Page 2218 - Week 08 - Thursday, 10 September 1992
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Detail Stage
Bill, by leave, taken as a whole
MR HUMPHRIES (4.26): I move:
Page 4, clause 8, line 1, proposed subsection 31A(5), omit the subsection.
Madam Speaker, the proposed new subsection (5) says:
Subsection 48(1B) of the Real Property Act 1925 does not apply to a notice under subsection (1).
That is a notice where the commission has put a charge on the Register of Titles and gives notice to the person who has been an applicant for legal aid that at the end of 12 months that person's property against which the charge has been laid might be seized to satisfy the debt to the Legal Aid Commission. This is a small point; but subsection 48(1B) of the Real Property Act provides that each instrument, other than certain exceptions, presented for registration shall be attested by a witness. I would argue, Madam Speaker, that it is important that we not exempt this particular kind of instrument from the provision that it be attested by a witness. This is a document of considerable significance to the individual against whose property it is being registered. This is a person who stands to lose his or her own property by virtue of the fact of owing a debt to the Legal Aid Commission that has not been paid. Therefore that person may ultimately lose his or her property. So this is a pretty significant document.
I would say that in those circumstances people would expect a fair amount of care to be taken in the way in which the Government, which is effectively what the Legal Aid Commission is, proceeds to recover that debt owed to it. To dispense with the normal requirement that the instrument be attested is not a helpful provision. In fact, I would suggest that the requirement is even greater in the case of a government official who may handle many such documents and whose care therefore might not always be as great as it might be in other circumstances.
The Attorney kindly has provided me with a minute from an advice that he received which suggests that the requirement for the witnessing of this instrument is not so great as it might be in other cases. The advice points out that having a signature on an instrument is to ensure that the signature is not forged or given under duress. The suggestion is that with a government official that is unlikely to be the case and therefore there is not the requirement to have that signature witnessed. I would say, Madam Speaker, that there is an additional thing which a signature serves to do; it serves to act as a guard against mistake. Officers of the Crown, unfortunately, do have the capacity, as we all do, of making mistakes. In those circumstances it is appropriate, particularly where the consequences of a mistake are very severe, for us to take some small step towards protecting and guaranteeing ordinary citizens so that those sorts of mistakes will not occur.
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