by asking the deponent to swear or affirm that the
contents of the affidavit are true. The deponent
Use a lawyer
must either:
Affidavits are best prepared with the help of a lawyer.
• swear that the facts are true by taking an oath; or
The rules about their form and content vary between
• make a statement affirming that the facts are courts (eg, the District and Family Courts), and an
true. affidavit must be in a form acceptable to the court
The witness should not allow an affidavit to be concerned. If it does not comply with the relevant
sworn if the person does not understand either its rules, it may be struck out by the judge or magistrate.
contents or the nature of the oath or affirmation.

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 28 The Law Handbook

In NSW, the functions and duties of the office are set

Justices of the peace out in the Justices of the Peace Act 2002 (NSW). They
have duties under the Oaths Act to administer oaths
A justice of the peace traditionally had both judicial and witness documents such as statutory declarations
and ministerial (administrative) functions in the legal and affidavits.
system.
Justices of the peace are nominated by a member of
In NSW the NSW parliament and appointed by the Attorney
A justice of the peace in NSW can act judicially only General for five years. They may be re-appointed.
if formally called on to do so by the government in The Department of Justice and Communities
a time of real need. In practice, justices of the peace maintains a list of all NSW justices of the peace and
perform only administrative functions. their contact details.

Notices to attend court

their lawyer can (and should) attend the court
Court attendance
[1.660] on the day named and ask for the hearing to be
notices postponed to another date (adjourned).
A court attendance notice is a document that tells
a person to attend court to answer a charge or in If the person does not attend court
response to: If a person does not attend court after receiving a
• a claim against them; or court attendance notice, the matter may proceed
• an application for an order against them. without them, and the other side may obtain the
Some court attendance notices used to be called orders they seek in the defendant’s absence (this
summonses. is called an ex parte order). In criminal matters,
a warrant may be issued for the defendant to be
arrested and brought before the court.
What is in the notice?
Both court attendance notices:
• state the charges or claims made against the If the notice was not received
person (the defendant); A person who receives notice of an ex parte order
• state what court to go to, and when; against them who can prove that they did not at
any stage receive a court attendance notice can
• advise the person to seek legal advice (which
apply to have the order set aside and the matter
should be done as soon as possible).
heard again.
Getting legal advice It is usually up to the police, plaintiff or applicant
Anyone unable to afford a private solicitor should (the person who started the proceedings) to prove
contact: that the notice was served. The defendant may
• Legal Aid NSW; also produce evidence that they were, for example,
• a community legal centre; or overseas or interstate at the time and could not
have received the notice.
• the LawAccess website.

See Contact points of Chapter 4, Assistance With [1.670] Statements of claim

Legal Problems for contact details.
Civil cases are commenced by the issue of a
statement of claim. These documents do not have
The document should not be ignored and legal a date to attend court.
advice should be sought. A person wishing to dispute or defend a civil
claim must lodge a defence with the court within
Is there time to prepare? 28 days of receiving the statement of claim.
If not enough notice is given to get advice, prepare Legal advice should be obtained as soon as
or arrange legal representation, the defendant or possible.

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 1 About the Legal System 29

[1.680] Subpoenas and failure to attend court can result in arrest. It is

also possible to be charged with contempt of court
A subpoena is a document from a court that tells for ignoring a subpoena.
someone that they must attend at a particular time
and date to be a witness in a hearing and give If there is not enough time to get legal advice,
evidence. It might also tell the person to produce it is possible to ask the court if the matter can be
documents to be used in the case. delayed for a short while so that advice can be
sought.
Get legal advice!
Anyone receiving a subpoena should seek legal advice
immediately. It is an offence to ignore a subpoena,

Passports
[1.690] Australian passports are issued to
Australian citizens by the Minister for Foreign [1.710] Applications
Affairs under the Australian Passports Act An application for a passport can be made at a
2005 (Cth). post office. If a passport is needed urgently, the
application can also be lodged at an Australian
Passport Office.
[1.700] Eligibility
The minister must issue a passport to an Australian Documents required
citizen (s 7) unless: The application must be accompanied by:
• the person is an unmarried minor (ie, a person • evidence of citizenship; for example:
under 18) who does not have their guardian’s – an original or certified full copy of a birth
consent, a court order or other special certificate;
circumstances (s 11); – an Australian passport issued after 1
• there are reasons for not issuing a passport January 2000, if you were born on or after 20
relating to: August 1986;
– Australian law enforcement matters (s 12); – for people born overseas, a citizenship
– international law enforcement co-operation certificate;
(s 13); • two passport-sized colour photographs;
– potential for harmful conduct (s 14); • evidence of identity, for example:
• there have been two or more passports issued – a driver’s licence;
to the person in the past five years (s 15); – Proof of Age card or Photo card issued by a
• money is owed to the Commonwealth state or territory;
following loans made or expenses incurred by _ Australian passport issued on or after 1 July
the Commonwealth to assist a person in need 2000, and expired for less than 10 years;
in a foreign country.(s 16); – a credit card or bank account card;
• the person already holds a valid Australian – a rates notice;
passport (s 17). – tenancy agreement or utility bills;
• evidence of a change of name, if applicable, for
example:
Children – a marriage certificate;
Since 1986, people under 18 have received their – a statutory declaration;
own passport. – a registered name change certificate or
deed poll;
Permanent residents • evidence of sexual and gender diverse identity,
Permanent residents are not entitled to an if applicable, being a letter from a medical
Australian passport. practitioner certifying:

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 30 The Law Handbook

– appropriate clinical treatment for change of

sex and gender identity; or
Lost and stolen
[1.740]
– intersex identity; passports
• consent documents, for applicants who are A lost or stolen passport must, as soon as possible,
under 18 and unmarried. be reported:
A full list of the type and number of documents • in Australia, to the police;
required for identification is on the application • in a foreign country, to the Australian consular
form and on the Australian Passport Office representative.
website. The passport will be cancelled, and a new passport
issued. In a foreign country, a new passport is likely
Timeframe to be restricted and valid only for the remainder of
Passports are usually issued within 10 the trip. It can be extended on return to Australia.
working days. It is an offence not to report a lost or stolen
passport.
Urgent applications
If the application is urgent, the person must
explain the circumstances to the passport officer
[1.750] Cancellation
Passports may be cancelled in certain
at a post office or passport office, showing
circumstances (s 22).
documents indicating the cause of the urgency,
and their airline tickets.
[1.760] Surrendering a passport
Cost Anyone holding a cancelled passport, or one
The current cost of a standard passport (32 pages) suspected of being wrongfully obtained, can
is $293 for an adult and $148 for a child under 16. be asked to hand it over. Failure to surrender a
passport on demand is an offence.
[1.720] Appeals
In accordance with the Australian Passports Act,
Court orders
A court may order a person to surrender their
certain decisions of the Department of Foreign
passport.
Affairs about issuing a passport may be reviewed.
The Family Court may do this if there is concern
A written request for review should be sent to
that a person may remove a child from the country.
the Assistant Secretary, Passport Client Services
Criminal courts may do it in relation to a person
Branch of the Department of Foreign Affairs and
who is granted bail.
Trade within 28 days. If you are still unhappy with
a decision about a passport, you can appeal to the
Administrative Appeals Tribunal. Entering or leaving Australia
When a person enters or leaves Australia, they
[1.730] Renewals must show their passport to the relevant official.
Usually the passport is inspected and returned,
Passports issued to adults are valid for 10 years, but the official can retain the passport if they have
while passports issued to people under 16 are reasonable grounds for suspicion.
valid for five years. When a person’s passport
expires, they must apply for a new one.
Dual nationality
Expiry overseas A citizen of another country may lose that citizenship
when they take up Australian citizenship, along with
If a passport is due to expire while the holder
their right to a passport from that country.
is overseas, it is possible to apply for a new one
Inquiries should be made at the consulate of the
before leaving Australia and have the current one
other country to see if there is an agreement with the
cancelled. Otherwise, the passport will have to be Australian government about dual nationality.
renewed at an Australian consulate overseas.

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 1 About the Legal System 31

[1.770] Offences •
•
using someone else’s passport;
possessing a false passport;
Offences under the Australian Passports Act
• using a cancelled, forged or altered passport;
include:
• failing to report a lost or stolen passport as soon
• making, giving or producing false or misleading
as possible;
statements:
– in an application for a passport; • selling a passport;
– in support of someone else’s application; • dishonestly obtaining a passport;
• making alterations or additions to a passport • bringing or taking a false passport across
(only an authorised passport officer may make international borders.
alterations or additions); A passport is, and remains, the property of the
• intentionally damaging or destroying a federal government and thus cannot be given
passport; away or sold.

Power of attorney
[1.780] A power of attorney is a document that Bank authorities
appoints a person, the attorney, to act on behalf of A person can also sign a bank authority giving
the person or company who gives the power, the a trusted person permission to operate their
donor or principal. account. A bank authority can be revoked at any
The power can be: time by the person giving it.
• to act generally on the principal’s behalf;
• to act in a manner specified in the power of
attorney (ie, in a particular area, for a particular [1.800]Who can give a power
time or for specific purposes). of attorney?
A power of attorney is proof of the attorney’s
authority to act on behalf of someone else. Individuals
Anyone who is capable of understanding its
When to use a power of
[1.790] nature and effect, even a child, may give a power
of attorney.
attorney
A power of attorney is advisable when, for Companies
example, someone is planning a long overseas A company can also give a power of attorney,
trip and needs a trusted person to run their affairs unless it is restricted by its memorandum and
at home. articles of association, rules or constitution.
A power of attorney might also be appropriate
for someone who is bedridden or physically
incapacitated. Who can act as an
[1.810]

When a power of attorney is not

attorney?
A person, or a company, capable of making a
necessary power of attorney can also act as an attorney.
Pensions
It is not necessary to make a power of attorney to
deal with a social security pension. A person may [1.820] Formal requirements
apply to Centrelink to become a warrantee for a A power of attorney is generally in the form of a
person’s pension, setting out the reasons (usually deed that must be signed before a witness, and end
supported by a medical certificate, stating, eg, that with the words “signed, sealed and delivered”.
the pensioner cannot sign documents because of The document is deemed to have been sealed and
an injury to their hand). delivered when it is signed.

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 32 The Law Handbook

If the principal is expected to lose mental Acting for a person selling land
capacity If a person selling land appoints an attorney to
For a power of attorney to be effective after the act for them, the sale will not be valid unless the
principal loses mental capacity (an enduring power of attorney has been registered.
power of attorney), the witness to the principal’s
signature must be: Acting for a person buying land
• a barrister; Where the attorney is acting on behalf of a buyer,
• a registrar of a Local Court; it is not necessary to have the power of attorney
• a solicitor who is not, and does not work with, registered if a solicitor acts for the attorney and
the attorney being appointed; or signs the transfer.
• a licensed conveyancer. If the attorney intends signing the transfer, the
power of attorney must be registered.
Standard forms
The standard forms for a general and for an How to register a power of attorney
enduring power of attorney can be accessed on the The original stamped power of attorney must be
NSW Land Registry Services website. lodged with NSW Land Registry Services.
There is a fee of $143.50.

Drafting a specific power of attorney

Duties of an attorney
Care should be taken when a power of attorney is to
be limited to specific powers. The wording should be An attorney must:
broad enough to allow the intention of the principal • act in good faith;
to take effect, but not so broad as to give the attorney • tell the principal about any conflict of interest.
more power than the principal intended.
Delegation of a power of attorney
An attorney may not delegate their powers and
duties to another person unless the power of attorney
Using a solicitor authorises them to do so. If there is doubt, a solicitor
Most solicitors have standard documents for should be consulted. If the power is delegated, the
giving a power of attorney that they can adapt for new attorney has the same duties.
use in most circumstances. Exceeding a power of attorney
An attorney who exceeds the authority granted in
Costs the power of attorney may be liable for any damage
A solicitor’s fee for preparing a power of attorney suffered by the principal or others and will, in any
is generally between $150 and $250, and the event, be guilty of an offence (s 49).
money is well spent if the document has been
properly prepared. Lawyers can also advise on the
interpretation of powers.
The only other cost associated with a power
[1.840] Signing documents
of attorney in NSW is, where applicable, the A document that is to be executed by the
registration fee. attorney on behalf of the principal should be
prepared in the usual way without any reference
to the attorney. However, when the document
Registering a power of
[1.830] is signed, the attorney should sign on behalf of
attorney the principal and the following words should be
inserted:
If a power of attorney is to be used for any dealing
in land (including sales and leases of more than I, [the principal’s name], by his/her attorney
three years), it must generally be registered with [the attorney’s name] pursuant to power
the Registrar-General (Powers of Attorney Act 2003 of attorney (Registered Book … No …) and
(NSW), s 52). (This may not be necessary if the I declare that I have no notice of revocation or
attorney is acting for the buyer – see below.) suspension of the said power of attorney.

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 1 About the Legal System 33

Dealing with an
[1.850] Unregistered power of attorney
No specific form of words is needed to end an
attorney unregistered power of attorney, as long as the
People dealing with an attorney can rely on the intention is made clear to the other party.
power of attorney as binding on the principal if:
• the power is expressed to be irrevocable; or Registered power of attorney
• they have no notice of its termination (s 48). If the power of attorney has been registered, a
The power of attorney should be read carefully to written revocation of that power should also be
ensure that it is current and relevant to the dealing. registered. This must also be done if the power of
If there is any doubt about its effect, a solicitor attorney requires it.
should be consulted. Registration fees must be paid to register a
revocation.
Ending a power of
[1.860]
Where the power cannot be ended
attorney Certain grants of a power of attorney cannot be
A power of attorney can be ended by either the revoked or ended (eg, where the power is given
principal or the attorney. Anything done by the in the form of a deed and is expressed to be
attorney on behalf of the principal before they irrevocable).
receive notice of the revocation will be valid. However, the Supreme Court may end the
power if the purpose for which it was given is
achieved or becomes incapable of achievement.

DOING LEGAL RESEARCH

[1.870] You will need to prepare before any gov.au. You will find more information in the Find
court appearance whether you have a lawyer Legal Answers Tool Kit collection, available at
representing you or not. Preparation involves your public library and online on the Find Legal
finding the law that applies to your circumstances, Answers website. The Tool Kit is a collection of
as well as any other materials that may help plain language books about the law, covering a
explain the law. variety of topics including renting, family law,
Any legal right or obligation can be found in fines, wills and estates, going to court, and The Law
either legislation or the common law: Handbook.
• Legislation. Acts of parliament (also called The LawAccess website at www.lawaccess.
statutes) and any regulations, rules, by-laws nsw.gov.au publishes a range of online guides
or environmental planning instruments (EPIs) and guided pathways that provide procedural
made under the authority of an Act are all information, sample letters, flow charts and FAQs.
forms of legislation. These cover a wide range of legal topics including
• Common law. If no legislation on a particular debt, AVOs, dividing fences, fines, employment
legal issue exists, the courts can make decisions. rights, driving offences, after someone dies, legal
These decisions become law. If any conflict skills, recovering money, mortgage stress and
exists between the two types of law, legislation unpaid council rates.
prevails over common law. For more detailed and in-depth legal information,
All legislation and many court decisions are freely you will need to use legal textbooks, practice
available on the internet. books, legal dictionaries and encyclopaedias, and
legal commentaries. These all help explain the law
and give examples of significant cases. To access
Finding legal information these resources, you can use the extensive law
Start your research by looking at a simple online
collections at the State Library of NSW, as they are
fact sheet or webpage, available via the Find Legal
not freely available on the internet. Use the State
Answers website at www.legalanswers.sl.nsw.

Chapter_1_p1-38.indd 33 28-Nov-19 20:58:49

 34 The Law Handbook

Library’s online Researching the Law research guide relevant legislation and cases. Examples of legal
for a useful introduction to the Australian legal dictionaries and encyclopaedias include:
system, help doing legal research, and how to find • LexisNexis Concise Australian Legal Dictionary
cases, legislation and commentary about the law (LexisNexis);
on a subject or topic. • Encyclopaedic Australian Legal Dictionary
Legal textbooks give an overview of a legal (LexisNexis);
subject, provide commentary on the law and • Laws of Australia (Thomson Reuters);
often discuss key cases and refer to relevant • Halsbury’s Laws of Australia (LexisNexis).
legislation. If you are using textbooks, check the
Legal commentaries are produced by legal
date of publication as the law can change from
publishers such as Thomson Reuters, CCH and
year to year. The State Library of NSW has a
LexisNexis. The printed versions, also known as
comprehensive collection. Also check with your
looseleaf services, are regularly updated. The State
public library as it may have some legal texts.
Library of NSW has an extensive collection of
Dictionaries and legal encyclopaedias explain
looseleaf services. They cover most legal subjects
the law and are a good starting point if you do not
and are the tools that lawyers use as they provide
know much about the topic. Legal encyclopaedias
commentary, practical information, key cases and
are divided into broad subject areas and give a
interpretation of the law.
comprehensive overview of the subject, including

Finding legislation and cases

1. Select the Browse tab.
[1.880] Legislation 2. Under Browse in Force choose the first letter of
You first need to find out what legislation is the Act (or regulation or EPI).
applicable to your situation, and if it is a NSW or a In Force means that the Act or regulation is current
Commonwealth law. The Australian Constitution and includes all amendments.
gives power to our parliaments to make laws. Repealed legislation is no longer in force, so it
Section 51 of the Constitution sets out what areas does not apply as law.
the Commonwealth Parliament can make laws For a printed historical version of an Act, contact
about. These areas include defence, external the State Library of NSW.
affairs, trade, social security, family law, taxation,
immigration, corporations and bankruptcy. Finding NSW regulations, rules and by-laws
State law covers any matters that are not While Acts are the principal legislation, a lot of
mentioned in s 51 of the Constitution. Most criminal detail such as procedures, forms and specific
law is state law, unless it deals with something applications are contained in regulations or rules,
covered by Commonwealth law such as tax fraud. ordinances and by-laws. These are made by
Many crimes are covered by the Crimes Act 1900 government departments under authority stated
(NSW). (This Act has been amended many times in the Act and are called subordinate or delegated
since 1900 but it still keeps its original name legislation.
and year.) Other matters covered by state laws If you cannot find what you are looking for in
include tenancy, driving offences, neighbourhood an Act, it may be in the delegated legislation.
problems, strata living, environmental and On the NSW legislation website, there is a link
planning issues, and local government. from the principal Act to all regulations made
If you don’t know whether your legal matter under it. Alternatively, if you know the name
is covered by Commonwealth or state law, check of the specific regulation, you can find it under
the relevant chapter in this book or other books on Browse in Force – Regulations.
the law.
Finding NSW Environmental Planning
Finding current NSW law Instruments (EPIs)
To find the most up-to-date law, use the official These are a form of delegated legislation, similar to
NSW Legislation website at www.legislation.nsw. regulations, and are made under the Environmental
gov.au: Planning and Assessment Act 1979 (NSW). They

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 1 About the Legal System 35

are found on the NSW legislation website under Books, looseleaf services and case citators will
the heading Browse in Force – EPIs. EPIs include give you a citation for each relevant case which
State Environmental Planning Policies (SEPPs), you will need in order to find the full text of
planning instruments dealing with NSW policies the case.
for issues such as development standards, aged Once you have the name or case citation of a
and disabled persons’ housing and coastal case, you can search for it in the following places:
development, and Local Environmental Plans • the AustLII website at www.austlii.edu.au
(LEPs) which regulate planning and development using the homepage search box. AustLII is
in each local government area. freely available and provides full text of an
extensive collection of cases, including High
Finding current Commonwealth Court cases from 1903;
legislation • the NSW Caselaw website at www.caselaw.
Use the AustLII website www.austlii.edu.au. nsw.gov.au. NSW Caselaw is freely available
Select CTH then click on Cth Legislation to find and provides cases from NSW courts and
Commonwealth consolidated Acts or regulations. tribunals, including NSW Supreme Court cases
You can also use the search function. from 1999;
A consolidated version means that all • online subscription databases contain published
amendments or changes to an Act or regulation law reports and unreported judgments. The
have been added, making it the current version of State Library of NSW provides access to the full
the law. text of some cases on selected databases;
The Federal Register of Legislation www. • printed law reports are available at the State
legislation.gov.au is the authorised website for Library of NSW.
Commonwealth legislation. To find current
legislation, click on Acts in Force or Legislative How to read a citation
instruments in Force and use the alphabet to locate A citation is the standard way to refer to published
the Act or regulation you require. court decisions. For example:
Examples of Commonwealth legislative Waters v Public Transport Corporation (1992) 173
instruments include regulations, rules and CLR 349:
determinations. • Waters and Public Transport Corporation are
the names of the parties in the case;
Finding legislation from other states and • v stands for versus, meaning “against”;
territories • 1992 is the year of the decision;
To access legislation online for other Australian • 173 is the volume in the report series;
states and territories, use the State Library’s • CLR is the abbreviated name of the report
State and territory legislation and government series, Commonwealth Law Reports;
research guide.
• 349 is the page where the decision starts in
volume 173.
[1.890] Finding legal cases Most cases are now cited with a medium neutral
You may want to find cases dealing with a citation, and often only with that citation. For
particular point of law to see how the courts example, Liu v The Age Company Ltd [2012]
have dealt with it. Cases, also called law reports, NSWSC 12:
judgments, decisions or determinations are • Liu and The Age Company Ltd are the parties
important sources of legal information because in the case;
they contain judges’ reasons for making a • 2012 is the year of the decision;
particular decision in a case. • NSWSC is the abbreviation for NSW
As discussed above, textbooks and looseleaf Supreme Court;
services are a good place to start as they identify • 12 is a number assigned by the court.
the most significant cases in a legal area. Criminal cases will always include the Crown as
Subscription-based electronic citators, for one of the parties. For example, in the case R v
example, Westlaw AU’s FirstPoint identify cases Smith, R or Regina (Latin for “Queen”) refers to the
by legal issue or legislation. FirstPoint is available Crown. This means the state is prosecuting a case
for use in the State Library of NSW. against Smith.

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 36 The Law Handbook

To identify the full name of a law report series, They are available at the State Library of NSW.
you can use: Examples of court practice books include:
• the online guide to legal abbreviations on the
Monash University Library website; High Court, Federal Court, Federal Circuit
• the online State Library of NSW Researching the Court, Family Court
law research guide. • High Court Practice (Thomson Reuters);
Not all cases are available. Courts select and • Practice and Procedure: High Court and Federal
provide decisions for publication, usually on the Court of Australia (LexisNexis);
grounds of legal significance. Just because a case • Australian High Court & Federal Court
is well known does not mean that it has been Practice (CCH);
published in print or on the internet, although
• Australian Family Law (LexisNexis).
increasing numbers of cases are being made
available online.
Supreme, District and Local Courts
• NSW Civil Practice and Procedure: Local Court
[1.900] Court procedure Practice (Thomson Reuters);
If you are attending a court or tribunal, you will • Ritchie’s Uniform Civil Procedure NSW
need to find out about the rules and procedure (LexisNexis).
followed by the court or tribunal. The easiest way For criminal matters:
to find out about court procedure is to go to the
• Criminal Law NSW (Thomson Reuters);
individual court website. Each court has court
• Local Court Criminal Practice NSW (LexisNexis);
forms, fees and information about procedure.
For more detail on court procedure, you can • Criminal Practice and Procedure NSW
use court practice books. Each court has a practice (LexisNexis);
book providing legislation governing the court, • Federal Criminal Law (LexisNexis).
court procedures and fees, and practice notes.

Chapter_1_p1-38.indd 36 28-Nov-19 20:58:49

 1 About the Legal System 37

Contact points
[1.910] If you have a hearing or speech impairment and/or you use a TTY, you can ring any
number through the National Relay Service by phoning 133 677 (TTY users, chargeable calls) or
1800 555 677 (TTY users, to call an 1800 number) or 1300 555 727 (Speak and Listen, chargeable
calls) or 1800 555 727 (Speak and Listen, to call an 1800 number). For more information, see
www.communications.gov.au.
Non-English speakers can contact the Translating and Interpreting Service (TIS National) on
131 450 to use an interpreter over the telephone to ring any number. For more information or to
book an interpreter online, see www.tisnational.gov.au.
Changes are expected to the websites for many NSW government departments that were not
available at the time of printing. See www.service.nsw.gov.au for further details.

Attorney-General’s Find Legal Answers NSW legislation

Department (Cth) A free legal information service www.legislation.nsw.gov.au
www.ag.gov.au managed by the State Library of
Passport Information Service
NSW in partnership with public
Australasian Legal Information www.passports.gov.au
libraries. The service is available
Institute (AustLII) –
online and in public libraries ph: 131 232
Commonwealth and state
across NSW.
legislation and case law, subject Registry of Births, Deaths and
databases and links to government www.legalanswers.sl.nsw.gov.au Marriages
departments and agencies Jury service www.bdm.nsw.gov.au
www.austlii.edu.au. ph: 9287 7300
www.courts.justice.nsw.gov.au
Australian government Revenue NSW
Justices of the Peace
www.australia.gov.au www.revenue.nsw.gov.au/
www.jp.nsw.gov.au
Australian Law Reform Service NSW
NSW Land Registry Services
Commission
www.nswlrs.com.au/ www.service.nsw.gov.au
www.alrc.gov.au
ph: 02 8776 3575 Service NSW Call Centre
Community Justice Centres NSW ph: 13 77 88
LawAccess NSW
www.cjc.justice.nsw.gov.au
www.lawaccess.nsw.gov.au State Library of NSW
Community Justice Centres help
ph: 1300 888 529 www.sl.nsw.gov.au
people resolve disputes quickly
and for free using mediation. LawAccess NSW is a free The State Library has a large
government telephone service collection of legal textbooks,
Community Legal Centres NSW that provides legal information, looseleaf services, legal
www.clcnsw.org.au referrals and in some cases, advice encyclopedias, journals, legislation
Community Legal Centres provide for people who have a legal and legal cases.
free legal information and advice. problem in NSW.
Dispute resolution
Department of Communities and Law Society of NSW A list of contacts for dispute
Justice Find a lawyer and legal resolution, including community
The online gateway to law and information justice centres, is in the Contact
justice information in NSW. www.lawsociety.com.au points of Chapter 18, Dispute
www.justice.nsw.gov.au Resolution.
NSW Law Reform Commission
Courts and tribunals
Federal Register of Legislation www.lawreform.justice.nsw.gov.au
A complete list of courts is in the
www.legislation.gov.au NSW Government Contact points of Chapter 14,
The authorised website for www.nsw.gov.au Criminal Law.
Commonwealth legislation.

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