Administration Amendment Bill 2021 (Upper House Second Reading)

Administration Amendment Bill 2021 (Upper House Second Reading)

This is the second reading speech of the Administration Amendment Bill 2021 read last week. This means that we are hopefully a  year or less away from the amendments having the force of law (touch wood).

ADMINISTRATION AMENDMENT BILL 2021 (WA)
Receipt and First Reading
Bill received from the Assembly; and, on motion by Hon Matthew Swinbourn (Parliamentary Secretary), read
a first time.
Second Reading
HON MATTHEW SWINBOURN (East Metropolitan — Parliamentary Secretary) [9.56 pm]: I move —
That the bill be now read a second time.

I am pleased to reintroduce the Administration Amendment Bill 2021. A version of this bill, the Administration
Amendment Bill 2018, was passed in the other place and transmitted to the Legislative Council on 3 April—
that day is my birthday, so it is a very auspicious day—2019. However, the bill lapsed with the proroguing of
Parliament in 2020. This bill will increase the current amounts of the statutory legacies payable on intestacy. These
amounts were last adjusted in 1982 and are now grossly inadequate. The bill also provides a formula for calculating
the amount of the statutory legacies in the future and requires the relevant minister to review the amount of the
statutory legacies every two years and decide whether it is appropriate to make an order adjusting the amount of
the statutory legacies.

The process for reforming the law relating to succession began in 1991 when the Standing Committee of
Attorneys-General of Australia resolved to develop uniform succession laws across the Australian states and
territories. The project was coordinated by the Queensland Law Reform Commission, with a national committee
comprising representatives from each jurisdiction preparing a report and proposed model bills for adoption by
the states and territories.

In late 2003, Western Australia established a working group to examine the law of succession in Western Australia
and made recommendations for legislative reform for consideration by the government. The working group was
constituted by experts in the area and drawn from the Supreme Court of Western Australia, the legal profession,
academia, the Public Trustee and the independent bar. The model bills, together with reports of the Law Reform
Commission of Western Australia, have informed the process of the working group’s review of the law of succession
in Western Australia. However, there have been significant differences in the proposed reforms and the model
bills. Although the working group is aware of the rationale for uniformity, it does not consider that the benefits
contained in the Administration Act 1903 of Western Australia should be surrendered for that purpose alone. From
the work done by the working group, there have been reforms to the law relating to wills and family and dependants’
inheritance provisions. The working group continued with the above review process when considering the reform
of intestacy law in Western Australia.

The bill deals with entitlements arising upon an intestacy as presently contained in sections 14 and 15 of the
Administration Act 1903 of Western Australia. Intestacy occurs when the whole or part of the estate of a deceased
person is not disposed of by a will. The property that has not been dealt with effectively by a will is usually distributed
according to a regime established by statute. A partner’s legacy is the fixed net sum to which the deceased’s surviving
spouse and/or de facto partner is entitled from the estate when the deceased died intestate and in circumstances in
which there are surviving family members.

The most significant of the proposed reforms is to increase the statutory legacy from the intestate estate passing to
the surviving spouse or de facto partner. Currently, a partner’s legacy in Western Australia is as low as $50 000 when
the intestate dies leaving issue—a person’s children or other lineal descendants—and as high as $75 000 when the
intestate dies leaving no issue. The statutory legacy aims to remove financial hardship for the surviving spouse or
de facto partner and tries to ensure that he or she can live in the manner to which he or she had become accustomed.
The bill amends the Administration Act 1903 to set the amount of the partner’s statutory legacy at $472 000 when
the intestate dies leaving issue, and $705 000 when the intestate dies leaving no issue. The lapsed bill contained
lump sum amounts that had been determined when that bill was drafted—namely, in 2017. Given the time that has
elapsed since then, this bill contains lump sum amounts that are up to date. Those amounts have been calculated
by applying the formula contained in clause 5 of the lapsed bill.

The parental statutory legacy applies when the deceased has living parents and/or siblings or siblings’ issue but does
not have a surviving husband, wife, partner or issue. The parental statutory legacy was last reviewed prior to 1982
and is currently $6 000. Consideration has been given to whether to increase the $6 000 to a sum that is financially
beneficial or to abolish this statutory legacy.

The reasons for preferring to increase the parental statutory legacy include that the $6 000 has little beneficial financial
impact; it makes the distribution of an intestate estate more complicated than this small amount warrants; and it is
appropriate that the deceased parents participate in the distribution of their child’s intestate estate because the death
of a child is a very tragic event for parents, and money, though it cannot compensate for the loss, may provide
some help to those parents. The bill amends the Administration Act 1903 to set the amount of the parental statutory
legacy at $56 500.

In 1973, the Law Reform Commission of Western Australia noted that fixing the statutory legacy by legislation
had proved unsuccessful, given that Parliament had adjusted the statutory legacy on only three occasions in the
preceding 25 years. The bill inserts a new provision into the Administration Act 1903, setting out a formula for
calculating the amount of statutory legacies from time to time in the future.

Following amendment of the bill during consideration in detail in the other place, it now contains a new provision
that requires the relevant minister to review the amount of the statutory legacies every two years and decide whether
it is appropriate to make an order adjusting the amount of the statutory legacies. The minister will also be required
to lay before each house of Parliament a report based on the review as soon as practicable after the review.

Pursuant to standing order 126(1), I advise that this bill is not a uniform legislation bill. It does not ratify or give effect
to a bilateral or multilateral intergovernmental agreement to which the government of the state is a party; nor does
this bill, by reason of its subject matter, introduce a uniform scheme or uniform laws throughout the commonwealth.
I commend the bill to the house and table the explanatory memorandum.

2021-09-15T06:54:05+00:00 September 15th, 2021|Uncategorized|0 Comments