Page 1889 - Week 07 - Wednesday, 22 August 2007
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The government will continue to monitor this area of law reform closely and will give consideration to any further developments or possible legal improvements to address the need for decision making in relation to a missing person’s property and to protect the interests of such persons.
DR FOSKEY (Molonglo) (5.33): I would like to congratulate Mr Stefaniak for introducing this legislation. Although it will apply to only a small number of cases, it will make life easier for those already suffering due to the disappearance of a loved one.
However, while the Greens support the good intentions behind this bill—and I have things to say about the government’s amendments during the detail stage—there are a few small issues which we believe should be addressed before we can proceed. For example, while it seems fair and reasonable that the domestic partner of a missing person, their relatives, the Attorney-General and the Public Trustee should be able to apply to manage the person’s affairs, I do not believe it is a good idea to give business partners or employees the same rights, for several reasons.
First, while I do not want to sound like I have been watching too much Law and Order, given that I do not watch any Law and Order, this could create a situation where the business partner or employee causes a person’s disappearance specifically for the purpose of gaining control of the business or affairs. Obviously, this is not something that is likely to happen, but the fact remains that there are numerous examples of business disputes and old-fashioned greed leading to extreme acts, and I do not think we should enshrine in legislation something which could encourage it.
While the relationship between business partners and workers can often be personal as well as professional, this relationship is still generally different from that between partners or within families. I believe that, in the absence of family or loved ones to manage the affairs of a missing person, the Public Trustee is perfectly capable of performing this role sensitively and appropriately, and so it is not necessary to include business partners or employees in the list of eligible people.
Also the issue of whether or not a person is considered to have made contact possibly requires clarification. Proposed new section 8AA (2) (c) states that the tribunal may be satisfied that a person is missing, and therefore that a manager needs appointing, when they have not made contact with any friend, relative or occupant of their last known address for more than 90 days. But what about in those cases that are frequent amongst young people where the missing person has made contact with police or other agencies to confirm that they are still alive but has asked that this information not be conveyed to their families or their friends? Is this person to be still presumed missing or do they move into another category? What then happens to their property in these cases? Perhaps there needs to be a third addition to paragraph (2) (c) to include police, social workers and other agencies who are frequently also involved in cases of this kind?
On the whole the amendments do address what is currently an unfortunate gap in the legislation surrounding guardianship and management of property and will
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