Bills

Statutes Amendment (Public Trustee and Litigation Guardian) Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Local Government, Minister for Veterans Affairs) (16:00): In continuing my second reading remarks, I would continue by saying that the bill would allow the Public Trustee to issue a certificate attesting that a court or SACAT has granted it authority as a protected person's administrator or the administrator of a deceased estate. The certificate must identify the date of the order and the scope of the authority granted.

Third parties can then rely on the certificate to satisfy themselves of the regularity of a transaction with the Public Trustee and, therefore, no liability lies on the third party for relying on the certificate. I note that the certificate only relates to the position of third parties. A certificate cannot render a transaction valid on the part of the Public Trustee if it were not actually authorised by the original order. This provision simply lets third parties transact with the Public Trustee with confidence in regard to their own obligations to satisfy themselves of the regularity of the transaction.

The bill also provides guidance to courts on whether to appoint the Public Trustee as a litigation guardian. A litigation guardian is a person appointed to take responsibility for a court action on behalf of a party who is under a legal incapacity, meaning a minor or an adult who has a mental incapacity. The litigation guardian interacts with the court and instructs legal counsel on behalf of the party. It is common for the Public Trustee to act as a litigation guardian.

The conduct of proceedings for persons under a legal incapacity, including the process for appointing a litigation guardian, is ultimately at the discretion of the court and subject to the court rules. However, the bill provides statutory factors that must be considered when exercising the discretion to appoint the Public Trustee as litigation guardian to ensure a consistent approach is taken.

Factors to be taken into account are whether the litigant is already a client of the Public Trustee, the nature of the proceedings, and whether there is a relative, friend or associate of the litigant who is willing and able to act as litigation guardian. The bill also makes equivalent amendments in relation to appointment of the Public Advocate as litigation guardian to further ensure a consistent approach.

Finally, the bill amends the Guardianship and Administration Act 1993 to provide the Public Trustee limited powers to finalise transactions after its administration has been revoked. The Public Trustee's ability to act on behalf of a client under a mental incapacity is only allowed as authorised by SACAT. If SACAT decides that the Public Trustee should no longer be administrator, either because a friend or family member is able to take on the responsibility or because the client has regained mental capacity, then the Public Trustee's powers are revoked and it can no longer act on behalf of the client or use client funds. As a general position, this is of course entirely appropriate.

However, this can sometimes create inconvenience for both the Public Trustee and the new administrator during the process of handing over administration of the estate. If the Public Trustee had engaged a service provider on behalf of a client during its administration but not received or paid the invoice at the time its administration is revoked, it is unable to pay it, no matter how small it is. Legally, the debt belongs to the estate and so must be paid by the person responsible for the estate.

The Public Trustee must refer the creditor to the new administrator, who is responsible for arranging payment. If the debt is routine, it would be much more efficient for the Public Trustee to finalise it as part of its handover process.

The bill creates a power for the Public Trustee to pay minor bills during the handover period in order to settle any routine transactions where payment was outstanding at the time administration was revoked, making the handover process smoother. The Public Trustee must inform the person newly responsible for the estate that this has occurred and must also inform any guardian that is currently acting.

The power is only allowed up to a prescribed limit to ensure that it is only used for routine transactions, such as storage fees or perhaps property maintenance. The limit to be prescribed will be subject to further consultation after this bill's passage, but it is expected to only be a few thousand dollars.

I look forward to the passage of this bill and commend it to members. I also seek leave to insert the explanation of clauses in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Guardianship and Administration Act 1993

3—Insertion of section 41A

This clause inserts new section 41A into the Guardianship and Administration Act 1993 as follows:

41A—Public Trustee may retain money to pay outstanding debts etc

This section allows the Public Trustee to retain money belonging to a protected person to apply in or towards the payment of any debts, obligations or liabilities of the protected person, or incurred by the Public Trustee in the exercise of powers or duties under Part 4 Division 3 of the Act, that are outstanding at the time the administration order appointing the Public Trustee as administrator (of all or part of the protected person's estate) is revoked or the protected person dies.

The section restricts the amount that may be retained to the amount the Public Trustee considers is reasonably required or the amount prescribed by the regulations, whichever is less. It requires the Public Trustee to notify the person who takes over control and management of all or part of the protected person's estate and the guardian of the protected person (if any) of the amount retained and the nature of the outstanding debts, obligations or liabilities. The Public Trustee is required to apply the money in or towards the payment of the outstanding debts, obligations or liabilities and provide any money retained in excess of those debts, obligations or liabilities to the person taking over control and management of all or part of the estate as soon as reasonably practicable.

4—Insertion of section 83

This clause inserts new section 83 into the Guardianship and Administration Act 1993 as follows:

83—Matters to consider when deciding whether to appoint Public Advocate as litigation guardian

This section sets out the matters a court or tribunal must consider in determining whether the Public Advocate should act as litigation guardian for a person in a proceeding.

Part 3—Amendment of Public Trustee Act 1995

5—Amendment of section 28—Money from several estates may be invested as one fund

This clause amends section 28 of the principal Act to remove the requirement for the period of each investment to be taken into account when dividing income arising from investment of money from more than one estate under the Public Trustee's control as one fund between estates.

6—Amendment of section 29—Common funds

This clause amends section 29 of the principal Act to remove the requirement for the period of each investment to be taken into account when dividing income arising from the investment of a common fund between investors.

It also changes the day on which the value of each common fund is to be determined to the last business day of the month (currently the first business day of the month) for the purposes of effecting investments in and withdrawals from a common fund and for the purposes of calculating the maximum monthly management fee that may be charged by the Public Trustee for managing the fund.

7—Amendment of section 44—Fee for administering perpetual trust

This clause amends section 44 of the principal Act to change the day on which the value of a perpetual trust is determined to the last business day of the month (currently the first business day of the month) for the purposes of calculating the maximum monthly administration fee that may be charged by the Public Trustee for administering the trust.

8—Amendment of section 54—Indemnity to persons having dealings with Public Trustee

This clause amends section 54 of the principal Act to allow the Public Trustee to provide a person entering into a transaction with the Public Trustee with a certificate certifying that the Public Trustee has been given certain authority by the Supreme Court or SACAT, rather than the order or a copy of the order giving the authority. It sets out the information the certificate must include.

9—Insertion of section 54A

This clause inserts new section 54A into the Public Trustee Act 1995 as follows:

54A—Matters to consider when deciding whether to appoint Public Trustee as litigation guardian

This section sets out the matters a court or tribunal must consider in determining whether the Public Trustee should act as litigation guardian for a person in a proceeding.

10—Transitional provision

This clause is a transitional provision in respect of the amendments to section 54 of the Public Trustee Act 1995.

Mr TEAGUE (Heysen) (16:06): I rise to indicate the opposition's support, which is well known, and that I am the lead speaker. I also rise for the fifth time today under a guillotine that the government has imposed on the debate, yet again for no known purpose. These are truly extraordinary circumstances and I highlight that again in the interests of those who are following and for the sake of posterity.

While we are considering posterity, I also put on the record that it is important that debates in this regard are meaningful—that is why we have Hansard and it is why we have the galleries open so that people can hear our views.

In a good democracy bills are debated and members' views are heard. To have those views heard is important for the democratic process, as it is important for the parliament and the people of South Australia to hear the views of all 47 members of this house. To simply guillotine debate—

which is what we are experiencing now for the fifth time today—

…I think takes away our democratic freedoms. I think that using the guillotine…is an abuse of the parliamentary system and a measure that should be used sparingly, unless it is in the public interest.

Those are not my words. With a tiny amount of paraphrasing, those are the words of the Leader of the Government, the member for West Torrens. Those are words he said in this place on 24 July 2008. I note that, in the course of making those remarks, he said that this might one day come back to haunt him. Well, I think that day has well and truly come.

The depths to which this house has been taken by the government in the course of debate today with not one, not two, not three, not four, but five and counting guillotines, all of which are entirely without rationale and entirely without need and, I might say, the first of them, the subject of a bill that the government did not even pass and so here we are.

I say this in all seriousness, Mr Deputy Speaker, because I know you take these matters as seriously as any of us. Those reflections on the fact that we have the Hansard and the fact that the galleries are open begs the question in these circumstances: if the leader of the government is willing in a few short years so dramatically to turn the tables on his own stated principle to behave in such a hypocritical manner, then what are we going to see next? Are we going to see circumstances in which the government says, 'Actually, the scrutiny afforded to the people of South Australia via the Hansard and via the public galleries is in the same category as the guillotine.' When the government decides that it is going to, perhaps the government might close the galleries and shut down the Hansard. Here we are.

The Hon. J.K. Szakacs interjecting:

Mr TEAGUE: The fifth guillotine. In one day, the fifth guillotine. We are here dealing with legislation once again that has been the subject of a considerable amount of thought and debate. It has been the better part of a year ago that we first heard the words that the minister has just now rehearsed in this place. I recognise the work of the Attorney in the other place in this regard.

I highlight that the matter that exercised the other place and that I raise again on this occasion—it is not the subject of an amendment, it is not my present intention to direct the house to committee. It is the new prescribing of circumstances in which the court may direct the appointment, particularly the Public Trustee the subject of clause 9. There are, as the minister has referred just now, similar stipulations for the matters to consider when appointing the public advocates the subject of clause 4.

I raise the concern, particularly in relation to the appointment of the Public Trustee, and I note the Law Society has expressed concern in this regard as well as a practice note in terms of what we will now see happening in the courts. The Law Society speaks on behalf of the profession and it is concerned to ensure that in terms of the processes that are involved here, and the courts need to intervene for the purposes of the appointment, there are practical time and cost issues for those who are needing to avail themselves of the court services for the appointment.

There is a concern that the Law Society raises and that I share that by stipulating the matters that the court must consider when deciding whether to appoint the Public Trustee as litigation guardian, we are going to now see a situation where it will be necessary for a practitioner to file an affidavit that will address these now mandatory matters. That is in circumstances where there is already, as I understand it, a reluctance on the part of the Public Trustee to be appointed to be stepping into that role, unless there is no relevant family member or suitable person who can do so. It is an example of a situation in which at the moment the practice is consistent with the stipulation, but it is 'If it ain't broke, why fix it?'

I understand the Attorney's response in the other place to that is that it would take away that body of stipulations. Yes, it would. That would be in response to what the current practice is, but I just articulate what those mandatory matters for the court to consider are and, by extension, to demonstrate that it is considered and now going to be.

They are, firstly, whether the Public Trustee has been appointed or otherwise empowered to act in a specified capacity in respect of the person; (b) whether there is a relative, friend or associate of the person who is willing and able to act as a litigation guardian for the person; and (c) whether in all the circumstances and taking into account the nature of the litigation, the Public Trustee is the most appropriate person to act as litigation guardian for the person.

It is really (b) where the practical issue will arise most, in that you are going to need to undertake a formal process of providing proof in respect of (b), which occurs as a matter of practice presently but will now involve, it is feared, a process of unnecessary formality in terms of the proving up of that particular part perhaps in the most apparent way. The nub of the Law Society's concern is that it is going to be then incumbent upon the relevant practitioner to exhaust all possible relatives, friends and associates of the person before asking the court to have the Public Trustee to act as a litigation guardian.

Those matters have been aired and I am conscious that the government does not support the proposition as I have put it and as the Law Society has raised. That is going to be a matter that I would urge the government to keep a close eye on, to seek feedback from the profession, and perhaps the profession more than the court in that yes, the court is there to make the necessary appointment, but the burden will fall in particular on the practitioner to serve those criteria as a matter of practice.

With those words, and with a particular eye to the necessity, and possibly the desirability later to revisit those circumstances of appointment, I commend the bill to the house.

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Veterans Affairs, Minister for Local Government) (16:17): Again, I thank the member for his contribution and note particularly the matters that he has raised, and in doing so commend the bill to the house.

Bill read a second time.

Third Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Veterans Affairs, Minister for Local Government) (16:18): I move:

That this bill be now read a third time.

Bill read a third time and passed.