The Law Handbook

Table of Contents

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Acknowledgements

Legal Notice

Preface

1. About the legal system

THE LEGAL SYSTEM

WHERE DOES LAW COME FROM?

THE CONSTITUTION

ABORIGINAL LAW

LAW REFORM

FINDING THE LAW

FURTHER READING

COURTS

INTRODUCTION

STATE COURTS

COMMONWEALTH COURTS

TRIBUNALS

JURIES

LEGAL DOCUMENTS

2. Assistance with legal problems

SELF-REPRESENTATION

INTRODUCTION

DECIDING ON SELF-REPRESENTATION

PREPARATION

NEGOTIATION

PRESENTING YOUR ARGUMENTS

CRIMINAL CASES

CIVIL CASES

FAMILY LAW CASES

SPECIFIC TRIBUNALS AND COURTS

LEGAL REPRESENTATION

INTRODUCTION

SOLICITORS AND BARRISTERS

LAWYERS' COSTS

COMPLAINTS OF MISCONDUCT

DISPUTES

NEGLIGENCE CLAIMS

ADVICE AND ASSISTANCE

LEGAL AID

WHAT IS LEGAL AID?

WHAT DOES VICTORIA LEGAL AID DO?

COMMUNITY LEGAL CENTRES

PRIVATE LAWYERS

LAW AID

VICTORIAN ABORIGINAL LEGAL SERVICE CO-OPERATIVE LIMITED (VALS)

OTHER SOURCES OF LEGAL INFORMATION

INTERPRETERS

ADVICE DIRECTORY

COMMUNITY LEGAL ADVICE

VICTORIA LEGAL AID

VICTORIAN ABORIGINAL LEGAL SERVICE

OTHER ADVICE SERVICES

3. Arrest, bail and court

DISABILITY AND CRIMINAL JUSTICE

INTRODUCTION

POLICE

AT COURT

FITNESS TO STAND TRIAL AND THE DEFENCE OF MENTAL IMPAIRMENT

SENTENCING

FURTHER INFORMATION

ARREST AND INTERROGATION

INTRODUCTION

ARREST

INTERROGATION

EVIDENCE

ARREST AND INTERROGATION OF CHILDREN

RECLAIMING LEGAL COSTS OF DEFENCE

BAIL

WHAT IS BAIL?

FORMS OF BAIL

CONDITIONS OF RELEASE ON BAIL

WHO CAN GRANT BAIL?

MAKING AN APPLICATION FOR BAIL

GROUNDS FOR REFUSAL OF BAIL

CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT

DUTY OF PERSON BAILED

APPEAL AND VARIATION OF BAIL ORDERS

TYPES OF CRIME: WHICH COURT?

CRIMINAL PROCEDURE ACT 2009

CLASSIFICATION OF OFFENCES

GOING TO COURT

SENTENCING IN THE MAGISTRATES' COURT

THE SENTENCING ACT 1991

SENTENCING ORDERS

VICTIM IMPACT STATEMENTS

PRE-SENTENCE REPORTS

DEFENDANTS WITH INTELLECTUAL AND OTHER DISABILITIES

SEX OFFENCES REGISTRATION

COMMONWEALTH OFFENCES

APPEAL COSTS BOARD

INTRODUCTION

ELIGIBILITY

MAKING A CLAIM

CONTACTS

4. Offences, infringements and penalties

DRUG OFFENCES

INTRODUCTION

STATE OFFENCES

FEDERAL OFFENCES

EXTRA-TERRITORIAL OFFENCES

DRIVING OFFENCES

INTRODUCTION

PROCEDURES FOR DRIVING OFFENCES

COURT'S POWER TO CANCEL OR SUSPEND LICENCES OR PERMITS

VICROADS' LICENCE & PERMIT POWERS

THE RIGHT TO APPEAL

COMMON DRIVING OFFENCES

POWERS AS TO SEIZURE OF MOTOR VEHICLES FOR HOON DRIVING AND OTHER OFFENCES

DIVERSION PROGRAM

CONTACTS

SEXUAL OFFENCES

REPORTING A SEXUAL OFFENCE

GOING TO COURT

SEXUAL OFFENCES

SEXUAL HARASSMENT

VICTIMS ASSISTANCE

LEGAL REMEDIES

SEX WORK

CONTACTS

INFRINGEMENTS AND FINES

THE INFRINGEMENTS SYSTEM

THE INFRINGEMENTS PROCESS

WHAT ARE MY OPTIONS?

ARE THE FINES STILL OUTSTANDING?

GOING TO COURT

CONTACTS

PRISONERS

INTRODUCTION

LEGISLATIVE BASE

TWO CATEGORIES OF PRISONER

PRISONS IN VICTORIA

THE PRISON SYSTEM

PRISONERS' RIGHTS AND REMEDIES FOR BREACHES OF RIGHTS

MAKING REQUESTS OR COMPLAINTS

COMMUNICATION WITH PRISONERS

OFFENCES IN PRISON

MEDICAL CARE

EMPLOYMENT AND MONEY

VOTING

BEFORE RELEASE

CONTACTS

CRIMINAL RECORDS

WHAT DOES IT MEAN TO BE FOUND GUILTY WITHOUT CONVICTION?

HOW WILL HAVING A CRIMINAL RECORD AFFECT ME?

CRIMINAL RECORD CHECKS

SPENT CONVICTIONS

EMPLOYMENT

WORKING WITH CHILDREN CHECKS

JURY SERVICE

GOING OVERSEAS

HOLDING PUBLIC OFFICE

5. Family relationships

DIVORCE

WHAT IS THE FAMILY LAW ACT?

WHO CAN USE THE FAMILY COURT?

FAMILY DISPUTE RESOLUTION

DISSOLUTION AND NULLITY

INJUNCTIONS

INTERVENING PARTIES

PROPERTY

APPEALS

COSTS AND FEES

PARENTAL RESPONSIBILITY, MAINTENANCE AND CHILD SUPPORT

PARENTAL RESPONSIBILITY FOR CHILDREN

MAINTENANCE

CHILD SUPPORT

SAME-SEX AND DE FACTO FAMILIES

SAME-SEX AND DE FACTO FAMILIES

CHILDREN

OTHER FINANCIAL MATTERS

FAMILY VIOLENCE

INTRODUCTION

FAMILY VIOLENCE INTERVENTION ORDERS (STATE LAW)

INJUNCTIONS UNDER THE FAMILY LAW ACT (COMMONWEALTH LAW)

BINDING OVER (STATE LAW)

COMPENSATION

WHAT A VICTIM SHOULD DO

HOUSING AND SUPPORT SERVICES

CONTACTS

ADOPTION

INTRODUCTION

LEGISLATION, REGULATIONS AND RULES

COMMON ADOPTION SITUATIONS

PLACING A CHILD FOR ADOPTION

CONSENT

WHO MAY ADOPT?

THE USE OF FAMILY COURT ORDERS

ADOPTION INFORMATION SERVICES

CHANGING YOUR NAME

INTRODUCTION

ASSUMING A NEW NAME

MARRIAGE

NAMING A CHILD

CHANGING REGISTRATION OF PARENTAGE DETAILS

WHERE TO FIND THE LAW

6. Children and young people

THE RIGHTS AND DUTIES OF YOUNG PEOPLE

GENERAL RIGHTS AND DUTIES

SEXUAL RELATIONS

MEDICAL TREATMENT

GIVING EVIDENCE

CIVIL LIABILITY

CRIMINAL LIABILITY

CORPORAL PUNISHMENT

RIGHTS AND DUTIES AT SCHOOL

PARENTING

UN CONVENTION ON THE RIGHTS OF THE CHILD

THE CHILDREN'S COURT

THE CHILDREN'S COURT

CRIMINAL CASES

WELFARE CASES

POWERS AND RESPONSIBILITIES OF THE SECRETARY OF DHS

EDUCATION LAW

INTRODUCTION

DUTY OF CARE

BULLYING AND ASSAULT

DISCIPLINARY PROCEDURES

DISCRIMINATION

COPYRIGHT ISSUES

FAMILY LAW ISSUES

CONFIDENTIALITY AND PRIVACY ISSUES

USEFUL WEBSITES

7. Social security entitlements

SOCIAL SECURITY PAYMENTS

PENSIONS

ALLOWANCES AND PAYMENTS

CONCESSION CARDS

CRISIS PAYMENT

RENT ASSISTANCE

INTERNATIONAL AGREEMENTS

PORTABILITY

COMPENSATION AND DAMAGES PAYMENTS

INCOME TAX

OVERPAYMENTS

SOCIAL SECURITY APPEALS

Authorised Review Officer

SOCIAL SECURITY APPEALS TRIBUNAL

Administrative Appeals Tribunal

8. Debts and bankruptcy

DEBTS

INTRODUCTION

BEFORE COURT ACTION

COURT PROCEDURE

DEFENCES

REHEARING

ENFORCEMENT OF COURT ORDERS

SERVICES THAT CAN PROVIDE ASSISTANCE

FINANCIAL COUNSELLING SERVICES

STATE-WIDE

MELBOURNE AND SUBURBS

COUNTRY AREAS

RURAL FINANCIAL COUNSELLORS

BANKRUPTCY

WHAT IS BANKRUPTCY?

CONSIDERING ALL THE OPTIONS

RECENT CHANGES TO BANKRUPTCY LAW

WHO CAN BE MADE BANKRUPT?

WHO ADMINISTERS THE BANKRUPTCY LAW?

WHAT HAPPENS TO THE BANKRUPT'S PROPERTY?

WHAT HAPPENS TO THE BANKRUPT'S INCOME?

THE EFFECT OF BANKRUPTCY ON DEBTS

LEAVING AUSTRALIA

OFFENCES

PROCESS OF GOING BANKRUPT

WHEN DOES BANKRUPTCY END?

OTHER PROCEDURES UNDER THE ACT

9. Superannuation and taxation

SUPERANNUATION

SUPERANNUATION SCHEMES AND BENEFITS

REGULATION OF FUNDS

SUPERANNUATION BENEFITS

SUPERANNUATION BENEFIT DISPUTES

REVIEWING A TRUSTEE'S DECISION

REVIEWING AN INSURER'S DECISION

CONTACTS

TAXATION

INTRODUCTION

HOW IS YOUR INCOME TAX LIABILITY DETERMINED?

YOUR RESPONSIBILITIES AS A TAXPAYER

TAX FILE NUMBERS

THE TAX RETURN

ASSESSMENTS

PRIVATE RULINGS AND ORAL RULINGS

PENALTIES, INTEREST CHARGES AND OFFENCES RELATING TO TAX RETURNS

OBJECTIONS, REVIEWS AND APPEALS

PAYING YOUR TAX

FRINGE BENEFITS TAX (FBT)

GOODS & SERVICES TAX (GST)

STATE DUTIES AND TAXES

10. Home and neighbourhood

TENANCY

INTRODUCTION

THE PARTIES

STARTING A TENANCY

DURING THE TENANCY

RENT

REASONS FOR ENDING A TENANCY

PROCEDURE FOR ENDING A TENANCY

RECOVERING BOND MONEY

ABANDONED GOODS AND DOCUMENTS

COMPENSATION

THE CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES

ADVICE AND CONTACTS

NEIGHBOURS AND NOISE

RESOLVING PROBLEMS

NUISANCE

ENTRY ONTO LAND

INJURIES ON YOUR LAND

FENCES

DRAINAGE OF LAND

ANIMALS

NOISE

THE ROAD LAW FOR CYCLISTS AND SKATERS

GENERAL

WHO AND WHAT DO THE ROAD RULES COVER?

BICYCLE-SPECIFIC LAWS

ROAD LAW FOR SKATERS

GENERAL ROAD LAWS

INTERNET LAW

INTRODUCTION

COPYRIGHT ISSUES

DEFAMATION ISSUES

OTHER PROTECTION ISSUES

E-COMMERCE: ONLINE SHOPPING

MANAGING ACCESS TO INTERNET CONTENT

FURTHER INFORMATION

OWNERS CORPORATIONS

INTRODUCTION

ENTITLEMENT AND LIABILITY

FUNCTIONS AND POWERS

FINANCIAL MANAGEMENT

REPAIRS AND MAINTENANCE

INSURANCE

MEETINGS AND DECISIONS

MANAGERS

DUTIES AND RIGHTS OF LOT OWNERS AND OCCUPIERS

DISPUTE RESOLUTION

11. Taking action

ENVIRONMENTAL LAW

INTRODUCTION

PLANNING AND ENVIRONMENT

ENVIRONMENTAL IMPACT ASSESSMENT (EIA)

POLLUTION

CHEMICALS

PROTECTING NATURE

LEGAL ADVICE

FURTHER REFERENCE

COMMUNITY ACTIVISM

INTRODUCTION

SPEAKING OUT

STRUCTURE AND FINANCES

PROTESTING

ANTI-TERRORISM LEGISLATION

FURTHER INFORMATION

COMMUNITY ORGANISATIONS

INTRODUCTION

TYPES OF COMMUNITY ORGANISATIONS

CHOOSING THE TYPE OF ASSOCIATION

INCORPORATED ASSOCIATIONS

OTHER ISSUES

FURTHER READING

CONTACTS

12. Consumers and contracts

THE LAW OF CONTRACT

WHAT IS A CONTRACT?

ELEMENTS OF A CONTRACT

THE TERMS OF A CONTRACT

ENDING A CONTRACT

CONSUMER GUARANTEES

MINIMUM STANDARDS FOR GOODS AND SERVICES

APPLICATION OF THE STANDARDS

MANUFACTURERS' DUTIES

CONSUMER PROTECTION LEGISLATION

AUSTRALIAN CONSUMER LAW

UNSOLICITED CONSUMER AGREEMENTS

PRICING

LAY-BY SALES

OTHER PROVISIONS OF THE ACL

CONSUMER REMEDIES

REMEDIES FOR BREACH OF CONTRACT

SELF-HELP

COURT OR TRIBUNAL HELP

ALTERNATIVE DISPUTE RESOLUTION SCHEMES

COURT REMEDIES

SMALL CLAIMS: THE CIVIL CLAIMS LIST OF VCAT

CONSUMER AFFAIRS VICTORIA

CONTACTS

13. Credit and finance

CREDIT AND FINANCE

Introduction

NATIONAL CREDIT REFORM

PAWNBROKERS

FINANCE BROKERS

CREDIT REPORTING

VENDOR TERMS

CODES OF CONDUCT

CREDIT DISPUTE RESOLUTION

WHERE TO GET HELP

14. Houses and cars

BUYING OR SELLING A HOUSE

INTRODUCTION

SPECIAL TITLES

CONVEYANCING

FINDING THE MONEY

BUYING AND SELLING

NEGOTIATING THE CONTRACT

SOLICITOR'S ROLE

COMPLAINTS

VENDOR AND PURCHASER DISPUTES

BUILDING DENSITY

GOODS AND SERVICES TAX (GST)

DOMESTIC BUILDING AND RENOVATION WORK

INTRODUCTION

PRELIMINARY ISSUES

BUILDING CONTRACTS

INSURANCE

COMPLETING WORKS

ENDING A CONTRACT

DISPUTES

WHERE TO GET HELP

BUYING A CAR

INTRODUCTION

THE HIDDEN COSTS OF BUYING A CAR

USED CARS: BEFORE YOU BUY - WHO OWNS THE CAR?

OBLIGATIONS OF THE SELLER AND PURCHASER

IS THERE A WARRANTY?

HOW TO GET OUT OF A CAR DEAL

FURTHER ASSISTANCE

APPENDICES A-D

15. Employment conditions

EMPLOYMENT CONDITIONS

INTRODUCTION

EMPLOYMENT CONTRACTS

NATIONAL EMPLOYMENT STANDARDS

AWARDS

WORKPLACE AGREEMENTS

FURTHER TERMS AND CONDITIONS FOR NEGOTIATION IN INDIVIDUAL AGREEMENTS

ENFORCEMENT OF ENTITLEMENTS UNDER WORKPLACE AGREEMENTS, AWARDS, NATIONAL EMPLOYMENT STANDARDS AND CONTRACTS

TERMINATION OF EMPLOYMENT

GENERAL PROTECTIONS

WAGE AND EMPLOYMENT RECORDS

UNEMPLOYMENT SCHEMES

EQUAL OPPORTUNITY

OCCUPATIONAL HEALTH AND SAFETY

CONTACTS

16. Disability

DISABILITY OVERVIEW

WHAT IS "DISABILITY"?

RELEVANT LEGISLATION AND DEFINITIONS

RIGHTS OF PEOPLE WHO HAVE A DISABILITY

CAPACITY AND CONSENT

CONTACTS

ADVOCACY

ADVOCACY

THE PUBLIC ADVOCATE

FURTHER ASSISTANCE

PHYSICAL DISABILITY

WHAT CONSTITUTES PHYSICAL DISABILITY?

SERVICES

INDEPENDENT ACCESS

CONTACTS

PSYCHIATRIC DISABILITY

INTRODUCTION

WHAT IS PSYCHIATRIC DISABILITY?

MENTAL HEALTH SERVICES

TYPES OF PATIENTS

THE MENTAL HEALTH REVIEW BOARD (MHRB)

INTERSTATE APPLICATION OF MENTAL HEALTH LAWS

TREATMENT AND CONSENT

RIGHTS OF PATIENTS

CRIMINAL JUSTICE SYSTEM

ASSISTANCE

CONTACTS

INTELLECTUAL DISABILITY

WHAT IS INTELLECTUAL DISABILITY?

RELEVANT LEGISLATION

SERVICES

NEGLIGENCE AND DUTY OF CARE

CRIMINAL JUSTICE SYSTEM

TAKING INSTRUCTIONS FROM CLIENTS

CONTACTS

FURTHER READING

GUARDIANSHIP AND ADMINISTRATION

INTRODUCTION

APPLYING TO VCAT

GUARDIANS AND ADMINISTRATORS

CONSENT TO MEDICAL TREATMENT

ADVANCE CARE DIRECTIVES

CONTACTS

POWERS OF ATTORNEY

INTRODUCTION

GENERAL POWER OF ATTORNEY

ENDURING POWER OF GUARDIANSHIP

ENDURING POWER OF ATTORNEY (FINANCIAL)

ENDURING POWER OF ATTORNEY (MEDICAL)

CONTACTS

FURTHER READING

17. Discrimination

DISCRIMINATION

INTRODUCTION

VICTORIAN DISCRIMINATION ACTS

EXCEPTIONS TO THE PROHIBITION OF DISCRIMINATION

DISPUTES ABOUT DISCRIMINATION IN VICTORIA

THE CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES

COMMONWEALTH DISCRIMINATION ACTS

FURTHER HUMAN RIGHTS PROTECTION

18. Accidents, injuries and compensation

NEGLIGENCE AND INJURY

NEGLIGENCE AND CLAIMS FOR DAMAGES

ESTABLISHING LIABILITY

ASSESSING DAMAGES

WRONGS ACT

LIMITATION OF ACTIONS ACT

OTHER MATTERS

TRANSPORT ACCIDENT INJURIES

TRANSPORT ACCIDENT COMMISSION

COMMON LAW CLAIMS

WORK INJURIES

WORK INJURIES

WORKERS COMPENSATION

COMMON LAW CLAIMS

ASSISTANCE FOR VICTIMS OF CRIME

INTRODUCTION

OVERVIEW

VICTIMS OF CRIME ASSISTANCE TRIBUNAL (VOCAT)

TRIBUNAL PROCEDURE

RECOVERING COMPENSATION FROM THE OFFENDER

CONTACTS

19. Health and aged care

HEALTH LAW

INTRODUCTION

INFORMATION AND CONSENT

ACCESS TO MEDICAL RECORDS

PRIVACY AND CONFIDENTIALITY

BLOOD TRANSFUSIONS AND ORGAN TRANSPLANTS

POST-MORTEM EXAMINATIONS

MAKING A COMPLAINT

FURTHER READING

AGED CARE

INTRODUCTION

THE AUSTRALIAN GOVERNMENT’S RESIDENTIAL AGED CARE PROGRAM

RESIDENTS' RIGHTS

OTHER AUSTRALIAN GOVERNMENT-SUBSIDISED AGED CARE SERVICES

COMPLAINTS AND DISPUTE RESOLUTION

OTHER SUPPORTED AND INDEPENDENT ACCOMMODATION

20. Wills, estates and funerals

WILLS

INTRODUCTION

WILLS

ESTATES

ESTATES

INTESTACY

SMALL ESTATES

DUTIES PAYABLE

INCOME TAX

COSTS

FUNERALS

THE FUNERAL PROCEDURE

AFTER BURIAL OR CREMATION

DEATH NOTICES

DONATION OF BODY FOR ANATOMICAL RESEARCH

DEATH CERTIFICATES

PAYMENT FOR A FUNERAL

TRANSPORTING THE BODY INTERSTATE

COMPLAINTS

21. Government and the individual

ADMINISTRATIVE LAW

WHAT IS "ADMINISTRATIVE LAW"?

WHERE DO I START?

OBTAINING REASONS FOR GOVERNMENT DECISIONS

JUDICIAL REVIEW

NATURE OF JUDICIAL REVIEW

GROUNDS OF REVIEW - SUMMARY

REMEDIES IN JUDICIAL REVIEW

THE IMPORTANCE OF TIME LIMITS

STANDING TO SUE

GROUNDS OF REVIEW

FURTHER READING

ADMINISTRATIVE APPEALS TRIBUNALS

REVIEWABLE DECISIONS

WHO MAY APPLY?

HOW DO YOU APPLY?

OBTAINING THE AUTHORITY'S REASONS

AFTER LODGING THE APPLICATION

REMEDIES

COSTS

SPECIAL PROVISIONS

RIGHT OF APPEAL

OMBUDSMAN

COMMONWEALTH OMBUDSMAN

VICTORIAN OMBUDSMAN

PRIVACY RIGHTS

THE RIGHT TO PRIVACY

THE PRIVACY ACT

OTHER LEGISLATION

COMPLAINTS TO THE COMMISSIONER

VICTORIAN PRIVACY LEGISLATION

CONTACT DETAILS

FREEDOM OF INFORMATION

FREEDOM OF INFORMATION ACT (CTH)

FREEDOM OF INFORMATION ACT (VIC)

COMPLAINTS AGAINST VICTORIA POLICE

INTRODUCTION

TYPES OF COMPLAINT

FORM OF COMPLAINT

INVESTIGATION OF COMPLAINTS

SUPPORTING YOUR COMPLAINT

TO LODGE OR NOT TO LODGE?

LEGAL ACTION AGAINST POLICE

CONTACTS

22. Immigration

IMMIGRATION

ENTRY TO AUSTRALIA

ENTRY BY MIGRANTS

CITIZENSHIP

REMOVAL AND DEPORTATION

REVIEW RIGHTS

OTHER MERITS REVIEW BODIES

FREEDOM OF INFORMATION (FoI)

MIGRATION AGENTS' REGISTRATION SCHEME

VICTORIAN IMMIGRATION LAW SPECIALISTS

DEALING WITH DIAC

CONTACTS

23. Insurance

INSURANCE

INTRODUCTION

CODES OF PRACTICE

LEGISLATION

INSURANCE CONTRACTS

AGENTS AND BROKERS

DUTY OF DISCLOSURE

MAKING A CLAIM

COMMON CLAIMS PROBLEMS

ENDING AN INSURANCE CONTRACT

RESOLUTION OF INSURANCE DISPUTES

PRIVACY ACT

FURTHER READING

MOTOR VEHICLE PROPERTY DAMAGE

INSURANCE

WHAT TO DO ABOUT DAMAGES

SETTLING OUT OF COURT

EVIDENCE

WHAT TO DO AFTER AN ACCIDENT

FURTHER ASSISTANCE

24. Rights and reputation

COPYRIGHT AND ASSOCIATED RIGHTS

WHAT IS COPYRIGHT?

OWNERSHIP OF COPYRIGHT

DURATION OF COPYRIGHT

REQUIREMENTS FOR COPYRIGHT TO EXIST

EXCLUSIVE RIGHTS OF COPYRIGHT HOLDERS

LOSS OF COPYRIGHT PROTECTION

INFRINGEMENT OF COPYRIGHT

MORAL RIGHTS

PERFORMERS' PROTECTION

INTERNATIONAL COPYRIGHT PROTECTION

OTHER COPYRIGHT ISSUES

CONTACTS

DEFAMATION

WHAT IS DEFAMATION?

WHEN ARE WORDS DEFAMATORY?

DEFENCES

REMEDIES

ASSISTANCE

PROCEDURE

FURTHER READING

Glossary

General Index

Legislation

List of Cases