Chapter 1. Preliminary
Updates and background for this project (Digest)
1.1 The provisions in this Chapter are mostly of a general nature, being common to all statutes and, therefore, do not generally require comment. However, cl 103 and cl 106 are discussed because they contain provisions that are specifically relevant to later clauses in the model legislation.
100 Short title
This Act may be cited as the Administration of Estates Act 2009.
101 Commencement
This Act commences on a day to be fixed by proclamation.
102 Definitions
(1) The dictionary in schedule 3 defines particular words used in this Act.
(2) A definition in this Act applies except so far as the context or subject matter otherwise indicates or requires.
Drafter’s note: Subsection (2) may be unnecessary in some jurisdictions. See Acts Interpretation Act 1954 (Qld), s 32A.
1.2 Subclause 102(2) is unnecessary in NSW in light of s 6 of the Interpretation Act 1987 (NSW) which states that “definitions that occur in an Act ... apply to the construction of the Act ... except in so far as the context or subject-matter otherwise indicates or requires”.
103 Relationships
(1) For this Act—
(a) an adopted child is to be regarded as a child of the adoptive parent or parents; and
(b) the child’s family relationships are to be decided accordingly; and
(c) family relationships that exist as a matter of biological fact, and are not consistent with the relationship created by adoption, are to be ignored.
(2) Also, a person is a brother or sister of another person if they have 1 or both parents in common.
1.3 These provisions follow the National Committee’s model bill and recommendations in its report on intestacy. They are necessary for the parts of this Bill that refer to those people who are entitled to inherit from an intestate estate.
1.4 Sub-clause 103(1) follows the National Committee’s recommendation in its report on intestacy.1 The provision may now be found in s 109 of the Succession Act 2006 (NSW).2
1.5 Sub-clause 103(2) follows the National Committee’s recommendation in its report on intestacy.3 The definition may now be found in s 101 of the Succession Act 2006 (NSW).4
104 Notes in text
A note in the text of this Act is part of this Act.
Drafter’s note: This statement may be unnecessary in some jurisdictions. See Acts Interpretation Act 1954 (Qld), s 14(4).
105 Examples
In this Act—
(a) an example of the operation of a provision is not exhaustive; and
(b) an example of the operation of a provision does not limit, but may extend, the meaning of the provision; and
(c) an example of the operation of a provision and the provision are to be read in the context of each other and the other provisions of this Act, but, if the example and the provision so read are inconsistent, the provision prevails.
Drafter’s note: This statement may be unnecessary in some jurisdictions. See Acts Interpretation Act 1954 (Qld), s 14D.
106 Act binds all persons
This Act binds all persons, including the State, and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States [and Territories].
1.6 This provision, based on a similar one in the Succession Act 1981 (Qld),5 is principally intended to abolish the priority of Crown debts in an insolvent estate that is administered outside the provisions of the Bankruptcy Act 1966 (Cth).6 The priority of Crown debts flows from a general prerogative giving preference to the Crown over subjects in instances of competing rights.7 Legislation can abolish the priority of Crown debts either expressly or impliedly. The Bankruptcy Act 1966 (Cth) has abolished the priority of Crown debts in a bankruptcy.8
1.7 NSW does not currently have a provision that expressly binds the Crown in the administration of insolvent estates. However, it is arguable that, by importing the provisions of the Bankruptcy Act 1966 (NSW) into the Probate and Administration Act 1898 (NSW),9 NSW has implicitly abolished the priority.10
1.8 The National Committee expressed the view that the priority of debts in insolvent estates should be assimilated with the priority that applies under the Bankruptcy Act 1966 (Cth).11 It is, therefore, necessary to abolish the Crown priority of debts by way of a provision that states that this Act binds the Crown.12
1.9 The provision is stated to bind the Crown in all of its capacities “to the extent the legislative power of the Parliament permits”.13 The extent to which this is possible is doubtful. For example, it appears that, as a general principle, a State may be unable to bind the Crown in right of the Commonwealth.14 The National Committee decided to use the broadest possible expression so that a clear intention is disclosed in the event that it is possible for a State to bind the Crown in any of its other capacities.15
FOOTNOTES
1. New South Wales Law Reform Commission, Uniform Succession Laws: Intestacy, Report 116 (2007) (“NSWLRC, Report 116”) [7.59], recommendation 27.
2. Inserted by Succession Amendment (Intestacy) Act 2009 (NSW) sch 1[4].
3. NSWLRC, Report 116 [8.53], recommendation 30.
4. Definition of “brother or sister” in Succession Act 2006 (NSW) s 101 inserted by Succession Amendment (Intestacy) Act 2009 (NSW) sch 1[4].
5. Succession Act 1981 (Qld) s 4(2).
6. See Chapter 6 part 4; para 5.56-5.68.
7. Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (in liq) (1940) 63 CLR 278, 301 (Dixon J).
8. Bankruptcy Act 1966 (Cth) s 8 and s 108.
9. Probate and Administration Act 1898 (NSW) s 46C(1) and sch 3 pt 1 class 2.
10. See Queensland Law Reform Commission, Administration of Estates of Deceased Persons: Report of the National Committee for Uniform Succession Laws to the Standing Committee of Attorneys General, Report 65 (2009) (“QLRC, Report 65”) [16.27]; R A Sundberg, Griffith’s Probate Law and Practice in Victoria (3rd ed, Law Book Company, 1983) 67.
11. See para 5.62.
12. QLRC, Report 65 [16.132].
13. Similar expressions are employed in NSW statutes. See, eg: Interpretation Act 1987 (NSW) s 4.
14. See QLRC, Report 65 [16.130]; Re Residential Tenancies Tribunal of New South Wales; Ex parte Defence Housing Authority (1997) 190 CLR 410, 424-426 (Brennan CJ), 440 (Dawson, Toohey and Gaudron JJ).
15. QLRC, Report 65 [16.133]-[16.134].
