Page 422 - Week 02 - Wednesday, 13 May 1992
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This Bill is an example of a careful and orderly legislative process which does not usually get much fanfare. What we have in this Bill is the result of an orderly review of the 1989 reforms and an improvement of the package as a result of feedback from the community and the profession. The Government intends that its legislative program will continue in this manner. I have no reservations in urging members to support the useful and sensible modification of the law achieved by this Bill.
MR CONNOLLY (Attorney-General, Minister for Housing and Community Services and Minister for Urban Services) (4.07), in reply: I thank all members for their support for this reform. As is apparent, the basic purpose of this Bill is to put beyond doubt a very sensible reform that was carried through under the first Government in the First Assembly. It is one of those cases, which are not uncommon in Australian history, where parliaments have stated reforms and the lawyers and the courts have got to them and frustrated those reforms and parliaments have had to restate their will.
We have not yet got to a point here where one of the simplified power of attorney forms has been struck down by a court, but we have reached a point where a number of financial institutions have received legal advice to the effect that the simplified form the First Assembly approved would be struck down by a court, or could fall foul. Mr Humphries in his remarks recalled the very complex documents that he had been called upon to produce when in practice. People who have not been involved in legal practice may not fully comprehend that, but lawyers have a passion for complexity and these documents were often totally incomprehensible to the lay person and very complex.
The positive reform was to simplify those documents. Legal doubts were raised, and so it is appropriate that the Assembly should put beyond doubt that these simple form documents are valid. It is for that reason, of course, that we have retrospectivity. It is somewhat extraordinary when a parliament anywhere in Australia in 1992 talks of retrospectivity to a date in 1956. The reason for that is that 1956 was the commencement date of the head Act, and the purpose all along has been to make it clear beyond doubt.
Mr Humphries is correct in raising the concern about retrospectivity. It is a concern the Government shares; but we think he would agree that, on balance, this is an appropriate case where retrospectivity ought be permitted. The Scrutiny of Bills Committee and the Opposition are quite right in raising that matter for the concern of the Assembly.
Ms Szuty in her remarks made two points, one of which related to an amendment she is proposing to move, which is an amendment only to the schedule, to put an additional flag on the form to alert persons using this simple form to some legal technicalities they may be required to comply with. It is noteworthy, as Ms Ellis has said, that already we put some flags on the form to allow the lay person who is unfamiliar with legal technicalities and legal practice to fill in the simple form correctly.
What Ms Szuty is proposing is that, where the Act requires the form to be witnessed and attested, the witnesses should be present at the time when the donor signs the power. Any lawyer would understand that a witnessing clause or attestation clause must be done at the same time. You can witness a signature only when you are present when the signature is executed. That is something you would expect lawyers to know because they have been trained in it; it is not
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