Page 1803 - Week 06 - Thursday, 19 May 1994
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It would be extremely unfortunate, from the point of view of the voluntary assistance and contribution that our community so heavily relies upon, if that were to happen. I hope that we can make it clear today that that kind of thing will not be covered; that it is not intended to be caught by this Bill and will not be the subject of claims or actions in the courts pursuant to this Bill.
The Minister may also feel that he can rely on the terms of the discussion paper which has been put out, which discussed the issue fairly fully. I would caution against that line of reasoning. I am not sure whether it is legally possible for a judge or magistrate to take account of a discussion paper which gives rise - - -
Mr Connolly: You can look at reports and things as ancillary material.
MR HUMPHRIES: The Minister indicates that he thinks it might be available. Some of the problems we are presently encountering on the Legal Affairs Committee - dare I mention it - considering the criminal injuries compensation legislation arise from the fact that there is a difference between the words in the legislation and the words which were put into a discussion paper back in the early 1970s. So I caution against relying too heavily on documents of that kind and suggest that, although it is not necessarily possible to put in the statute the words that will properly convey the essential notion, it is important for those words - if it is possible to frame them - to be used in the course of this debate by the Minister when he sums up.
I suppose that the essential element that we are looking for to make a relationship a real domestic relationship of the sort that we are talking about here is either deep personal affection or love. But it is, of course, extraordinarily difficult to put those sorts of terms into legislation. Let us say that lawyers are not familiar with dealing with those concepts and, therefore, would not be used to framing precise language to describe them.
Mr De Domenico: Especially when they send the bill.
MR HUMPHRIES: "Especially when they send the bill", says my colleague Mr De Domenico. Madam Speaker, there is also the question of the sorts of remedies available under this legislation. Of course, it is possible for a person to seek maintenance for themselves under certain circumstances or for a child of the relationship or a child who is the responsibility of one of the parties to the relationship. It is also possible to have a party seek adjustments to their property rights.
At the moment, my advice is that the Bill does not cover claims against deceased estates, so it is not possible for a claim to be made against the estate of a person who has died. That, I am told, is a matter which it is proposed be remedied in the future. If that is the case, then it would be helpful to have some idea of what the Government's plans are in that respect. That, obviously, will make a big difference to the way in which this Bill operates. Very clearly, many of the relationships we are talking about here will involve elderly people, and very often people will be making claims after a person has died if, in their opinion, they have not been properly provided for in the will of the person who has died. There is, of course, already the Family Provision Act in the ACT, which allows
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