Legislative Assembly for the ACT: 1995 Week 7 Hansard (18 October) . . Page.. 1818..
MR CONNOLLY (continuing):
However, to return to the nub of the matter, there was a glitch which I was not aware of when the Bill was put through. When a person has interests which involve a share portfolio, if the Public Trustee is involved in administering the estate the Public Trustee is required, in effect, to liquidate that share portfolio and place the assets into a common fund. That clearly may not be in the best interests of the person. A trustee normally is given fairly broad discretion under the law to act in the best interests of the person whose assets are being administered.
As the Minister points out in his speech, and we can but agree, there clearly are circumstances where to sell an asset portfolio in order to put the money into a common fund would be a very foolish thing to do. In the event of another Poseidon boom and a person having such shares with a rapidly rising asset price, selling those shares to put the money into a common fund could clearly result in the individual losing out rather badly. This Bill removes that provision and gives the Public Trustee a broad form of discretion as to what to do. One would hope that the Public Trustee, wildly enthused with this ability, would not start playing the market and trying to make decisions as to which shares were going to go up and which shares were going to go down. One can, I think, rely on the discretion and prudence of the Public Trustee in the ACT.
This is a small but sensible reform. Persons who, at the moment, could suffer a loss because the portfolio needed to be sold, will have their portfolio protected and sensibly administered during the period of the order. It is, again, a small but significant piece of law reform. This is the sort of glitch which you would expect to see coming up in a review of legislation like the Guardianship and Management of Property Act, which has been in force now for a few years. Teething problems like this emerge. The Opposition supports the Bill, but notes the 25 per cent increase in the orthopaedic waiting list at Woden Valley Hospital.
MR HUMPHRIES (Attorney-General) (3.44), in reply: I thank Mr Connolly for his informative but largely irrelevant dissertation on this Bill. Mr Speaker, the Public Trustee, I am sure, will welcome the capacity to be able to deal more flexibly with the investments which he or she has to administer from time to time. I should inform the house that we are beset once again with an Acting Public Trustee. That person may wish to have more flexibility in the way in which that task of managing those assets of the public is approached. Even though the conservative list of risk free, secure investments is now to be widened so that you can invest in matters which attract not only interest but also capital gain, the inherent nature of the public trusteeship, I am sure, will prevent any wild investments in things that are speculative and unwise.
This move comes against the background of some problems in recent years. Members will recall the unfortunate circumstances of the Burns Philp Canberra company's collapse. That certainly caused some concern, and it is still having ramifications for administration of this area of public policy. I do think that we need to be ensuring that our desire to protect investments of a public nature is not so constrained that it is simply not possible for there to be a range of choices available, not only to the Public Trustee but also to any other trustee who may be in that position. Mr Speaker, I think it is important for us to be able to provide that flexibility. This legislation does that, and I welcome the support of members of the house for it.