WESTERN AUSTRALIA
John Hockley, Barrister, Francis Burt Chambers
and former chair Brendan Loizou. The LIV administrative law and human rights policy lawyer Laura Helm drove the project with assistance from paralegals Julia Strickett and Ffyona White.
Following the offi cial launch of the RAP, the LIV held a panel discussion. The topic was ‘Constitutional recognition: the true path to reconciliation?’ The panel members were Ian Hamm, Yorta Yorta man and former Executive Director, Aboriginal Aff airs Victoria; Dr Mark McMillan, senior lecturer, Melbourne Law School and Wiradjuri man from Trangie in New South Wales; and Melissa Castan, deputy director, Castan Centre for Human Rights Law, Monash University.
The discussion was moderated by Peter Seidel, public interest partner at Arnold Bloch Leibler, which was the fi rst law fi rm in Australia to have a RAP.
The panel agreed that any reference to “race” should be removed from the Australian Constitution, The concept is a 19th century one, with DNA now confi rming that there is only one race – the human race. Treating people equally before the law requires this acknowledgement.
Views diff ered regarding the requirement for acknowledgement of fi rst peoples in the preamble and the Constitution itself.
What is clear though, is that Australia’s fi rst people should be acknowledged and their culture and language recognised.
The LIV will continue its push for increased recognition, cultural awareness and opportunities as well as true equality before the law and across Australian society.
Reform Commission Reports and changes to the Law of Wills implemented in other Australian States.
The recent article in Brief by Richard Reynolds was a welcome contribution to the ongoing discussions or conversation on the topic of succession law reform in Western Australia (WA). Every contribution to this discussion is welcome. There is a growing ground swell for support for succession law reform in WA. There is no dispute between political parties about the need for succession law reform. It is a matter of obtaining suffi cient Parliamentary time to enact the reforms in the pipeline.
Succession Law Reform in WA
Considerable progress in Succession Law Reform has occurred in WA since this journal published an article titled “The Need for Succession Law Reform in WA: Please Don’t Die in WA?” in July 2003. It was as a result of that article and a visit to Parliament House to speak with the then Attorney-General, Mr Jim McGinty, that the current round of succession law reform commenced in WA. The Western Australian Law Reform Commission (WALRC) was busy with several large references and could not cope with another large reference. This led to the establishment of the Attorney- General’s Working Group on Succession Law Reform, a small group consisting of two solicitors, two barristers, a representative of the Public Trustee, a representative of the Supreme Court and a leading academic with signifi cant experience in this area of law reform and law reform in general, under the direction of a Senior Assistant State Solicitor from the State Solicitor’s offi ce with the assistance of a junior solicitor from the State Solicitor’s offi ce. The Working Group commenced work on revising the Wills Act by considering various State Law
Subsequently, Western Australia re-joined the Uniform Succession Law Project conducted under the auspices of the Queensland Law Reform Commission. The Uniform Succession Law Project decided to produce “Model Laws” for consideration by the states and territories.
When the Working Party had almost completed its work on the Wills Act the Uniform Succession Law Project produced a “model” law on Wills. The Working Group decided not to implement in toto the uniform or model laws proposed by the Uniform Succession Law Project. There were many reasons for this decision. Practitioners were familiar with the law in Western Australia that was drafted in a clear, economical fashion. Where the Working Party thought that some value could be added the provisions of the “model” law were adopted in Western Australia. This decision meant that reform of the succession laws is much slower and that each section in each Act is considered carefully to see whether the uniform or “model” law is an improvement on that currently in existence in WA. If it is, it is adopted but if there is some doubt, then there is no automatic acceptance of the “model” law.
WILLS ACT
The fi rst Act that the Working Party looked at was the Wills Act 1970. The reforms to the Wills Act are quite substantial in that changes have been made to many areas of that Act. For instance, wills are revoked upon divorce in WA (s14A(2)) (of the Wills Act 1970 (as amended by Act no. 27 of 2007). Part XI has been added to the Act – wills of persons who lack testamentary capacity (s39-48); Part XII – rectifi cation of wills by the Supreme Court is now allowed. These are just a few of the amendments.
The Working Party has no say in when the reforms that it suggested and recommended are sent to Parliamentary Counsel for drafting and it has no say in when these Acts are to be brought before the Parliament.
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