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Other Parliamentary SpeechesThis page is dedicated to Peter's speeches during parliament that do not fall under Questions or Questions without notice. They range from debating legislation, reporting on events or issues in his seat of Southport and his Ministerial Statements.
Guardianship and administration and other acts amendment bill |
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| Posted by Administrator (admin) on Nov 12 2003 |
| Other Speeches >> |
Mr LAWLOR (Southport- ALP) (11.42 a. m.) The Guardianship and Administration and Other Acts Amendment Bill 2003 contains various amendments to the Guardianship and Administration Act 2000, the GAA, the Children's Services Tribunal Act 2000, the CSTA, and the Powers of Attorney Act 1988, the PAA, and it makes these acts more workable and more efficient in their operation.
The GAA and the PAA provide for a substituted decision-making regime for adults who have lost capacity to make decisions about health, personal and financial matters, and need a person legally authorised to make those decisions for them. The jurisdiction of the Guardianship and Administration Tribunal is mainly concerned with the appointment of guardians and administrators to make life decisions for adults with impaired capacity. Most of the applications before the tribunal are related to adults with dementia, a mental illness, an intellectual disability or acquired brain injury. The tribunal has now completed its first three years of operation. The president of the tribunal approached the minister
to sponsor most of the amendments in the bill with the purpose of streamlining legislative procedures to reduce the costs of the tribunal without sacrificing client service or the adult with impaired capacity's access to justice. The tribunal is well used. To date it has dealt with over 9,000 applications. This is a growing jurisdiction, and there is now clear evidence that the number of elderly Australians is increasing as a percentage of the population. As Queensland's population ages and more Queenslanders face impaired capacity in their latter years, the workload of the tribunal will increase further.
The bill omits the necessity for the tribunal to review the appointment of the Public Trustee and other corporate trustees as administrators every five years. The time spent on reviewing corporate trustees, who already have to comply with other legislative accountability standards, is not a good use of the tribunal's time. This reform will save the tribunal work but the rights of the adult will not suffer. The bill further offers other safeguards that the adult and the corporate trustee or any interested person can initiate a review of the appointment at any time. The tribunal has also developed a random review policy of corporate trustees to ensure that their work is of the highest standard. The bill omits the necessity for the tribunal to approve investment, real estate and security transactions. The PAA was amended last year to omit this approval process. It is important to keep the obligations of attorneys and administrators consistent in the Queensland substituted decision-making regime. To maintain a proper safeguard to deter attorneys and administrators from undertaking these transactions improperly, both the GAA and the PAA are to be amended to include a 300 penalty unit fine if an attorney or an administrator does not keep the adult's property separate from their own property.
The bill also now legislates to make it a statutory obligation, previously it was merely administrative, to advise the registrar of titles of the administrator's appointment or a change of appointment to increase the protection from unauthorised dealings. With regard to the GAA tribunal proceedings, the bill gives the president the ability to constitute a tribunal of two members giving the tribunal the flexibility to consist of one, two or three members depending on the complexity and the sensitivity of the case. It allows the tribunal to be more responsive so it can fit the constitution of the
tribunal to the particular hearing. The bill limits interim orders to a maximum period of six months so that the adult and their family are assured that the tribunal will hear the matter on a final basis within six months of filing the application. The bill increases the tribunal's power to seek information from people to ensure that they have access to all relevant information in deciding an application, such as information from past as well as present health care providers. At the same time the bill will streamline an active party's right of access to documents in preparing for their case, so that now only documents that are directly related to an issue in the proceedings can be accessed by the parties. This reform better protects the adult's right to privacy.
The tribunal will now be able to determine who should be involved in an application, as is usual in other tribunal procedure, which limits the ability of any person to become an active party in an application as-of-right. The tribunal will also be able to refer a question of law to the Supreme Court which will save the parties the cost of a full appeal, or transfer to the Supreme Court in the rare case where the tribunal needs guidance from the Supreme Court. Under the amendments, the tribunal can now use mediation as a tool for resolving disputes between active parties and provides legislative guidelines for its use. This new technique gives the tribunal greater flexibility in dealing with the disputes that come before it.
The bill amends sections 174 of the act to give the adult guardians and attorneys the additional function of consenting to the conduct of forensic examinations of adults with impaired capacity. This clarifies the legislative intent that such a procedure is a personal matter and can be consented to by the authorised substituted decision maker. In practice, the authority to consent to a forensic examination will only relate to an adult with an impairment who is suspected of being a victim of crime or for civil law purposes. This consent procedure will not apply to an adult with an impairment who is an alleged perpetrator of a crime who may only be examined if the person gives express consent or a warrant for the examination is obtained under the Police Powers and Responsibilities Act 2000.
The bill contains a new chapter 5A that gives the tribunal the jurisdiction to consent to the sterilisation of children with an intellectual impairment. The tribunal already has this jurisdiction in relation to adults with impaired capacity. The chapter provides for a child focus in this very sensitive jurisdiction and was drafted after extensive consultation with the disability sector. In 1992, the High Court decided in Marion's case that the scope of paternal authority does not extend to specialised or invasive and irreversible medical procedures like sterilisation, except to treat organic disease, and that only a court has the authority to decide whether such procedures should take place. Marion's case sets out principles for a court to apply in considering whether to consent to a sterilisation procedure. The bill lists factors that the tribunal must take into account in deciding whether to consent to the sterilisation procedure in the best interests of the child. The factors are a simplified codification of the principles in Marion's case, taking into account the more recent case law on sterilisation procedures.
Earlier last year, the Human Rights and Equal Opportunity Commission published a report onthis issue. The report strongly advocated that state guardianship tribunals be granted specialistjurisdiction to authorise the sterilisation of young women with intellectual disabilities. The Children's Services Tribunal was established in June 2001. Its main jurisdiction is to review decisions about services for children. The Children's Services Tribunal has been instrumental in protecting children in the care of the Department of Families by reviewing some of the department's decisions in relation to children in care. In reviewing these decisions, the tribunal's primary concern is the best interests of the child. The major amendment will clarify the Children's Services Tribunal procedure when it is asked to stay or suspend a Department of Families decision until the matter has been heard fully by the tribunal. I commend the Attorney and his hardworking ministerial and
departmental staff for the bill. I commend the bill to the House.
Last changed: [PUBLISHED_DATE] at 10:00 AM
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