Legislative Assembly Hansard 1962

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Queensland

Parliamentary Debates
[Hansard]

Legislative Assembly

THURSDAY, 8 NOVEMBER 1962

Electronic reproduction of original hardcopy
1406 Escheat Amendment Bill [ASSEMBLY] Questions
THURSDAY, 8 NOVEMBER, 1962
Mr. SPEAKER (Hon. D. E. Nicholson,
Murrumba) took the chair at 11 a.m.
QUESTIONS
TESTS FOR MOTOR-VEHICLE DRIVING LICENCES
Mr. DUGGAN (Toowoomba West
Leader of the Opposition) asked the Minister
for Education and Migration-
"In view of the report appearing in 'The
Courier-Mail' of November 6, 1962, that
country drivers were obtaining licences
much more easily than they would have
done in Brisbane, can he give statistics of
the number of drivers who fail their tests
on the first attempt in (a) the metropolitan
area, (b) cities other than the capital and
(c) country areas?"
Hon. J. C. A. PIZZEY (Isis) replied-
"(a) In the metropolitan area in October,
1962, 758 applicants for drivers' licences,
out of a total of 1,501, failed in their driv
ing tests. This represents a failure rate of
50.5 per cent. The number of failures
includes those who failed on their first or
subsequent attempts. (b and c) No infor
mation is available at Head Office of the
failure rate in other cities or in country
areas."
Questions [8 NOVEMBER) Questions 1407
Hon. J. C. A. PIZZEY (lsis) replied-
INDUSTRIAL STOPPAGES AT MEATWORKS
"Additional staff is not at present avail
Mr. AIKENS (Townsville South) asked the able to increase the police establishment
Acting Minister for Labour and Industry- at Ayr. The question is under considera
tion and it is anticipated that the staff
"Have any representations been made
will be increased when further recruits
with the object of having the services of
have completed their training."
the State Industrial Inspector at Towns·
ville and other Queensland centres where
meatworks operate made available in an HOUSING COMMISSION HOUSES, TOWNSVILLE
interpretative or intermediary capacity in an
endeavour to prevent or lessen the number Mr. TUCKER (Townsville North) asked
and duration of stoppages at meatworks the Treasurer and Minister for Housing-
resulting from conflicting opinions on ·• ( 1) Has the Housing Commission any
aspects and clauses of the Interim Award? houses presently for sale in Townsville to
If so, what decision has been arrived at?" the general public?"
"(2) When was the last group for such
Hon. G. F. R. NICKLIN (Landsborough
sale completed and sold?"
Premier), for Hon. A. T. DEWAR (Wavell),
replied- " ( 3) When Is it intended to have
another group constructed and will there
"No. The Interim A ward to which the
be included in such group a number of
Honourable Member refers is the Slaugh
homes for renting?"
tering, Freezing and Processing Works
(Meat Industry) Interim Award. 1962. Hon. T. A. HILEY (Chatsworth) replied
This A ward is an A ward of a Tribunal
''(1) No."
constituted under the provisions of the
Commonwealth Conciliation and Arbitra "(2) November, 1961-a group of 20
tion Act. State Industrial Inspectors have all of which were sold."
no statutory authority to act in an inter· "(3) For some time all land as it
pretative or intermediary capacity under became available for the erection of
the provisions of that Award. In fact houses has been required to meet the
State Industrial Inspectors do not have this State's commitments in providing housing
authority under the Industrial Concilia for members of the Armed Forces.
tion and Arbitration Act of 1961 of this Further roads have been constructed and
State. Whilst State Industrial Inspectors as a result 27 sites have become avail
able for selection by persons desiring the
make every endeavour to assist employers
erection, for purchase, of Commission
and employees in their understanding of
houses to designs chosen by them. This
State Industrial A wards, they do not act
scheme should meet the needs of home
in an interpretative or intermediary capac
ownership cases and as the number of
ity. They express opinions in regard to
rental applications on hand (one of
Awards, but the only interpretative 100 points, one of 80 points, and 26 of
authority is the Industrial Commis 40 points) does not warrant the construc
sion. The Commonwealth Award in tion of houses for rent it is not presently
.question contains a clause which makes proposed to call tenders for a group of
provision for the settlement of disputes by houses. Further the completion in the
a Board of Reference. The Board com near future of 48 additional flats at Belgian
prises an equal number of representatives Gardens should meet Townsville's require
of employers and representatives of ments for rental accommodation."
employees and a chairman who is the
Deputy Industrial Registrar appointed CONTRACT FOR BRICKWORK, BELGIAN
under the Federal Legislation. I am advised GARDENS STATE SCHOOL
that the Board of Reference can expediti
ously deal with any disputes which may Mr. TUCKER (Townsville North) asked
the Minister for Public Works and Local
develop at meatworks which are subject
Government-
to the provisions of the Interim Award."
"(I) Has a sub-contract been let for
the brickwork in the additiom to the
STAFF, AYR POLICE STATION Belgian Gardens State School and what
are the details of the work involved in
Mr. COBURN (Burdekin) asked the
such contract?"
Minister for Education and Migration-
"(2) Who was the successful tenderer
"In view of the fact that the Commis and what was the amount of the tender?"
sioner of Police has advised that it is
considered that an increase in staff at Ayr Hon. H. RICHTER (Somerset) replied-
Police Station is warranted, when is it "(1) My Department has accepted a
anticipated that manpower reserves will quotation for the erection of brick founda
become available to make it possible to tion walls to the additions being built at
bring the police at Ayr up to full Belgian Gardens State School in which
strength?" approximately 32,000 bricks will be used."
1408 Questions [ASSEMBLY] Questions
"(2) The lowest of four (4) quotations "(2) How many homes are being (a)
received, that of £612 from R. Taylor, rented and (b) purchased from the Hous
was accepted."
ing Commission in each part of the
district?"
DRAINAGE AND SEWERAGE, CURRAJONG STATE
Hon. T. A. HILEY (Chatsworth) replied
SCHOOL
"(1) (a) 166 and 3 under construction.
Mr. TUCKER (Townsville North) asked (b) 26."
the Minister for Education and Migration- "(2) (a) 119 on Wynnum Road side, 13
"What progress has been made in the on the River side. (b) 47 Wynnum Road
plan to drain and sewer the Currajong side and 13 River side. These figures are
State School and when is it anticipated exclusive of Workers' Dwellings as the
that construction will begin?" cost to obtain the information would not
be warranted."
Hon. J. C. A. PIZZEY (lsis) replied-
"It is anticipated that a sketch plan ABATTOIR SITE, GRACEMERE
for attention to drainage and installation
of sewerage at the Currajong State School Mr. THACKERAY (Rockhampton North)
asked the Minister for Agriculture and
will be available at an early date. As an
Forestry-
estimate of cost has to be calculated
after the sketch plan is completed and " (I) Did any officials of his Department
consideration then given to approving of inspect the proposed abattoir site at
the project with due regard to funds Gracemere? If so, what was the result of
available for works of this nature, no this investigation?"
indication can be given at present as to
"(2) If no investigation has been made
when work will commence."
by officers of his Department, is he in a
position to say when an investigation is
CONSTRUCTION OF CLIMBING LANES ON likely to be made?"
KURANDA RANGE ROAD
Hon. H. RICHTER (Somerset-Minister
Mr. ADAIR (Cook) asked the Minister for for Public Works and Local Government), for
Development, Mines, Main Roads and Hon. 0. 0. MADSEN (Warwick), replied-
Electricity- "(! and 2) Officials of my Department
have inspected the proposed abattoir site
"Owing to the increasing heavy motor
at Gracemere. An initial inspection was
transport such as semi-trailers, timber
made by Mr. H. A. Westerholm,
trucks, petrol tankers and heavy machinery
A.N.Z.I.A., N.Z.A.R., A.M.I.E.T. (London),
transporters now using the Kuranda Range
a leading Sydney abattoir engineer, in his
Road, causing inconvenience to normal
capacity of Departmental Consultant on
motor traffic, will he have an officer of the
District Abattoir projects (October 6 and 7,
Main Roads Department inspect the area
1960). Mr. Westerholm was accompanied
with a view to the construction of pull-in
on this inspection by Mr. B. Parkinson,
points at suitable positions on the range?"
Chief Inspector of Slaughterhouses of
my Department, and Mr. 0. H. Brooks
Hon. H. RICHTER (Somerset-Minister
the then Divisional Veterinary Officer at
for Public Works and Local Government),
Rockhampton. Mr. Westerholm reported
for Hon. E. EVANS (Mirani) replied-
that it was an ideal site, provided the effluent
"The Main Roads Department is already could be disposed of effectively. Sub
aware of the volume of traffic using the sequent inspections were made by Mr.
Kuranda Range section. Some measure A. Nagle, Irrigationist, and Mr. J. C.
of relief could be given by constructing Graham, Agrostologist, of my Department.
climbing lanes at appropriate points so These officers closely investigated the dis
that the faster traffic would have an posal of effluent and reported that this
opportunity to overtake the slower moving was quite practicable by the contour
vehicles in safety. Consideration will be furrow method and would be satisfactory.
given to the carrying out of such work The site has also been inspected by an
as and when funds can be made available." officer of the Commonwealth Department
of Primary Industry, who advised that
it was satisfactory."
HOUSING COMMISSION HOUSES, MURARRIE
DISTRICT
TENDERS FOR DIESEL-ELECTRIC LOCOMOTIVES
Mr. HOUSTON (Bulimba) asked the
Mr. DAV IES (Maryborough) asked the
Treasurer and Minister for Housing-
Minister for Transport.
"(1) How many housing Commission "Have tenders closed for the construction
homes have been built in the district of of twelve diesel-electric locomotives for
Murarrie since 1945 (a) on the Wynnum his Department? If so, when does he
Road side of the railway line and (b) on expect to make a decision as to the
the river side of the railway line?" successful tenderer?"
Health Acts Amendment Bill [8 NOVEMBER] Escheat Amendment Bill 1409
Hon. G. W. W. CHALK (Lockyer) ARCHITECTS BILL
"Yes-and a decision will be made as
INITIATION
soon as the Department's Engineers have
fully examined all tenders received." Hon. H. RICHTER (Somerset-Minister
for Public Works and Local Government):
PAPER I move-
The following paper was laid on the table, "That the House will, at its present
and ordered to be printed- sitting, resolve itself into a Committee of
the Whole to consider of the desirableness
Report of the Commissioner for Transport of introducing a Bill to consolidate and
for the year 1961-1962. amend the law relating to the registration
and practice of architects; and for purposes
NOTICE OF QUESTION incidental thereto."
Mr. DAVIES (Maryborough) proceeding to Motion agreed to.
give notice of a question-
Ordinarily I would not waste the time CO-OPERATIVE SOCIETIES ACTS
of the House asking this question, but the AMENDMENT BILL
Minister for Development, Mines, Main
Roads and Electricity ordered his officers not THIRD READING
to give the information that it seeks.
Bill, on motion of Mr. Munro, read a
Mr. SPEAKER: Order! I did not quite third time.
catch the hon. member's remark. Is he
asking a question, or merely being facetious? ESCHEAT AMENDMENT BILL
Mr. DAVIES: I am asking a question.
SECOND READING-RESUMPTION OF DEBATE
Mr. Duggan: The Minister told his officers Debate resumed from 7 November (see
not to give the information. p. 1401) on Mr. Munro's motion-
Mr. SPEAKER: Order! If the hon. "That the Bill be now read a second
member reads out his question I will give time."
it consideration. If he wishes to give notice
of a question he must not make any remarks Mr. BENNETT (South Brisbane) (11.19
that are not contained on the question paper, a.m.): I will continue with the submissions
otherwise the question will be disallowed. that I was making yesterday.
Mr. Smith: Are you going to answer my
Mr. DAV IES: It was just a complaint.
question?
Mr. SPEAKER: I ask the hon. member
not to argue with the Chair. If he makes Mr. BENNETT: In answer to that inter
any further remarks that do not appear on jection, I am fully confident that the hon.
his question paper I shall not allow the member for Windsor is not capable of making
one contribution to this debate. He would
question.
not know the first thing about the Escheat
MENTAL HEALTH BILL (Procedure and Amendment) Act. He would
not know anything about how land becomes
INITIATION re vested.
Hon. H. W. NOBLE (Yeronga-Minister
Mr. SPEAKER: Order! I warned the hon.
for Health and Home Affairs): I move-
member yesterday that, as far as his argument
"That the House will, at its present with the hon. member for Windsor is
sitting, resolve itself into a Committee of concerned, it is finished and he cannot
the Whole to consider of the desirableness prosecute it further. And I ask the hon.
of introducing a Bill to make new provision member for Windsor to refrain from any
with respect to the treatment and care of further interjection.
mentally ill persons and with respect to
their property and affairs; and for purposes Mr. .BENNETT: I confidently anticipate
connected with these matters." that the Minister in his reply will adopt
his usual defence and say, "These remarks
Motion agreed to. have been all very interesting but they are
not particularly relevant or apposite to the
HEALTH ACTS AMENDMENT BILL Bill".
INITIATION Mr. Munro: That would be true.
Hon. H. W. NOBLE (Yeronga-Minister Mr• .BENNETT: As the Minister interjects
for Health and Home Affairs): I move- "That would be true", and as he has used
"That the House will, at its present the word "true", I am going to say that if
sitting, resolve itself into a Committee of he adopted that defence in this instance it
the Whole to consider of the desirableness would be completely untrue.
of introducing a Bill to amend the Health We are dealing with a principle contained
Acts, 1937 to 1960, in certain particulars." in what we choose to call the Escheat
Motion agreed to. (Procedure and Amendment) Act of 1891.
1410 Escheat Amendrr.ent Bill [ASSEMBLY Escheat Arr:endment Bill
That principle could be dealt with in many matter is far too important for the Minister
other .Acts that are applicable to the to become facetious in order to cloak his
successiOn law in this State. As a matter ignorance.
of fact, although I have not had time to
Let me assure the Minister that in this
make a completely detailed search of other
matter he has left entirely in the air the
legislation throughout the Commonwealth and
position of an unborn child of an intestate.
in En¥la~d, I know that it certainly does An unborn child should be as completely
not exist m New South Wales Tasmania or
protected as an existing child but the relevant
New Zealand; it may possibly exist in s~me
law is very complicated. The Minister may
of the States to which I have not referred,
care to have his advisers explain it to him,
but, although the Act known as the Escheat
because the time at my disposal does not
(P~oc~dure and Amendment) Act does not
ex~st .m those places, the principle, and the enable me to do so. The law relating
pnnciples associated with the law of to an unborn child of an intestate is the
~uccession a.long these lines, are dealt with law relating to a child referred to by the
m other legislation. expression "en ventre sa mere".
Therefore, while the Minister might say There is one other principle that the Bill
that in Queensland, for instance, this would leaves in a confused state. It over
be a matter for the Adoption of Children looks the fact that an intestate is not only
Act, if he is going to rely on that defence a person who does not make a will at all
! say that that is completely untrue because or one who cannot make a will, such as
m Queensland the law relating to forfeiture an infant, but also a person who leaves
of an estate to the Crown in those circum a will but dies intestate as to some beneficial
stances is dealt with by the Escheat Act. interest in his real and personal estate. This
!f he wants to .consolidate the law by making Bil! does not cover that position.
ICt. h!~lpdp~leyn, Afocrt, m~hsetna,n caes, It o sathide yAesdtoeprdtiaoyn, loeft waTs hedreea lti s W~ituht hobryi tyth eo nF utlhl atC opuoritn to, f wNhiecwh
hi.m tidy up his legislation and introduce a
South Wales as far back as 1936. In an
Bill to amend the Adoption of Children Act
endeavour to have something done, I refer
or, alternatively, amend the Escheat (Proce
the Minister to the case of Read v. Dubua
dure and Am~nd~ent) Act to make provision (1936) 36 State Reports, New South Wales,
for all the pnnciples that are involved when
at page 508. It related to a lapse· of
a man dies intestate leaving no next of kin
residual gift, and dealt with the point that
~nd ..t ~ere is a consideration, or an a man can be intestate although he leaves
mqmsition or inquiry, as to whether the
a will; he can become intestate in relation to
property should devolve to the Crown. As a
some beneficial interest in his real or personal
ma~ter . of fact, looking into the respective
legislatiOn of the various countries or States estate.
to which I have referred, these principles are Here is the authority on that point-
de~lt with in several Acts, some of them "Where a testator's residuary real estate
bemg: the. Intestacy. Act, the Succession Act,
is devised to his executors expressly as
the AdoptiOn of Children Act, the Wills Act,
trustees upon trust to convert and divide
and, of course, in Queensland, the Escheat
the proceeds into several shares, each of
Act. I~ a~l other countries, as we in Queens which is to be held on trust for a different
land did .m 1891, the law relating to escheat
person, in the event of there being an
was abolished. While by, I think, Section 3
intestacy as to any one or more of such
of our Act we also abolished the law relat
shares by reason of the death of the
ing to escheat, we still retain the name of the
legatee or legatees in the lifetime of the
Act, the Escheat (Procedure and Amend
testator and also of there being no next
ment) Act. And it is not necessary to do
of-kin of the testator, the effect of the
that. Therefore it becomes an idle defence
Wills, Probate and Administration Act
to say that all the principles involved in the
1898 (New South Wales), is that the rules
forfeiture of land to the Crown in circum
of personalty with respect to descent and
stances such as these must be dealt with and
not those of realty must be applied to such
if they are not dealt with under the Escheat
lapsed share or shares, and inasmuch as
Act they are completely irrelevant and the
in the like circumstances personalty would
remarks are not apposite. Let me assure the
Minister that, if he adopts that attitude he devolve upon the Crown as bona vacantia,
will be adopting an incorrect attitude to' the it is the duty of the executors to hand over
particular law and he will convince the to the Crown such lapsed share or shares
Chamber that he does not understand the of realty. . . . s. 49 (1) of the Wills,
purport of the Bill. Probate and Administration Act 1898
enacts that the administrator or executor
Mr. Munro: Have you by any chance for shall hold the real estate, as to which the
gotten that this is the second-reading debate? deceased owner died intestate, as trustee,
but for and as if the property had been
Mr. BENNETT: If the Minister is pre
pared to ask me sensible questions I will directly devised by the deceased to his
answer them, but if he asks me questions statutory next-of-kin without the inter
that clearly indicate and prove that he does vention of a trustee, and, inasmuch as
not ~nders~and the principles of the Bill, I am the effect of s. 49 (1) is not cut down by
afraid I will have to ignore him because the the succeeding sub-sections, the Crown is
Escheat Amendment Bill [8 NovEMBER] Escheat Amendment Bill 1411
entitled to take the real estate by force of and the law relating to forfeiture to the
the Act and its paramount title by escheat Crown, I say definitely and conclusively that
and not as bona vacantia". in the vast majority of cases-in fact, in
almost 100 per cent. of the cases-the Crown
It is interesting to note that no reference
gets the goods or the property in the· estate
is made to any escheat Act in New South
under the law by virtue of certain techni
Wales. There is in that State no escheat Act,
calities which should not be recognised, or
these points being covered by other legisla
which, if they are recognised, should be
tion. The point there was dealt with under
the Wills, Probate and Administration Act of eliminated by the Legislature.
1898. It is positively unfair, I submit, that To support that submission, I refer to re
the desire, intention, and will of a testator Gillard, a Victorian Supreme Court case
should be overridden by the artificial law decided in 1949, which is reported
known as escheat or the artificial law in 1949 Victorian Law reports, page
referred to in the rules of bona vacantia. 378. In that case, the court dealt
When a testator has a sincere intention of with the discretion of a court to
leaving the whole of his estate to a certain refuse a revocation, and I expect that the
circle of friends and one of that circle• who Minister appreciates that in these matters
would have been a legatee dies before the the court has a discretion that it can exercise
testator himself, it is perefctly obvious that one way or the other. In other words, in the
it was the will and the intention of the exercise of his discretion a judge must use
testator to divide his estate among the his discretion in a reasonable way. There
remainder of his friends and that he had are many authorities on the point of the use
no intention of allowing the remaining of a judge's discretion. Nevertheless, he has
portion to revert to the Crown. In fact, a discretion which, if he uses it in a reason
that obviously would be his last wish. He able way, he can use to determine whether
would not have that intention. I submit certain property reverts to the Crown or,
that in this modern age our law should be alternatively, is allowed to go to a justifiable
corrected to prevent anomalies of that sort claimant. The case I have mentioned dealt
and grave injustices in the affairs of a witlr circumstances that related to the will of
deceased person. a testatrix. As I say, when a will is made,
obviously the clear intentions of the testator,
The point was also dealt with in another
or the testatrix, are expressed and I submit
case, and I submit that the Crown acquired
that the Legislature should do its level best
rights in this land purely because of
to carry into practicality the expressed inten
technicalities in the law. The Minister has
tions of the testator, or the testatrix, and
claimed on many occasions, as have other
should not rely on technicalities.
hon. members, even including the hon.
member for Townsville South, and rightly This will of the testatrix had been revoked
so, that people should not rely on by her subsequent marriage. I pause there
technicalities. because it is important to note that the will
Mr. Aikens: You wish you knew as much of any testator is normally, purely by virtue
about it as I do. of marriage, revoked and this Legislature
has already acknowledged that that, looking
Mr. BENNETT: There are certain subjects at it from most points of view, is a pure
about which the hon. member knows some technicality, because many people do not
thing, but I would not hope to emulate his know the law. The law says that everybody
know ledge in those particular fields. is presumed to know what the law is but in
Technicalities are relied on in certain most instances, obviously, they do not and
instances. As a matter of fact, the Minister could not be expected to know it. So, if a
said that he introduced a Bil] to amend the person does not make a freslr will after
marriage, obviously it is not because he
Evidence Act recently because certain
intends to revoke his previous will but
litigants were relying on technicalities when
because he intends that the previous will
the·y were not morally justified in doing so.
should remain valid and operative.
When introducing the Money Lenders Acts
Amendment Bill, he also said that certain This Legislature has already acknowledged
litigants were relying on technicalities, which that fact by virtue of legislation it introduced
creat~:d injustices instead of ensuring that in the latter part of the last session, in
the courts enforced fairness and decided March of this year. This Government then
upon the facts in dispute between the litigants introduced the Law Reform (Wills) Bill of
and did not overlook certain of the facts 1962, which wrote into the law relating to
because technicalities demanded that they succession and to the making of wills--
refuse to inquire into them. The Minister
is being completely paradoxical in this matter. Mr. SPEAKER: Order! I lrave been very
His utterances yesterday were completely in tolerant with the hon. member. He seems
conflict with his utterances when he intro to have developed the habit of going the
duced the other legislation, because on long way round to his points. This Bill deals
those occasions he gave us to understand with certain aspects of the Escheat (Pro
that he had a personal abhorrence of any cedure and Amendment) Act, 1891. Although
technicalities in the law which defeated the the hon. member has spent a lot of time
course of justice. However, in this par in making his points, unfortunately lre
ticular matter of the law relating to escheat seems to be going the long way round. He
I412 Escheat Amendment Bill [ASSEMBLY] Escheat Amendment Bill
has dealt with quite an amount of legisla children should be entitled to it. That is
tion which, although it might be relevant, is the very point with which we are dealing,
not necessary to prove his point. and it is a very important one.
Mr. BENNETT: With all due respect to Mr. Aikens: If he made his will in anti
you, Mr. Speaker, I am insisting on my cipation of becoming married, it would not
rights as a Parliamentarian and an elected be invalid.
representative of the community and, if they
Mr. BENNETT: That is the point I was
are relevant, I am entitled to speak on them.
about to come to. The Legislature in
I can assure you that they are relevant,
Queensland recognised portion of the position
whether you think they are or not.
by enacting in the early session this year that
Mr. SPEAKER: Order! Quite a number section, to which I cannot refer on your
of the statements made by the hon. member ruling, Mr. Speaker, which says that if a
were not relevant. I purposely allowed person does make a will in contemplation
them because I thought he would eventually of marriage, then the will is deemed not to
come back to the Bill under discussion. have been revoked by marriage, but is
deemed to be a valid will. Why should
Mr. BENNETT: I do not wish to there be that artificial distinction between
embarrass you, Mr. Speaker, by asking you the position when the court cannot discover
to name the points that are not relevant, a will made in contemplation of marriage,
because I challenge any Supreme Court and the position when in actual fact the will
judge to name one point I have made that was made in contemplation of the marriage?
is not relevant. That is the point I am making. I refer to
a situation that arose in 1949 in the case of
Mr. SPEAKER: Order! I am not obliged
re Gillard. I have already given the reference.
to accept challenges from any hon. member.
In that case, after the will of a testatrix
But I will say that, if the hon. member
had been revoked by her subsequent mar
desires to argue with the Chair, I might be
riage, a grant of probate of the will was
a little more strict with him in the future.
improperly obtained. In view of the intestacy
Mr. BENNETT: It will be a sorry day for arising through the absence of any valid
Queensland when we cannot argue principles will, and there appearing to be no next of
that are directly involved in a Bill. kin, the Crown became entitled tp one-half
of the estate. For a purely techmcal reason
Mr. SPEAKER: Order! The hon. mem the Crown got half of her estate. It was
ber has been given plenty of opportunity to held that the Crown had sufficient interest
argue the principles that are directly to support an application for revocation of
involved, but unfortunately he has spoken at the probate and for the grant of administra
length of other laws that we are not deal tion to a nominee, and such an application
ing with at the moment. I trust he will was properly made by the Crown Solicitor
restrict his remarks to the principles of the under the authority of a warrant for the
Bill. purpose issued by the Governor of Victoria.
It was held also that notwithstanding that
Mr. BENNETT: I trust that, in dealing many years had elapsed since the grant of
with the proposed amendment to our exist probate and that the estate was very small,
ing legislation, it is in order to quote exist
the probate must be revoked and adminis
ing legislation that applies to the
tration granted. I submit that the law is
amendment?
in a shocking situation when that can occur.
I am submitting that, in a small estate, it :is
Mr. SPEAKER: Yes.
a shocking thing that the Crown should ~e
Mr. BENNETT: All right. entitled to bring an action under any legis
lation-the Escheat Act or any other Act
In this particular instance, if I may refer to say "We are going to get our pound of
back to my other premise, the Bill intends flesh. 'We want half because a technicality
to cover a certain position when a person is involved and we intend to take advantage
dies intestate. That is the fundamental point. of it" as has been done by the Crown. I
A person can die intestate by having a will am n~t suggesting, of course, that this Minis
which became invalid on his marriage ter would exercise his authority in such a
although he was not conscious of it. The way.
point I am making is that the Bill is designed
I made a point yesterday about the pro
to eliminate certain technicalities in the law vision which says "in certain particulars". In
that have crept in and created injustices. my submission, to comply with those "certain
One of the very points that has crept in so particulars" the Bill should, and could, have
far as intestacy is concerned is that a person been amended to make provision for the
is deemed to have died intestate, even though situation that I referred to yesterday, but
his will can be produced. Merely because which I do not wish to traverse in detail
it bears date one day before he was married, again. However, I have been fortified by
as a result of that technicality he is regarded some research I did overnight when I dis
as dying intestate. I think the Escheat Act covered that in England, by way of English
should cover that position. Instead of his legislation, provision was made away back in
estate going to the Crown, his widow and 1950 for an adopting parent to have an
Escheat Amendment Bill (8 NOVEMBER] Escheat Amendment Bill 1413
interest in the estate of an adopted child. is what I am strongly urging on the Govern
In introducing previous legislation the ment, namely, to put adopted children and
Minister has said, "We are bringing our adopter parents in the same position as if the
legislation up to date. New South Wales has child was born in lawful wedlock. The same
this; Victoria has this. Certain committees Act also says-
of judges in England in 1948 and 1939 have "Where, at any time, after the making
made certain decisions and recommendations. of an adoption order, the adopter or the
We wish to bring the legislation in Queens adopted person or any other person dies
land into line with legislation that has proved intestate in respect of any real or personal
to be desirable in England and other Aus property (other than property subject to
tralian States". an entailed interest under a deposition
Either the Minister knows the situation in made before the date of the adoption
England or he does not. It is a sad thing order), that property shall devolve in all
that in certain instances he is prepared to respects as if the adopted person were the
examine the legislation applicable in England child of the adopter born in lawful wed
and in other countries, and sometimes is pre lock and were not the child of any other
pared to follow it slavishly, while in other person."
cases he apperently wishes to adopt the That section applies--
ostrich attitude. In his introduction of the
Bill, in his reply to the debate thereon, and in Mr. Aikens: How does that apply in
his speech at the second-reading stage he England if the estate is entailed? We have
made no reference to the fact that the point not an entail Act here.
I made when speaking at the introductory Mr. BENNETT: That question is com
stage has already been covered in England. pletely irrelevant.
It was covered by legislation in 1950. We
are lagging behind England by at least 12 Mr. Smith interjected.
years. Section 10 of the English Adoption
Mr. Aikens: In other words, you do not
Act consolidated all previous Acts, and that is
know anything about it.
the point I am making. I will be very amused
if the Minister is prepared to place on record Mr. BENNETT: The hon. member for
that my submissions in this regard are not Windsor, in answer to the interjection, in
relative or apposite, because any Act can effect suggested that it is relevant and
be amended to consolidate the law relating to apposite. I ask him to rise when I resume
the various Acts covering particular points. my seat and explain how it is relevant.
Whether we want to consolidate the Escheat
Mr. Smith: That is what I want to do if
(Procedure and Amendment) Act, or repeal
you will only give me two minutes before
it and consolidate all points involved under
12 o'clock.
other legislation, so far as Parliament is
concerned we are acting according to correct Mr. Aikens: As a matter of fact, the law
Parliamentary procedure, adopting legislation of entail overrides all laws with regard
that will be binding on our courts, whether to beneficiaries and wills and suchlike.
we call it the Escheat (Procedure and Amend
ment) Act, the Bona Vacantia Act, the Suc Mr. BENNETT: It is rather significant
cession Act, or the Adoption Act. I do not that the hon. member for Townsville South
care what the Minister wishes to call it, but I should talk about the law of entail. I
am strongly submitting that he should do suppose of all the parliamentarians who
what was done in England away back in have ever passed through this House he
1950 and consolidate all the previous Acts on would have the longest tail.
this point.
That same Act has the effect of placing
Mr. Smith: Why didn't the Labour Govern the adopter parent, or, in the case of a
ment do it when they were in charge? joint adoption, both adopter parents, in the
position of lawful parent for the purpose
Mr. BENNETT: I do not know what the
of the devolution on intestacy of real and
hon. member for Windsor has been doing
personal estate of the adopted person, and
here for the last six years. Any legislation
on the death of an only surviving parent,
that has been introduced into this Parlia
there being no surviving husband or wife
ment in the last two years has been intro
or issue of the intestate, a grant will be
duced either on the recommendation of the
made to the legal personal representative of
committee of the Bar Association or as a
result of submissions that I have made from such parent. In a like case where both
time to time. parents have survived and then died, a grant
will be made to the legal personal repre
In England, upon an adoption order being
sentative of either or both of them.
made, all the rights, duties, obligations, and
liabilities of the parents or guardians of the Now, there is a law also in England
infant in relation to the future custody, and we have not the specific Act here
maintenance, and education of the infant whereby under the Legitimacy Act provision
including all rights of the parent or guardian' is made that where, after the commence
are extinguished and thereupon vest in and ment of that Act, an illegitimate child not
are exerciseable by and enforceable against being a legitimated person dies intestate in
the adopter as if the infant were a child respect of all or any of his real or personal
born to the adopter in lawful wedlock. That property, his mother, if surviving, shall be
1414 Escheat Amendment Bill [ASSEMBLY] Escheat Amendment Bill
entitled to take any interest therein to which In England, where reference is made to the
she would have been entitled if the child child or children of the adopter, it is clear
had been born legitimate and she had been that in the sections that are applicable
the only surviving parent. and in deference to the hon. member for
Mt. Gravatt I will not read them out
So as far back as 1926 the Legislature in
when they make those references to the child
England modernised its law to comply, as
of an adopter, the reference to the child
I have already mentioned, with our modern
or children may have to be construed as
concepts of justice to the community, par
referring to his adopted child or children.
ticularly to that section of the community
whose handicaps were vested upon them There is one final point to which I should
through no fault of their own. I should like to refer before resuming my seat, in
like to read the section so that the Minister order to be courteous to other speakers who
will understand, but you, Mr. Deputy may wish to follow. A law adopted in Eng
Speaker, may refuse to allow me to do so. land, which proves that they are there ever
However, it does appear from the remarks conscious of the welfare of children, applies
and observations of the Minister and the to the protection of statutory tenants. We
hon. member for Mt. Gravatt that they in this State do not seem to be prepared
believe that they cannot frame legislation to to protect properly those children who have
cover the particular point involved in the been legally adopted, but in England even
devolution of property of an intestate to quasi-adopted children, or adopted children
make provision for the principles I have de facto, have certain rights and protection,
espoused. notwithstanding that they have not been
legally adopted. They are protected as
Mr. Hart: Are you saying I said we can statutory tenants. A member of a tenant's
not pass a similar Act? family, within the meaning of the Increase
of Rent and Mortgage Interest (Restrictions)
Mr. BENNETT: That is what you are
Act, 1920, may accordingly on the tenant's
trying to suggest.
death be entitled to the protection of the
Mr. Hart: Don't be silly. I have not said Rent Restrictions Act.
a word since I came into the Chamber. That Act, of course, provides certain
penalties. It imposes certain restrictions on
Mr. BENNETT: For the benefit of the
payments of rent and those controlling rent
hon. member for Mt. Gravatt, I was mak
in England. Under the attitude of this
ing my observations on the interjections of
the hon. member for Windsor and the Minis Government, such a situation would not be
ter's speech. If the hon. member for Mt. acknowledged here. No protection whatever
Gravatt wishes to place himself in the same is given to children in such a position. Under
category, the other two hon. gentlemen the Landlord and Tenant Act, which would
might even be embarrassed. be the most apposite Act in Queensland, no
protection is afforded, but the standard of
Mr. Hart: You say I said all sorts of things thinking in England has been elevated higher
when I haven't even opened my mouth. I
than it is here, and protection is given to
have not said a word.
children who have in fact been adopted but
in respect of whom there has not been com
Mr. BENNETT: In England, where a
person has disposed of property by will, pliance with legal formalities.
but the disposition fails, he dies intestate, In the introduction of this Bill, the
as is the position in Australia, in keeping Government and the Minister have been found
with the authority to which I have already particularly wanting. They have introduced
made fairly detailed reference. So in Eng
it with indecent haste, no doubt because of
land an endeavour has been made to cover
the interim judgment delivered by Mr. Justice
that point by ensuring that the unfortunate
Wanstall in the case re Bonner deceased.
person who has a moral claim on the estate
The Government is prepared to amend the
has the right to make that claim free from
law to comply with the suggestions of His
any litigation.
Honour, and I am almost inclined to believe
I know that perhaps other speakers who that the only reason for introducing the
will follow me-certainly the Minister-will
amendment was the desire by the Minister
say--
to save himself embarrassment, as the Judge
Mr. Aikens: They won't follow you today; said in effect that the Minister exceeded his
that's a certainty. jurisdiction. He arrogated to himself rights
of the Crown, which is typical of the attitude
Mr. BENNETT: Perhaps I could concede of all Ministers of the Government at the
that, too. present time. They have become to a certain
Mr. Smith: How about sitting down and extent inflated with their own importance.
giving some of us a go? The Minister did exercise certain power that
Mr. Justice Wanstall said he was not in pos
Mr. BENNETT: The fact that this is the session--
first morning the hon. member for Windsor
has been in the Chamber is no reason why Mr. Aikens: Do you think judges should
I should curtail my speech. be superior to Parliament?