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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-04-10 Daily Xml
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STATUTES AMENDMENT (REAL PROPERTY) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 9 April 2008. Page 2376.)

The Hon. R.D. LAWSON (17:36): I rise to make a brief contribution to the second reading of this bill to cover some of the matters not covered by those who have spoken earlier. This bill is the result of a lengthy process that began under the previous administration, and I think that it is regrettable that the Rann government has not brought it to the parliament until now. It contains a great number of provisions that are supported by those practitioners who work in the property field.

The Real Property Act of South Australia is one of our landmark pieces of legislation, and it was introduced as early as 1865. It contains the celebrated Torrens system, which has been copied in many parts of the world. The only point I wish to make relates to the inclusion in this legislation of a new certification clause, which was proposed pretty well at the last minute by the Attorney-General and adopted in the bill without appropriate consultation having taken place with either the Law Society or the Australian Institute of Conveyancers, who were participants in a working group that was providing advice.

This ill-advised clause has caused some considerable consternation to those who are working in the field. When it was proposed at an industry briefing, the Institute of Conveyancers and the Law Society both indicated that they would have to consult their constituent bodies before agreeing to it. Notwithstanding that fact, the government went ahead and introduced the legislation and ignored the wishes of those bodies.

I think that it is testament to the fact that the Attorney-General, having no practical legal experience, insisted upon pressing ahead with the clause. It was opposed in another place by the shadow attorney-general and by the member for Mitchell (both legal practitioners), and it was opposed for good reason.

The bill was passed intact in another place, and now when the bill comes to this council we see that the government has decided to withdraw the amendments to section 273. I applaud the fact that the government has finally seen sense, but I think it is lamentable that the Attorney should have dismissed out of hand, and for specious reasons, in another place, its removal.

I think it is worth placing on the record some of the facts about this. The Law Society, when confronted with this proposed amendment, wrote, on 25 February this year, to the Attorney-General and indicated that further consultation would be required, that there were difficulties of a practical nature in introducing this amendment: the fact that it would be inconsistent with the practice adopted in other Australian jurisdictions; the fact that it would create doubts and uncertainty; that it would lead to logistical difficulties because documents would need to be examined by a number of people, certified, re-certified, and alterations would have to be certified; and it was a complicated system.

The Attorney-General, however, dismissed that out of hand. The Australian Institute of Conveyancers also conveyed, I am advised, to the Attorney and the government its concern, and it pointed to the impracticability of the clause as it stood. Both the Institute of Conveyancers and the Law Society, having worked on this bill for a long time, were keen for it to progress, and both were very positive in the suggestions they made. They simply said that further time was needed to embrace this.

The Attorney dismissed the arguments of the shadow attorney-general in somewhat typical fashion, and also the arguments of the Law Society. The Attorney in another place said that this matter had been the subject of a Crown Solicitor's Office opinion, and the office had advised that the Law Society's arguments were not capable of being supported in law or practice. He said, and I think this is interesting, that the possibility of fraudulent instruments existing may give rise to a claim against the Lands Titles Assurance Fund.

He denigrated the member for Heysen (the shadow attorney-general) by saying that she simply wants to activate claims against the Lands Titles Assurance Fund. He accused her of wanting to ensure that every other fund should be raided by claimants. But he has been forced to back down. What appears in the Attorney's speech to be certainty is in fact the Crown Solicitor's opinion, which is all about endangering the Lands Titles Assurance Fund. However, at least the Attorney has had the good sense to have an amendment moved in this place to remove this offensive provision.

The provision is offensive in the way in which it is drafted, rather than being unsound in principle. No one argued that certification was not required. Everyone supported the continuance of a certification requirement. So, the principle was one about which there could be no argument, but the deplorable aspect is that in another place wise suggestions put to the government were rejected. Those who made them were denigrated and one can only say that this is typical of this Attorney-General, but it is good to see that some sense has ultimately prevailed.

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (17:45): I thank honourable members for their indications of support for this bill. As indicated, there will be a government amendment to this bill to delete clause 68. Clause 68 amends section 273 of the Real Property Act to require certification of an instrument of a prescribed class by each party for the instrument or by a solicitor or registered conveyancer acting on behalf of each party.

Although the government believes that the proposed amendment to section 273 will help eliminate the risk of fraud, the conveyancing industry has expressed concerns regarding the amendment. It is recognised and accepted by industry that these amendments will be required when a national electronic conveyancing system is introduced. At this stage, the government is prepared to remove clause 68 from the bill to allow the issues raised by industry to be worked through before the introduction of amendments to allow for the introduction of electronic conveyancing in South Australia, which is expected to be introduced in 2010. With those comments, I commend the bill to the council.

Bill read a second time.

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