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Legal documents

25 Jul 2016 - 16:11 | Version 6 |

This chapter describes some of the documents commonly regarded as legal documents. Many others are not covered by this chapter, though some are dealt with elsewhere, namely wills (see Wills ) and sale of land contracts, leases, mortgages and easements (see Housing ).

Agreements and deeds

Legally binding agreements may be written or verbal. Some, such as contracts for the sale of land or one person's guarantee for another's debt, must be made in writing. When a legally binding agreement is put in writing it becomes either an agreement under hand (sometimes called a contract) or a deed. Different procedures are required to make contracts and deeds legally binding.

Why a written agreement is better

If there is a dispute, an oral agreement has to be proved in court by evidence from the parties about what they recall and understood was said. A written agreement is itself evidence of what the parties intended to happen.

A contract is an agreement that is supported by consideration, that is, something of value has been offered in return for a promise contained in a document. For example, the contract between the buyer and seller of a car contains the promise that the seller will transfer ownership of the car to the buyer in exchange for the promise of a certain amount of money. Consideration does not need to be money. It could just as easily be a promise for food and lodgings in exchange for caretaking of premises.

A deed is a written agreement that is legally enforceable irrespective of whether consideration is involved.

A document will take effect as a deed if:
  • the people making the deed sign the document
  • the signatures of the people making the deed are witnessed by a person who is not a party to the deed.
Deeds are usually prepared in the context of formal legal transactions. They are usually prepared by the parties' legal advisors.

Stamp duty

Stamp duty must be paid on most deeds and many other legal documents before they are legally enforceable.

Stamp duty is a tax imposed on contracts for the sale of land and other conveyancing documents, and certain other documents evidencing legal transactions. The proceeds of these duties and taxes are paid into the NT Government's consolidated revenue.

Stamp duty is provided for in the Stamp Duty Act 1978 (NT). It specifies the documents that must have duty paid on them, amounts payable and exemptions as well as liability to pay stamp duty and the making of assessments by the Commissioner of Territory Revenue.

Stamp duty is paid at the office of the Commissioner of Territory Revenue, either in person or by post, where the documents will be stamped, with the amount of duty paid showing.

Stamp duty is paid at the office of the Commissioner of Taxes, either in person or by post, where the documents will be stamped, with the amount of duty paid showing.

The Taxation (Administration) Act sets out when documents must be lodged for assessment by the Commissioner of Taxes.

The person responsible for paying the duty must ensure the documents are correctly stamped. If stamp duty is not paid within the specified period (usually 60 days), the parties to the transaction may be charged with a criminal offence and required to pay a penalty, and the document may not be legally enforceable.

Details of the documents on which stamp duty is payable, the rates of payment and the responsible payees are available from the Commissioner of Territory Revenue (see Contact points ).

Land title documents

Certificates as to title for ownership of land, houses and unit are issued by the Registrar-General under the Land Title Act 2000 (NT). The default position is that the 'issue' of the Certificate as to Title occurs by creation of an electronic record of the certificate in the electronic land register. A search copy of the Certificate can be obtained at the Land Titles Office. If the owner of a parcel of land (with the consent of the mortgagee, if any) requests the issue of a paper duplicate Certificate as to Title in the prescribed form, a paper duplicate certificate will be issued.

Statutory declarations

A statutory declaration is a written statement of fact declared to be true in the presence of an authorised witness who, in the NT, must be over 18 years of age (see Witnesses this section). Statutory declarations must be used under various laws and Acts of parliament and in instances mentioned throughout this book. The Oaths Act 1939 (NT) (OA) governs the making of statutory declarations for the purposes of NT laws; the Statutory Declarations Act 1959 (Cth) (SDA) governs for the purposes of Federal laws.

It is worth noting that, generally, affidavits rather than statutory declarations are used in courts of law (see Affidavits this section). Sometimes, when an affidavit is not required, a statutory declaration may be used to give weight to a statement, such as in support of a plea to lessen (mitigate) a punishment. Where a person is in doubt about whether a statutory or unattested declaration is required or if an affidavit should be used, they should consult the relevant Act or regulation or seek legal advice (see Legal aid ).

In many situations statutory declarations are used for less formal legal purposes than court proceedings, such as to support an application to a government department, and they are therefore often prepared and completed without legal assistance.

Making a declaration

When making a declaration, the declarant is not required to take an oath, but merely declares the contents of the declaration to be true. The declarant then signs the declaration in the presence of a person authorised to take it (see Witnesses below).

The standard form of statutory declaration under the OA is set out in Schedule 8 of that Act. This form does not have to be used, but a statutory declaration under the OA must contain an acknowledgment that the statement is true in every particular and a statement that a person making a false declaration is guilty of an offence.

The statement in the declaration need not be typed, provided the writing is legible.

A statutory declaration under the SDA must be in the form set out in the Schedule to that Act. The correct form and wording of declarations is set out in the examples on the previous pages.

The declaration should only contain statements of fact. Each fact should be outlined in a separate paragraph and it is advisable to list these facts in chronological order, that is, in the order they occurred.

Statements of opinion, such as 'I think...', should not be included, but statements of belief can be, as long as they are structured along the lines of 'To the best of my knowledge and belief [the event] happened in 1958 in Darwin'.

Under the OA a person making a false statement in a statutory or unattested declaration can be fined up to $2000 or given a gaol term of up to 12 months or both. A person found guilty of wilfully making a false statement in a statutory declaration under the SDA can be imprisoned for up to four years.

Witnesses

A statutory declaration is said to be declared before or taken by a person who can be referred to as the witness (see Signing below).

Three forms of declaration are permitted under the OA and the SDA:
  • a statutory declaration made under the OA, which must be witnessed by a person over 18 years of age [s.23C]
  • a statutory declaration made under the SDA witnessed by a person authorised to do so in the State or Territory where the declaration is made. If the declaration is made in the NT, the witness must be a person over 18 years of age
  • an unattested declaration which need not be witnessed at all. This form of declaration may be used where a law, agreement, custom or practice authorises or permits an unattested declaration to be made.
Except where the declarant is illiterate, the witness is not obliged nor entitled to read the declaration, but should ensure that it complies with the form prescribed by the Act under which it is made. The witness should be satisfied that the declarant is of sound mind and is acting freely and voluntarily, that the document is signed and witnessed properly and that the signature belongs to that declarant.

Signing

The memorandum, which sets out the place and date of the declaration, appears at the end of the document and is followed by the signature and description of the witness (a jurat or signing clause).

Before signing, the declarant must first acknowledge before the witness the truth of the statements in their declaration. The witness should say to the declarant words to the effect: 'Is this your name and signature, and do you declare the contents of this declaration to be true and correct to the best of your knowledge and belief?' After answering 'yes', the declarant must sign the declaration. If it has been signed beforehand, the person taking the declaration must still be satisfied the signature belongs to the declarant. To prove authenticity, the declarant can provide a specimen signature by signing a blank piece of paper.

Alterations to the declaration must be initialled in the margin by the witness. The initials of the declarant are not required. The foot of each page of the document must be signed by both the declarant and witness.

Person with a disability

If the declarant is blind or illiterate, the witness should read the document to them or have someone else to read it in their presence. The witness should be satisfied that the declarant fully understands and agrees with its contents before they sign.

Person unable to sign

If the declarant is unable to sign their name, it should be written, adjacent to the jurat or signing clause, by the witness and the declarant should be asked to make a cross, for example:

HIS

ARTHUR X BROWN

MARK

Person unable to read

The jurat or signing clause on the declaration of a blind or illiterate person should contain the following additional statement:

'This declaration has been read to [person's name] in his/her presence who seemed to understand it and affixed his/her signature or mark in the presence of me [witness' name].'

Children

A statement made by a child (under 18 years of age) may be put into a statutory declaration, provided the witness is satisfied the child fully understands that what they are saying represents the truth and also understands the nature of a statutory declaration. Extra words should then be added to the jurat or signing clause to show that the witness is satisfied the declarant understands their declaration.

Attachments

The person taking the declaration must identify anything referred to in the declaration by attaching an annexation clause, which the declarant need not sign and is as follows:

'This is the (describe the thing to be identified) referred to in the statutory declaration of [name and address of declarant]. Declared at [place] on the [date]. '

Before me [Signature of person taking declaration]

Date:

Finding officials

Finding a commissioner for oaths

A commissioner for oaths can be found at a legal firm, the NT Legal Aid Commission (see Contact points ), court registries and police stations. Usually, if people need a commissioner for oaths they are being asked to sign a document by someone who can tell them where to find one.

Finding a JP

JPs can be found at court offices. Again, if a person requires a JP as a witness they are usually being asked to sign something by someone who can tell them to where to find a JP.

Affidavits

An affidavit is a written statement of facts sworn or affirmed by a person (the deponent) to be true. Affidavits are often used in court proceedings instead of verbal evidence, though a person whose affidavit is used in court may still be required to attend the hearing to be questioned on it contents. Because affidavits are used primarily for the purposes of court proceedings, they are usually only prepared by lawyers.

Making an affidavit

As with a statutory declaration, an affidavit may only be made by someone who understands the purpose and nature of the oath or affirmation. A child of up to ten years of age may not have sufficient understanding to swear an oath.

An affidavit must be in a form prescribed by the rules applicable to the particular court it is to be used in. In truth, the rules do not vary significantly between the different courts. However, the heading of the document and its format will vary from court to court.

Generally, the rules for the preparation of affidavits are as follows:
  • the text of the affidavit must be divided into numbered paragraphs, each, as far as possible, relating to a distinct matter
  • the text should be written in the first person, for example, 'I met the defendant ...'
  • when conversations are related, they should be written in direct speech, for example, I said '...'; she said '...'
  • the text must contain only the facts the deponent knows first-hand, except where the affidavit is used in interlocutory proceedings, such as preliminary proceedings prior to the substantive hearing, in which case the affidavit may contain statements based on information or belief as long as the source of information or belief is identified
  • the facts in the affidavit should be relevant to the matters at issue
  • statements of personal opinion, unless given as an expert (a person with specially recognised qualifications in their particular field), should be avoided
  • documents referred to in the affidavit or copies of them should be attached and marked as 'Annexure A', 'Annexure B' and so forth.

Signing

The deponent must sign the affidavit and swear or affirm that the statements made in the affidavit are true by taking an oath on the Bible, or by making a statement affirming that the facts in the affidavit are true. The oath or affirmation must be made in front of a witness (see Witnesses below).

Special rules apply to people who are illiterate (see Statutory declarations , this section).

Witnesses

Affidavits may be sworn in the presence of an authorised witness, who can be:
  • a commissioner for oaths (NT)
  • a justice of the peace (NT)
  • a lawyer who holds a current practising certificate
  • a police officer over 18 years of age.
The witness must:
  • administer the oath or affirmation by asking the deponent whether they swear or affirm that the contents of the affidavit are true
  • not permit an affidavit to be sworn if the deponent does not understand the contents or nature of the oath or affirmation
  • ensure the writing on the affidavit is legible
  • observe the deponent sign the jurat or signing clause and the foot of each page of any attachments (annexures)
  • sign and include their name and a contact address or telephone number below their signature [OA s.18(2)]
  • initial any alterations or corrections to the affidavit.
The following words must appear at the foot of the annexure along with the witness's signature:

This is Annexure marked (A) referred to in the Affidavit of [name] sworn at [place]

on [date]

before me

[signature]

Commission for Oaths/etc

Name: ............................

Contact address or phone no:.....................................

Passports

A passport is an officially issued document of identity used principally for the purposes of international travel. The use of passports as travel documents has been traced back to ancient times. The modern system of passports developed out of international conferences on passports held in 1920 and 1926 to facilitate international travel when restrictions imposed during World War I were left largely intact.
  • In accordance with the Australian Passports Act 2005 (Cth), Australian passports are issued to Australian citizens by the Minister for Foreign Affairs and Trade.

Applying for a passport

Application forms for passports are available from the Passport Office of the Foreign Affairs and Trade Department (see Contact points) and post offices. Inquiries should be directed to the Passport Office and not to the Immigration and Citizenship Department.

A passport application may be lodged, with the appropriate fee, at post offices (by appointment) or at a passport office. Information about current fees is available on the Passport Information Line on 131232.

The documents to be lodged with the application and procedural requirements are set out in the application form.

Documents required

The following documents must be presented with the application:

Evidence of citizenship; for example:

* an Australian passport issued after 1 July 1983

* an original or certified full copy of a birth certificate

* for people born overseas, a citizenship certificate

* two passport-sized colour photographs.

Evidence of identity; for example:

* a driver's licence

* a credit card

* a rates notice

* an academic record.

Evidence of a change of name, if applicable; for example:

* a marriage certificate

* a statutory declaration

* a registered name change or deed poll.

Consent documents, for applicants who are under 18 and unmarried.

A full list of the type and number of documents required for identification is on the application form and on the Australian Passport Office website (see Contact points).

Timeframe

Passports are usually issued within ten working days.

Urgent applications

If the application is urgent, the person must explain the circumstances to the passport officer at a post office, showing documents indicating the cause of the urgency, and their airline tickets.

Renewing a passport

Passports issued to under 18 year olds and adults are valid for five and ten years respectively. When a passport expires, an application for a new passport must be made (see Applying for a passport above).

A person can keep their expired passport if they request it.

A passport due to expire while its holder is overseas can be renewed prior to travelling or at an Australian consulate overseas.

Lost or stolen passports

A passport that is lost or stolen in Australia must be reported to police or to the Australian consular representative in a foreign country. Failure to report a lost or stolen passport is an offence. The stolen or lost passport will be cancelled and a new one issued in accordance with the normal procedures. A new passport issued in a foreign country is likely to be valid only for the remainder of the trip, but can be extended upon returning to Australia.

Cancellation of a passport

A passport may be cancelled if any circumstances that prevent the issue of a passport arise.

Surrendering a passport

Any person in possession of a passport that has been cancelled or is suspected of being wrongfully obtained can be asked to surrender it by the Australian Federal Police or an Officer of the Department of Foreign Affairs and Trade. Failure to do so is an offence.

A person who is declared bankrupt must surrender their passport, but can, in limited circumstances, apply to the trustee to have it returned (see Bankruptcy ).

A court, such as the Family Court, can order a person to surrender their passport. The courts most often exercise this power if a person is likely to remove a child from the country or abscond on bail.

Children

Since 1986, people under 18 have received their own passport.

Permanent residents

Permanent residents are not entitled to an Australian passport.

Dual nationality

A citizen of another country may lose that citizenship when they take up Australian citizenship, along with their right to a passport from that country.

Inquiries should be made at the consulate of the other country to see if there is an agreement with the Australian government about dual nationality.

Expiry overseas

If a passport is due to expire while the holder is overseas, it is possible to apply for a new one before leaving Australia and have the current one cancelled. Otherwise, the passport will have to be renewed at an Australian consulate overseas.

Appeals

Most passport decisions made by the Department of Foreign Affairs and Trade can be reviewed. The decision-maker must give to persons whose interests are affected by the decision a notification of the making of the decision and of their right to have the decision reviewed.

Offences

A passport belongs to and remains the property of the Federal Government and therefore cannot be given away or sold.

Offences under the Australian Passports Act 2005 include:

Powers of attorney

A power of attorney is a document by which a person (called the principal or donor) appoints another (the attorney or donee) as their representative for certain purposes. A person travelling overseas may, for instance, grant a power of attorney to a relative or friend who can then access the traveller's bank to pay their bills. A power of attorney can also be useful where a person becomes ill and incapacitated and so requires a friend or relative to manage their financial affairs for the duration of their illness.

A power of attorney can be granted to anyone who has the legal capacity to do whatever needs to be done. For example, if a contract needs to be signed, the donee would need to be someone over 18 years of age. Matters relating to powers of attorney are regulated by the Powers of Attorney Act 1980 (NT) (POAA).

Powers of attorney are formal legal documents and usually only prepared by legal practitioners. Granting somebody power of attorney is a significant step and should generally only be done after obtaining legal advice.

Types of powers of attorney

Powers can be given under a power of attorney for:
  • a very specific purpose, such as allowing a relative, friend, accountant or lawyer to take money out of the donor's account for the purpose of paying a particular bill
  • a more general purpose, such as allowing a relative, friend, accountant or lawyer to withdraw money to pay any bills
  • general purposes, such as allowing a relative, friend, accountant or lawyer to do anything at all on the donor's behalf that the donor themselves could lawfully do. This sort of power is called a general power of attorney and should only be given to a very trusted person. It is possible to grant an enduring power of attorney, a general power of attorney that lasts indefinitely (see Enduring power of attorney ).
It is also possible to limit a power of attorney, only allowing it to be exercised in certain circumstances, such as:
  • while the donor is in hospital
  • while the donor is out of the NT or travelling overseas
  • where a second person is required to give consent before the power can be exercised
  • in a certain place, like the NT
  • before the donor reaches a certain age, for example, 21 years old
  • for a limited period, such as six months
Limits should be carefully worded so as not to make it impossible for a donee to use their power at all. For example, a donee given power to act for a person who is overseas should be given the authority to act between certain dates so they are not faced with the difficult task of proving the person's departure when they try to exercise the power.

Any limits imposed on a power of attorney should be written into the authorising document, as this serves to notify strangers, such as banks, of the way the power can be used.

Making a power of attorney

A power of attorney should clearly show:
  • the date the power was given
  • who gave the power (name and address)
  • who the power was given to (name and address)
  • what the donee is allowed to do.
A document that covers the main points listed above will be valid. If the power of attorney is to be registered (see Registering a power of attorney ), the standard form set out in the regulations to the POAA should be used. Printed copies of this form are available from the Land Titles Office.

Individuals who write their own power of attorney must ensure it is properly drafted; a small mistake in the document can make it useless, and it is also important to ensure that if the power is being granted for particular purposes, the power actually granted is not broader than intended. Accordingly, it is wise to have it checked or drafted by a lawyer.

Witnesses

An ordinary power of attorney does not have to be witnessed. An enduring power of attorney requires the signature of one witness who is not the donee or a near relative.

It is wise to have the donee place their specimen signature on the document as well, though they cannot sign as a witness.

A person who cannot sign a power of attorney due to disability or illiteracy can ask another adult, who cannot also be a witness, to sign on their behalf. In such a case, two witnesses, neither of whom can be the donee, are required.

Time limits

An ordinary power of attorney lasts until:
  • the donor withdraws or revokes it
  • it expires, if it is subject to time provisions
  • the donor becomes incapable of managing their own affairs, such as where they become bankrupt or very ill
  • the donor dies.

Enduring power of attorney

The difference between an enduring power of attorney and an ordinary power of attorney is that an enduring power of attorney does not cease to have effect if the donor becomes incapable of managing their own affairs.

To be valid, an enduring power of attorney must contain words that clearly express that the donor intends the power to continue, even if they become so mentally or physically incapacitated so as to be incapable of managing their own affairs. A standard form for an enduring power of attorney is set out in the POAA and shown at example 8.

The document must be registered with an endorsement (see Registering a power of attorney ) or annexure to the effect of Schedule 1 of the POAA.

Donees who exercise their power of attorney to acquire or dispose of any assets on behalf of the donor are required to keep accurate records of the transactions. A donee of an enduring power of attorney should be aware they cannot retire as donee without the leave of the Supreme Court, and may be required to file records of transactions with the Supreme Court or to submit records of transactions for audit.

Registering a power of attorney

Registration ensures a copy of the document is held in a public place. Any form of power of attorney can be registered. Registration is mandatory in some cases, including cases where the donee will be signing documents relating to a land transaction [POAA s.8], or an enduring power of attorney is involved [POAA s.13] (see Enduring power of attorney ).

To register a power of attorney, the original document and a copy must be lodged at the Registrar's Office (the Land Titles Office) and a fee paid. Details about current fees can be obtained from the Land Titles Office (see Contact points ). A lower fee is paid for a power of attorney lodged in the standard form.

Withdrawing a power of attorney

A general power of attorney can be revoked by:
  • the death of the donor or donee
  • the legal incapacity of the donor or donee
  • the retirement of the donee, where they do not wish to exercise the power any more
  • the bankruptcy of the donor or donee
  • the donor revoking the power verbally or in writing
  • a Supreme Court order.
If the power is registered, the Registrar-General must be notified within 14 days should any of the above events occur. A donor who revokes their power must give notice in accordance with the Act and pay the specified registration fee.

Using a power of attorney

A power of attorney does not compel the donee to act as such. A power of attorney is entirely discretionary.

A power of attorney can only be used in the manner granted. A donee who steps outside the boundaries of their authority may be liable to pay compensation if the donor suffers loss as the consequence.

The powers given under a power of attorney can only be transferred to a third person if the document specifies a power of delegation.

Where a document is signed on the donor's behalf using a power of attorney, the donee can use their own name and signature, but must note they are acting as an attorney.

A power of attorney can be used overseas when it complies with the host country's requirements. Information about a country's requirement can be obtained from its consulate. In most countries, documents have to have been witnessed by a notary public and stamped by the Department of Foreign Affairs and Trade (for a fee) and the foreign country's consulate. Notaries public are listed in the Yellow Pages.

Birth certificates

All births, deaths and marriages that take place in the NT have to be recorded by the NT Registrar of Births, Deaths and Marriages (BDM). A birth certificate contains the information that needs to be supplied to BDM, namely the person's name, the date and place of their birth and their parents' names. It is an offence to supply false or misleading information to the Registrar.

A copy of a birth certificate can be obtained from the Darwin or Alice Springs BDM office (see Contact points ). A fee is payable and is currently $25. A request for a birth certificate can be made in writing or in person. Access to certificates is subject to the Registrar's access policy, which can be inspected at a BDM public counter. Generally, a birth certificate is available only to the person it concerns or their parents if a child. An immediate family member or an agent can also apply, but only if they have written authority from that person. An applicant has to prove their identity by producing an acceptable form of identification. A range of different forms of identification are acceptable but not all carry the same weight. A passport, driver's licence, document of identity issued by the Passport Office, and a current defence force or police service photo card are primary sources. A single primary source document is enough to prove identity. Some other forms of identification are accepted, but these carry less weight. They are divided into two categories. At least one form of identification is required from category one; other forms can be taken from category two. Documents in category one include a student photo identity card, baptism certificate and letter of identity from an Aboriginal community. Documents in category two include a Medicare card, credit cards, vehicle registration papers and an account for council rates.

Changing certificate details

For information about changing certificate details see Changing names , chapter 3 and Naming a child , chapter 4.

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