Friday 8 September 2017, Law Society House
President’s closing address
Thank you everyone, I hope you have had an enjoyable day-in fact, I am sure you have given the great programme and the presenters here today. I’d like to thank them all for their time and effort, and congratulate the organisers, you certainly put together an engaging and worthwhile smorgasbord of all things STEP.
I also really appreciate the invitation to speak this evening, it is a great opportunity for the Society to engage with one of our key stakeholders.
I have to say I was very pleased, watching the last session, at the positivity and excitement shown when confronted with the digital future. That isn’t the accepted view of lawyers when it comes to technology-we are widely regarded as luddites who still sew briefs together with lawyer’s bodkins, otherwise known as the good old ‘pigstabber’.
If you take the standard view-oft adopted by the Richard Susskinds of the world as they confidently, and somewhat gleefully, predict our imminent demise-lawyers in the 21st century are stuck on a dessert isle with no phone, no light, no motor car, just a radio made from coconuts.
The truth is much different-for a start, you never see a lawyer without at least one phone these days-and the truth is that lawyers have been great early adopters-and adapters-of technology. Whether because of our vast country and the need to deal with the tyranny of distance, our relative affluence, or because we are just so darn clever, we’ve gotten in to technology in a big way, and it is most definitely a force-multiplier for our profession.
I foresee that technology will ultimately allow us to increase the access to justice for Australians-partly in the ways of which Stafford was speaking, by allowing physically compromised people to communicate with the world, partly by allowing us to deliver justice at an affordable price, but mostly in ways that we haven’t discovered yet but will likely be commonplace in a year or two. So again, thank you for a positive spin on our future.
Of course, the brave new world will need some brave new legislation, calling for brave new advocacy-which is one of the things that keeps me busy as President. The Society has a broad advocacy agenda, with many areas of focus, including the digital future.
To illustrate how urgent this issue is becoming, consider the legislative regime in Australia regarding electronic transactions-the most recent piece of legislation is in Western Australia and dates to 2011; every other state has legislation from either 2000 or 2001, and the Commonwealth legislation is from 1999. That this legislation is still largely effective is a testament to the abilities of its drafters, but it is clear that regulation is falling behind technology at an alarming rate.
There is a Chinese proverb which says that you should dig the well before you are thirsty, and in line with that saying I hold the view that the best response to these challenges is to be proactive. STEP lawyers cannot assume that because our area of the law has deified dusty parchments in uncrackable safes, we will be quarantined from the digital future; if we are to realise the positive world that Stafford and his co-presenters envisage, we must lead, not follow.
It was in that spirit that during my term as Deputy President last year I formed the Electronic Wills Registry Working Group. It was clear to me that, in an environment where PEXA was taking hold and e-conveyancing was becoming very real indeed, Electronic wills were inevitable.
The process of electronic registration began with the titles office in the mid-90s and their push to electronically register the sacrosanct blue parchment title deed-no longer would we need seven signatures in red ink made from the blood of dragons to register a title! Taking note of the sophisticated nature and professionalism with which that system has been managed and noting also the number of private operators attempting to get a foothold in this space, I saw a need for us to investigate the viability of a properly coordinated scheme.
Indeed, this reality has begun to rush towards as with Blockchain technology providing the possibility of indisputable electronic documents at least as reliable as anything stashed away in safe custody.
I could only envisage success coming through the involvement and input of a variety of stakeholders as we each have different values and perspectives to contribute. While casting such a wide net does of course invite, shall we say, ‘enthusiastic’ debate-there are many things on which reasonable minds may disagree-it makes for a stronger, deeper analysis of the issues and a more robust consensus in the end.
To that end I invited a broad selection of stakeholders, representatives from the Public Trustee, DJAG, Titles Office, as well as several Qld Succession law practitioners to participate. I should at this point note the fine efforts of the Chair of that working group, Bryan Mitchell and Deputy Chair Ann Janssen, in keeping the group focussed, as well as the efforts of all involved. I know from personal experience how difficult it is to maintain a practice while giving up so much time to the Law Society, so thank you all for agreeing to be involved and the sterling work you have done.
It has been said that if you have three lawyers in a room you have ten opinions, but with the Wills Register Working group we achieved unanimity on several issues. The consensus was that this was going to happen, and that in light of the issues involved it should be managed by a government department; while there are predominant views as to which department has the requisite skill set to implement, oversee and manage such a scheme, those views aren’t yet settled.
I expect to receive a final report from the working group next week, and will aim to reveal the results at the Society’s Succession and Elder Law Residential in October. (You should not consider that an ad to come to the SELR) Although Queensland may well be in an election campaign at that point, that is State Election, the Society will continue to lead the push for this vital reform.
Of course, not all the advocacy work we do is in relation to meeting the challenge of the rise of the machines-sometimes it is necessary to do away with an ancient evil, and I am very pleased to be able to tell you that, following a lot of hard work by the Society over a long period of time particularly those who have historically sat on the Succession Law Committee, the Attorney General has now, introduced a Bill into parliament Tuesday, to create a statutory exemption to ademption.
To use the Attorney’s own words, the bill will “…amend the Guardianship and Administration Act 2000 and the Powers of Attorney Act 1998 to create a statutory exception to ademption so that when an attorney under an enduring power of attorney or an administrator deals with the testator’s property that is a gift under a will, the beneficiary is entitled to the same interest in any surplus money or other property arising from the sale or other dealing with the property. This will give effect to the testator’s intentions before he or she lost capacity.”
That Bill has been referred to committee-this is government, after all-but I expect we will soon see an end to what has long been an unfair situation. The Society has at its heart the desire and the obligation to serve the community through promoting good law, and this bill certainly does that.
In closing, since we are celebrating all that’s good about our area of practise, I thought I would present the top five best things about being a STEP lawyer:
5. You don’t think Ademption is something drill sergeants shout to the troops;
4. The popularity of will kits will keep us in business for decades;
3. You get to make unbereavable puns about grave issues;
2. You can continue to charge your client long after they pass away;
1. You can say in two words what others say in ten.