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Tuesday, 12 October 1971
Page: 2161


Mr SPEAKER -Is leave granted? There being no objection, leave is granted. '


Mr SINCLAIR - In May of this year the Law Reform Commission Ordinance 1971 of the Australian Capital Territory was made and it provided for the establishment of a Law Reform Commission for the Territory. I take this opportunity to inform honourable members that the members of the Commission have now been appointed, that it has established itself in suitable premises and that the AttorneyGeneral (Senator Greenwood) has referred to it 6 matters for examination and report. The Ordinance provides for the Commission to consist of a Chairman and two other members, all of whom are to be appointed by the Governor-General. The Governor-General has been pleased to appoint Mr Justice Blackburn to be the Chairman and Professor P. S. Atiyah and Mr N. M. Macphillamy to be the two other members. AH these persons are eminently qualified for the positions to which they have been appointed. Mr Justice Blackburn, who has been appointed a Judge of the Supreme Court of the Australian Capital Territory, had for some 5 years before his appointment been the Senior Judge of the Supreme Court of the Northern Territory. His Honour had a brilliant academic record, having been a Rhodes Scholar followed by a period of 8 years as Bonython Professor of Law at the Adelaide University and a further period of several years in private practice.

Professor Atiyah, who holds a professional appointment in the Faculty of Law in the School of General Studies at the Australian National University, has had a distinguished academic career in the course of which he has written a number of books and articles on legal subjects. He was a member of the United Kingdom Law Commission's Advisory Panel on the codification of the law of contract. Mr Macphillamy is the senior partner in one of the largest firms of Canberra solicitors. He has had an extensive practice, particularly in the areas of company and commercial law. He was the Secretary of the Law Society of the Australian Capital Territory from 1956 to 1959 and also from 1964 to 1967. The Commission's premises, which are open to the public, are situated in the AMP Building in Hobart Place, Canberra City.

Section 12 of the Law Reform Commission Ordinance provides for the Commission to undertake and report on matters referred to it by the Attorney-General, whether at the suggestion of the Commission or otherwise. Pursuant to that provision, on 17th September 1971, the AttorneyGeneral referred to the Commission 6 matters, which I shall now mention. The first matter is:

Whether and in what respect the Conveyancing and Law of Property Act 1898 of the State of New South Wales in its application to the Australian Capita] Territory needs to be amended, having regard, in particular, to the changes that have been effected in New South Wales by the Conveyancing Act 1919-1964.

By way of explanation, I mention that the registration of titles to real property, generally known as the Torrens title system, is provided for in the Australian Capital Territory by the Real Property Ordinance. The general law relating to property, both real and personal, insofar as it depends on statute law, is contained in the Conveyancing and Law of Property Act 1898 of the State of New South Wales in its application to the Territory. That Act was repealed in New South Wales by the Conveyancing Act 1919 which has since been substantially amended. Some only of the provisions of the Act have been adopted as a law of the Territory by the Conveyancing Ordinance 1951, the Law of Property (Miscellaneous Provisions) Ordinance 1958 and Trustee Ordinance 1957.

The Law Society of the Australian Capital Territory has made representations that the whole of the Conveyancing Act 1919 of New South Wales should be adopted as a law of the Territory. It has been claimed that there are serious problems because our law is out of date. It will be the task of the Commission to recommend what should be the law of the Territory in this field. The second matter is:

A review of the Imperial Acts that still apply in the Australian Capital Territory with a view to recommending - which of those Acts, in their application to the Australian Capital Territory, should be repealed, which should continue to apply in the Territory, and which should be replaced by legislation in more modern form.

By virtue of section 6 of the Seat of Government Acceptance Act 1909 all laws in force in New South Wales on 1st January 1911, the date on which, the Territory was established, were continued in force, so far as applicable, until other provision was made. A large number of Imperial Acts are still in force in the Australian Capital Territory by reason of the fact that they were in force in New South Wales on 1st January 1911. Many of them have outlived their usefulness. Moreover there is no official publication which indicates what these Acts are.

In both Victoria and New South Wales Acts have been passed declaring which of these Imperial Acts are still to apply without amendment, re-enacting others in modern form and repealing the remainder. The New South Wales Act cannot be followed without considerable adaption in the Australian Capital Territory .because many of the State's laws are different from those in the Territory. The Commission will examine the position of the Imperial Acts in the Territory and the recommendation it makes will pave the way for similar legislation of the Territory.

The third matter is:

The identification of aH New South Wales Acts still in force in the Australian Capital Territory and a review of those Acts with a view to recommending the repeal, in relations to tha Australian Capital Territory, of all New South Wales Acts except Acts specified as "Being still needed in the Territory.

As well as Imperial Acts, there are a number of New South Wales Acts which were continued in force, as far as they were applicable, by section 6 of the Seat of Government Acceptance Act. In many cases, it is doubtful whether they were then applicable and whether or how they have been affected by subsequent legislation. There is, therefore, some difficulty at present in ascertaining with certainty what New South Wales Acts are in force in the Territory. The Commission will undertake the task of removing this difficulty. When the 2 projects relating to Imperial and New South Wales Acts are completed, it will not be necessary to look beyond Acts of the Parliament or ordinances .of the Territory to determine what statutes apply in the Territory. It may, of course, be necessary to refer to an Imperial or New South Wales statute, but only when so indicated by Territory legislation.

The fourth matter referred to the Commission is:

Whether and in what respects the provisions of the Lunacy Act 1898 of the State of New South Wales, in its application to the Australian Capital Territory, relating to the management of the property and affairs of persons who are mentally ill needs lo be amended.

The law of the Territory relating to mentally ill persons is contained in the Lunacy Act 1898 of New South Wales, the Insane Persons and Inebriates (Committal and Detention) Ordinance 1936-1937, and the Mental Health Ordinance 1962. The law has been criticised on the ground that it is both inaccessible and uncertain, especially with regard to the management of the property and affairs of persons who are mentally ill. The provision to be made for the treatment of mentally ill persons is a matter for my colleague,, the Minister for Health (Senator Sir Kenneth Anderson) and any amendment of the law in this field will depend on the development of psychiatricpsychiatric services which is currently progressing. However, a review of the law relating to the management .of the property and affairs of mentally ill persons is desirable at this stage and the Commission will now undertake this review.

The fifth matter that has been referred is:

A review of the civil procedure of the Court of Petty Sessions with a view to recommending amendments that will be desirable if the present monetary limit of $1,000 in the Court's civil jurisdiction is increased by several thousand dollars.

The rules of civil procedure of the Court of Petty Session have remained largely unchanged since the Court was constituted in 1930. They are relatively unsophisticated, as compared with the procedures in the Supreme Court, but are reasonably well suited to the purpose of achieving justice between the parties where the amount in dispute is small and where more thorough and expensive procedures are unwarranted.

In an effort to decrease the work load of the Supreme Court the jurisdictional limit of the Court of Petty Sessions was, in 1969, increased to $1,000. This change, however, merely kept up with inflationary trends, and it is now proposed that the jurisdiction of the Court of Petty Sessions will be further increased. The precise extent of this increase has not yet been determined, but it is expected that the new jurisdiction will extend to approximately $5,000. Before the jurisdiction can properly be so increased, however, it is necessary to revise the procedures of the Court. It is necessary that those procedures should be appropriate to cater for the more important and more complex questions that will fall within the new jurisdiction of the Court. It is desirable, moreover, that the procedures should be related to those applying in the Supreme Court of the Territory.

The last of the matters referred to the Commission is:

Whether it is desirable that the Landlord and Tenant Ordinance 1949-1957 be amended so as to make provisions for the recovery of premises other than prescribed premises, and if so what the nature of the provisions should be.

The Landlord and Tenant Ordinance 1949- 1957 provides in Part III that the recovery of possession of 'prescribed premises' may be obtained only in accordance with that Part. Part ITI provides that a notice to quit must be based on one of a number of prescribed grounds. Proceedings under the Part are taken in the Court of Petty Sessions.

Originally business premises were included in 'prescribed premises', but by virtue of an amendment in 1957 they ceased io be so included. Doubts have been expressed whether the 1957 amendment had the effect of restoring the provisions of the Landlord and Tenant Act 1899 of the State of New South Wales - which was the law on the subject prior to. the making of National Security Regulations and 'Subsequently the Landlord and Tenant Ordinance - relating to the recovery of possession of business premises. If the provisions of the Landlord and Tenant Act 1899 of New South Wales have in fact been restored in their application to the Australian Capital Territory, it is still questionable whether they can be regarded as appropriate for present requirements in the Territory.

The Law Society of the Australian Capital Territory has made representations to have the Landlord and Tenant Ordinance amended to provide for recovery of possession of business premises, and the Government has now seen fit to refer the matter to the Law Reform Commission for its examination and report. I am sure honourable members will be pleased to know that the Law Reform Commission of the Territory has been established and that these important matters have been referred to it. I am confident that the work of the Commission on these matters which, in accordance with the Ordinance, will be tabled in Parliament in due course, will be a notable contribution to the cause of law reform in the Australian Capital Territory.







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