Policy and Law Reform Updates: April 2024

Policy and Law Reform Update APRIL 2024

These policy and law reform updates are collated to ensure members are equipped for any changes that may impact the profession. If you have any suggestions or feedback please contact us here. 

  • ACT Law Reform and Sentencing Advisory Council
  • Update on ACT Legislative Assembly Inquiries 
  • Key legislative changes:
    • Changes to building progress payments
    • ACT Succession law amendments 

ACT Law Reform and Sentencing Advisory Council 

The ACT Law Reform and Sentencing Advisory Council released a Consultation Paper on 26 March 2024 as part of its referral from the ACT Attorney-General on the topic of dangerous driving: sentencing and recidivism.  The Consultation Paper is available from here. The Council is keen to ensure that all interested members of the community have an opportunity to participate in this referral. 

The Society will be making a submission in response to the Consultation Paper, informed by the Criminal Law Committee. If you would like to be involved in this submission, please reach out to policy@actlawsociety.asn.au. Individual practitioners are also welcome to respond directly to the Consultation Paper either through the Council’s website (smart form) or via LRSACSecretariat@act.gov.au. The deadline for submissions is 7 May 2024.  

 

Update on ACT Legislative Assembly Inquiries 

The Standing Committee on Justice and Community Safety has finalised reports as part of its inquiries into the following Bills: 

  • Sexual, Family and Personal Violence Legislation Amendment Bill 2023 (the report is available from here) 
  • Parentage (Surrogacy) Amendment Bill 2023 (the report is available from here) 
  • Crimes Legislation Amendment Bill 2023 (the report is available from here) 

The Law Society was actively engaged in the development of, and inquiry into, the Bills, supported by the Family Violence and Children’s Committee, Family Law Committee and Criminal Law Committee.  

The Standing Committee on Planning, Transport and City services has finalised reports as part of the following inquiries:

  • Inquiry into the Territory Plan and other associated documents (the report is available from here)
  • Inquiry into the Property Developers Bill 2023 (the report is available from here).

The Law Society was actively engaged in the inquiry into the Property Developers Bill, supported by the Property Law Committee.

 

Key legislative changes 

Note that this Law Reform Update does not constitute legal advice and is intended only to provide general information to practitioners, drawn from the amending legislation and explanatory materials accompanying its consideration by the ACT Legislative Assembly. 

Changes to building progress payments 

  • The Building and Construction Legislation Amendment Act 2023 (the Amending Act) made a range of amendments, including to the Building and Construction Industry (Security of Payment) Act 2009.  
  • Relevantly, section 23 of the Amending Act has removed the ability of parties to contract longer time frames for payment. Rather, a progress payment under a construction contract will be payable on the earlier of 15 business days after a payment claim is given, or the day when the payment becomes payable under the contract.  
  • The relevant amendments commenced 11 March 2024. The Amending Act is available from here. 

ACT Succession law amendments 

The Justice and Community Safety Legislation Amendment Act (No 3) 2023 (JACS Act) was notified on 11 December 2023.  

The JACS Act made a range of amendments to legislation, primarily in the ACT Attorney-General’s portfolio, to streamline legal processes and address community concerns. Relevant to this update, the JACS Act amended the Administration and Probate Act 1929, Family Provision Act 1969, Trustee Act 1925 and Wills Act 1968.  

For more information about all the amendments made by the JACS Act click here for the Bill and accompanying Explanatory Statement. 

 

Succession law reforms 

The amendments to succession laws (Administration and Probate Act, Family Provision Act and Trustee Act) were proposed by the Law Society’s Elder and Succession Law Committee. Some of these amendments will also implement recommendations from a national harmonisation report on uniform succession laws under the auspices of the Standing Council of Attorneys-General.  

Administration and Probate Act 1929 

Intestacy: New definition for personal chattels substituted into section 44  

The JACS Act replaced the current inclusive definition of personal chattels, to an exclusive definition, such that any tangible property held by the intestate will be considered a chattel except for the following listed exceptions:  

  • property used exclusively for a business purpose; 
  • banknotes or coins, except as part of a collection or other hobby; 
  • property held as security; 
  • property in which the intestate invested as a hedge against inflation or currency movements, such as gold bullion or uncut diamonds; and 
  • interests in land. 

Intestacy: Effect of disclaimer or forfeiture (new section 49DA) 

The JACS Act provides a new rule that person who disclaims an interest in an intestate estate or is precluded by the forfeiture rule from obtaining the interest, is treated as predeceased to the intestate. In effect, this means that the person will be left out of consideration when distributing the estate, but their children may still inherit. 

Administration: Notices before distribution of assets (substituted section 64) 

The JACS Act confirmed that public notices of intention to distribute the estate are optional and that executors or administrators are no longer required to search the Births, Deaths, and Marriages Registry before issuing notice. The notice period is set as one month. The public notice must state certain things, including that the executor or administrator intends to distribute the estate after the end of the period stated in the notice or six months after probate or administration was granted, whichever is later. 

Regulations: Amendment to section 126 and new section 129 

Section 126(3) is amended to provide for the regulations to prescribe additional classes of persons who are entitled to inspect a will of a deceased person. The JACS Act inserts a new provision (section 129) to provide for a general regulation making power, which is contemplated by the Administration and Probate Act but did not exist. 

 

Family Provision Act 1969 

Grandchildren’s claims on estates (substitute section 7(3)(b)) 

The JACS Act makes it clear that a grandchild may only make a claim on the estate of a deceased grandparent where they were dependent on them immediately prior to their death. This does not apply if their parent who was a child of the grandparent, is deceased. 

 

Trustee Act 1925 

Distribution after notice (amendments to section 60(2)) 

A minor amendment to reflect the changes to section 64 of the Administration and Probate Act, that is, that the public notice period is optional and not mandatory.  

All of the above amendments commenced on 12 December 2023.  

 

Creation of a centralised Wills Register for the ACT 

Wills Act 1968 

The changes to the Wills Act 1968 will support the creation of a single, centralised wills register for the ACT, which will be managed by the Public Trustee and Guardian.  

The JACS Act amendments omit sections 32-34 of the Wills Act and replace with new section 32. These changes will enable the transfer of wills, and information about wills, currently held by the Supreme Court to the Public Trustee and Guardian. Information about wills might be, for example, the name of the testator and their date of birth. 

The Court will retain the power to destroy wills in its possession after distribution via court order. The Court will also continue to keep records of what has happened to wills currently in its possession, whether transferred to the Public Trustee, destroyed, or given to a person. 

These amendments are subject to delayed commencement to allow time to set up the centralised wills register. At the end of the implementation period (no later than 11 June 2025), the Supreme Court’s ability to accept will from members of the public for deposit will be removed. It will not be mandatory for the public to deposit wills with the Public Trustee. 

The Society will inform members once these reforms have commenced and the centralised Wills Register is in operation.