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30Th Anniversary Report Reform Implementation 30th Anniversary Reform Implementation Report © Law Reform Commission of Western Australia ALL RIGHTS RESERVED Applications for reproduction should be made in writing to the Law Reform Commission of Western Australia First published 2002 by the LAW REFORM COMMISSION OF WESTERN AUSTRALIA Level 3, BGC Centre 28 The Esplanade Perth WA 6000 Australia Telephone: 011+61+8+9321 4833 Facsimile: 011+61+8+9321 5833 E-mail: [email protected] Website: http://www.wa.gov.au/lrc/ ISBN 1 74035 015 4 Printed in Western Australia Table of Contents Foreword vii Abbreviations and Explanations ix Acknowledgements x List of Members and Executive Officers xi Part I: History of the Commission 1 Chairmen of the Commission 4 Part II: History of References and Legislative Reform 31 1(I) Protection for Purchasers of Land 32 1(II) Retention of Trust Money by Land Agents 33 1(III) Protection for Purchasers of Home Units 34 2 Testator’s Family Maintenance Act 35 3 Succession Rights of Illegitimate Children 37 4 Committal Proceedings 38 5 Interim Damages in Personal Injury Claims 40 6 Summary Trial of Indictable Offences 42 7 Disposal of Uncollected Goods 44 8(I) Defamation: Privileged Reports 46 8(II) Defamation 48 9 Statute Law Revision 51 10 Motor Vehicle Insurance 52 11 Liability For Stock Straying on to the Highway 54 12 Payment of Costs in Criminal Cases 55 13 Affiliation Proceedings 57 14 Disqualification for Membership of Parliament: Offices of Profit Under the Crown 58 15 Imposition of Driving Disqualifications 60 16(I) Local Courts: Jurisdiction, Procedures and Administration 61 16(II) Enforcement of Judgments of Local Courts 64 17 Manslaughter or Dangerous Driving Causing Death 66 18 Commercial Arbitration and Commercial Causes 67 19 Chattel Securities and the Bills of Sale Act 69 20 Evidence of Criminal Convictions in Civil Proceedings 70 21 Associations Incorporation Act 1895–1969 73 22 Innocent Misrepresentation 74 23 Legal Representation of Children 76 24 Succession Rights of Adopted Children 78 25(I) Legal Capacity of Minors 79 25(II) Minors’ Contracts 81 26(I) Review of Administrative Decisions: Appeals 83 26(II) Judicial Review of Administrative Decisions 86 26(III) New Rights of Appeal 89 27(I) Admissibility in Evidence of Computer Records and Other Documentary Statements 90 Law Reform Commission of Western Australia – 30th Anniversary Reform Implementation Report (2002) • iii Table of Contents 27(II) Admissibility in Evidence of Reproductions 92 28(I) Official Attestation of Forms and Documents 93 28(II) Formalities of Oaths, Declarations and Attestation of Documents 96 29 Special Constables 97 30 Imposition of Fines 99 31 Competence and Compellability of Spouses to Give Evidence in Criminal Proceedings 100 32 The Immunity of Suit Between Husband and Wife 102 33 Dividing Fences 103 34(I) Distribution on Intestacy 106 34(II) Administration Bonds and Sureties 107 34(III) Administration of Deceased Insolvent Estates 108 34(IV) Recognition of Interstate and Foreign Grants of Probate and Administration 109 34(V) Trustees’ Powers of Investment 112 34(VI) Charitable Trusts 113 34(VII) Administration of Assets of the Solvent Estates of Deceased Persons in the Payment of Debts and Legacies 114 34(VIII) Protection and Remuneration of Trustees 116 35 Unauthorised Disposal of Goods Interstate: Right to Repossession 117 36(I) Limitation and Notice of Actions: Latent Disease and Injury 118 36(II) Limitation and Notice of Actions 121 37 Land Agents Act 125 38 Sale of Undivided Shares in Land 127 39 Compensation for New Street Alignments 128 40 Production of Medical and Technical Reports in Court Proceedings 129 41 Tenancy Bonds 131 42 Unrepresented Defendants 132 43 Compensation For Persons Detained in Custody 133 44 Alteration of Ground Levels 134 45 Mortgage Brokers 137 46 Criminal Injuries Compensation 138 47 Jailing of First Offenders 139 48 Appeals from Courts of Petty Sessions 140 49 Suitors’ Fund Act 141 50 Appeals to the Privy Council 144 51 Unclaimed Money 145 52 Local Body Election Practices 147 53 Privilege for Journalists 149 54 Contractors’ Liens 151 55(I) Review of the Justices Act 1902: Appeals 152 55(II) Courts of Petty Sessions: Constitution, Powers and Procedure 154 55(III) Enforcement of Orders Under the Justices Act 1902 157 56 Strata Titles Act 159 57 Enforcement of Custody Orders 162 58 Section 2 of the Gaming Act 163 59 Audit Provisions of the Local Government Act 165 iv • Law Reform Commission of Western Australia – 30th Anniversary Reform Implementation Report (2002) 60 Alternatives to Cautions 166 61 Enforcement of Judgment Debts 167 62 Liability of Highway Authorities for Non-Feasance 168 63 Small Debts Court 170 X Protection of Money Awarded as Damages 172 64 Bail 174 65(I) Privacy 176 65(II) Confidentiality of Medical Records and Medical Research 178 66 Fatal Accidents 181 67 Writs and Warrants of Execution 183 68 Illegitimacy 186 69 The Criminal Process and Persons Suffering from Mental Disorder 187 70(I) Pre-Judgment Interest 191 70(II) Interest on Judgments 193 71 Exemption from Jury Service 194 72 Retention of Court Records 196 73 Absconding Debtors Act 1877 197 74 Limited Partnerships 199 75 United Kingdom Statutes in Force in Western Australia 200 76(I) Wills: Substantial Compliance 202 76(II) Effect of Marriage or Divorce on Wills 204 77(I) Medical Treatment for Minors 207 77(II) Consent to Sterilisation of Minors 208 78 Joint Tenancy and Tenancy in Common 211 79 Prescribed Interests Under the Companies Code 213 80 Problem of Old Convictions 214 81 The Pawnbrokers Act 1860–1984 217 82 Financial Protection in the Building and Construction Industry 218 83 Payment of Witnesses in Civil Proceedings 220 84 Medical Treatment for the Dying 222 85 Police Act Offences 224 86 Incitement to Racial Hatred 226 87 Evidence of Children and Other Vulnerable Witnesses 229 88 Administration Act 232 89 The Sale of Goods Act 1895 234 90 Professional Privilege for Confidential Communications 236 91 Restrictive Covenants 239 92 Review of the Criminal and Civil Justice System in Western Australia 242 Part III: Indexes 255 Reference Subject 254 Priority of Reform 258 Cross-referencing 259 Law Reform Commission of Western Australia – 30th Anniversary Reform Implementation Report (2002) • v vi • Law Reform Commission of Western Australia – 30th Anniversary Reform Implementation Report (2002) Foreword On behalf of the Commission, I am delighted to introduce this report. We mean it to commemorate the Commission’s history, to provide a convenient record of the Commission’s work, and to focus attention on the future for law reform in our state. This report marks the 30 years since the enactment of the legislation that created the Commission. However, the report commemorates a longer history, one that also takes in the Law Reform Committee whose work led to that legislation. That perspective shows the extraordinary range of aspects of the legal system that first the Committee and then the Commission were asked to review. Thus, in this volume my predecessors refer to projects on strata titles, administrative law, local court process, criminal Ralph Simmonds injuries compensation, the caution as a sanction in criminal law, bail, the evidence of children and other Chairman vulnerable witnesses, privilege for professional communications, limitation of actions and the state’s criminal and civil justice system. As they note, there is much more to the history this volume marks than that. There have been in all 92 references that have been brought to a conclusion of some sort so far. Many of these references marked significant moments in the state’s social and legal history. The description in this volume of the work on those references shows the contribution to the literature on the law in Western Australia that the Committee and the Commission have provided. This contribution reflects the commitment to the ideal of law reform of many people. Successive members of the Committee and the Commission and their staff have included some of the most distinguished jurists in our state. But these bodies have also been able to draw on a wider community of those interested in keeping our law under review. This community includes many from the legal profession and academia who have drawn on their experience and insights both as consultants and as commentators. This community has also included a much wider section of our state’s population, of people who have made submissions to the Committee and the Commission. In recent times, they include those who have participated in public meetings and other fora that the Commission has been able to organise. All of the members of this community of concern have helped the Committee and the Commission to enhance the quality of the work this report records. Beyond that assistance, this community has contributed to public ownership of law and its processes in Western Australia. This report also records every reference the Committee and Commission have received that has issued in a conclusion of some sort. This record is not a bare description of the subject matter of the reference. It is an account of the genesis of the reference, the process involved in addressing it, and its upshot. Most references grew out of a significant question about the law or its administration and initiated the same sort of process. This was a process involving substantial legal research that issued in a discussion paper or papers on which submissions were received from a range of sources. Most references resulted in final reports containing a number of recommendations for legislative change that were promptly acted upon. As this report also indicates, however, particular references have initiated processes to arrive at that endpoint involving both the traditional concern for legal research of high quality and wider processes of public consultation.
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