Dr Tony Buti MLA
Member for Armadale
The intention of this legal information booklet is to provide you with a basic understanding of our legal system and the relevant laws, agencies and organisations you may need to know about in your everyday lives.
1.1 Sources of lawThere are two broad sources of law in Australia: the common law, and legislation. The common law is judge-made law, decided in court cases. Legislation is an Act passed by Parliament.
1.2 Different legal systemsIn Western Australia, we operate under two different legal systems: Western Australian law, and federal Australian law. The WA Parliament and courts are responsible for WA law; while the federal Parliament and courts are responsible for federal law.
When a federal law and a WA law are inconsistent with each other, the Australian Constitution provides that the federal law prevails to the extent of the inconsistency.
Disclaimer: The content presented here is provided by way of information only and is not to be taken as legal advice. No responsibility is accepted for any incorrect information. If you require legal advice you should engage a lawyer.
Court System and Process
2.1 WA courtsIn WA, the superior court is the Supreme Court, the intermediate court is the District Court and the lower courts are the Magistrates’ Courts. Minor cases involving a smaller sum of money (up to $75,000) or a petty criminal offence would commence in the Magistrates’ Court: and if the unsuccessful party is unhappy with the decision, this can be appealed in turn to the District Court and/or the Supreme Court. Moderate amounts of money (up to $750,000) and many criminal offences commence at the District Court level, and can be appealed to the Supreme Court. Disputes over large amounts of money and very serious criminal offences commence at the Supreme Court level. Cases can only be appealed from the Supreme Court to the High Court of Australia, which sits at the top of both the WA and federal court systems.
2.2 Federal courtsThe High Court of Australia sits atop the federal court system, but below this is the Federal Court of Australia, followed by the Federal Circuit Court (previously called the Federal Magistrates Court). While most laws that govern Western Australians come under WA law, some specific areas are governed by federal law: including taxation, trade practices and native title.
The federal court system also includes the Family Court of Australia, which deals with family law cases in every state and territory except for WA. The Family Court of WA retains the jurisdiction to hear family law cases arising from WA.
2.3 Criminal vs civil lawThere are two main types of cases that are dealt with by courts: criminal, and civil. Often, the same set of circumstances can give rise to either, or both, criminal or civil proceedings. For example, a car accident can result in civil actions for damages as well as criminal charges if dangerous or reckless driving is alleged.
2.4 Court processIn order to start an action, an application must be made to the relevant court to commence proceedings against the relevant opposing party (or, if it is criminal, against the accused individual). You should also note that nearly all civil actions in WA require the plaintiff (the applicant) to commence an action within a ‘limitation period’ – depending on the type of action and who the respondent is, this will normally vary between one and six years.
3.1 WA criminal lawsIn WA, all criminal offences are contained in legislation. Most criminal offences are contained in the Criminal Code 1913 (WA): which is available athttp://www.austlii.edu.au/au/legis/wa/consol_act/ccaca1913252/notes.html. However, some other Acts may also apply: such as the Misuse of Drugs Act 1981 (WA), the Weapons Act 1999 (WA), and the Crimes Act 1914 (Cth), which deals with federal crimes.3.2 Indictable vs summary offencesCriminal offences are usually divided into indictable criminal offences (serious) and summary criminal offences (less serious).
3.3 Criminal prosecution processWhere there is a reasonable belief that a criminal offence has been committed, it is the role of the investigating agency (usually the Police) to conduct inquiries into the incident. This may include the Police interviewing you, if you are considered a witness or suspect in a criminal investigation.
The decision to lay a charge on a suspect is usually made by the Police in WA. This will occur when they believe there is enough evidence to identify a person as having committed the particular offence.
Once a suspect has been charged with an offence, the Police will brief the prosecutor (usually the Office of the Director of Public Prosecutions in WA), and the prosecutor will decide whether or not to proceed with prosecuting the suspect. If they do, the suspect will be summoned to court to either seek a remand for legal advice (where they will be given more time to get legal advice on the issue), or enter a plea of guilty or not guilty. If the suspect pleads guilty, they will then plead facts which could minimise their sentence, before their penalty is handed down. If they plead not guilty, the matter is set for trial at a later date.
3.4 What to do if you are arrestedIf you are arrested, the officer in charge of the investigation must tell you what your rights are.
If you are arrested as a suspect, you have the right to:
The police can refuse to let you contact a person if they reasonably suspect the contact will mean an accomplice will get away from police, evidence will be destroyed or hidden or someone will be put in danger.
If you are a young person (less than 18 years old), before you are asked any questions about an offence, the police must make sure that a responsible adult has been told that you will be questioned.
If you wish to seek legal advice, then Legal Aid Western Australia offer free legal advice to clients who meet their requirements: call 1300 650 579 to speak to the Legal Aid WA InfoLine between 9:00am and 4:00pm on any weekday. The Law Society of WA can also refer you to lawyers who specialise in criminal law if you call them on (08) 9324 8600.
3.5 Your right to silenceGenerally, the police have the right to ask you questions at any time, whether or not you have been arrested, although you cannot be questioned about any offence while you are being searched.
Although police are allowed to ask you questions, this does not mean you always have to answer them. In Western Australia you have a general right to silence, which means in many cases you do not have to answer questions from police and this silence cannot be used at trial to establish or prove your guilt.
There are some questions you must answer, for example, your name, address and date of birth. If police tell you that you must answer a question then you should do so – you may be charged with an offence if you do not.
Civil law deals with the rights and responsibilities that people have towards each other. It is not enforced by the police but directly by individual people.
You can sue and be sued under civil law, usually for a monetary sum. This means that you can use civil laws to protect yourself and try to get money (called ‘damages’) when someone has done something wrong to you. However, if you do something wrong to another person, they might be able to take you to court.
There are three main types of civil law you should be aware of: contract law, negligence, and defamation. However, many other types of civil law are dealt with in later sections, such as family law, employment law and wills & estates.
4.1 Contract lawA contract is an agreement between two people who promise to do certain things. We make contracts regularly, such as when you’re buying a mobile phone or getting a credit card. Many contracts are made without writing too, such as buying food at a café or buying clothes at a department store. Contracts can be oral or written.
A person can be sued for breaching a contract when they do not do what is promised in the contract. For example, if you sign a contract with a builder to do some work on your house and in exchange you promise to pay them $2,000, if you only pay them $1,000 then they can sue you to recover the additional $1,000 you promised. If you are found to be liable for a breach of contract, you must pay the other party what was promised under the contract.
4.2 NegligenceNegligence is where someone acts in a careless way and as a result causes harm to another person. If someone has been negligent, such as if they host a party and allow too many people into the party causing someone to be trampled, then they could be liable for negligence if:
If this occurs, the person who was negligent will have to pay the other party money to compensate for their injury or loss.
Negligence depends upon whether the person took ‘reasonable care’ in the circumstances.
4.3 DefamationThe law on defamation provides that you cannot say untrue, false or malicious comments about someone. If you say these things about another person and other people hear these things, whether you are out in public or posting a status or comment online, you could be sued for compensation. The main purpose of defamation law is to protect people from harm to their reputation. Something is defamatory if it would lower the way other people in the community think about that person’s reputation.
WA has its own Family Court: the Family Court of Western Australia. In all other states and territories, family law proceedings are brought in the Family Court of Australia. Both Family Courts deal with divorce, property of a marriage or de facto relationship, matters relating to children, adoptions and surrogacy.
Legal Aid WA provide Family Court services through a duty lawyer to people who require urgent assistance in family law matters. The duty lawyer can be requested by asking staff at the front counter of the Registry of the Family Court of WA, at 150 Terrace Road, Perth.
Before going to Family Court, you must fill in pre-filing procedures, unless your application is for divorce only or for child support only. The Family Court of WA brochure called ‘Before you file – pre-filing procedure’ is located at www.familycourt.wa.gov.au and is a useful resource.
Family and Domestic Violence
Family and domestic violence means any form of physical, sexual or psychological abuse, either by force or threats, which takes place within an ‘emotional’ relationship. Emotional relationship includes people who are married, de facto, or otherwise connected, ex-partners and any family/blood relatives.
The most common method of protecting people from experiencing family and domestic violence is through restraining orders.
6.1 ‘On-the-spot’ restraining ordersPolice have the power to make ‘on-the-spot’ restraining orders for between 24 and 72 hours, where the police are satisfied that a situation is urgent and that a person needs to be immediately protected from a potential family and domestic violence situation.
6.2 Restraining orders under WA legislationThe Magistrate Court has the power to make longer-lasting restraining orders under the Restraining Orders Act 1997 (WA), in order to prevent likely acts of violence and/or intimidation and threats at some point in the future. There are two types of restraining orders that can be made:
Restraining order applications can be made by the person seeking to be protected or an authorised person who can legally act on behalf of the person (such as a parent of a child).
These applications are usually made in person at the nearest Magistrates Court; but can also be made urgently over the phone by a police officer on behalf of the person requiring protection.
Restraining orders last for varying times, but are usually effective for 1-2 years. To be effective, the restraining order must be served on the person against whom the order is being made – i.e. they must be made aware of the restraining order. When effective, restraining orders can prohibit a person from:
It is a criminal offence for a person to disobey a restraining order.
6.3 Violence Restraining OrdersAn applicant would seek a VRO where they believed that unless such an order was made, the person against whom it is made would likely commit an act of violence against them or behave in a way that creates a reasonable fear of violence.
Grounds for a VRO can include:
6.4 Criminal law systemOffenders of family and domestic violence can also be prosecuted under criminal law in addition to having a restraining order taken out against them. Police should be contacted if you think a criminal prosecution is required. The Department of the Attorney General (‘Victim Support and Child Witness Service’ – Freecall: 1800 818 988) also provides services for victims of crime.
6.5 Who to contactThe Legal Aid WA Domestic Violence Legal Unit (DVLU) is open from 8.30am to 4.30pm Monday to Friday if you have queries about safety or restraining orders. To access this service, or for information and referral in relation to family law issues such as parenting orders, please call the Legal Aid WA Infoline on 1300 650 579 from 9.00am to 4.00pm between Monday and Friday.
In an emergency and if you fear for the safety of yourself or your children, telephone 000 and ask for the police. If, at any time, you need urgent advice or information, telephone the 24 hour Legal Aid WA Crisis Care Unit on (08) 9325 1111 or 1800 199 008.
Men can access the 24 hour Men’s Domestic Violence Helpline for advice on (08) 9223 1199 or 1800 000 599.
Elder abuse is any act which causes harm to an older person (50/60+ years) and occurs within an informal relationship of trust, such as family or friends.
If you want to report an instance of elder abuse you can contact the Advocare Incorporated Helpline on 1300 724 679. You can also contact Advocare Incorporated for general enquiries on (08) 9479 7566 or via email to [email protected]. You can also contact the Aged Care Complaints Commissioner on 1800 550 552.
In Australia, several laws protect people from being discriminated against on grounds of age, disability, race, gender, sexual orientation, marital status, pregnancy, breastfeeding, race, religious or political conviction, age, impairment, and family responsibility or family status.
Complaints about discrimination under federal laws can be made to the Human Rights and Equal Opportunity Commission at:https://www.humanrights.gov.au/complaints/make-complaint or over the phone on 1300 656 419 and WA State Laws to the WA Equal Opportunity Commission at http://www.eoc.wa.gov.au/complaints-inquiries/making-a-complaint or over the phone on (08) 9216 3900. Also note that a complaint must be made within 12 months of the incident of alleged discrimination occurring.
Consumer Rights, Unfair Contracts and Credit Issues
In Australia, we have consumer protection legislation to protect consumers from unfair business practices and transactions and to monitor fair dealings between sellers and buyers.9.1 Consumer rightsUnder the ‘Australian Consumer Law’, a federal law, any products that you buy from an Australian seller are subject to ‘consumer guarantees’. These apply to:
You have the right to enforce the consumer guarantees, which are that any such goods:
Your rights are explained in more detail at http://www.commerce.wa.gov.au/consumer-protection/consumer-rights. If you cannot adequately resolve the problem with the seller after discussing these rights, you can lodge a formal complaint with the Department of Commerce – Consumer Protection athttp://www.commerce.wa.gov.au/consumer-protection/how-lodge-formal-complaint. For further assistance, you can phone the Department of Commerce on 1300 30 40 54.
9.2 Unfair contractsA contract is unfair if one party does not understand their obligations and the other party to the contract is aware of this. This usually occurs when one party is more vulnerable than the other party, due to a disability, lack of understanding or lack of experience in the type of contract. Some typical situations where this may occur include:
You may have a claim for an unfair contract if one of the following has occurred:
In these instances, you may be able to get the contract set aside and/or seek compensation from the other party. You can contact the Department of Commerce – Consumer Protection on 1300 30 40 54 for further advice if you believe you have been subjected to an unfair contract.
9.3 Credit issuesIf you are experiencing financial hardship, you can make a request to your creditor to vary the repayments due under your credit contract with them. For further advice on this, see http://cclswa.org.au/advice/hardship/.
For free advice on dealing with credit issues, contact the Consumer Credit Legal Service (WA) on (08) 9221 7066 between 9:00am and 4:00pm from Monday to Friday, email them at [email protected], or visit their website for more information at http://cclswa.org.au.
In WA, you are protected by our system of employment law. This means that you are entitled to:
If you believe that your employer has failed to provide you with something guaranteed to you under employment laws, you can get in contact with the Employment Law Centre of WA for general advice on 1300 130 956 or (08) 9227 0111 between 8:30am and 5:00pm on Mondays or Thursdays, or between 8:30am and 7:30pm on Tuesdays. Alternatively, you can contact the Fair Work Ombudsman on 13 13 94 between 8:00am and 5:30pm on weekdays. For more information, especially relating to different protections depending on your full-time, part-time, casual or other employment status, visit https://www.fairwork.gov.au/employee-entitlements.
Carers, Guardians, Administrators and Powers of Attorney
Carers, Guardians, Administrators and holders of Powers of Attorney owe a duty of care towards the person they represent. This means that they are obligated to act in the best interests of the represented person.
11.1 CarersIt is incredibly important that people who require care ensure that their relationship with their carer, or person who looks after them, is legally recognised. This is especially important if there is a chance that the person may become mentally incapacitated due to a medical condition. If such a person loses their decision-making and does not have a legally recognised relationship which provides for someone to manage their property and financial affairs, or to make personal and lifestyle decisions, then the government will appoint someone to make those decisions for them.
Therefore, it is recommended that people who require care who may have further problems in the future or do not have a good quality of life seek guardianship or administration orders. This is not necessary for people who have a good quality of life and do not have any potential for further problems and are being cared for by family, friends or carers who have their best interests at heart.
11.2 Guardians and AdministratorsGuardians and Administrators are entrusted with making sure that the best interests of the represented person are protected, where the person needs additional support and assistance.
A guardian makes personal, medical and/or lifestyle decisions in the best interests of someone who is not capable of making those decisions for themselves – such as work, living arrangements or medical treatment.
An administrator makes financial and legal decisions in the best interests of someone who is not capable of making those decisions for themselves – such as the sale of assets, payment of debts or investment of money.
Applications to appoint a guardian or administrator are made to the State Administrative Tribunal. More information can be found athttp://www.sat.justice.wa.gov.au/G/guardianship_and_administration.aspx, or by contacting the State Administrative Tribunal by phone on (08) 9219 3111 or 1300 306 017.
11.3 Enduring Powers of AttorneyPowers of Attorney is a legal agreement that enables a person to appoint a trusted person to make financial and/or property decisions on their behalf, whether temporarily (ordinary) or permanently in the case that the individual loses full legal capacity (enduring). Further information is available athttp://www.publicadvocate.wa.gov.au/E/enduring_power_of_attorney.aspx?uid=4607-1285-4846-1893.
Options for Managing Property and Assets
It is possible to hold assets in different structures, each structure having various degrees of effectiveness. These structures include:
Assets that are personally owned are not protected from creditors. However, a possible method of providing a form of asset protection against your creditors where the asset is held in your name is for parents, guardians or others to loan you the money which is used to purchase an asset, subject to a mortgage for the entire value of the asset. Transferring ownership of assets to your parents or guardians or other parties can also achieve this.
A trust could be a far more effective means of managing property and assets where the above options are not feasible. A trust means a legal means by which an owner of property (the Settlor) can appoint a person or company (the Trustee) to look after property (the trust property) for the benefit of another person (the Beneficiary).
The most common scenario where the need for a trust will arise is where parents or guardians have a dependent child who cannot look after property by themselves. However, a trust may also provide significant asset protection, as they must be exercised for the benefit of the beneficiary but are not legally owned by the beneficiary themselves.
Wills and Estates
A will is a legal document setting out who gets part or all of a person’s property when they die. Such property is called your ‘estate’. A badly written will often leads to delays and it is best to use a lawyer if you can, rather than writing your own will.
It is important to make a will so that, after your death, your property is distributed as you would have wished it to be. If you do not leave a will, your property will be distributed in a way laid down by the law, over which you have no control.
The requirements of a valid will are as follows:
For more information on wills and how to write a will, see http://www.legalaid.wa.gov.au/InformationAboutTheLaw/BirthLifeandDeath/Mattersafterdeath/Pages/Willsandrelatedmatters.aspx and/or http://www.cabwa.com.au/get-help/make-a-will. You can also contact the Public Trustee WA on 1300 746 116, which offers to draft a simple will for a small fee, or the Law Society of WA on (08) 9324 8600 for a referral to a lawyer who specialises in this area.
Beyond the various means of complaining listed above, if you have a complaint against a government department then you should lodge a complaint form on their website or via a phone call. The details of all WA government agencies are available at https://www.wa.gov.au/departments-agencies.
If this fails to resolve your issue, you can call the Western Australian Ombudsman to make a complaint on (08) 9220 7555 or 1800 117 000. More information is available at http://www.ombudsman.wa.gov.au/Complaints/Making_complaints.htm. Interpreting services are available for non-English speaking persons by calling 131 450.
You can also make specific complaints about electricity, gas and water service providers to the Energy and Water Ombudsman WA (if you have been unable to resolve your complaint with your electricity, gas or water provider). You can make a complaint throughhttp://www.ombudsman.wa.gov.au/ewowa/making_complaints/how_to_make_a_complaint.htm, or by calling (08) 9220 7588 or 1800 754 004.
Citizens Advice Bureau
2 Hobbs Drive, Armadale WA 6112
Tel: (08) 94975311 | Email: [email protected]
Consumer Credit Legal Service (WA) Inc
Level 1, 231 Adelaide Terrace, Perth, WA
Tel: 08) 9221 7066 (Advice Line) | Fax: (08) 9221 7088 |
Email: [email protected]
Employment Law Centre (WA)
PO Box 272, Leederville WA 6007
Tel: (08) 9227 0111 | Fax: (08) 9227 0099
Gosnells Community Legal Centre
Suite 1, Gosnells Community Lotteries House, 2232C Albany Highway, Gosnells WA 6110
Tel: (08) 9398 1455 | Fax: (08) 9490 1265 | Email: [email protected]
Mental Health Law Centre WA
96-98 Parry Street, Perth WA 6000
Tel: (08) 9328 8012 | Freecall 1800 620 285 | Fax: (08) 9328 8577
Street Law Centre (free outreach legal service for the homeless and those at risk of homelessness)
PO Box 6236, East Perth WA 6892
Tel: (08) 9221 7661 | Freecall: 1800 752 992 (free) | Fax: 9221 9393
Email: [email protected]
2/18 Plain Street, East Perth WA 6004
Advice line: (08) 9221 0088 or country free call 1800 621 888
Welfare Rights & Advocacy Service
98 Edwards Street, Perth WA 6000
Tel: (08) 9328 1751 | Fax: (08) 9227 1375 | Email: [email protected]
Women’s Law Centre Inc
Ground floor, CSA building, 445 Hay Street, East Perth WA 6004
Tel: (08) 9272 8800 | Fax: (08) 9272 8866 | Email: [email protected]
Youth Legal Service
138 Murray Street, Perth WA 6000
Tel: 08) 9202 1688 | Regional: 1800 199 008 | Fax: (08) 9202 1699
You and Family Law – Tony Buti’s Family Law information website.
Dr Tony Buti MLA – Tony’s website.
Authorised by T Buti, 2898 Albany Highway, Kelmscott, WA 6111