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Guardianship and Administration Amendment Bill 2023

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Tuesday, 15 August 2023

Tags: Legislation, Justice

Dr WOODRUFF (Franklin - Leader of the Greens) - Mr Speaker, this is one of the most important and complex bills to come before the House during this term of parliament.

First and foremost, I want to put the work of the Tasmanian Law Reform Institute and the independent reviewer, Damian Bugg, on the record. Their work in this area must be recognised and I sincerely thank both those parties for the enormous contributions they have made to summarising the law and, indeed, the many stories of abuse and failures of the current system they have brought to light. Both documents they produced are instrumental to the reforms before the House today.

I also thank and honour the tireless work of staff at Advocacy Tasmania, as well as those with experience of the guardianship and administrative systems, the advocates and the other stakeholders. They have come forward over years to expose the issues in this system.

Most of all, I acknowledge the suffering of people and their families who have been cruelly affected by the failures of justice in our guardianship and administrative system. Their courage in speaking up to expose the issues of the current laws and structures that govern how people are treated has been integral in bringing us to the bill we have here today. There is no doubt in my mind that without the tireless work and advocacy of those people - and particularly I mention Advocacy Tasmania - this bill would not be before us today, certainly not in the form it is in.

I have had detailed conversations with members of Advocacy Tasmania and I thank them for the conversations and the time they have given to us and other members relaying their experiences. I also want to recognise the great anguish of people, particularly Leanne Groombridge, who brought her to make the public statement she did in the media several years ago that really gave rise to an outpouring of feeling amongst people in the community providing their experiences, the experiences of families, the suffering and the injustices that led to the Damian Bugg report.

I thank the Attorney-General, her office and the department, and TASCAT for the numerous briefings I and my staff have had and for answering questions in very good faith via correspondence.

The engagement on this bill has been done, I believe, with good heart, working together to accommodate changes and to understand how we can work our way to improving this very complex area of human rights law.

Given the nature of the bill, there has been understandably much interest and many perspectives that people have provided on its contents. As a legislator, as a parliamentarian, I have spent a lot of time thinking through the ethics, the justice, the experiences of people who I have heard from over my eight years in parliament - the families and the people who have been victimised through cruelty of having their dignity of choice, their dignity of risk, the dignity of the life that they led taken away from them without an opportunity to have a say and be heard.

Interpretation of the provisions of the bill that are before us and the practical implications for their application, which necessarily involve going into some very particular detailed circumstances in order to work through what might occur as a result of one approach or another approach has required considerable consultation, scrutiny and consideration. I am confident that the Attorney General, the shadow, Ella Haddad, and I have really applied ourselves to this area. There are differences between us on small things and on significant things. I am flagging that we will be bringing a number of amendments to this bill, which I have circulated to the Attorney General and to Ms Haddad.

On balance, the bill is a very significant step in the right direction. I think it is fair to say that we would all agree that the bill is not and should not be the conclusion of reforms to Tasmania's guardianship and administration system. The Attorney General has previously put on the public record that other tranches of this legislation will follow.

It is our view, the view of the Greens, that we are very disappointed that more work has not been done in the first instance to prioritise some of the issues which are deep and outstanding matters of justice for people who have suffered through the existing laws. Compensation and justice for people who want to be heard about the wrongs they allege has not been given the priority that we believe it should have.

Compensation is easy to kick down the road. It is very easy to kick responsibility down the road. I do not want to diminish the importance or value of this work we have in front of us but without justice, without compensation and without an opportunity to speak truth and be heard with legal consequences, is critical for healing for people who have been wronged. The wrongs have led to people having all of their personal possessions taken away, for example. Some people had their possessions removed without their knowledge or without their will and they were never seen again. They were disposed of without them understanding it. It has also led to terrible sadness for family members who were living with a partner or a child or father or daughter and that person was put in an institution. They did not accept that and they did not have an opportunity to have their say and be heard properly.

These sadnesses, these pains and these harms that were inflicted do not go away without an opportunity for true justice. The legislation in the bill before us today will look at future situations and attempt to make sure what has happened in the past can never happen again but they do not give justice to people who have been wronged by state laws that have enabled damage, assaults on people's dignity and institutionalisation of people against their will or against the will of family members when that person was not able to make decisions for themselves.

I will now make some comments about the matters in the bill that the Greens want to discuss. We have amendments. I will start by outlining the three clauses that we circulated.

Our first amendment seeks to recognise explicitly recognising 'dignity of risk' in the interpretive provisions of the bill. Dignity of risk is a critical concept and it is one that has been given insufficient respect in practice. It is a concept that means a person has the inherent right to take reasonable risks and that interfering with this right is an affront to their dignity as a human being and can be detrimental to their personal growth, their health and their wellbeing.

In many ways this concept is implicitly recognised in various provisions of this particular legislation but we believe that you have to draw links between various provisions to reach that conclusion. In practice, what that means is although there will be various legal experts applying and interpreting this act, a lay person acting under the legislation will in all likelihood be given fact sheets that lists things that the legislation will require them to consider. People who work in aged care homes, in hospitals, medical professionals will look to this information to determine what their right action in a situation should be.

It is for that reason that we believe that the dignity of risk needs to be explicitly defined in the interpretive provisions. Then, in practice, people who are operating under the act, family members and individuals who may be affected under the act, will have it clear, in writing, that the concept of dignity of risk is something that will be considered by anyone who is working as a practitioner or a professional working under the act. It will be taken seriously and it will be something that a person can have confidence will be considered in any decisions that are taken about their wellbeing.

Our second series of amendments is to clause 58. These introduce replacement provisions for emergency or interlocutory orders. The first two amendments reflect the phrasing that is provided in recommendation 15.3 of the Tasmanian Law Reform Institute's review of the act. That amendment also reflects recommendations that are made by stakeholders during the consultation on the draft bill. As it is currently drafted, the tribunal must 'consider' a person is in immediate risk of harm before granting an order.

We propose through the amendment, in line with stakeholders views on this matter, that the word 'consider' is ambiguous and too low a bar. It is our view that the Law Reform Institute's phrasing is clearer and also not too onerous. Our amendment would require that the tribunal is 'satisfied on reasonable grounds' rather than just 'consider that a person is in immediate risk of harm'. It also requires that the person be at risk of harm:

an order, advice or direction were not made.

In our view this makes considerable sense, After all, why grant an interlocutory order if it would not result in mitigation of the risk of harm?

Our third amendment to this clause requires that an emergency guardianship order must include a specification of the personal matters covered by the order. An emergency administration order must include a specification of the part of the estate that is covered by the order. Unless, that is, the tribunal is satisfied that an order for the whole of the estate is required.

It is our view that this amendment will not limit the extent of the powers of the tribunal but it does set an expectation to tribunal members that the appropriate breadth of the emergency order should be seriously considered.

Our final amendment is to clause 72. The Greens take the view that the prerequisite of immediate risk of harm should also apply to interim orders. Whether an order be an interim one or an interlocutory emergency, they are both orders that are put in place on a temporary basis before a full process can be undertaken.

We do not see the rationale for why there would not also be a requirement in place that a serious risk of harm needs to be determined for an interim order. An interim order is one that can deprive a person of their liberty. It can deprive a person of access to their estate and their goods. It can enable an administrator to take over their estate and their goods. Therefore, we believe a high bar should be set to ensure that serious risk of harm is determined prior to any form of an order taking over a person's liberty or financial affairs.

Another issue that I want to talk about is the provisions regarding medical research. Advocacy Tasmania and the Tasmanian Law Reform Institute both called for these provisions to be delayed. The recommendations of these organisations carry serious weight. We have given very serious considerations to their views.

At this point, with the bill before us, we take the view that the option we have is to support the provisions that are in the bill or to move for them to be removed. On balance, considering this very deeply, we are of the view that moving for their removal altogether from the bill would do more harm than good.

As we understand it, the lack of current provisions in legislation means that people without decision making ability or their representative may miss out on advantageous treatment options. There have been some very strong perspectives put on this matter from people who have been working in the area of medical research. Our understanding, I hope the Attorney General is able to confirm this in her summation, is that under the framework of the bill, if a person cannot consent, if they have no advance care directive and if a representative cannot be found then approval would be required from a relevant ethics committee.

As a result, either of two things would happen. That the research would have to be limited or observational or non intrusive procedures only, or that the research must have demonstrated clinical advantages over other options relative to any risk. If the person displays any signs of objecting, whether verbal or otherwise, then the procedure cannot go ahead.

If the Attorney General can confirm that is the framework then we find it difficult to find fault with that. We accept that there would be benefit from a broader investigation for reforms in this area. We agree that it would have been better for this to have been brought on in a more comprehensive package of reforms in this area.

However, we are not comfortable denying people access to potentially improved clinical outcomes, particularly where no specific faults or omissions in the safeguard provisions have been identified to us.

Can the Attorney-General clarify a matter regarding the phrase 'views, wishes and preferences', which is used throughout the bill in lieu of a more commonly understood 'will and preferences' language. This has been questioned by a number of stakeholders. Can you tell me the reason for the choice of this phrase? Is there a distinction between matters that may be captured by one phrase and not by another?

I want to briefly touch on penalties within the bill and the principal act more broadly. I acknowledge the indication in the second reading speech that further tranches will consider whether there need to be additional offences and whether existing penalties should be revised. We are pleased that that is the case and we hope that the second tranche makes improvements in this regard.

From the perspective of the Greens, it is not a question of whether we need additional offences and revised penalties. We clearly do. We sincerely hope that further tranches to this bill provide appropriate new offences and penalties that are of a scale commensurate with serious harms offences that actions under the act can cause and that many people allege have occurred in the past.

We made this point in our submission to the draft bill. We also highlighted that the new offence proposed, introduced in the new section 13 clause 8, is not adequate. The proposed new section 13 clause 8 sets out that -

A person must not intentionally or recklessly interfere with or affect the assessment of another person's decision-making ability under this act.

The penalty proposed for this is a fine not exceeding 20 penalty units.

On current index values, that is a maximum $3900. In our view that is a totally insufficient maximum penalty for an offence that could potentially be malicious, dishonest and significantly harmful in nature, and one which is not accidental or not inadvertent.

The current maximum penalties for other offences under the act are 20 penalty units. Misuse of guardianship or administrative orders can cause havoc to people's lives as well as enduring pain and suffering. This maximum penalty of 20 units is insultingly small.

There have been calls for offences for the abuse and dishonest use of guardianship or administration. Laws exist in other jurisdictions, and we hope and expect to see similar offences introduced by the Attorney-General in further tranches.

A further concern raised by stakeholders relates to the inadequacy of current representation and appeals at the TASCAT. We are very concerned that 96.4 per cent of people in the guardianship stream of TASCAT are being self-represented at the moment. Knowing about the failures of the guardianship and administration system, this is concerning for the 96.4 per cent of people who had to defend themselves against what is a system that is grossly wanting.

The proposal for an opt-out scheme for legal aid or advocacy services, in our view, has very high merit. We acknowledge the very serious concerns that people have about the ability of people to access documents for appeals at TASCAT. That has been documented and made available publicly and in submissions.

Navigating the realities of TASCAT proceedings has been a huge challenge for many people. We have heard personal moving accounts of people and we have also had different views about the reality of what occurs at TASCAT around several matters, including the availability of access to transcripts and recordings.

We have concerns about the limited time frame people have for requesting a statement of reasons. TASCAT provided us with some additional information on the basis of questions and correspondence we had with them and we understand from them that the automatic production of statements of reasons, in their view, would be onerous if it was for every single case they heard, but we also appreciate that people have been, and likely will continue to be, in circumstances where they did not think they would need to lodge an appeal but later on they determined that they wanted to.

That would obviously be the case if a person self-represented and upon speaking to other people at a time, probably not in the immediate days afterwards but in more likelihood in the weeks or even months afterwards, when the decision has settled and the enormity of the circumstance that brought them to TASCAT to make an appeal in the first place had passed and all the feelings around that, then they might wish to seek documentation, a statement of reasons, so they could consider their options in terms of mounting an appeal to the decision that had been made. In those circumstances, if they do not have a statement of reasons, it is very difficult for them to mount a credible appeal challenge. Potentially it is an insurmountable one.

We do not feel that we have the capacity to bring forward amendments to suitably address those issues but we urge the Government and the Attorney-General to seriously consider those concerns and propose constructive solutions, if not now, in further tranches of these reforms, particularly in relation to TASCAT's obligations. While the bill takes some positive steps forward in relation to emergency orders, we are strongly of the view that further improvements to tribunal operations are also essential.

Those are the main amendments we will be moving and we will talk more about them in the Committee stage of the bill. I want to conclude by thanking all the people who made very strong and moving submissions to this legislation. We have read them deeply and considered the range and complexity of their circumstances and we really hope that the amendments, if passed, will strengthen the bill and satisfy some of the substantial concerns that people have about the bill. Thank you to the people who have brought this bill here today. There are many people who are paid to do that and many Tasmanians who were not, and they spoke out. Their courage, their voice and their steadfastness, their continuation through years of not being heard and being disregarded, have borne some really positive fruit and it is thanks to them that we are here today.