Thursday, 2 May 2019
Bills
Guardianship and Administration Bill 2018
Bills
Guardianship and Administration Bill 2018
Introduction and first reading
The PRESIDENT: I have received the following message from the Legislative Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to re-enact with amendments the law relating to guardianship and administration, to repeal the Guardianship and Administration Act 1986 and to amend consequentially various other Acts and for other purposes’.
That the bill be now read a first time.
Motion agreed to.
Read first time.
Mr SOMYUREK: I move, by leave:
That the bill be read a second time forthwith.
Motion agreed to.
Statement of compatibility
Mr SOMYUREK (South Eastern Metropolitan—Minister for Local Government, Minister for Small Business) (17:39): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Guardianship and Administration Bill 2018.
In my opinion, the Guardianship and Administration Bill 2018, as introduced to the Legislative Council, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
Overview
The Guardianship and Administration Bill 2018 repeals the Guardianship and Administration Act 1986 (GA Act), re-enacts with amendments the law relating to guardianship and administration, and amends various other Acts.
The Bill provides a legislative scheme in relation to guardianship and administration by: continuing the office of the Public Advocate and providing for the appointment of a Public Advocate; enabling certain persons with disability to have a supportive guardian, supportive administrator, guardian or administrator appointed in specified circumstances; enabling an administrator to be appointed for certain missing persons; improving processes at the Victorian Civil and Administrative Tribunal (VCAT) in relation to guardianship and administration applications; and providing a process for VCAT to consent to special medical procedures on behalf of persons incapable of giving consent to those procedures.
The Bill aims to provide a solution to the challenges posed when a person with disability lacks decision-making capacity in relation to certain matters. In such circumstances, the Bill enables a guardian or an administrator to be appointed by VCAT, in order to promote the person’s personal and social wellbeing. The Bill contains many safeguards, which protect the rights of persons affected by the Bill. Importantly, the Bill expressly provides that provisions of the Bill and powers, functions and duties conferred or imposed by the Bill are to be interpreted to adopt the way which is the least restrictive of a person’s ability to decide and act, and so that a person is given all the possible support to enable that person to exercise their decision-making capacity (clause 8). In addition, the Bill provides that a person making a decision for a represented person must have regard to the following key principles: the decision-maker should give all practicable and appropriate effect to the person’s will and preferences, if known; if the person’s will and preferences are unknown, the person should give effect to what the represented person would likely want, based on all the information available; the person should act in a way which promotes the represented person’s personal and social wellbeing; and the represented person’s will and preferences should only be overridden if it is necessary to do so to prevent serious harm to the represented person (clause 9). The principles in clauses 8 and 9 broadly reflect the paradigm shift signalled in the United Nations Convention on the Rights of Persons with Disabilities, ratified by Australia in July 2008. That Convention views persons with disability not as ‘objects’ of charity, medical treatment and social protection; but rather as ‘subjects’ with human rights to recognise people with disability as persons before the law and their right to make decisions for themselves.
The Bill also enables VCAT to appoint a supportive guardian or supportive administrator as an alternative to, or in addition to, a guardian or administrator where VCAT determines that a person would be able to exercise decision-making capacity in relation to certain matters with appropriate support (clause 87). A person for whom a supportive guardian or supportive administrator is appointed is called a ‘supported person’. While it may be the case that a legislative framework based entirely on supported decision-making would be a less restrictive alternative to permitting any form of substitute decision-making, in my view, such a regime would not achieve the purpose of this Bill in relation to persons that have extremely limited decision-making capacity. I consider that the framework in the Bill is preferable, as it maintains the decision-making capacity of supported persons and represented persons where possible, but also addresses the situation where a substituted decision-maker is required.
Human rights protected by the Charter that are relevant to the Bill
Guardianship and administration orders
Part 3 of the Bill allows for a person to apply to VCAT for a guardianship or an administration order in relation to a person with disability who is of or over 18 years old (clauses 22, 23). Clause 3 of the Bill defines ‘disability’ as a neurological impairment, intellectual impairment, mental disorder, brain injury, physical disability or dementia. VCAT may make a guardianship or administration order where satisfied of various factors (set out below).
A guardianship order may confer on a guardian a range of powers in relation to a ‘personal matter’ of a represented person, including powers to determine: where the represented person lives; with whom the represented person associates; and whether the represented person works (clauses 3, 38(1)(a)). A guardianship order may also confer on a guardian the power to undertake legal proceedings on behalf of the represented person in relation to a specified personal matter (clause 40). An administration order may confer on an administrator power to make decisions in relation to particular ‘financial matters’ specified in the order (clauses 3, 46). There are many financial powers that may be conferred on an administrator, including: selling any property (clause 52(g)); paying debts (clause 52(i)); and paying for the maintenance of the represented person and represented person’s dependents (clause 52(n)). An administrator may also continue the represented person’s investments (clause 48), undertake legal proceedings on behalf of the represented person in relation to a specified financial matter (clause 51) and make a gift of the represented person’s property in certain circumstances (clause 47).
The authority of a guardian or an administrator is such that their acts have effect as if taken by the represented person with the relevant decision-making capacity (clauses 38(3), 46(4)). A represented person is taken to be incapable of dealing with, transferring, alienating or charging their money or property without the order of VCAT or the written consent of the administrator, and any such dealing by any represented person is void and of no effect (clause 75).
Clause 30 of the Bill sets out the circumstances in which VCAT may make a guardianship order or an administration order. Clause 30 (and other related provisions in Part 3 of the Bill) engages various rights under the Charter as set out below.
Right to equality (section 8)
Section 8(1) of the Charter provides that every person has the right to recognition as a person before the law. Section 8(3) of the Charter relevantly provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination. Discrimination in relation to a person means discrimination within the meaning of the Equal Opportunity Act 2010 on the basis of an attribute set out in section 6 of that Act. This includes discrimination on the basis of a disability. Section 8 of that Act provides that direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.
The Bill is directed towards people with disability. Clause 30 of the Bill will have the effect of empowering another person to exercise decision-making powers in relation to a person with disability (referred to as the ‘represented persons’). The provisions in Part 3 may consequently affect the capacity of represented persons to make legally effective decisions for themselves in important areas of their life. To the extent that the Bill treats persons with disability unfavourably because of their disability by potentially restricting their personal autonomy, the Bill will be discriminatory in its effect, and its operation as a whole will limit the right to equality.
However, a guardianship or administration order may only be made in limited circumstances. VCAT must be satisfied that: because of the person’s disability, the person does not have decision-making capacity with respect to the personal or financial matters in relation to which the guardianship or administration order is sought; the person needs a guardian or administrator; and the appointment would promote the person’s social and personal wellbeing (clause 30). For the purposes of determining whether a person ‘needs’ a guardian or administrator, VCAT must consider: the will and preferences of the person; whether the decisions in relation to the personal or financial matters for which the order is sought may be made more suitably by informal means or through negotiation or mediation; the wishes of any primary carer or relative of the proposed represented person, or other person with a direct interest in the application; and the desirability of preserving existing family relationships or other relationships that are important to the person (clause 31). Such requirements may promote other human rights under the Charter, such as the right to privacy in section 13, the right to freedom of association in section 16 and the right to protection of families and children in section 17.
A party to an application may apply to VCAT for a rehearing of an application and VCAT must conduct a reassessment of orders made under the Bill within specified time frames (Part 7). In addition, VCAT must adhere to the general principles and be satisfied that the order is the least restrictive alternative possible in relation to the person’s ability to decide and act (clause 8). In my view, these factors mean that any limit on the right to equality arising from the making of a guardianship or administration order will be kept to the minimum extent necessary to achieve the purpose of the Bill.
In addition, a person will only be subject to a guardianship or administration order if VCAT makes such an order following a hearing. The proposed represented person must be present at the hearing unless VCAT is satisfied that the person does not wish to attend or their presence is impracticable or unreasonable despite any arrangements VCAT may make (clause 29). Additionally, the process for the making of guardianship and administration orders is designed to promote the participation of the proposed represented person and ensure that VCAT has regard to their will and preferences. In making a guardianship or administration order, it was held in PJB v Melbourne Health, State Trustees Limited [2011] VSC 327 that VCAT will be subject to section 38 of the Charter and, accordingly, must give proper consideration to, and act compatibly with, human rights.
Once an order is made, the Bill also places restrictions on the powers of guardians and administrators. The power to make decisions in relation to a number of highly personal matters may not be conferred on a guardian or an administrator, such as decisions in relation to making a will, voting, marriage, and the care and wellbeing of any child (clauses 39, 53). A guardian and an administrator are subject to the decision-making principles (clause 9 referred to above) as well as obligations to: act as an advocate for the represented person; encourage and assist the represented person to develop the person’s decision-making capacity; act in such a way so to protect the represented person from neglect, abuse or exploitation; act honestly, diligently and in good faith; exercise reasonable skill and care; not use the position for profit; avoid acting if there are conflicts of interest; and not disclose confidential information (clauses 41, 55). An administrator must also keep accurate records and accounts of all dealings and transactions (clause 59) and ensure that their personal property is kept separate from the property of the represented person (clause 60). Importantly, an administrator must not enter into a transaction in which there is, or may be, a conflict between the duty of the administrator to the represented person and the interests of the administrator unless the transaction has been authorised by VCAT (clauses 57, 58). Clause 61 provides VCAT may appoint a person to examine or audit accounts of all dealings and transactions relating to financial matters specified in the order.
Finally, Division 2 of Part 7 of the Bill requires VCAT to conduct a reassessment of guardianship orders and administrations orders within 12 months after making the order and then at least once within each 3 year period after making the order unless VCAT orders otherwise (clause 159(1) and (2)). VCAT may also conduct a reassessment at any time on its own initiative or on the application of any person (159(3)). As part of the reassessment, VCAT must consider whether the guardian or administrator has complied with their duties set out in clauses 41 and 55 (described above).
In my view, to the extent that the making of a guardianship or administration order limits the right to equality, any such limitation is demonstrably justifiable and constitutes the minimum interference necessary to enable persons with limited decision-making capacity to participate in society and enjoy personal and social wellbeing.
As mentioned, any appointment or order under the Bill, including orders for guardianship and administration, can only take effect when a person is aged 18 years or over. Such differentiation on the basis of age also engages the right to equality. However, in my view, this age limitation does not limit the right to equality. The age threshold in the Bill recognises that if substitute decision-making is required for a person under 18, the young person’s parents generally have this power and responsibility. The Family Law Act 1975 provides that, usually, each of the parents of a child who is not 18 has parental responsibility for the child. “Parental responsibility” is defined as “all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
Right to freedom of movement (section 12), the right to freedom of expression (section 15) and the right to freedom of association (section 16)
Section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely within Victoria and to enter and to leave it and has the freedom to choose where to live, which includes a right not to be forced to move from or to a particular location.
Section 15 of the Charter provides that every person has the right to hold an opinion without interference and the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds, pursuant to section 15(2). However, section 15(3) provides that the right to freedom of expression may be lawfully restricted in a range of circumstances, including where it is reasonably necessary to do so to respect the rights and reputation of other persons.
Section 16(2) of the Charter provides that every person has the right to freedom of association with others.
A power conferred on a guardian in relation to a personal matter (as defined in the Bill), such as the power to determine a represented person’s residence and place of employment, education or training, is relevant to the freedom of movement under section 12 of the Charter. Other human rights, such as the right to freedom of expression under section 15 of the Charter and the right to freedom of association under section 16(2) of the Charter, may also be relevant and/or limited depending on the nature of the order made by VCAT appointing the guardian as well as the manner in which the guardian exercises the power. For example, the right to freedom of association may be relevant to a guardianship order that allows a guardian to make decisions regarding access to the represented person by certain people.
However, in my opinion, the obligations on a guardian in relation to the exercise of their powers (outlined above) prevent any powers conferred by a guardianship order from operating in a manner that unreasonably or unjustifiably limits human rights. Importantly, VCAT may only confer decision-making power on a guardian in relation to certain personal matters specified in the order if it is satisfied that it will promote the represented person’s personal and social wellbeing (clause 30(2)(c)). For these reasons, I consider that any limitation of section 12 of the Charter and other Charter rights discussed above imposed by the Bill is reasonable and justifiable.
Right to privacy, family or home (section 13)
Section 13 of the Charter relevantly provides that all persons have the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference with privacy will be lawful if it is permitted by law, is certain, and is appropriately circumscribed. An interference will not be arbitrary if it is not capricious, unpredictable or unjust.
The right not have one’s privacy, family or home unlawfully or arbitrarily interfered with is relevant to the power conferred on a guardian in relation to personal matters and the power conferred on an administrator in relation to financial matters. For example, a decision that a person must reside in a particular place or a decision to sell a represented person’s family home or a decision as to whether a represented person works or undertakes education or training may interfere with a person’s right to family and home. In addition, a guardian or an administrator may be empowered to receive and disclose certain personal information about the represented person in order to make and implement decisions.
The safeguards outlined above in relation to the duties imposed on guardians and administrators ensure that the powers of a guardian and an administrator, if exercised in accordance with the Bill, will not unlawfully or arbitrarily interfere with a person’s right to privacy, family life or home. In addition, the disclosure and use of personal information by a guardian or administrator is for a defined purpose and there is a specific duty not to disclose confidential information unless authorised to do so under the guardianship or administration order or by law (clauses 41(1)(i), 55(i)). Furthermore, where the Public Advocate has been appointed to act as guardian, clause 20 provides that it is an offence for the Public Advocate (and Public Advocate employees) to disclose information relating to the affairs of an individual acquired in the performance of a function or duty or the exercise of a power under the Act other than in limited, prescribed circumstances. For this reason, the right in section 13 of the Charter is not limited as any interference will not be arbitrary or unlawful.
Protection of families (section 17)
Section 17(1) of the Charter provides that families are the fundamental group unit of society and are entitled to be protected by society and the State.
The power conferred on a guardian in relation to personal matters and the power conferred on an administrator in relation to financial matters may limit the right to protection of families. For example, a guardian’s decision about where a represented person resides or an administrator’s decision to sell a represented person’s family home may result in a person not being able to live with their family. The right to protection of children will also be relevant where the guardianship and administration orders affect a child’s relationship with a represented person, particularly where that person is the parent.
However, I consider that any limitation on the right of families to protection which may arise due to a represented person being separated from their family will be reasonable, proportionate and demonstrably justifiable within the meaning of section 7(2) of the Charter, given the decision-making principles (clause 9) and other duties and limitations imposed on guardians and administrators that are outlined above. In particular, under the decision-making principles, a guardian or administrator could only make a decision that would have the effect of separating a person from their family after considering the represented person’s will and preferences. A represented person’s will and preferences can only be overridden if necessary to prevent serious harm to the represented person or to another person. If a guardian or administrator are unable to determine the represented person’s will and preferences, they must consult the represented person’s close family and carers and act in a manner which promotes the represented person’s personal and social wellbeing.
Right to property (section 20)
Section 20 of the Charter provides that a person must not be deprived of his or her property other than in accordance with law. This right is not limited where there is a law which authorises a deprivation of property, and that law is adequately accessible, clear and certain, and sufficiently precise to enable a person to regulate their conduct.
International jurisprudence supports a view that a ‘deprivation of property’ may not be confined to situations of forced transfer of title or ownership, but could include any substantial restriction on a person’s control, use or enjoyment of their property.
The power conferred on an administrator to make decisions in relation to specified financial matters is relevant to the right contained in section 20 of the Charter. The exercise of complete and exclusive management and control of a person’s property by an administrator may constitute the de facto deprivation of a person’s property. As described above, clause 75 of the Bill restricts the ability of the represented person to deal with their own property to the extent that it is under the control of an administrator. However, the safeguards outlined above ensure that, if the powers of an administrator are exercised in accordance with the Bill, any de facto deprivation of a person’s property (if occurs at all) will only in accordance with law that is clear and certain and does not operate arbitrarily. For this reason, the right in section 20 of the Charter is not limited.
Clause 74 provides that an administrator may sell all personal effects of a person who is no longer a represented person that are in the possession of the administrator and unclaimed for 2 years after the date on which the person ceased to be a represented person. There is a similar provision in relation to the personal effects of a person who is no longer a missing person (clause 135). The sale must occur after public notice and is provided for by law that is clear and precise in its application. Accordingly, the right in section 20 of the Charter is not limited.
Administration (missing person) orders
Right to equality (section 8)
Part 5 of the Bill provides for an additional category of administration orders in relation to missing persons. A person may apply to VCAT for an administration (missing person) order for a missing person who is of or over the age of 18 (clause 99). VCAT may make an order in relation to the financial affairs of a missing person if it is satisfied that: the person is a missing person who usually resides in Victoria; while the person is missing there is, or is likely to be, a need for a decision to be made in relation to the person’s financial matters; and the order would promote the missing person’s personal and social wellbeing while the person is missing (clause 105). An administrator appointed by VCAT under Part 5 has one or more of the powers conferred by Division 3 of Part 5 as specified by VCAT (clause 110). These powers generally mirror those in Part 3 in relation to administration orders, such as a general power to make decisions about those financial matters specified in the order and a power to continue investments (clauses 110, 111). An administrator for a missing person must also abide by the duties referred to in Division 4 of Part 5. The duties are based on Part 3, Division 7 of the Bill and include the obligations to: act as an advocate for the represented person; act honestly, diligently and in good faith, exercise reasonable skill and care; not use the position for profit; avoid conflicts of interest; and not disclose confidential information. Clause 122 also provides VCAT may appoint a person to examine or audit accounts of all dealings and transactions relating to financial matters specified in the order.
Division 5 of Part 5 provides other protections, such as a requirement that an administrator must notify VCAT in writing without delay when the administrator becomes aware that the missing person is alive, or that the missing person has died (clause 124). Additionally, an administration (missing person) order continues in effect for the period not exceeding 2 years as specified in the order (unless the order is revoked earlier).
For the reasons discussed above in relation to administration orders and the conferral of powers on administrators, any limitation of human rights caused by the above clauses will be reasonable and justifiable within the meaning of section 7(2) of the Charter. Also, as discussed above in relation to guardianship and administration orders, in my view, the age limitation of 18 or above does not limit the right to equality.
Special medical procedures
Part 6 of the Bill concerns the carrying out of ‘special medical procedures’, which is defined in clause 3 as ‘any procedure that will have the effect of rendering a person permanently infertile; terminating pregnancy; removal of tissue for purposes of transplantation to another person; or any medical or dental treatment that is prescribed by the regulations to be a special medical procedure for the purposes of Part 6.’
Part 6 applies to ‘patients’. Clause 3 defines a ‘patient’ as ‘a person with disability who is of or over the age of 18 years and does not have decision-making capacity in relation to giving consent to the carrying out of a special medical procedure, regardless of whether the person is a ‘represented person’ as defined in the Bill.
The right to equality (section 8)
Part 6 may also limit the right to equality to the extent that it treats persons with disability differently on the basis that they do not have decision-making capacity to consent to a special medical procedure (refer to ZEH (Guardianship) [2015] VCAT 2051).
Part 6 contains many safeguards. In particular, any such procedure must be authorised by VCAT (unless the patient has given an instructional directive regarding the carrying out of the procedure under the Medical Treatment Planning and Decisions Act 2016 (MTPD Act)). It is an offence for a registered practitioner to carry out a special medical procedure without the consent of VCAT (or the medical treatment decision-maker if VCAT has provided this person with authority to consent to the continuation of the procedure or a further special medical procedure of a similar nature to the procedure that was originally authorised) (clause 147).
VCAT may only consent to the carrying out of a special medical procedure if satisfied that: the patient has not given an instructional directive under the MTPD Act regarding the carrying out of the procedure; the patient does not have decision-making capacity in relation to giving consent; the patient is not likely to have decision-making capacity in relation to giving consent within a reasonable time; and the patient would consent to the carrying out of the special medical procedure if the patient had decision-making capacity (clause 145(1)). In order to be satisfied that the patient would consent to the carrying out of the procedure if the patient had decision-making capacity, VCAT must consider: any relevant values directive under the MTPD Act and any other relevant preferences that the patient has expressed and the circumstances in which those preferences were expressed (clause 145(2)(a) and (b)). If VCAT cannot identify any relevant values directive or other preferences, VCAT must give consideration to the patient’s values, whether expressed other than by way of a values directive or inferred from the patient’s life (clause 145(2)(c)). VCAT must also consider the effects and consequences of the procedure and whether there are any alternatives and consult the patient’s nearest relative (clause 145(2)(d)). If it is not possible to ascertain or apply the patient’s preferences or values, VCAT must only consent to the procedure if: VCAT is satisfied that the procedure would promote the personal and social wellbeing of the patient, having regard to the need to respect the patient’s individuality; and VCAT has considered the likely effects and consequences of the procedure; and whether there are any alternatives that would better promote the patient’s personal and social wellbeing (clause 145(3)).
I consider that the limitation on the right to equality under Part 6 constitutes the minimum interference necessary to enable persons without capacity to consent to a special medical procedure in order to receive appropriate and necessary medical care that would promote their personal and social wellbeing, and as such, any limitation of the right to equality will be reasonable and justifiable within the meaning of section 7(2) of the Charter.
As with other orders under the Bill, Part 6 only applies to a person who is 18 years or above. Such differentiation on the basis of age also engages the right to equality. In my view, the age limitation of 18 or above in relation to special medical procedure applications does not limit the right to equality. In accordance with the High Court decision in Marion’s Case (Department of Health and Community Services v JWB andSMB [1992] HCA 15), court authorisation is required before a special medical procedure can be undertaken on a child.
Right not to be subject to medical treatment without consent (section 10)
Section 10(c) of the Charter provides that a person must not be subjected to medical experimentation or treatment without his or her full, free and informed consent. Part 6 of the Bill enables VCAT to authorise a special medical procedure to be carried out in certain circumstances without the consent of a patient. To that extent, some clauses in Part 6 of the Bill limit the right in section 10(c) of the Charter.
The right to be free from being subject to medical treatment without consent is an important right in the Charter, given the way in which any such treatment without consent significantly undermines the personal autonomy of individuals and the freedom of such individuals to choose whether or not they are subjected to a particular medical procedure. However, the right can be subject to reasonable limitations in accordance with section 7(2) of the Charter.
In this case, the necessity to enable VCAT to authorise a special medical procedure arises from the inability of the persons concerned to consent to such a procedure. In my view, the inability of persons to provide consent should not preclude persons from undergoing a necessary special medical procedure that may improve the patient’s quality of life. Given the numerous safeguards in Part 6 (outlined above), including the many factors VCAT must consider in forming the reasonable opinion that the patient would consent if they had decision-making capacity, and the fact that a special medical procedure must promote the personal and social wellbeing of the relevant patient, I consider that any limitation of the right not to be subject to medical treatment without consent will be reasonable and justifiable within the meaning of section 7(2) of the Charter.
Special powers in relation to proposed represented persons
Clause 43 confers special powers on the Public Advocate or another specified person in relation to a person in respect of whom an application for guardianship order under the Bill has been made (proposed represented person). If VCAT has received information on oath that the proposed represented person is being unlawfully detained against their will or is likely to suffer serious damage to their health or wellbeing unless immediate action is taken, VCAT may by order empower the Public Advocate or some other specified person to visit the person in the company of a police officer for the purpose of preparing a report to VCAT. A police officer may use such force as is reasonably necessary to enter the premises (clause 43(4)).
Clause 43(3) provides that if, after receiving a report from the Public Advocate, VCAT is satisfied that the person is being unlawfully detained or is likely to suffer serious damage, VCAT may make an order enabling the person to be taken to a specified place for assessment and placement until the application for the guardianship order is heard.
Right to freedom of movement (section 12), right to liberty (section 21)
Clause 43 of the Bill may limit a person’s right to freedom of movement and freedom to choose where to live under section 12 of the Charter where the person has been removed from their place of residence and held in an alternative residence against their will until the hearing of the application for the guardianship or administration order. If the person is restrained from leaving the alternative residence, clause 43 is relevant to a person’s right to liberty and security under section 21 of the Charter. However, any such deprivation will not be arbitrary given the process for VCAT authorisation described above, and, in my view, this power will not limit section 21 of the Charter. Furthermore, given the limited circumstances in which a person may be removed from their residence and the safeguards outlined above, I do not consider that clause 43 of the Bill unreasonably or unjustifiably limits the right to freedom of movement in section 12 of the Charter. Finally, the Public Advocate must adhere to the general principles in the Bill (clause 8) and will also be subject to section 38 of the Charter and, accordingly, must give proper consideration to, and act compatibly with, human rights.
Right to privacy, family or home (section 13)
Clause 43 provides for the entry to residential premises and the removal of a person from their place of residence, which may interfere with the right to privacy, family and home of that person and any other person residing in the premises. The right to privacy is broad in scope and is said to encompass a person’s personal and social sphere. This includes their personal security/bodily integrity, which would be engaged by the forcible removal of a person to be taken to a specified place. The right to property may also be engaged as the use of force interferes with a person’s enjoyment of real property, and may involve property damage (e.g. breaking down doors).
However, the Bill provides that entry to premises and any subsequent transfer may only occur in limited circumstances, namely by order of VCAT and based on evidence on oath regarding the unlawful detention of a person or serious imminent damage to the person. In the absence of a power to visit a proposed represented person, the Public Advocate and VCAT would be unable to ascertain the conditions of the person’s detention and accommodation which may be relevant to determining whether to make the relevant guardianship or administration order under the Bill. The power to remove a person may be authorised by VCAT in very limited circumstances, namely where VCAT is satisfied that a person is being unlawfully detained against their will or is likely to suffer serious damage to their health or wellbeing unless immediate action is taken. Accordingly, for these reasons, I consider that any interference with the right to privacy would be neither unlawful nor arbitrary and therefore not limit section 13 of the Charter.
Order for represented person to comply with of guardian’s decision
Clause 45 of the Bill provides that VCAT may make an order authorising a guardian or other specified person to take specified measures or actions to ensure that the represented person complies with the guardian’s decisions in the exercise of the guardian’s powers and duties under the guardianship order.
Right to freedom of movement (section 12), right to privacy, family or home (section 13), the right to freedom of expression (clause 15), right to freedom of association (section 16)
Clause 45 may limit a represented person’s right to freedom of movement under section 12 of the Charter to the extent that it may authorise a guardian or other specified person to use physical or non-physical measures to force a represented person to comply with a guardian’s decision, such as a change in accommodation. A guardian may also be authorised to take measures such as enforcing a curfew, preventing certain persons from visiting the represented person, or imposing rules regarding the person’s diet or dress. Other human rights, such as the right to freedom of association under section 16 of the Charter and the right to liberty under section 21 of the Charter, may also be relevant and/or limited depending on the nature of the order made by VCAT under clause 45.
The measures outlined in clause 45 may also engage the right to home and privacy, which is said to encompass the right to individual identity and personal development, to establish and develop meaningful social relations. The right to freedom of expression may also be engaged by regulating the person’s dress.
However, in addition to the safeguards outlined above in respect of the duties imposed on a guardian, the Bill provides for oversight of the exercise of the power to enforce compliance by providing that VCAT must authorise a person to take ‘specified measures’ and must hold a hearing to reassess an order made under clause 45 as soon as practicable after the making of that order, but within 42 days (clause 45(2)). In my view, any limitation of section 12 of the Charter and other Charter rights discussed above imposed by clause 45 is reasonable and justifiable.
Supportive guardianship orders and supportive administration orders
Part 4 of the Bill provides that VCAT may make a supportive guardianship order or supportive administration order in relation to a person with disability, subject to a number of requirements (clause 87). A person in relation to whom a supportive guardianship order or supportive administration order is made is referred to as ‘the supported person’. The role of the supportive guardian is to support a supported person in making and giving effect to decisions in relation to any personal matters specified in the order. The role of the supportive administrator is to support a supported person in making and giving effect to decisions in relation to any financial matters specified in the order. The Bill provides that VCAT may only confer a power on a supportive guardian or supportive administrator if it is satisfied that the power will ensure that the supportive guardian or supportive administrator can give practicable and appropriate support to the supported person to enable that person to have decision-making capacity in relation to the relevant personal matter or financial matters (clause 90(2)).
Right to privacy, family or home (section 13)
A supportive guardian and a supportive administrator have certain powers under clauses 91 and 92 of the Bill to collect and disclose personal information of a supported person, which are relevant to the right to privacy in section 13 of the Charter. However, in my view, clause 91 does not limit the right to privacy as the collection of personal information by the supportive guardian or supportive administrator is permitted for a defined, limited purpose, namely information that is relevant to a supported decision and may be lawfully collected by the supported person. Similarly, a supportive guardian or a supportive administrator may only disclose personal information under clause 91 for the purpose of enabling the supportive guardian or supportive administrator to carry out their role, for any legal proceedings under the Bill or for any other lawful reason. Under clause 92 a supportive guardian or supportive administrator may only communicate information about the supported person for the purpose of supporting the person to make or communicate a decision. These limitations on the collection and disclosure of personal information ensure that any interference with the supported person’s right to privacy will be neither unlawful nor arbitrary. Furthermore, the purpose of clauses 91 and 92 is to enable a supportive guardian or a supportive administrator to effectively support a supported person to make a relevant decision. For these reasons, in my view, the clauses do not limit the right to privacy.
Powers of the Public Advocate
The Public Advocate has a range of powers under the Bill to obtain information from persons and, in some circumstances, to enter premises. These powers are contained in clause 16(1)(i) and 17.
Right to privacy, family or home (section 13)
Clauses 16 and 17 are relevant to the right to privacy to the extent that a person is required to provide personal information to the Public Advocate and where the Public Advocate may enter residential premises.
The purpose of these clauses is to ensure that the Public Advocate can carry out its functions under the Bill of investigating complaints or allegations relating to persons under guardianship or in need of guardianship, and its function of making representations on behalf of, or acting for, persons with disability. As noted above, the Public Advocate will be subject to section 38 of the Charter and, accordingly, must give proper consideration to, and act compatibly with, human rights. The clauses are precise in their application and are appropriately confined to ensure that any interference with privacy is limited. The powers to obtain information under clause 16 are limited to an investigation or a report prepared by the Public Advocate. The power of entry to premises in clause 17 is limited to the premises of an institution, which is defined in clause 17(7) to include a disability service provider, a residential service, residential institution or residential treatment facility within the meaning of the Disability Act 2006, a designated public hospital within the meaning of the Health Services Act 1988, a mental health service provider within the meaning of the Mental Health Act 2014 or a supported residential service within the meaning of the Supported Residential Services (Private Proprietors) Act 2010. Under clause 17, the Public Advocate is not authorised to inspect a person’s medical records or personnel records, which may contain more sensitive personal information, without the person’s consent. For these reasons, in my view, the clauses do not limit the right to privacy.
Right against compelled self-incrimination (sections 24(1) and 25(2)(k))
Clause 17 also allows the Public Advocate to undertake inspections in relation to certain accommodation and treatment facilities, and make enquiries relating to the admission, care, detention, treatment or control of any person who is a resident of those premises or who is receiving any service from the institution. Clause 17(5) provides that it is an offence for a person in charge, or a member of the staff or management, to refuse or fail to give full and true answers to the best of that person’s knowledge to any questions asked by the Public Advocate in the performance or exercise of any power, function or duty under clause 17. The maximum penalty is 25 penalty units.
Clause 17 is based on section 18A of the GA Act. Like existing section 18A, clause 17 does not contain an express exception for self-incrimination. However, in my view, the clause does not purport to abrogate the privilege against self-incrimination. While the refusal or failure to give full and true answers to any questions asked by the Public Advocate in the performance or exercise of any power, function or duty under clause 17 is an offence, the principle of legality should operate to ensure that clause 17 will be interpreted narrowly, so as not to abrogate the privilege against self-incrimination at common law.
The privilege against self-incrimination is a ‘basic and substantive common law right’ that is governed by the principle of legality.(1) The principle of legality governs the relations between Parliament, the executive and the courts and is a ‘working hypothesis’ that guides the interpretation of statutory language.(2) According to that principle, courts will not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unambiguous language, and any ambiguity will be resolved by a court in favour of the protection of those fundamental rights.(3)
Because clause 17 does not compel self-incrimination, the rights in sections 25(2)(k) and 24(1) of the Charter are not limited by clause 17 of the Bill.
Further support for this proposition is provided by section 32 of the Charter, which requires that, so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is consistent with human rights. In my view, a court would choose to interpret any ambiguity in the wording of clause 17 in favour of protection of the right against self-incrimination. The Public Advocate, as a public authority, would also be required to act compatibly with the Charter in undertaking inspections under clause 17.
Withholding of information held by an administrator
Clause 73 allows an administrator to apply to VCAT for an order that a book, account, notice or document in the custody of the administrator relating to a person who is no longer a represented person may be withheld. There is a similar provision in relation to an administrator for a person who is no longer a missing person (clause 134).
Right to privacy, family or home (section 13), right to freedom of expression (section 15)
Clauses 73 and 134 are relevant to the right to privacy and the right to freedom of expression (which includes the freedom to seek and receive information) to the extent that a former represented person or former missing person may not be able to access information relating to themselves. However, VCAT may only make such an order where it would be in the interests of the person who is no longer a represented person or a missing person for part of their financial affairs to remain confidential or where the book, account, notice or other document contains confidential information about a third party. Accordingly, I consider that any interference with the right to privacy would be neither unlawful nor arbitrary and therefore not limit section 13 of the Charter. Given that section 15(3) of the Charter provides for lawful restrictions necessary to respect the right and reputation of other persons, in my view, clauses 73 and 134 do not limit the right to freedom of expression.
Clauses 73 and 134 may also promote the right to privacy to the extent that confidential or sensitive information about a third party is withheld or where a third party is denied access to confidential or sensitive information about the former represented person or former missing person.
Access to documents
Clause 214 of the Bill will insert a new clause 37A into Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) that provides that a person may make an application to the principal register that any documents lodged in relation to a proceeding under the Bill not be disclosed to a specified person or class of person. New section 37A(2) provides that the application must be determined fairly and according to the merits of the application.
Right to freedom of expression (section 15)
New clause 37A of Schedule 1 to the VCAT Act will potentially operate to limit the right to receive information under section 15(2) of the Charter. However, in my view, the restriction falls within the internal limitation in section 15(3) of the Charter, as it is necessary to protect the rights of others, including the right to privacy and reputation.
Hearings for guardianship and administration proceedings
The Bill sets out the procedural requirements for applications and hearings to determine whether an order should be made for guardianship, administration, administration (missing person), supportive guardianship, supportive administration, and in relation to rehearings and reassessments. These provisions can be found in Part 3, Part 4, Part 5 and Part 7. Clauses 24, 81, 100 and 160 set out the matters to be included in an application and includes the names of anyone who has a direct interest in an application. Clauses 25, 82, 101 and 161 sets out who are the parties to a proceeding and allows VCAT to add additional parties. Clause 26, 83, 102 and 162 sets out who is entitled to notice of an application, which includes the parties, the spouse or domestic partner, the primary carer, and any other person VCAT determines to have a direct interest in the application. As discussed above, clause 29 provides that the proposed represented person must attend a hearing in relation to an application for guardianship or administration unless VCAT is satisfied that the person does not wish to attend or attendance would be impracticable or unreasonable, despite any arrangement VCAT may make. There are similar provisions in relation to Part 4 (supportive guardianship orders and supportive administration orders) and Part 7 (rehearings and reassessments).
Clause 37(1) of Schedule 1 of the VCAT Act provides that, unless VCAT orders otherwise, a person must not publish or broadcast any report of a proceeding under the GA Act that identifies or could lead to the identification of a party to the proceeding. Clause 213 of the Bill applies this provision to proceedings under the Bill.
Right to protection of families (section 17) and cultural rights (section 19)
Under clauses 26, 83 and 102, the following people are entitled to notice of an application for guardianship, administration, supportive guardianship or supportive administration, as well as subsequent hearings and orders:
• any party to a proceeding;
• the spouse or domestic partner of the person, if any;
• the primary carer of the person, if any;
• any person referred to in the application as having a direct interest in the application;
• in the case of an application for a guardianship order, the Public Advocate if no one is proposed as a guardian; and
• any other person VCAT directs be given notice.
Clauses 24(e), 81(e) and 100(d) require the name and contact details of any person who has a direct interest in the application to be included in the application. A legislative note after these provisions makes it clear that the phrase ‘persons having a direct interest’ is intended to encompass, amongst others, the proposed represented person’s relatives.
Clause 3 of the Bill defines ‘relative’ to include: a spouse or domestic partner; a child; a parent; a step-parent; a sibling; a step-sibling; a grandparent; a grandchild; an uncle or aunt; and a nephew or niece. This definition is consistent with the definition of ‘relative’ used in other aligned legislation, including the Powers of Attorney Act 2014.
Although the definition of ‘relative’ does not specifically refer to Aboriginal kinship relationships, the Bill encompasses a broad concept of personal relationship where the term ‘relative’ is used, and provides flexibility for VCAT to consider a range of relationships that might be appropriate in the particular circumstances. For example, certain provisions refer to a ‘close friend’, as well as a relative (i.e. clauses 9(b), 47, 57, 118). ‘Close friend’ of a person is defined in the Bill as another person who has a close personal relationship with the first person and a personal interest in the first person’s welfare’. Other provisions that refer to a relative also provide VCAT with the discretion to consider a person with a ‘direct interest’ or ‘special interest’ in the matter (for example, clauses 31(c) and 183 of the Bill).
When compared to the existing GA Act, clauses 26, 83, 102 promote both the right to protection of families in section 17(1) of the Charter, and the right of an ‘Aboriginal person … to maintain their kinship ties’ set out in section 19(2)(c) of the Charter. The current notice provisions in the GA Act, which require notice to be given to a proposed represented person’s ‘nearest’ relative, do not afford VCAT any discretion to consider whether the ‘nearest’ relative has a close or continuing relationship with the person, or any substantive interest in the application.
In contrast, clauses 26, 83 and 102 do not limit notice being given to one family member but allow VCAT to consider a broader range of relationships that are relevant and important to the proposed represented person or proposed supported person, including extended family and close friends. This discretion will also enable VCAT to accommodate the broader understanding of Aboriginal kinship networks.
Right to a fair hearing (section 24)
Section 24(1) of the Charter provides, relevantly, that a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The right to a fair hearing also encompasses the established common law right that each individual has unimpeded access to the courts and tribunals of a state. The right is limited if a person is precluded from having effective access to a court or tribunal, in that they are barred from properly presenting their case.
The Bill enhances the fair hearing right by including provisions ensuring participation of represented persons and other people who are relevantly involved in hearings. However, under clause 37 of Schedule 1 of the VCAT Act, guardianship and administration hearings are confidential. In my view, the confidentiality requirement for proceedings under the Bill does not impose any limits on the right to a fair and public hearing under section 24(1) of the Charter as it recognises the particular, sensitive nature of the proceedings. It is generally in the interests of the people involved for such hearings to be closed, in order to respect their right to privacy. In addition, VCAT has the discretion to order that the proceedings not be confidential if it is in the public interest to do so. Finally, section 24(2) of the Charter provides that a court or tribunal may exclude the media, persons, and the general public if permitted to do so by a law other than the Charter and section 8 of the Open Courts Act 2013 provides that other laws restricting or prohibiting publication are not affected by that Act.
Reassessments on the papers
As discussed above, the Bill requires VCAT to conduct a reassessment of all appointments under the Bill within 12 months after making the order and then at least once within each 3 year period after making the order unless VCAT orders otherwise (clause 159(1) and (2)). VCAT may also conduct a reassessment at any time on its own initiative or on the application of any person (159(3)). Clause 164 allows VCAT to conduct a reassessment on the papers where the reassessment is on its own initiative and it does not propose to amend, vary or replace the relevant order. Before conducting a reassessment on the papers, VCAT must take reasonable steps to contact the represented person or supported person and ascertain whether they would like VCAT to conduct a hearing (clause 164(2)). VCAT is also required to provide a notice to the parties informing them that they have 14 days after the date of the notice to request a hearing (clause 164(4). If any of the parties request a hearing in the prescribed timeframe, VCAT must give the parties 7 days’ notice of the hearing (164(5)).
Right to a fair hearing (section 24)
Clause 164 is relevant to the right to a fair hearing as a reassessment without a hearing may not allow the represented person to properly present their case to VCAT regarding the operation of the order. However, given that a reassessment may only be conducted on the papers in limited circumstances (i.e. where VCAT does not propose any changes to the existing order) and the fact that the represented person or other party to the proceeding must be notified and can request a hearing, in my view, the right to a fair hearing is not limited.
Liability of guardians and administrators and the State
Clause 45(3) provides that the guardian or person specified in the order is not liable for any liability relating to action taken pursuant to the order of VCAT under clause 45(1) in certain circumstances. The person must have taken the action in the belief that it would promote the personal and social wellbeing of the represented person, and that it was reasonable to take the action in the circumstances.
Clause 181 provides that the Supreme Court or VCAT may order a guardian or administrator to compensate the represented person for a loss caused by the guardian or administrator when acting as guardian or administrator. However, clause 182 provides that if the Supreme Court or VCAT considers that a guardian or administrator is or may be personally liable for a contravention of the provisions of the Bill, acted honestly and reasonably and ought fairly to be excused for the contravention, the Supreme Court or VCAT may relieve the guardian or administrator from all or part of that personal liability.
Clause 186 provides that no compensation is payable by the State in relation to any damage, loss or injury sustained by a person by reason of an act or omission of a guardian or an administrator under this Act.
Right to a fair hearing (section 24)
In my view, to the extent that the right to a fair hearing is limited by the above clauses, such limits are reasonable and justifiable under section 7(2) of the Charter. The immunity from liability in clause 45(3) is important as it allows a guardian to take specified measures to enforce their authority in accordance with a VCAT order to ensure the personal and social wellbeing of the represented person.
In addition, while certain recourse to a court may be limited or removed by the above clauses, other recourse remains available in each case. Anyone can apply to VCAT for a reassessment of the order appointing the guardian or administrator at any time and the Supreme Court and VCAT may only relieve a guardian or administrator from liability to pay compensation for losses caused by their decisions where they have acted honestly and reasonably. In addition, general law remedies remain available to aggrieved parties through the courts.
I also consider that it is appropriate that no compensation is payable by the State in relation to the actions of guardians or administrators, as any such liability should instead rest with the guardian or administrator if they did not perform their duty in accordance with the order and the requirements of the Bill.
(1) X7 v Australian Crime Commission (2013) 248 CLR 92, [104]
(2) Electrolux Home Products Pty Ltd v AWU (2004) 221 CLR 309, 329 (Gleeson CJ)
(3) Coco v The Queen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ)
Second reading
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Mr SOMYUREK: I move:
That the bill be now read a second time.
Incorporated speech as follows:
I note that the Bill is substantially the same as the Bill that was introduced in the last session of Parliament but that lapsed upon dissolution of the last Parliament. Apart from the commencement date and minor technical changes, the Bill has not been changed from the Bill introduced in the last session.
Background
When it was passed in 1986, the then named Guardianship and Administration Board Act was a visionary piece of legislation, which took Victoria from a nineteenth century approach to guardianship and administration to modern guardianship in a single step. The new Act was part of a suite of Acts that overhauled Victoria’s laws for dealing with mental health and disability services.
The new Act implemented the recommendations of the Cocks Committee on Rights and Protective Legislation for Intellectually Handicapped Persons by establishing a system of limited guardianship and administration appointments for people with disability, made and monitored by a tribunal, the Guardianship and Administration Board. The new Act also created an independent advocate for people with disability, the Public Advocate, who could also be a guardian of last resort.
Times and attitudes change and now it is necessary to replace the 1986 Act with a law that reflects a contemporary understanding of decision-making capacity and disability, and recognises the rights of people with a decision-making impairment and the responsibilities of those who interact with such people—carers, health and accommodation providers, and the courts and tribunals. The challenges have shifted from de-institutionalising the many people whose disability was treated as a condition best managed behind secure walls, to managing the increasing numbers of people living in the community who lose their capacity through the onset of dementia or an acquired brain injury.
Australian legislation increasingly seeks to fully recognise the dignity, equality and autonomy of people with disability, whose fundamental rights have been enshrined in the United Nations Convention on the Rights of Persons with Disabilities. Australia was an original signatory to the Convention in 2008. This Bill draws on the Convention, and also on the 2012 Report of the Victorian Law Reform Commission on Guardianship, the 2015 Report of the Australian Law Reform Commission on Equality, Capacity and Disability in Commonwealth Laws, and recent Victorian legislation, such as the Powers of Attorney Act 2014 (POA Act), the Mental Health Act 2014 and the Medical Treatment Planning and Decisions Act 2016 (MTPD Act). The Government has sought to align the concepts and terminology in this Bill as much as possible with these other Acts to promote consistent approaches and understanding of the rights, responsibilities and functions in relation to substitute decision-making that are articulated in these pieces of legislation.
Recognising rights
There is an ongoing discussion about how the balance should be struck between recognising the rights of people with disability to make their own decisions, and ensuring that there are effective mechanisms for protection when protection is needed. Some advocates and organisations emphasise that a person’s will and preferences should be given priority in all but very limited circumstances. Others are concerned that the barriers to protective action by VCAT or a guardian or administrator should not be so high as to render such action unavailable when it is needed, despite a represented person’s will and preferences.
The Bill strikes this balance by recognising the need to support people with disability to make, participate in and implement decisions that affect their lives, and otherwise providing that a person’s will and preferences should direct decisions affecting the person as far as possible. Before making any guardianship or administration appointment, VCAT must consider whether a person can make their own decisions if provided with support, or whether decisions could be made by informal means. VCAT can still appoint a guardian or administrator where needed and where this will promote a person’s personal and social wellbeing, however such appointments must be tailored to the person’s individual circumstances and regularly reviewed. Once appointed, guardians and administrators must give effect to a represented person’s will and preferences where possible, but can override the will and preferences where the person would otherwise be at risk of serious harm.
The Government believes that this is the best approach to promoting the rights of people with disability, while ensuring their safety and welfare. It is a significant departure from the notion of decision-making in the ‘best interests’ of people with disability, which will enhance their autonomy, dignity and equality.
Key provisions
The Bill will replace the 1986 Act with a new Act that provides for a more modern framework for the appointment of a guardian or administrator and further statutory recognition of supported decision-making.
Decision-making capacity
The concept of decision-making capacity is central to the new legislation.
The Bill defines decision-making capacity and recognises that a person had decision-making capacity if the person can make decisions with support. The definition includes provisions to assist with the assessment of a person’s decision-making capacity. A person is presumed to have decision-making capacity unless there is evidence to the contrary.
The definition of decision-making capacity is intended to promote each person’s right to recognition and equality before the law, and prevent arbitrary and unnecessary intrusions on the right to make decisions that affect their life. The definition is intended to prevent unnecessary appointments of guardians and administrators. VCAT will not be able to appoint a guardian or administrator simply because a person has a disability, or because someone else thinks that the person is making unwise decisions.
The definition of decision-making capacity is the same definition that has been enacted in both the POA Act and MTPD Act.
Supported decision-making
Supported decision-making is an emerging concept that underpins the United Nations Convention on the Rights of Persons with Disabilities and has been recently used in Victorian laws such as the POA Act, the Mental Health Act and the MTPD Act. Supported decision-making signifies a shift from the traditionally held view that decision-making capacity is an absolute concept. It recognises the reality that a person can experience partial or fluctuating capacity and that capacity can depend on the nature of the particular decisions and the context in which they are made.
The Bill recognises supported decision-making by allowing VCAT to appoint a supportive guardian or administrator. Like supportive attorneys under the POA Act, and support persons under the MTPD Act, a supportive guardian or administrator will not make decisions for a person but will be empowered to support the person to make and give effect to their own decisions. Often support in decision-making comes from family members and trusted carers, and the ability to appoint a supportive guardian or administrator acknowledges these relationships of support, while ensuring that the person with disability retains their right to make decisions.
While a person who has capacity to make their own decision with support would be able to appoint a supportive attorney under the POA Act, it will nevertheless be useful for VCAT to be able to appoint a supportive guardian or administrator in some circumstances. These include, for example, where VCAT decides in a proceeding that while a guardianship order is unnecessary, appointing a supportive guardian would assist the person in making and communicating their decisions. Alternatively, a person may seek a supportive appointment in circumstances where their capacity to make decisions with support is questioned.
VCAT appointments of guardians and administrators
The Bill retains the important role of VCAT in making guardianship and administration orders in relation to adults but ensures that an order is proportional and tailored to the person’s individual circumstances. The basis for an order must be that:
• the person, because of a disability, does not have decision-making capacity in relation to a personal matter, in the case of a guardianship order, or in relation to a financial matter, in the case of an administration order. As already noted, a person will have decision-making capacity if they can make decisions with support. While a guardianship or administration order will not be needed in such a case, a supportive appointment might be appropriate;
• the person is in need of a guardian or administrator. As part of this consideration, VCAT must consider whether decisions could be made by informal means or through negotiation, mediation or similar means; and
• the order will promote the person’s personal and social wellbeing.
The Bill makes improvements to VCAT processes when dealing with guardianship and administration applications, including by:
• clarifying provisions regarding who should be notified about an application. This includes providing notice to those with a direct interest in the application, such as a person’s primary carer, relatives or close friend;
• ensuring greater participation of the proposed represented person wherever possible in the application and hearing process. VCAT must consider the person’s support needs as part of its processes, and should not hold a hearing without the person’s participation unless satisfied that the person does not wish to participate, or any support needs cannot be reasonably accommodated. VCAT is able to conduct a hearing in a variety of ways, including by using telephones, video links or any other system of telecommunication; and
• requiring VCAT to consider the desirability of appointing as a guardian or administrator a person who is a relative of the proposed represented person, or who has a personal relationship with the person, rather than appointing a person with no such relationship;
• enabling a current guardian or administrator, or relative of a represented person, to formally file a document with VCAT that states their wishes for future decision-making appointments.
As is currently the case, the Bill requires VCAT to conduct a reassessment of a guardianship or administration order within 12 months after making the order, unless VCAT orders otherwise, and in any case, at least once within each three year period. As part of the reassessment process, VCAT must consider whether the guardian or administrator has acted in accordance with the principles and duties under the Act.
The Bill also retains the power for VCAT to appoint an administrator to make decisions in relation to a financial matter or matters of a person who is missing.
For the first time, the Bill allows for the enforcement through VCAT of decisions of guardians and administrators against third parties.
The Public Advocate
Under the Bill, the Public Advocate will continue as an independent statutory office that promotes the rights and interests of people with disability. VCAT will continue to have the power to appoint the Public Advocate as a person’s guardian where there is no-one else available or suitable for appointment.
I take this opportunity to commend the Public Advocate and her staff, and the volunteers who participate in the different programs co-ordinated by the Public Advocate, for their dedication to the work that they undertake for people with disability in Victoria. Their care and commitment to their clients is outstanding. They greatly enhance the lives of Victorians with disability, especially those who lack decision-making capacity.
The Bill includes provisions to improve the operations of the Office of the Public Advocate (OPA), including by:
• clarifying the confidentiality requirements of OPA staff when performing statutory functions;
• requiring the Public Advocate to prepare an annual report of OPA’s functions, which will be tabled in Parliament by the Attorney-General. This change will clarify and formalise the currently opaque arrangements under which the Public Advocate’s annual report is tabled; and
• allowing the Public Advocate to delegate powers and duties as a guardian, or as an enduring attorney, to a member of staff at OPA.
Other matters
The Bill will come into operation on a day or days to be proclaimed, or otherwise on 1 March 2020. The default commencement date of 1 March 2020 is intended to allow for a reasonable implementation period of approximately 12 months from the estimated date of passage of the Bill. Such an implementation period is reasonable given that the Bill represents the most significant change to guardianship and administration laws in over 30 years.
The Bill includes a dispute resolution process for guardians and administrators who are appointed for the same represented person. The Bill requires a guardian and administrator for the same represented person to consult each other where their decisions overlap, but, unless otherwise agreed or determined by VCAT, the decisions of the guardian prevail over those of an administrator.
Consistent with the POA Act, the Bill allows the Supreme Court or VCAT to order a guardian or administrator to compensate a person for a loss caused by the guardian or administrator contravening the Act. It also creates new offences that will penalise a guardian or administrator who dishonestly uses their appointment to gain a financial advantage for themselves or another person or to cause loss to the represented person or another person.
The Bill retains the provisions that allow VCAT to consent to a special medical procedure where a patient does not have decision-making capacity to consent to that procedure. A special medical procedure includes: any procedure that will, or is likely to, result in rendering the patient permanently infertile; a termination of a pregnancy; or any removal of tissue for transplantation to another person. The Bill ensures that the approach taken by VCAT in these matters is consistent with the making of medical treatment decisions under the MTPD Act. In particular, the Bill requires VCAT to be satisfied that the patient would consent to the procedure if the patient had decision-making capacity, taking into account any valid and relevant values directive of the patient and any other relevant preferences or values of the patient. If VCAT is unable to ascertain the patient’s preferences or values, VCAT may consent to the procedure if satisfied that it will promote the personal and social wellbeing of the patient.
Future issues
There are a small number of Victorian Law Reform Commission recommendations where further work and consideration is required. These include: the feasibility of an online register of appointments of guardians, administrators and enduring attorneys; the Public Advocate’s investigation functions; merits review of guardians’ and administrators’ decisions; and the support framework for 17-year-olds with disability that affects decision-making capacity.
The full implementation of the National Disability Insurance Scheme might also affect the operation of Victoria’s guardianship and administration laws. Its impacts will be closely monitored by the Government.
I note that the broader issue of elder abuse is the subject of a report by the Australian Law Reform Commission and that its recommendations are currently being considered by the ministerial Council of Attorneys-General. It is likely that those discussions will lead to further reforms in respect of elder abuse, which will of course be relevant to the position of senior Victorians who have guardians, administrators or enduring attorneys looking after their personal or financial affairs.
In conclusion, I would like to thank all those individuals and organisations who contributed so thoughtfully to the Victorian Law Reform Commission’s Guardianship Report, and to the development of this legislation. This is a sensitive and complex area of the law where a range of positions is reasonably held by many people of all types of ability and interest, including people who dedicate themselves to supporting people with disability and improving the policy and service frameworks with which they engage.
This Bill represents a milestone in the way that Victoria upholds the rights and meets the needs of people with disability whose decision-making capacity is impaired. It moves away from the old ‘best interests’ principle that underpinned a paternalistic approach to disability, to a position of promoting the dignity, equality and autonomy of people living with disability, while retaining the safeguards necessary for them to most fully realise their potential.
I commend the Bill to the house.
Mr ONDARCHIE (Northern Metropolitan) (17:40): I move, on behalf of my colleague Mr O’Donohue:
That debate on this matter be adjourned for one week.
Motion agreed to and debate adjourned for one week.