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Australian Law Reform Commission - Reform Journal |
Articles in Reform Roundup are contributed by the law reform agencies concerned.
Contents
73 Administrative Review Council
73 Alberta Law Reform Institute
75 British Columbia Law Institute
76 Law Reform Commission of Western Australia
76 Manitoba Law Reform Commission
77 New South Wales Law Reform Commission
79 Queensland Law Reform Commission
80 Scottish Law Commission
81 South African Law Reform Commission
83 Tasmania Law Reform Institute
83 Victorian Parliament Law Reform Committee
Entries to Reform Roundup are welcome. Please contact the Editor at reform@alrc.gov.au
Conduct guide
On 26 August 2009, the federal Attorney- General launched the Administrative Review Council’s revised Guide to Standards of Conduct for Tribunal Members. The Guide, fi rst published in 2001, has been updated to refl ect the evolving role of tribunals and the changing public expectations of tribunal members. The Guide continues to focus on core administrative law values—respect for the law, fairness, independence, respect for persons, diligence and effi ciency, integrity, and accountability and transparency. The publication is intended to assist and complement tribunal management in maintaining the high level of standards expected of tribunal members.
Reports on the ARC website
All of the Council’s reports are now available for download from its website at www.ag.gov. au/arc. These reports cover a wide range of topics including: merits review tribunals; Government Business Enterprises; rule making by Commonwealth agencies; and environmental decisions and the AAT. Copies of Council publications also can be obtained by contacting the Council Secretariat via email at arc.can@ag.gov.au.
Purchasers’ remedies
In March 2009, the Alberta Law Reform Institute (ALRI) released Report for Discussion No 21 entitled Contracts for the Sale and Purchase of Land: Purchasers’ Remedies. Recent case law from the Supreme Court of Canada and the Alberta Court of Appeal jeopardise two longstanding protections for purchasers of land. This report makes preliminary recommendations to restore those protections and explores different methods of restoration.
The fi rst jeopardised protection is a purchaser’s ability to obtain specifi c performance if the seller fails to convey the land. Traditionally, the law’s position was that all land is essentially unique, so damages are almost never an adequate remedy for failure to transfer. Thus, a purchaser could easily obtain an order for specifi c performance. But recent cases have signifi cantly narrowed the concept of uniqueness. Unless the purchaser’s needs can be met only by transfer of the specifi c parcel of land and no other, damages will be considered a suffi cient remedy and specifi c performance will no longer be available.
In ALRI’s opinion, the remedy of specifi c performance should not be tied to concepts of uniqueness or adequacy of damages. The appropriate remedy for failure to transfer land is the remedy which best meets the objectives of fairness, effi ciency and effectiveness between the seller and purchaser. On these measures, specifi c performance should be available to purchasers who have met (or are ready, willing and able to meet) their obligations under the agreement. ALRI proposes to restore the ready availability of specifi c performance in this area.
The second jeopardised protection concerns a purchaser’s ability to fi le a caveat against the title of the land subject to the agreement for sale. An inability to obtain specifi c performance means a purchaser will no longer have an interest in land necessary to fi le a caveat. If damages can compensate for failure to transfer land, the purchaser simply has a contract right against the seller and no caveat can be fi led. The interest of a purchaser without a caveat has no priority over any subsequently registered interests of execution creditors or other purchasers or transferees of the land. The purchaser’s claim is, therefore, vulnerable to easy defeat. ALRI proposes to restore a purchaser’s ability to fi le a caveat. Consultation on this report ended in mid 2009 and a report containing ALRI’s fi nal recommendations should be published by the end of 2009.
The Creation of Wills
After public consultation on an earlier report for discussion, ALRI released Final Report No 96, The Creation of Wills, in September 2009. ALRI’s fi nal recommendations include:
Dispensing power. ALRI reiterates a previouslymade recommendation to enact a dispensing power enabling a court to validate a written will which does not comply with the statutory formalities of execution.
Testamentary capacity of minors. ALRI recommends that the age of testamentary capacity remain at 18 years. Current statutory exceptions should also be retained to allow minors to make a will if they are married, partnered, a parent or in the Canadian Forces. In addition, a new provision should allow any minor who wants to make a will to apply to court for validation of a specifi c will.
Statutory wills for persons without testamentary capacity. In Alberta (and most of Canada), a substitute decision-maker for a person without testamentary capacity is not allowed to make, alter or revoke a will on that person’s behalf. Our consultation found little support for granting courts the power to make ‘statutory wills’ as permitted in New Brunswick, England, Australia and New Zealand. ALRI does not recommend that statutory wills be allowed in Alberta.
Oral wills and electronic wills. ALRI recommends no change to the current law which recognises only written wills. Oral wills should not be valid either in their own right or under the dispensing power. Similarly, the Wills Act should not recognise electronic wills as valid in their own right. However, the dispensing power should be amended to be wide enough to allow a court, in an appropriate case, to validate a will in electronic form despite its lack of compliance with the usual formalities. But ‘electronic form’ should be narrowly defi ned to prevent any possible recognition of videotaped or tape-recorded wills.
Exempt wills. Members of the Canadian Forces on active service, mariners and seamen at sea may make ‘exempt wills’ which do not comply with all the formalities. Taking into account concerns expressed on behalf of the Canadian Forces, ALRI does not recommend removing this exemption. A statutory provision allowing exempt wills provides guaranteed validity for such wills, whereas applying to validate a non-conforming will under a dispensing provision does not.
Holograph wills. The Wills Act should not enact a special provision addressing unwitnessed printed will forms with handwritten entries. Such problem wills should be validated by a court severing the handwritten entries and fi nding a holograph will or by a court making an order under the dispensing power.
The Wills Act should recognise holograph wills made in the testator’s ‘own writing’ and defi ne that as ‘handwriting, footwriting, mouthwriting or writing of a similar kind’. The current undefi ned requirement of ‘handwriting’ is too narrow and could be viewed as discriminatory.
Will formalities. The Wills Act should continue to require that a will be signed by the testator at its ‘end or foot’, subject to the traditional saving provision to alleviate some of the main problems arising from a strict interpretation. We do not recommend change in this area because we do not think it wise to extend recognition, without the safeguard of court scrutiny, to anything written below a testator’s signature.
ALRI recommends the retention of concurrent witnessing. However, the statute should allow a witness who previously signed the will in the other witness’s absence to acknowledge their signature to the other witness when both are together, rather than having to actually re-sign the will. This recommendation overturns case law that renders such a will invalid.
Witnesses. ALRI recommends retaining the traditional saving provision which validates wills signed by an incompetent witness. We do not want to make witness competence a matter which must be proved in every application for probate. However, the Wills Act should disqualify as a witness any person who signs a will on behalf of and at the direction of the testator. No other express disqualifi cations should be stated.
ALRI recommends retaining the witness-benefi ciary rule but offsetting its harsher effects by giving a court the discretion to prevent loss of the testamentary gift, if it is satisfi ed that the witness or spouse did not exercise any improper or undue influence on the testator.
In addition to the witness-benefi ciary rule, ALRI further recommends that an interpreter and a person who signs a will on behalf of a testator should also be disqualifi ed from receiving any benefi t under the will. However, the interpreter’s disqualifi cation would not apply to any charge or direction in the will for the payment of appropriate remuneration for the interpretation services. An interpreter or proxy signer could also apply to a court to prevent loss of the gift on proof that no undue infl uence or fraud occurred.
Finally, if an executor or trustee acts as a witness to the will, it does not affect any trust provisions but does cause loss of any remuneration directed by the terms of the will. ALRI recommends that the Wills Act should provide that loss under the witness-benefi ciary rule does not apply to a charge or direction in the will for the payment of appropriate remuneration, including professional fees, to an executor or trustee of that will.
Criminal jury trials
ALRI has published Criminal Jury Trials: Challenge for Cause Procedures, Report on Consultation Memorandum 12.20, which is the fourth in a series of interim publications on its inquiry into criminal procedures.
The report suggests that a consistent process be followed when a trial participant exercises the statutory right to challenge one or more prospective jurors for cause.
In particular, the report proposes that:
• notices of intention to challenge and opposition to a challenge be given in timely manner;
• challenge materials be as complete and informative as possible;
• and the roles of the trial judge, counsel and panel of triers be clearly defined.
It is anticipated that a consolidated fi nal report containing all proposals in respect of criminal procedural rules will be published at the conclusion of the consultation effort.
Unfair contracts relief
The law of contracts in British Columbia (BC), similar to several other common law jurisdictions, is rooted in centuries old principles, such as freedom of contract, which assumed that contracting parties had equal bargaining power. The modern reality, however, is that in many situations, contracts involve a stronger party imposing terms on a weaker party. Contract terms that are unfair may negatively affect individuals or groups who are more vulnerable, such as consumers and small businesses. In times of fi nancial instability and economic downturn, such as the current North American recession, consumers or small businesses are even more likely to be victimised by predatory or unfair contract terms and left without viable remedies.
While the financial aspects of unfair contracts have been the subject of extensive commentary, there has been much less discussion with respect to what the law can do to provide protection from unfair contracts. In October 2009, the British Columbia Law Institute (BCLI) commenced a twoyear legal research and law reform project to study these issues related to unfair contract terms in BC. The Unfair Contracts Relief Project draws, in part, on previous work of the Institute on the subject of unfair contract terms and predatory lending.
The goals of this project include:
• carrying out comprehensive legal research, investigation, consultation and analysis of issues relating to unfair contracts in BC, and addressing whether changes in practice or reform of BC’s law of contracts are necessary to ameliorate the effects of unfair contract terms;
• providing legal education and information resources relating to issues arising from the imposition of unfair contract terms; and
• publishing a fi nal report with recommendations for best practices and law reforms in BC to address law reform to prevent or provide relief from unfair contract terms.
The project is being carried out with the assistance of a volunteer project committee, made up of members with expertise in contracts and lending issues. The BCLI aims to publish a consultation paper and hold an extensive public consultation before publishing its fi nal report, which will include recommendations for law reform and commentary, in September 2011.
Assisted living
Supportive housing or assisted living (AL) is often called a ‘middle option’ of health/housing, which lies at the centre of a seniors’ housing continuum, bookended by independent living at one end and high care long-term residential facilities at the other. AL is often broadly described as a type of independent living that includes some form of personal and health care services.
AL is already a signifi cant concern to Canadians, and with the impending ‘age wave’ will only be more so in the future. It is clear that Canadians will need to fi nd legislative and regulatory systems that make sense to users and providers of AL.
In October 2009, the Canadian Centre for Elder Law (CCEL) commenced a three-year legal research and law reform project to review and revise British Columbia’s legislation associated with assisted living. The Assisted Living Project draws on previous work of the CCEL, which identifi ed notable defi ciencies and inconsistencies in several areas of legislation relating to AL in British Columbia. The goals of the project include:
carrying out thorough legal research, investigation, consultation and analysis of issues relating to AL in BC, and proposing concrete and specifi c law reforms as appropriate; publishing a fi nal report with proposed draft legislation/drafting instructions; and conducting outreach activities to increase government, professional and public understanding of the issues and recommendations.
The project is being carried out with the assistance of a volunteer project committee comprised of legal experts, persons experienced in dealing with AL and observer representation from the government. The BCLI aims to publish a fi nal report, including proposed draft legislation/drafting instructions and commentary, in September 2012.
Problem-oriented courts and judicial case Management
Following the release of the Commission’s consultation paper, Court Intervention Programs, and a lengthy submissions period, work has been completed on the fi nal report and recommendations for this inquiry. At the time of publication of Reform, the Commission was awaiting tabling of the fi nal report in Parliament.
Once tabled, the report will be available in hard copy and in electronic format from the Commission’s website at www.lrc.justice.wa.gov. au.
Jurors Work is continuing on the Commission’s reference to examine and report upon the operation and effectiveness of the system of jury selection. The matter was referred to the Commission as a result of concerns raised about the growing number of people who apply for, and are granted, exemptions from jury service, or who are disqualifi ed or ineligible to participate on a jury. The consequent effect of these exemptions and disqualifi cations from jury service is that juries become less representative of the community. In addition to this, those who remain eligible for jury service then carry a greater burden to fulfi l this important civic duty. The Commission anticipates the release of a detailed discussion paper in late 2009.
Coronial practice in WA Throughout 2008, the Commission undertook an extensive consultation process on its review of coronial practice in WA, meeting with all relevant and interested agencies and organisations associated with the Coroner’s Court. A signifi cant amount of preliminary research and analysis was also undertaken. Work has commenced on the drafting of a comprehensive discussion paper that will address the issues raised during the consultation process and identify the role and responsibilities of the Coroner in a contemporary world. It is envisaged the project will take several years to complete, with the discussion paper expected in early 2010.
Community Protection (Offender Reporting) Act The Commission has received a new reference to examine and report upon the application of the Community Protection (Offender Reporting) Act 2004 (WA). The Act is primarily aimed at monitoring paedophiles and other serious sex offenders. The scope of the reference is very narrow, with the
Commission being asked to consider:
• how the Act applies specifi cally to reportable offenders who are children; and
• reportable offenders who are over the age of 18 and commit the offence in circumstances which are exceptional, for example consensual sexual activity with a person the offender honestly and reasonably—but mistakenly—believed to be of or over the age of 16 years.
This reference was initiated as a result of concerns raised about the number of children sentenced in the Children’s Court for reportable offences who are required to comply with the reporting requirements of the Community Offender Protection Register. Because of the mandatory nature of the Act, there is no mechanism or discretion to enable the Court to deal with young offenders in a manner that refl ects the low end of the scale of seriousness of the offence, or that indicates that the juvenile is not a sex offender of the type for which the register originally came into force.
The Commission is in the preliminary stages of the reference, with foundation research still being undertaken. It is anticipated that the Commission will be in a position to release a discussion paper some time in 2010.
E-news
The Commission has an e-news subscription service which informs subscribers when reports and papers are released as well as keeping subscribers up-to-date with the Commission’s activities. The Commission invites Reform’s readers to subscribe to this service. Subscription is free and you can unsubscribe at any time—just follow the prompts at www.lrc.justice.wa.gov.au.
Waivers of liability for sporting and recreational Injuries
This recently released report, Waivers of Liability for Sporting and Recreational Injuries (Report 120), provides an overview of civil liability for providers of sporting and recreational activities for the personal injuries or death of consumers arising under three regimes of legal responsibility: The Occupiers’ Liability Act, the tort of negligence and the law of contract. This report reviews Canadian case law on personal injury and fatality claims involving contractual waivers of liability and considers the approach in other jurisdictions in respect of the use of waivers of liability.
The report makes recommendations aimed at protecting the interests of consumers by prohibiting or alternatively by limiting the use of waivers of liability for personal injury or death resulting from negligence in sporting and recreational activities, while ensure that providers of sporting and recreational activities may still obtain acknowledgements and assumptions of inherent risks from consumers of these activities.
Private international law
The Private International Law Report (Report 119), released in 2009, deals with two matters arising out of the Supreme Court of Canada decision in Tolofson v Jensen; Lucas v Gagnon, namely choice of law for tort and the characterisation of limitation periods, and with jurisdiction simpliciter and the concept of real and substantial connection pertaining thereto.
The Commission recommends the enactment of legislation to codify the Tolofson general rule, with the greater specifi city, and to empower Manitoba courts to apply a different law in exceptional circumstances. The Commission also recommends that The Limitation of Actions Act be amended to codify the Tolofson principle that limitation periods are substantive, rather than procedural.
In addition, the report deals with the establishment of the jurisdiction of the Court of Queen’s Bench in cases where a defendant has been served with a statement of claim outside of Manitoba. Currently, the case law is in a state of uncertainty. The Commission recommends that Manitoba follow several provinces that have enacted the model legislation proposed by the Uniform Law Conference of Canada entitled the Uniform Court Jurisdiction and Transfer Proceedings Act.
Posthumously conceived children
The Commission’s report, Posthumously Conceived Children: Intestate Succession and Dependants Relief (Report 118), released in February 2009, considers three matters respecting intestate succession—two are amendments to existing sections of The Intestate Succession Act, and the third is the question whether posthumously conceived children should be eligible to inherit from and through a deceased parent who dies intestate. There is also the issue of whether posthumously conceived children should receive dependants’ relief.
The Commission recommends that The Intestate Succession Act and The Dependants Relief Act be amended to include posthumously conceived children in order to remedy the current discrimination and to avoid costly litigation. As well, the Commission recommends that The Intestate Succession Act be amended to require of survivors conceived before and born after the death of an intestate and of posthumously conceived children, the 15 day survival which is required of other survivors of the intestate. The Commission also recommends an amendment to provide for an equal sharing in an intestacy by maternal and paternal cousins of equal degree of kinship.
The Limitation of Actions Act
In recent years several Canadian jurisdictions have enacted—and the Uniform Law Conference has proposed—legislation that simplifi es and rationalises the law of limitations. The Commission is currently considering recommendations as to whether and how Manitoba should modernise its legislation, including reform in relation to both personal and real property limitations.
A draft report was released in June 2009 and, after a period of community consultation, the Commission is now fi nalising this inquiry.
Improving administrative justice
Manitoba has approximately 160 administrative agencies, boards and commissions that operate outside the government departmental structure. The government relies on administrative agencies, boards and commissions to regulate, adjudicate, give advice, administer substantial fi nancial and other assets and provide goods and services.
The Commission is examining the elements of the formal and informal mechanisms for appointments to administrative agencies, boards and commissions and considering recommendations for a new appointments process for Manitoba. It is currently preparing a report entitled, Improving Administrative Justice in Manitoba: Starting with the Appointments Process.
Pension benefi ts and marital breakdown The Commission is carrying out research with respect to a possible gap in the law in Manitoba relating to the division of pension benefi ts between divorced spouses.
Jury directions
The Commission is in the fi nal stages of its inquiry into jury directions in criminal trials.
In February 2007, the Attorney General requested that the Commission inquire into the directions and warnings given by a judge to a jury in a criminal trial. The Commission is required to have regard to:
• the increasing number and complexity of the directions, warnings and comments required to be given by a judge to a jury;
• the timing, manner and methodology adopted by judges in summing up to juries (including the use of model or pattern instructions);
• the ability of jurors to comprehend and apply the instructions given to them by a judge;
• whether other assistance should be provided to jurors to supplement the oral summing up; and
• any other related matter.
In December 2008, the Commission published a consultation paper (Jury Directions, CP 4) which looks at the instructions that judges currently give. It poses the question of whether the instructions are necessary for a fair trial and, if so, whether they can be presented to jurors in a more effective way. Consideration is also given to the ways in which judges’ oral directions can be supplemented by other materials, such as computer technology, written summaries, and fl ow charts setting out pathways to a verdict.
The Commission has received submissions from the public on all aspects of jury directions, including the ways in which they are delivered, and held a series of advisory committee meetings in 2009 ahead of preparation of the fi nal report.
Privacy
The Commission has completed its reference into privacy, with the release of its report Invasion of Privacy (Report 120) in August 2009.
The Commission recommends that there should be an action for invasion of privacy and its report clarifi es when an individual should be able to claim compensation and places limitations on the action.
Under the Commission’s proposals, the action is only applicable where an individual has a reasonable expectation of privacy that is not overridden by public interests such as freedom of speech. The Commission has advocated a common sense approach, whereby privacy interests are weighted against other important concerns such as the public’s ‘right to know’ and the protection of national security. The report recommends that the new cause of action only be introduced as part of national law reform so that privacy law would be uniform throughout Australia.
FOI and privacy
The Commission received expanded terms of reference from the Attorney General in June 2009 ‘to inquire and report on the legislation and policies governing the handling of access applications for personal information of persons other than the applicant under the Freedom of Information Act 1989 (or any successor legislation)’. The report was due in October 2009.
People with cognitive or mental health Impairments
The Commission commenced two projects in early 2007 under its Community Law Reform Program relating to people with cognitive or mental health impairments coming into contact with the criminal justice system. The fi rst was to review section 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW). This provision gives magistrates very broad powers—including diversion from the criminal justice system—when dealing with a defendant who is developmentally disabled, or suffering from a mental illness, or suffering from a mental condition for which treatment is available in a public hospital (but is not mentally ill within the meaning of Chapter 3 of the Mental Health Act 1990). The second project was to review the principles of sentencing offenders with cognitive or mental health impairments.
In September 2007, the Attorney General issued the Commission with new, expanded terms of reference. As well as the matters already being considered, the Commission is now also required to consider ‘fi tness to be tried’ and the ‘defence of mental illness’.
The Commission is planning the release of a consultation paper in late 2009, with a fi nal report to follow.
Complicity
The Commission’s inquiry on the law of complicity is reaching its fi nal phase, with the preparation of a report for the Attorney General.
Complicity refers to rules that widen criminal liability beyond the main perpetrator of a criminal act to another person or persons who may have assisted the main perpetrator to commit an offence. The secondary participant can be held equally guilty of the crime committed. The concept is often referred to as derivative or secondary liability. The law of complicity in NSW is still based on the common law, unlike most states, territories and the Commonwealth, which have codifi ed the relevant principles.
In January 2008, the Commission published a consultation paper on the law of complicity. The paper focuses on two types of complicity: extended common purpose, and accessorial liability. The third type, which is not considered in any detail, is concerned with joint criminal enterprise.
The paper outlines the criticisms which have been directed at these aspects of the law of complicity, particularly by the former High Court judge, the Hon Michael Kirby AC CMG, in a number of High Court cases.
Workplace deaths
The Commission is conducting a statutory review of provisions inserted in 2005 into the Occupational Health and Safety Act 2000 (NSW), which created a new offence relating to workplace deaths.
The Commission has prepared an interim report for the Attorney General, which is yet to be made public.
Emergency medical care and the restricted right to practise
The Attorney General asked the NSW Law Reform Commission last year to review the Medical Practice Act 1992 (NSW) to determine whether individuals whose legal right to practise medicine is restricted ought to be under any, and if so what, obligation to provide emergency medical care contrary to the restriction on their right to practise.
Practitioners whose right to practise is restricted may only be able to provide ‘urgent’ services if they act in breach of the restrictions imposed on their right to practise. If they abide by those restrictions, their conduct amounts to ‘unsatisfactory professional conduct’. On the other hand, if they ignore the restrictions and provide the urgent treatment required, they are likewise guilty of unsatisfactory professional conduct under the Act for ignoring a condition attached to their registration. The Act does not resolve this difficulty.
The Commission made three recommendations designed to overcome these diffi culties in its fi nal report, Emergency medical care and the restricted right to practise (Report 121), published in May 2009.
Review of penalty notice offences
The Attorney General, in December 2008, asked the Commission to inquire into the laws relating to the use of penalty notices in NSW and, in particular, in relation to the level of penalties available, the methods by which offences are selected which attract penalties, and the methods by which penalties are set, as well as the categories of persons in relation to whom they should be available.
The Commission plans to publish a consultation paper by the end of 2009.
Family violence
The NSW Law Reform Commission is working with the Australian Law Reform Commission on its family violence inquiry. The NSW Law Reform Commission received terms of reference in July 2009 and is now calling for preliminary submissions.
The commissions are working on a joint consultation paper to be released early in 2010, with a fi nal report due in July 2010.
(Editor’s note: See the article on page 55 for further discussion on this inquiry.)
Jury directions and warnings
In March 2009, the Queensland Law Reform Commission released an issues paper that examines a number of specifi c jury directions and warnings, and considers several options to improve jury directions generally. The paper also examines whether jurors can be assisted by the provision of other information, such as transcripts or other written aids.
The Commission is undertaking a research project with former jurors to investigate the extent to which they understood, and were assisted by, the directions, warnings, addresses and summing up given in their respective trials.
The Commission’s fi nal report is due at the end of 2009.
Uniform succession laws
In April 2009, the Queensland Law Reform Commission completed the fi nal report on The Administration of Estates of Deceased Persons, which concluded the fourth and fi nal stage of the Uniform Succession Laws Project. The report includes model legislation to facilitate the implementation of the National Committee’s recommendations by the states and territories.
The project was an initiative of the Standing Committee of Attorneys General, and aimed to update and harmonise the succession laws of the states and territories. It was undertaken by the National Committee for Uniform Succession Laws, which included representatives from all states and territories, except South Australia.
In developing the recommendations contained in the report, the National Committee was guided by four objectives:
• the simplification of the law;
• the simplifi cation of processes;
• the protection of persons with an interest in the estate of a deceased person; and
• recognition of the extent of informal administration.
Simplifi cation of the law
As part of the simplifi cation of the law, the National Committee sought to assimilate, to the greatest extent possible, the role of administrators with that of executors. For example, the National Committee recommended that the chain of representation, which presently passes through executors only, should also be able to pass through administrators. Where an administrator dies without having completed the administration of the estate, this recommendation will enable the executor or administrator of the deceased administrator to continue the administration of the original estate, and will avoid the need to obtain a further grant in relation to the original estate.
The National Committee also streamlined and clarifi ed the statutory order for the application of assets towards the payment of debts in a solvent estate. This is an area of the law that has historically given rise to considerable uncertainty and litigation.
Simplifi cation of processes
In addition to simplifying the law, the National Committee sought to simplify the processes for the administration of estates. The major reform proposed, in this respect, is the scheme for the recognition of certain Australian grants without the need for those grants to be resealed. Under the fi rst stage of these proposals, if a person dies domiciled in an Australian state or territory, a grant made in that jurisdiction and bearing the required endorsement as to domicile will generally be effective in the other Australian jurisdictions. This avoids the need to obtain a grant, or the resealing of a grant, in each Australian jurisdiction in which there is property to be administered.
The protection of persons with an interest in the estate of a deceased person
The National Committee also recognised that the lack of information provided by some personal representatives is an issue that commonly gives rise to disputes in relation to the administration of estates. The National Committee clarifi ed the duty of a personal representative to maintain documents about the administration of an estate, and provided benefi ciaries and other specifi ed persons with a mechanism to obtain access to the documents that must be maintained by a personal representative.
A second issue that gives rise to complaints about the administration of estates concerns the amount of commission charged by personal representatives (particularly under the provisions of a will). The National Committee recommended that the court have an express power to review the amount that is charged, or proposed to be charged, by a personal representative for administering an estate.
Recognition of the extent of informal administration
The National Committee also recognised the extent to which many estates are able to be administered without a grant, and included provisions to facilitate that course. For example, the National Committee recommended that:
• elections to administer should be able to be fi led by the public trustee, a trustee company or a legal practitioner;
• the model legislation should clarify the liability of a person who administers an estate informally; and
• the model legislation should include a provision to facilitate the payment, by a person who holds money or personal property of a deceased person, of certain amounts without requiring the production of a grant.
Succession
The Scottish Law Commission has published its report and draft Bill on Succession (ScotLawCom No 215). It is a comprehensive review of the law of testate and intestate succession and recommends a thorough updating and simplifi cation of the current succession rules.
The recommendations for the distribution of intestate estates form the heart of the reform. The Commission recommends that an intestate’s surviving spouse or civil (same sex) partner should inherit the whole estate up to the value of a threshold sum (suggested to be £300,000). Any excess will be divided into two parts—one for the spouse or civil partner and the other for any issue of the deceased (children, grandchildren, etc). So, if the deceased leaves no issue, the spouse or civil partner will inherit the whole estate regardless of its size. If the deceased is not survived by a spouse or civil partner, the issue will inherit everything. For example, Ethel dies intestate leaving her husband, Harold, a daughter, Donna, and net estate of £340,000. Harold receives £320,000 (that is, the threshold sum plus half of the excess) and Donna £20,000. These reforms place the surviving spouse or civil partner in what the Commission considers to be their rightful position: as the main heir on intestacy. Also, the current distinction between heritable and moveable estate is largely eradicated.
Secondly, there are recommendations for the protection of certain close family members. If the deceased dies testate, making inadequate (or no) provision for the surviving spouse or civil partner, the recommendation is that the survivor should be entitled to a legal share of the estate, which is to be valued at 25% of what he or she would have inherited if the deceased had died intestate. The report makes two alternative sets of recommendations in relation to disinherited children. One is that the deceased’s issue should be entitled to a legal share of the estate, also valued at 25% of what he or she would have inherited on intestacy. If, in our example, Ethel had left her entire estate to charity, Donna’s legal share would be £5,000 and Harold’s £80,000. The second, more radical, alternative is that protection should only be given to a deceased’s dependent child, who is to be entitled to a capital sum from the estate. It is calculated by reference to his or her maintenance needs for the period between the deceased’s death and the time when, had the deceased survived, his or her alimentary obligation to the child would have ceased (that is, at 18 or, if the child is in further education or training, by age 25). The capital sum is payable out of the whole estate other than any part which goes to a person who owes the child an obligation of aliment. So, if a father dies leaving a young child, any estate which devolves to the child’s mother will be disregarded, on the basis that she owes the child an alimentary obligation. Under this scenario disinherited adult children would have no claim. Those who responded to the Commission’s earlier discussion paper on this inquiry were evenly divided between the two options, so the Commission considered it right to present both alternatives. The fi nal decision is for the Scottish Parliament.
The report expressly provides that a person who has a right to a legal share may renounce it at any time. This may be appropriate, for example, where a widow wishes to leave her estate to her badly handicapped son and not to her well-off daughter, or where the testator’s main asset is a business which would suffer a disproportionate loss if a part had to be sold in order to meet a claim for legal share.
The third set of recommendations relates to cohabitants. The current provision, in s 29 of the Family Law (Scotland) Act 2006, is to be repealed; instead, a cohabitant whose relationship is terminated by the deceased’s death is to be entitled to an ‘appropriate percentage’ of the sum which he or she would have inherited had the couple been spouses or civil partners. This will apply in testate cases as well as on intestacy, so the survivor will receive a percentage of the legal share to which a spouse or civil partner would have been entitled or, alternatively, a percentage of the intestate succession entitlement of a spouse or civil partner. Prescribed factors are to be taken into account in determining the appropriate percentage: they focus exclusively on the length and quality of the cohabitant’s relationship with the deceased. Factors such as the size of the estate, the existing means of the survivor, the identity of the other benefi ciaries and so on will be irrelevant and cannot be considered. So, for example, a woman whose relationship lasted for 40 years and who brought up the couple’s children might be entitled to a large percentage, say 95%, of what she would have received if married to the deceased. But the appropriate percentage for the survivor of a couple who had only been together for a few years, who managed their fi nances separately and whose household did not include children might be around 25% of a spouse or civil partner’s entitlement.
The report makes other recommendations, many of which stem from recommendations in the Commission’s Report on Succession in 1990 which have not yet been implemented. For instance, there is consideration of international private law issues, the rectifi cation of wills and the revival of revoked wills. Apart from recommended reforms about caution, the report does not address matters relating to executors and estate administration. The Commission intends to review the law in this area in a future project, possibly to form part of its Eighth Programme of Law Reform.
Statutory law revision
Work continues on the Commission’s major investigation on statutory law revision (Project 25), which aims to establish a permanently simplifi ed, coherent and generally accessible statute book. An audit of all national legislation (excluding provincial and secondary legislation) by the Commission revealed that there are close to 3,000 statutes on the statute book, comprising Principal Acts, Amendment Acts, Supplementary or Additional Acts and Private Acts. Many of these Acts are not being applied anymore while others contain provisions that are in confl ict with the Constitution. Redundant and obsolete provisions on the statute book are being identifi ed and government departments are being consulted in order to verify these provisions.
With a view to increasing research capacity, the Commission identifi ed advisory committee members for appointment by the Minister of Justice and Constitutional Development. In July 2008, 112 advisory committee members were appointed to 14 advisory committees. Initial meetings of these advisory committees were held to decide the way forward, and agree on a division of the statutes to be reviewed; time-frames of the fi rst stage of the review; and the development of consultation papers.
Further meetings were held earlier this year to consider these consultation papers. Once approved, these consultation papers will be submitted to the departments concerned to consider and to comment on the preliminary fi ndings and proposals.
In March 2009 a progress report and a Cabinet Memorandum detailing progress made in the project up to the end of February 2009 was submitted to Department of Justice and Constitutional Development. The Minister submitted the progress report to Cabinet for noting.
Discussion papers released as part of this investigation are available on the Commission’s website.
Hindu marriages
The Commission is developing a discussion paper as part of its investigation into the recognition of Hindu marriages. The inquiry, which was approved for inclusion in the Commission’s program in 2006, is part of Project 25 (discussed above).
South African law does not recognise marriages by Hindu rites; therefore all the legal consequences of marriage do not apply to such marriages in South Africa. Couples in a Hindu marriage for example need not use the court if they want to get divorced. Spouses also cannot claim any of the legal consequence of divorce, such as maintenance, after the relationship has ended. The aim of this investigation is to look into the recognition of Hindu marriages in order to afford these marriages full legal recognition and the same status as marriages concluded in accordance with civil rites.
Privacy and data protection
The report on Project 124: Privacy and Data Protection was submitted to the Minister of Justice and Constitutional Development in February 2009 and publicly released in August. The Minister has subsequently sought and obtained Cabinet approval to submit the Protection of Personal Information Bill into Parliament.
The Commission’s investigation covered all aspects regarding the protection of personal information in relation to the processing (collection, storage, use and communication) of the information by the State or another.
The Commission has recommended that privacy and information protection be regulated by a general information protection statute, which will be supplemented by codes of conduct for the various sectors.
The legislation is pro-active in nature, focusing on ensuring that proper systems are put in place instead of only policing encroachments.
The Bill applies to both the public and private sector; to paper records as well as those held on computers; and to identifi able natural and juristic persons. It will give effect to the following internationally accepted core information protection principles, and will provide that personal information must be:
• obtained fairly and lawfully;
• used only for the original specified purpose;
• adequate, relevant and not excessive to purpose;
• accurate and up to date;
• accessible to the subject;
• kept secure;
• destroyed after its purpose is completed;
• transferred only to countries that ensure an adequate level of information protection; and
• accounted for by the responsible party at all times.
Provision is made for exceptions to the information protection principles. Exclusions and exemptions are furthermore possible for specifi c sectors in applicable circumstances. Special provision has also been made for the protection of special (sensitive) personal information, such as information regarding children, religion, health and sex life, race, political persuasion and criminal behaviour.
The Commission recommends a fl exible approach where industries will develop their own codes of conduct (in accordance with the principles set out in the legislation), which will be overseen by the regulatory agency. Codes of conduct for individual sectors may be drawn up for specifi c sectors on the initiative of the sector itself or of an Information Protection Regulator.
The Regulator will administer both the new Protection of Personal Information Act and the existing Promotion of Access to Information Act.
The recommendations and draft legislation are the result of a profoundly thorough consultation process. Should these recommendations be adopted by Parliament, the protection of information privacy in South Africa will be in line with international obligations in terms of requirements and developments.
Adult prostitution
The Commission is considering the responses it has received in its investigation into adult prostitution (Project 107: Sexual Offences: Adult Prostitution) after releasing a discussion paper for public comment earlier this year. The Commission also held a series of public workshops and opened on online questionnaire as part of consultation on the investigation.
The Commission is considering the need for law reform in relation to adult prostitution and identifying alternative policy and legislative responses that might regulate, prevent, deter or reduce prostitution. A secondary aim is to review the fragmented legislative framework which currently regulates adult prostitution and enhance alignment with international human rights obligations. Under current South African legislation, voluntary selling and buying of adult sex and all related acts are criminal offences.
The proposed four law reform options outlined in the discussion paper are:
• total criminalisation of adult prostitution (status quo);
• partial criminalisation of some forms of adult prostitution and prostitution related acts;
• non-criminalisation of adult prostitution; and
• regulation of adult prostitution and prostitution related acts.
All of the proposed options presuppose the criminalisation of under-aged and coerced prostitution and traffi cking of people for the purpose of prostitution (the legislature has recently revised and severely sanctioned commercial sexual exploitation of children and traffi cking of children and adults for sexual purposes). The criminalisation of coerced adult prostitution must be included in the option which is ultimately recommended in the report.
The Commission is preparing its report, which will contain the fi nal recommendations of the Commission and will be accompanied by legislative proposals pertaining to adult prostitution.
Easements and analogous rights
This project reviews the current laws of easements and analogous rights in Tasmania to ensure that they meet community expectations and needs.
On 17 February 2009, an issues paper was released. The large response that has been received from members of the public (requesting copies of the paper and talking to the Institute about problems with the existing law) demonstrates that this is an area of public concern in Tasmania. Public comment received by the Institute indicates that there is a great deal of uncertainty about the rights and obligations of the owners of the dominant and servient tenements. The need for a low cost dispute resolution forum is another key theme in the responses received from the public.
Work is currently underway on the preparation of the fi nal report. The report will make recommendations for reform in relation to the current legislative requirements in Tasmania for the creation, variation and termination of easements. Other important areas to be considered are the abandonment of easements, the recognition of novel easements, and the recognition of easements in gross.
Male circumcision
On 2 June 2009, an issues paper was released that examines the law relating to non-therapeutic male circumcision in Tasmania. The paper was written for the Board of the Institute by a postgraduate student enrolled at the Faculty of Law, Mr Warwick Marshall.
The particular focus of the paper is the criminal and civil liability of a person performing a nontherapeutic circumcision. For the purposes of the paper, a circumcision is regarded as nontherapeutic if it is performed for any reason other than remedying or treating an existing disease, illness or deformity of the body. Prophylactic circumcisions are included as non-therapeutic circumcisions.
The paper provides a brief review of the medical and non-medical background, examines the current legal situation in relation to criminal responsibility, family law, the legal responsibilities of circumcisers in the provision of their service and the relevant human rights law. It also describes the legislative regimes for circumcision that exist in some overseas jurisdictions, briefl y outlines some options for reform and provides a list of questions to direct discussion.
After an examination of the law in Tasmania, the paper concludes that adults and children capable of consent can almost certainly provide consent for the procedure so that a circumciser can legally perform the procedure (subject to other duties the circumciser will have in the provision of their service). However, the paper also concludes that there is uncertainty as to whether parent’s consent for the circumcision of their child is suffi cient to allow a circumciser legally to perform the procedure.
The main purpose of the paper is to encourage, and provide the background for, deliberation about whether changes need to be made to the law in Tasmania. In particular the paper invites consideration of:
• the circumstances in which a person is criminally liable for performing nontherapeutic circumcision (punishable by either imprisonment, a fi ne, or other means);
• the circumstances in which a person is liable under civil law for performing a non-therapeutic circumcision; and
• the regulation of the commercial aspects of male circumcision.
Following consideration of all responses it is intended that a fi nal report will be published, containing recommendations.
Alternative dispute resolution and restorative justice
The Victorian Parliament Law Reform Committee (VPLRC) tabled its report on alternative dispute resolution (ADR) and restorative justice in May 2009.
The report contains 44 recommendations which aim to realise the potential of ADR services in Victoria, ensure high quality services and make ADR accessible to all members of the community. The recommendations include:
• reducing barriers to access for members of the community, including establishing more dispute settlement centres throughout the state, providing more assistance for people from non-English speaking backgrounds and developing culturally appropriate services;
• increasing the capacity of Victorians to resolve civil disputes themselves through education about confl ict resolution and communications skills; and
• increasing the supply of ADR services, particularly by exploring the scope for additional industry ombudsman schemes and by undertaking research into the potential use of online ADR.
The report also contains 34 recommendations aimed at enhancing current restorative justice programs and making restorative justice more widely available in Victoria, including:
• improving the experiences of victims participating in the Youth Justice Group Conferencing (YJGC) Program, a restorative justice program operating in the Children’s Court of Victoria, through increased provision of information and support to victims and more follow-up with victims after a group conference;
• increasing the quality and consistency of restorative justice services through the training and accreditation of providers; and
• expanding restorative justice programs in Victoria, including a staged rollout of restorative justice programs to suitable adult offenders, a pilot program using restorative justice for some more serious offences (but not for family violence and sexual offences) and a trial restorative justice program for suitable offenders after they have been sentenced by a court.
Members of Parliament (Register of Interests) Act
The VPLRC is currently reviewing the Members of Parliament (Register of Interests) Act 1978 (Vic). The Act sets out a code of conduct for members of the Victorian Parliament. It also requires them to disclose certain fi nancial and other interests that have the potential to confl ict with their public duties, such as land and shareholdings, in a register. The VPLRC has received 28 submissions to the review and held four public hearings between June and August this year. The VPLRC will table its fi nal report to the Victorian Parliament in December 2009.
Powers of attorney
The VPLRC is conducting an inquiry into Powers of Attorney in Victoria. The terms of reference require the VPLRC to consider law reforms to streamline and simplify powers of attorney documents to enable more Victorians to plan for their future fi nancial, lifestyle and healthcare needs.
The VPLRC has called for public submissions to the inquiry, and has received more than 60 submissions to date. Public hearings were held in October 2009 and more are planned for late 2009 and early 2010
The inquiry is due to be completed by 31 August 2010.
Further information about the work of the VPLRC, including copies of reports, terms of reference and information about how to make a submission, is available at www.parliament.vic.gov.au/lawreform, or by calling (03) 8682 2851.
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URL: http://www.austlii.edu.au/au/journals/ALRCRefJl/2009/51.html