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Land and Business (Sale and Conveyancing) (Beneficial Interest) Amendment Bill

Adjourned debate on second reading.

(Continued from 18 May 2017.)

The Hon. A.L. McLACHLAN ( 17:32 :02 ): I rise to speak to the Land and Business (Sale and Conveyancing) (Beneficial Interest) Amendment Bill. I indicate to the chamber that I will be speaking on behalf of my Liberal colleagues and that we will be supporting the second reading. The government has indicated that the genesis of this bill lies in a number of recent failed prosecutions of agents under section 24G of the act due to technicalities within the current act. A common scenario the government pointed to has been where relatives of real estate agents have been used to purchase properties lower than the market value, but the relative has not fallen within the technical definition of an associate and therefore escaped prosecution.

The government advises the Liberal opposition that this is the first time section 24G has been reviewed and amended since the introduction of the section back in 2008. Essentially, the bill before us seeks to improve the protections of consumers by expanding the scope of forbidden transactions. It achieves this by extending the vicarious liability provisions, expanding the definition of an associate to include relatives and step-relatives of agents, increasing the fine for obtaining a beneficial interest from $20,000 to $50,000, and introducing aggravating features to the offence provisions.

I would like to address the aggravated offence provisions, as the Liberal Party has filed some amendments in respect of these provisions. As drafted, the bill introduces three aggravating circumstances for the offence of obtaining a beneficial interest. These include when the vendor was, firstly, a protected person under the Guardianship and Administration Act; secondly, suffering from a mental incapacity; or, thirdly, 60 years of age and over.

The Liberal opposition agrees with the principle of setting aggravating offences for those who suffer a loss and who are elderly or unable to understand a transaction. However, we disagree with the setting of the age limit for that threshold, and have filed amendments seeking to increase this from 60 to 70 years of age.

Our amendment seeks to implement a recommendation from the Australian Institute of Conveyancers, which provided us with a submission dated 28 March 2017. I will read a paragraph from that submission, as follows:

We consider the age of 60 years too low, capturing a significant portion of the market, most of whom are more than capable of entering into a contract and understanding the relationship between the agent and the purchaser. We consider 70 years of age more appropriate for the purposes of this section.

It is our view that these amendments reflect contemporary standards and expectations that someone of the age of 60 would still be of sound mind, fit and able. As recently as 16 May, the Parliamentary Committee on Occupational Safety, Rehabilitation and Compensation tabled its report entitled ’67 is the new 40′. The report says:

Although ageing is associated with some physical changes, such as deteriorating muscle strength, aerobic capacity and cognition, many older workers are healthier than previous generations.

The report also stated:

The workforce participation rate of mature aged workers has increased in the past 20 years, with particularly significant increases in the employment of older women.

When the member for Hartley tabled this amendment in the other place, which proved unsuccessful, the Attorney-General said:

The point is that we have a federal constitution that states that judges of the High Court can be there until they are 70. Many people in the legal profession, as the member for Hartley would know, say that it should be 75 or something. I think that in some states Supreme Court judges are there until they are 73 or 75.

He went on to add:

I am very taken by the propositions being advanced by the member for Hartley about the people who turn 60 not automatically thereby being befuddled. I am the last person to say that that is a good reason for us to pick 60  because I do not necessarily think that, because it is a national scheme, it is necessarily right.

He then indicated that he would look at it further. Since that time I have been provided with the Consumer and Business Services’ response submission from the Australian Institute of Conveyancers. In it Consumer and Business Services indicates that the age 60 for aggravated offences is consistent with other legislation, in particular the Criminal Law Consolidation Act.

The Liberal Party submits that the Criminal Law Consolidation Act serves a very different purpose from the Land and Business Act. The age 60 might be more appropriate for aggravating a violent criminal act, but we must remember that in this bill we are concerned with the capacity to enter into a business transaction, rather than frailty or infirmity.

The government has not put forward any other rationale to setting the age limit at 60, other than consistency. I note that the government commonly uses this rationale, often implementing what is done in other jurisdictions, but failing to provide any evidence that has proven to be of tangible benefit to those jurisdictions. Whilst it might be desirable in certain circumstances to achieve consistency across legislational jurisdictions, the ultimate effect of the provision is paramount. With those remarks, I look forward to the committee stage.

Debate adjourned on motion of Hon. T.T. Ngo.

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