27 minute read
Indigenous Incarceration Addressing an Upward Trend
greater numbers as a result of these laws. The laws have impacted disproportionately on young Indigenous offenders. Indigenous children in WA are now 52 times more likely than non-Indigenous young people to be in detention – twice the national rate of overrepresentation. Over 81% of the 119 individual juveniles sentenced under the legislation were Aboriginal. Moreover, 61% were from nonmetropolitan areas and of these 93% were Aboriginal.18 The laws have had no impact on rates of home burglary and run counter to the recommendations of the Royal Commission into Aboriginal Deaths in Custody.19 The Law Council of Australia20 and Law Society of Western Australia21 have consistently opposed the use of mandatory sentencing regimes. The Law Society wrote to members of parliament expressing its serious concern with the proposed new mandatory sentencing under the Criminal Law Amendment (Home Burglary and other Offences) Bill 2014 (WA) and urged that the Bill be opposed.22 Notwithstanding the Society’s opposition, the Criminal Law Amendment (Home Burglary and other Offences) Act 2015 (WA) was passed. This Act imposes mandatory sentences for serious offences of physical or sexual violence committed in the course of an aggravated home burglary, which include a minimum sentence of 75% of the statutory maximum term of imprisonment for adults and, where the maximum is life imprisonment, a minimum of 15 years applies and a minimum sentence of three years’ imprisonment for juvenile offenders.
Western Australia is the only jurisdiction that still uses mandatory sentencing laws against children. The Northern Territory previously had similar three-strike laws but repealed them in 2001 after the suicide of a 15 year old boy who was mistakenly mandatorily detained.23
Mandatory minimum sentences upon conviction for criminal offences are opposed because they impose unacceptable restrictions on the exercise of judicial discretion and independence, which are essential to the application of the rule of law. They are inconsistent with Australia’s voluntarily assumed international human rights obligations, because of their arbitrariness and limitation on the right to a fair trial, preventing penalties based on the unique circumstances of each offence and offender.
Mandatory sentencing regimes are also costly and ineffective in deterring crime.24
Minimum age of criminal responsibility
In Australia, the age of criminal responsibility is just ten years old.
This is seriously out of step with international standards. In 2019, the United Nations Committee on the Rights of the Child recommended 14 years as the minimum age of criminal responsibility.
While the United Kingdom also has a minimum age of ten, most European nations have a minimum age of 14 years or higher.
According to the Australian Institute of Health and Welfare, in 2018-19, 773 children under 14 were placed on court orders requiring supervision in the community by youth justice officers.
More than 570 were placed in juvenile detention. Some 65% of these two groups were Aboriginal and Torres Strait Islander children.
There are many well-founded and compelling reasons for increasing the minimum age of criminal responsibility in Australia to 14.25 These include:
The dramatic and devastating impact on Aboriginal and Torres Strait Islander children, given the high numbers of Indigenous children aged ten to 13 in the youth justice system.
Child development evidence showing children under 14 lack impulse control and have a poorly developed capacity to plan and foresee consequences.
The disproportionate number of children coming from the child protection system into youth justice. According to a 2017 Australian Institute of Health and Welfare report, three in five children aged ten at the time of their first youth justice supervision were also in child protection. The high numbers of children in the youth justice system with mental health issues and cognitive impairment. A 2018 study found nine out of ten young people in Western Australian youth detention were severely impaired in at least one area of brain function. This obviously affects whether they can understand rules and instructions.
The evidence also showing the earlier a child enters the justice system, the greater the likelihood of lifelong interaction with the justice system.
The fact that young children in the justice system have high rates of preexisting trauma and are “physically and neuro-developmentally vulnerable”. Unsurprisingly, criminalisation and imprisonment have a further negative impact on a child’s development. As the Royal Australasian College of Physicians notes: Young children with problematic behaviour, and their families, need appropriate healthcare and protection. Involvement in the youth justice system is not an appropriate response to problematic behaviour.
Social Justice Reinvestment WA has released a report26 saying that raising the age of criminal responsibility from the current level of 10 years to 14 years is needed if the state is to avoid high levels of juvenile imprisonment, including 143 children aged 10 to 13 years in unsentenced detention in 2018-19. It would prevent the arrest and detention of children on minor offences, such as an 11-year-old Aboriginal boy who was caught stealing a $5 pen and $4 pencil, according to the report and in another case, a 10-year-old Aboriginal boy was charged with criminal damage after he and another case of a child who broke a window to gain entry to an abandoned house. The report says that in 2020, the Aboriginal Legal Service received 4753 notifications for Aboriginal children apprehended and detained in a police facility. SRWA co-chairs Glenda Kickett and Daniel Morrison said the majority of children were taken into police custody because of alleged offending behaviour.
“Children who are detained by police are usually kept in a police cell until they are released or can be transported to court or to Banksia Hill Detention Centre; they are held in the same concrete cells used to detain adults.”
In regional areas, an offending child detained by police may spend days in a police cell before the child can be transported to Banksia Hill, the state’s juvenile detention facility in Perth.
The SRWA report points out that raising the age of criminal responsibility to 14 would help meet a commitment in the new national agreement on Closing the Gap to reduce the number of Indigenous juveniles in detention by 30 percent by 2039. A draft report commissioned by a meeting midlast year of Attorneys-General and led by WA Attorney-General John Quigley recommended that all governments raise the age of criminal responsibility from 10 to 14 years. The report offered an alternative in raising the age to 14 with exceptions for serious crimes. It also included an alternative that the age threshold be raised to 12 with the minimum age of detention fixed at 14.
The Change the Record coalition (a national led justice coalition of Aboriginal peak bodies and non-indigenous allies, including the Law Council of Australia) and patrons of the Justice Reform Initiative, who include senior members of Australia’s and WA’s legal, medical and Indigenous affairs communities all support raising the age of criminal responsibility to 14 years. The Australian has reported that the Western Australian government is preferring to begin with 12 as the new limit to give the states time to establish the right alternatives to detention for the youngest offenders.27
Aboriginal and Torres Strait Islander imprisonment rate(a), by states and territories, Dec 2019, Sep 2020 and Dec 2020
rate
NSW Vic Qld SA WA Tas NT ACT Aust
Dec Qtr 2019 Sep Qtr 2020 Dec Qtr 2020
a) Rate is the number of prisoners per 100,000 adult Aboriginal and Torres Strait Islander population. Based on average daily number. Source: Australian Bureau of Statistics, Corrective Services, Australia December Quarter 2020.
Community-based corrections rate(a), By states and territories, Dec 2019, Sep 2020 and Dec 2020
800
600
400
200
0
NSW Vic Qld SA WA Tas NT ACT Aust
Dec Qtr 2019 Sep Qtr 2020 Dec Qtr 2020
a) Rate per 100,000 persons for the state/territory of interest. Source: Australian Bureau of Statistics, Corrective Services, Australia December Quarter 2020.
Conclusion
Unless and until a fully comprehensive Justice Reinvestment model is applied in the State’s Justice and corrections systems, consistent with the recommendations of the RCIADIC, and decision makers at all levels move away from the populist approach of the first response being to fall back on incarceration as a panacea for avoiding any risk of community harm, then imprisonment rates of Indigenous people in this State will continue to spiral upwards and cost the community more and more, both socially and economically.
Endnotes
1 https://www.smh.com.au/national/what-was-theroyal-commission-into-aboriginal-deaths-in-custody20210407-p57h5q.html 2 https://www.creativespirits.info/aboriginalculture/law/ aboriginal-prison-rates 3 The Guardian’s Deaths in Custody Tracking Project; https://www.hrw.org/news/2021/04/14/australiaact-indigenous-deaths-custody#:~:text=The%20 Guardian’s%20Deaths%20in%20Custody,a%20 lack%20of%20prison%20support 14 April 2021 4 Bartels, Linda, https://www.indigenousjustice.gov.au/ wp-content/uploads/mp/files/publications/files/thegrowth-in-remand-13-08-2.pdf 5 Australian Bureau of Statistics (2018). 6 Weatherburn D and Ramsay S 2016. What’s causing the growth in Indigenous imprisonment in NSW? Bureau Brief 118. BOCSAR. 7 https://www.creativespirits.info/aboriginalculture/law/ aboriginal-prison-rates 8 Imprisonment rates of Indigenous women a national shame (humanrights.gov.au) 9 A statistical overview of Aboriginal and Torres Strait Islander peoples in Australia: Social Justice Report 2008 | Australian Human Rights Commission 10 M Cameron, ‘Women Prisoners and Correctional Programs’, AIC Trends and Issues in Crime and Criminal Justice, no 194, Australian Institute of Criminology (2001) p 1. 11 Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage: Key Indicators 2007, Productivity Commission (2007) p 128. 12 Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage: Key Indicators 2007, Productivity Commission (2007) p 129. 13 https://www.smh.com.au/lifestyle/life-andrelationships/in-wa-unpaid-fines-are-keepingindigenous-mothers-in-jail-20190111-p50qta.html 14 https://www.creativespirits.info/aboriginalculture/law/ aboriginal-prison-rates 15 https://www.creativespirits.info/aboriginalculture/law/ aboriginal-prison-rates 16 https://www.als.org.au/supreme-court-findsmandatory-sentencing-laws-should-not-have-appliedto-12-year-old-aboriginal-boy/ 8 March 2019. 17 Father Chris Riley, founder of Youth off the Streets, https://www.creativespirits.info/aboriginalculture/law/ aboriginal-prison-rates 18 Department of Justice, Review of Section 401 of the Criminal Code, November 2001, 24-25 19 Morgan, Blagg & Williams, Mandatory Sentencing in Western Australia & the Impact on Aboriginal Youth: Aboriginal Justice Council 2001. 20 Policy position, Law Council of Australia, (May 2014). 21 Law Society President, Matthew Keogh in 2015 said, “The government has no statistics or evidence to support that mandatory sentencing works to deter criminal behaviour, and no specific evidence to show WA’s three-strike laws have been working up until now.” (Media release: 30/02/2015). 22 Letters 9 April 2014 and 16 February 2015. 23 https://www.als.org.au/supreme-court-findsmandatory-sentencing-laws-should-not-have-appliedto-12-year-old-aboriginal-boy/ 8 March 2019 24 Human Rights and Equal Opportunity Commission, Social Justice Commissioner, 19 October 2001. “Commissioner Welcomes Repeal of Northern Territory Mandatory Sentencing Laws”; Media Positioning Statement; Law Society submission to the Attorney General of WA, February 2013. 25 Chris Cuneen https://theconversation.com/ten-yearolds-do-not-belong-in-detention-why-australiamust-raise-the-age-of-criminal-responsibility-142483 23.07.2020 26 ‘A Pathway to a Brighter Future for Western Australia’s most at risk children’ ‘It’s absolutely scandalous’: calls for WA to raise the age of criminal responsibility | NITV (sbs.com.au/nitv/) 27 Taylor & McKenna, “Major justice reform: push to lift age bar on crime”, The Australian 15 April 2021.
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Time to Try a “Nutha Way”
The Voice of Indigenous Young People
By The Nutha Way Team A joint initiative of the Law Society of WA, Millennium Kids and Media on Mars
Nutha Way is an Indigenous youth leadership initiative of the Law Society of Western Australia focused on building better relationships between young people, their communities, the justice system, local police and stakeholders.
In partnership with Millennium Kids Inc. and Media on Mars, Nutha Way engages with young people in ways meaningful and relevant to them and garners their input to identify issues faced by them in their community. An important feature of Nutha Way is the 25+ year commitment and the ‘skills for life’ approach that aims to build capacity and empower youth led initiatives.
The Law Society, Millennium Kids Inc. and Media on Mars believe in championing the voices of Indigenous youth and supporting them to pitch their ideas for solutions to the issues identified. This is critical if we are to help change outcomes for young Indigenous people and their communities. This approach also helps Indigenous youth build confidence, find and share their voice, develop community bonds and form partnerships to facilitate implementing solutions. An example of what building community bonds and partnerships looks like is Nutha Way in Coolgardie. Young Indigenous people in Coolgardie identified that they need somewhere to go when they need a break. The community realised that the empty house next to the police station would be an ideal location for this and could also function as a place to build a positive, culturally appropriate youth program. Over the last year, the Nutha Way team with the local youth, Elders and the Coolgardie Police have been working with us to secure that house for the Nutha Way team and the local community to use as the Nutha Way Youth Hub. This initiative has received a WA Police Community Grant to run an ‘On Country’ planning workshop with the young people and the local Police to co-design how the Nutha Youth Hub will work.
Another purposeful design element of the program has been connecting young people with Country. Being 'On Country' helps break through barriers, build relationships and creates a safe space to share stories. We take our young people on trips to the Great Western Woodland region along with Indigenous Elders to learn about their history, significant sites in the area, and the role of Woodland custodians.
Quote from Brenden Ah - Kim - Nutha Way Indigenous Leader
“There’s a lot of momentum with this program building positive relationships with the Police. The program breaks down barriers and is a great template for other communities wanting to build better relationships between young people and police.” Quote from Sergeant Gary Simpson – Officer in Charge, Coolgardie Police
“We used to drive past kids and we’d either get nothing or possibly the bird, but now we drive past and they wave and call out to us. We can stop to have a chat and talk about the basketball program we’ve got going on. The fact that they call us by our first names in itself, is a sign of success.”
While we do not have all the answers to addressing the complex social issues with Indigenous young people in small regional towns, we can see this program making steps in the right direction. Partnering with young people and championing their solutions is a great way to create positive change with, and by, young Indigenous citizens. In consultation with their communities, the journey creates positive reinforcement for them and their long-term futures. For the first two years in the Goldfields, the program has been funded by Lotterywest and the Department of Justice’s Criminal Property Grants Confiscation Program. It is being delivered by Millennium Kids Inc. and Media on Mars. Based on the success in Coolgardie the Law Society and Nutha Way partners have been invited to run Nutha Way in other regional locations. We are actively looking for ongoing funding and corporate support to maintain engagement in Coolgardie and the Goldfields whilst also potentially expanding to other regions.
More information on Nutha Way in Coolgardie can be accessed via the Nutha Way 2020 Annual Story. For more information about Nutha Way please visit www.nuthaway.org.au or follow us on:
FB: https://www.facebook.com/NuthaWay-104342954405582/
Professional Standards Scheme Overview
The Professional Standards Scheme (PSS) is a statutory scheme operating under the Professional Standards Act 1997 (WA) (Act). The Scheme is approved by the Professional Standards Council. The Professional Standards Scheme (formerly Limitation of Liability Scheme) provides a significant benefit for Law Society members. The Scheme commenced on 1 July 2019 and does not apply to claims prior to that date or prior to a participant’s commencement with the Scheme. The Scheme creates a liability cap on damages that can be recovered by a plaintiff in a professional negligence action taken against a Participating Member of the Scheme. The Scheme caps occupational liability of participating members to an amount of $1.5 million, $5 million or $10 million depending on the insurance policies and total annual fee income of the law practice. Things to Note:
The Scheme is not an insurance product and does not affect the practitioner’s existing requirements to obtain insurance through Law Mutual (WA), or otherwise as applicable.
Compulsory professional indemnity insurance must cover the amount up to the liability of the cap. The liability cap under the
PSS relates only to damages and does not include costs. For a law practice to gain the full benefit of the Scheme and the limitation of liability, all legal practitioners (that is, any person who holds a current Australian practising certificate) within the law practice, and the law practice itself if it is an incorporated legal practice (ILP), would need to be members of the Society and the Scheme.
The Scheme is available to Ordinary, Life and Incorporated
Legal Practice members.
This is an opt-out Scheme which, subject to the provisions of the Professional Standards Act 1997 (WA) applies to
Law Society members. However, the Scheme provides for circumstances in which members may be exempt and can apply for exemption by completing the Application for
Exemption form.
The Law Society has discretionary authority, on application by a participating member, to specify a higher maximum amount of liability.
Participating members need to disclose their limited liability status. Non-disclosure is an offence under the Professional
Standards Act 1997 (WA). Further information regarding disclosure is available in the Professional Standards Scheme
Guide, and on the Professional Standards Council website.
For more information regarding the Scheme go to https:// www.lawsocietywa.asn.au/pss/, call (08) 9324 8624 or email pss@lawsocietywa.asn.au
Case example – Expedited procedures allowed by NNTT despite substantial objections raised by native title groups.
By Gwynette Govardhan, Lawyer – Yamatji Marlpa Aboriginal Corporation
Introduction
An expedited procedure is a fast-tracking process for the grant of tenements that are seen to have ‘minimal impact’ on native title. Typically, the Department of Mines, Industry Regulation and Safety (DMIRS) will state the expedited procedure applies on a notice, and any native title party will not have the right to negotiate. The native title party instead only has the right to lodge an objection to the expedited procedure, should they wish to stop exploration or other activity on land.
In expedited procedure hearings, the three limbs of s.237 of the Native Title Act 1993 (NTA) are looked at carefully, specifically, whether there has been interference with the community or social activities1, whether there has been interference with areas or sites of particular significance2 and whether there has been major disturbance to any part of the licence area3 .
In recent expedited procedure hearings, the National Native Title Tribunal (NNTT) has been reluctant to disallow expedited procedure, despite serious concerns regarding threats to culture and heritage raised by native title groups, often due to purported evidential gaps.
The contentions of the Bunuba people – traditional hunting grounds and the no-go zone on a registered sacred site
In the expedited procedure hearing involving Bunuba Dawangarri Aboriginal Corporation in relation to the Warrwa Determination made on 1 December 2020, there was a registered Aboriginal site within the area, however the majority of it was located outside the licence area.
The registered sacred site also had within it a no-go area, and was even marked as an ‘Avoidance Area’ on the register. The Bunuba people identified this no-go area as being dangerous and of cultural significance, explaining they did not want to disturb the no-go area as there were possible consequences for a person entering the area without being smoked by a senior Bunuba person. In addition to contending the registered site and no-go zone were sites of particular significance, the Bunuba people asserted the grantee party’s use of the licence area without Bunuba’s knowledge (particularly in the cold season) is likely to disrupt the movement habits of wildlife and interfere with the willingness of members of Bunuba to access the area.
Bunuba further contended they used a particular area as a meeting place for hunting, gathering and cooking and Traditional Owners provided affidavits which referred to hunting and fishing activities in the present tense, described the path they followed to catch fish and stated they did not want others to become aware of their hunting spots.
Umida
Unggarangi Djawi
Broome Warrwa Unggumi Derby
Punuba
Nyikina
The Warwa Traditional Lands and those of neighbouring Aboriginal tribes.
Findings in relation to hunting grounds
The NNTT found the evidence brought by the Bunuba people did not support a finding the licence area is a site of particular significance in accordance with Bunuba people’s traditions, making a further finding that the use of the area for hunting, fishing and cooking did not necessarily make it a site of particular significance, as there was ‘no clear evidence’ of the extent to which visits to the hunting grounds occurred, although the affidavits of Traditional Owners mentioned the cold season was the best time to visit. As such, the NNTT was of the view there would not be a ‘direct interference’ with the Bunuba people’s community and social activities for the purposes of s.237(a) of the NTA.
Findings in relation to the registered sacred site
In relation to the no-go zone, Bunuba had referred to its cultural significance and mythological relevance, but this was not sufficient for the NNTT and they required an explanation as to why this no-go zone was of particular significance according to Bunuba tradition.
The NNTT acknowledged the fact this nogo zone was registered ‘may be relevant’ however did not accept that the area being a no-go or dangerous zone made it an area of particular significance. Rather, they construed it to be the contrary, as the explanation given for the significance of the site was to keep people away from the artefacts.
Conclusion
This matter illustrates the need for native title parties to provide substantial evidence and explanations in relation to claims around cultural and heritage concerns. The NNTT in this matter gave limited guidance as to what specific evidence is required from native title parties to quash an expedited procedure. Moreover, in relation to sacred sites and cultural practices, it seems the NNTT is after more comprehensive statements of what the cultural activities are, their frequency and accompanying explanations regarding how these practices (or sites) are of cultural and/ or spiritual significance. In these unique legal matters, the use of expert evidence from anthropologists and/ or archaeologists can be of utmost importance, however unfortunately many native title groups may not have adequate resources to access this type of expertise.
Endnotes
1 s.237(a) Native Title Act 1993. 2 s.237(b) Native Title Act 1993. 3 s.237(c) Native Title Act 1993.
By Dilani Peiris* and John Hockley**
1. Introduction:
The ABC News in Perth in the following quotation1 demonstrated that the use and abuse of Powers of Attorney are alive and operating in Australia2, Western Australia. The facts were described as follows:
“In early 2018, a man took advantage of an enduring power of attorney to sell his mother’s properties worth more than $2 million without her knowledge.
The woman was a traditional housewife who had left the household money management up to her husband and when her husband passed away, she provided her children with authority to make financial decisions for her by signing an unrestricted enduring power of attorney. The woman in her 90s was admitted to hospital after suffering a fall and within weeks of her entering hospital one of her properties was placed on the market without her knowledge. It was the woman’s grandchild that discovered that one property was sold and another property was on the market after searching land title records. The grandchild questioned the woman assuming that the property was sold to pay for her aged care fees. The woman knew nothing about the property being sold and became agitated on hearing this information. The grandchild checked the woman’s bank accounts and discovered suspicious transactions had taken place over a fortnight. Hundreds of thousands of dollars were moved between the woman’s bank accounts and eventually transferred to the son’s bank account. The woman requested to see a lawyer. Witnessed by the bank manager and the woman’s lawyer she revoked the enduring power of attorney, removing her son as her enduring power of attorney. However, later the woman signed an enduring power of attorney giving her son authority witnessed by a justice of the peace. When the second enduring power of attorney was lodged at the bank the woman was questioned by the bank manager and stated “if you can’t trust your son, who can you trust.” The woman also signed a statutory declaration stating that the proceeds from the first property sale were a gift to her son. The grandchild alerted the Fraud Squad who were reluctant to intervene in a family argument. The other members of the family regarded the giving of the power of attorney similar to “giving the crooks the keys to the bank.” The woman was eventually successful in recovering the funds from her son due to her lawyer’s intervention in the matter.
The interim report of the Royal Commission into Aged Care Quality and Safety3 revealed that elderly citizens receiving aged care services in Australia were being subjected to neglect and substandard care and some to ‘elder abuse’. The aged care system in Australia fails to meet the needs of older vulnerable citizens. The Royal Commission has explained the neglected state of aged care services due to society undervaluing old people. This neglect was shown to be a weakness in the aged care provision by the COVID-19 Pandemic.
We tend to discount the citizenship of very old people, because they don’t have the obvious utility to us that our society frequently values, and that is a really important issue. We have a – not a use-by date, but a best by date attitude to life, rather than assuming that life is something about growing through different stages and phases. The Royal Commission has highlighted the widespread problem of abuse inflicted on vulnerable elderly citizens who are the recipients of aged care services. However, elderly citizens can also be subject to abuse through the appointment of Enduring Powers of Attorney. As a result, we simply can’t neglect to protect older citizens from attorneys misusing and abusing powers of attorney. It is therefore, imperative that measures be put in place to curb abuse that is inflicted through the use of this tool.
This article will leave the discussion of the Royal Commission in Aged Care Quality and Safety to others after they have the opportunity to study the final report in detail.
3. WA Parliamentary Inquiry
The final report of the WA Parliamentary Select Committee into Elder Abuse4 states that elder abuse can include financial abuse. The Committee found that power of attorney documents are tools that can be used to perpetrate elder abuse on a vulnerable older person.
Committee Findings:
1. The witnessing requirements in other states and territories were more stringent and provided stronger protections for the donor.
The Committee recommends that the witnessing requirements in the
Guardianship and Administration Act 1990 (WA) be improved to provide more robust protection for individuals creating a power of attorney.
Another recommendation was that attorneys be required to sign an undertaking with respect to statutory responsibilities and obligations. 2. There was no statutory procedure in the Guardianship and Administration
Act 1990 (WA) to revoke or update a power of attorney. First, the existence of multiple power of attorney documents for a single individual increases the risk of elder abuse by encouraging perpetrators to coerce or manipulate an older person to create a new power of attorney for their benefit. Secondly, the existence of multiple power of attorney documents encourages perpetrators to use an outdated document for their benefit after they have ceased acting as an attorney. 3. The Committee supports the creation of a national register for power of attorney documents as a means to discourage elder abuse and to insert greater checks and balances in the process of creating a power of attorney. 4. The Committee recommends the creation of a state register for
Western Australia in the interim whilst a national register is being considered.
5. The Committee found there was no penalty for an attorney in the
Guardianship and Administration Act 1990 (WA) where they have breached the duty to act with reasonable diligence to protect the interests of the donor.
( i ) Currently there is only a penalty imposed on an attorney for failing to keep records. ( ii ) The Committee recommends legislative change to increase penalties on attorneys for breaching a power of attorney. ( iii ) The Committee recommends creation of an offence for a donee that breaches their obligations in section 107 of the Guardianship and Administration Act 1990 (WA). ( iv ) The Committee recommends granting the State Administrative Tribunal jurisdiction to hear claims for compensation for abuse or misuse of a power of attorney. 6. The Committee found there needed to be an improvement in the checks undertaken for land transfers completed in Western Australia relying on a power of attorney document.
7. Once a power of attorney document is filed with the land titles office it has effect until the document is revoked or extinguished and more than one power of attorney document can be filed for an individual. The Committee recommended a safeguard be in place to ensure that only one valid power of attorney document is held for an individual involved in the transfer.
4. A Uniform Power of Attorney or Enduring Power of Attorney in Australia
The Australian Law Reform Commission (ALRC) undertook an inquiry into elder abuse in 2017 and in their final report5 the ALRC recommended the development of a national model enduring document.
The community must embrace the social change that will be upon us in coming decades. Older people are a social group like any other – accept that they come with the accumulation of experience and the insight of age.
They must be accorded the universal right to live a meaningful life.6 The ALRC recommends that a single template be developed for enduring documents to be used across all States and Territories in Australia. In the period that has elapsed since the inquiry a national model Enduring Power of Attorney has not yet been developed. Obtaining a uniform approach is very difficult in Australia with different views held by different States and Territories. This was found by the ALRC in its reform of the succession laws in Australia in the early 2000’s. It may be easier to get similar but not uniform laws on powers of attorney rather than a single national template.
5. Duties of the holder of a Power of Attorney
In Reilly v Reilly [2017] NSWSC 1419 at [114]-[117], Lindsay J set out the following General Law Principles applying to an attorney: 1. The primary object of a power of attorney is to enable the attorney to act in the management of his or her principal's affairs; an attorney cannot, in the absence of a clear power so to do, make presents to himself or herself or to others of his or her principal's property: Tobin v
Broadbent (1947) 75 CLR 378 at 401 (quoting Reckitt v Barnett Pembroke and Slater Limited [1928] 2 KB 244 at 268, approved in the House of Lords [1929] AC 176 at 183 and 195), recently applied by the Full Court of the Federal Court of Australia in Great
Investments Limited v Warner (2016) 243 FCR 516 at 538 [85]. 2. Under the general law of agency, it is a breach of duty for an agent to exercise his or her authority for the purpose of conferring a benefit on himself or herself or upon some other person to the detriment of his or her principal. But, at the same time, if his or her act is otherwise within the scope of his or her authority it binds the principal in favour of third parties who deal with him or her bona fide and without notice of his or her fraud:
Richard Brady Franks Limited v Price (1937) 58 CLR 112 at 142. 3. Where a fiduciary (such as an agent) exercises a power, which results in his or her obtaining some incidental benefit, there may be nothing per se improper with his or her having that benefit if the benefit itself is, in the circumstances, an inevitable consequence of his or her properly exercising the power which produces it. A beneficiary (principal) may be able to upset such an exercise of power only if he or she can show that the fiduciary (agent) exercised it with the dominant purpose in mind of obtaining that benefit irrespective of the interests of his beneficiary (principal): Paul Finn, Fiduciary
Obligations (Federation Press,
Sydney, 2016 reprint), paragraphs [103]-[104], citing, inter alia, Smith v
Cock (1911) 12 CLR 30 at 36. At [124]-[125], Lindsay J qualified the attorney’s power to make a gift in favour of a third party in two respects: 1. It was qualified by the fiduciary obligation of loyalty owed by the
