Legislative Assembly

854 LEGISLATIVE ASSEMBLY Wednesday 6 June 2007 __________ The Speaker (The Hon. George Richard Torbay) took the chair at 10.00 a.m. The Speaker read the Prayer and acknowledgement of country. AUDIT OFFICE Reports The Speaker tabled, pursuant to section 38E of the Public Finance and Audit Act 1983, the following performance audit reports of the Auditor-General: Connecting with Public Transport: Ministry of Transport, dated June 2007. Readiness to Respond: Ambulance Service of New South Wales: Follow-up of 2001 Performance Audit, dated June 2007. Ordered to be printed. GUARDIANSHIP AMENDMENT BILL 2007 Agreement in Principle Debate resumed from 30 May 2007. Mr ANDREW CONSTANCE (Bega) [10.02 a.m.]: No job of this Parliament is more important than the provision of safeguards, the protection of human rights and the empowerment of those who suffer from decision-making disabilities. No job is more important than ensuring the mechanisms to protect those with a decision-making disability are not eroded in the name of efficiency, particularly if the situation is the result of a lack of increased financial resources to the organisation overseeing the guardianship process. That remains the test for the Minister. Will these reforms of the Guardianship Tribunal result in the handling of more applications within existing financial resources and/or do they improve service delivery to the very people benefiting from the services of the tribunal? I have examined the amendments and I indicate that the New South Wales Liberal-Nationals Coalition will not oppose them. However, I place on record my concern at the lack of a mechanism to re-examine the effect of the amendments on the service performance of the tribunal in practice. I will acknowledge some of the concerns that have been raised with me about the amendments. I call on the Minister to ensure that, given the increased workload, there is a significant increase in the tribunal's budget to carry out its service delivery. The Minister indicated that the purpose of the amending bill is to enhance the tribunal's ability to respond effectively and efficiently to the needs of adults with impaired decision making, their families and carers by improving the way the tribunal conducts its business. The Minister also stated that in the past financial year the tribunal managed more than 8,000 matters and the number of new applications made to the tribunal increased by 9.3 per cent compared to the previous year. The increase in applications will only continue as the proportion of people with disabilities increases within the general population. Between the years 2000 and 2011, the Department of Ageing, Disability and Home Care [DADHC] estimates that the population of people with disabilities in New South Wales will increase by 18 per cent and the population of older people will increase by 26 per cent while the overall New South Wales population will increase by 8 per cent. This will place additional pressure on the Guardianship Tribunal. Rather than amend the Act every time the workload becomes overbearing, we must ensure that the Government addresses the level of resourcing. I hope the Minister will enlighten the House on what increased resources will be afforded the tribunal in light of the efficiencies being sought and, ultimately, address the demographic changes we are expecting. The bill seeks to deliver four key changes to the Guardianship Act. They include amendments seeking to make the criteria for non-reviewable guardianship orders clearer, add to the range of functions to be performed by a tribunal comprised of fewer than three members, clarify procedural and other functions that may be performed by the registrar of the tribunal and allow for the review of those 6 June 2007 LEGISLATIVE ASSEMBLY 855 decisions by the tribunal. The amendments also extend the maximum term of appointment for a member of the tribunal from three to five years. Before addressing each amendment I place on record the concerns and opposing view of People with Disability Australia Incorporated [PWD], which is the national peak disability rights and advocacy organisation. Its primary membership is made up of people with disability and organisations primarily constituted by people with disability. The organisation also has a large associate membership of other individuals and organisations committed to the disability rights movement. The organisation opposes the proposed amendments to the Guardianship Act 1987. As part of a detailed submission to the tribunal and the consultation in which the Government engaged last year, People with Disability Australia raised a number of concerns. It stated, "There is no more important or sensitive jurisdiction than that relating to guardianship. The jurisdiction requires a delicate balancing between the rights of people alleged to have a decision-making disability, and their need for protection through supported or substituted decision making when found to have a decision-making disability." The view of People with Disability Australia is that any initiatives that might affect the operation of that jurisdiction should command the closest of scrutiny and adherence to the highest standards if they are to serve the demands of such an important and complex jurisdiction. Every member of this House would agree with that sentiment. The organisation conducted a thorough analysis of the Act in its current, pre-amendment form, against human rights and administrative law norms and standards and was deeply concerned by the lack of certain fundamental rights and safeguards for people with a disability. Notwithstanding its other positive features, the People with Disability Australia found that the Act currently lacks a clear statement of the legal presumption in favour of capacity for adults and a clear statement that all people subject to a guardianship or financial management order retain the right to freely pursue their economic, social and cultural development. Implicit in that is the right of such people to seek review, complain, or appeal against any aspect of the operation of the guardianship regime. The organisation also found that the Act lacks a clear obligation on the Guardianship Tribunal to engage in periodic review at specified reasonable intervals of all guardianship type orders, including financial management orders. The Act also lacks a clear statement that a person whose capacity is at issue shall be entitled to be represented by an independent advocate without any conflict of interests, and that if the person whose capacity is at issue does not himself or herself secure such representation, it shall be made available without payment by that person. Lacking also is a clear statement recognising that for people whose capacity has been found in issue, rights of complaint, review or appeal, and to be heard may be meaningless unless independent advocacy support is provided to support the person to access those rights. People with Disability Australia regards these legislative and program deficiencies as serious, and in need of urgent attention. Indeed, the organisation believes that a much stronger argument can be made in favour of amending the Act to address these deficiencies rather than some of the currently proposed amendments. Given the lack of these key safeguards, and notwithstanding that New South Wales can be proud of much of the operation of its guardianship regime to date, People with Disability Australia was reluctant to accept any of the proposed amendments that in its view may further undermine fundamental rights and freedoms and limit essential safeguards for people with a disability. Accordingly, People with Disability Australia was able to support only the proposed amendments about the maximum term of appointment for tribunal members and giving the registrar power to exercise some of the procedural functions referred to in the discussion paper. I highlight these in the hope that the Minister will address them directly or as part of her reply. Specifically in relation to the amendments, I refer first to the composition of the tribunal. The amendment seeks to extend the range of matters that might be considered and determined by either a one-member or two-member tribunal panel. These matters are reviews of guardianship orders, reviews of financial management orders, and applications for consent to major medical treatment. I note that the amendment also ensures that the President of the Guardianship Tribunal will retain the discretion to sit one, two or three members as required in these matters. I wish to place on record the Liberals-Nationals absolute commitment in our support of the multimember, multidisciplinary system. We all recognise the significant impact of the tribunal's decision- making process on the rights and autonomy of people with disabilities; its effects on people with disabilities, their families and carers can be profound. This is a powerful process that requires safeguards, and those safeguards are afforded to the tribunal by the multimember, multidisciplinary system. As argued by the tribunal in its discussion paper, strong and effective safeguards are necessary in any system that impacts on people's rights. Safeguards are even more important when, for good reasons, hearings are 856 LEGISLATIVE ASSEMBLY 6 June 2007 conducted in a less formal manner without all the procedural and evidentiary rights of traditional adversary proceedings. To ensure appropriate and justifiable decisions, it is imperative that the decision makers know what to ask and how to evaluate the evidentiary material before them. The tribunal went on to argue that some review hearings involve less complex and contentious matters and, unlike initial applications, do not involve major determinations about rights. Similarly, the issues raised in most major medical and dental consent applications are less difficult, and these applications are often uncontested. The proposed amendments obviously seek to provide some flexibility in the tribunal's ability to hear matters with fewer than three members.

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