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Guardianship and Administration and Other Acts Amendment Bill 2008
Guardianship and Administration and
Other Acts Amendment Bill 2008
Explanatory Notes
Objectives of the Bill
The objectives of this Bill are to -
· amend the Guardianship and Administration Act 2000 and the
Powers of Attorney Act 1998 to implement the recommendations
of the Queensland Law Reform Commission (QLRC) report,
Public Justice, Private Lives: A New Approach to Confidentiality
in the Guardianship System (the QLRC Report);
· amend the Guardianship and Administration Act 2000 to make
the Act more workable and efficient in operation;
· amend the Jury Act 1995 to provide that a judge may allow a jury
to separate, or an individual juror to separate from the jury, after
the jury has retired to consider its verdict; and
· amend the Status of Children Act 1978 to correct an anomaly in
provisions relating to in vitro fertilisation procedures for
unmarried women and married women who underwent such
procedures without the consent of their husband.
Reasons for the objectives of the Bill and how they will be
achieved
QLRC Report
The Guardianship and Administration Act 2000 (GAA) provides for the
appointment of guardians and administrators to manage personal and
financial affairs of adults with impaired decision-making capacity and
establishes the Guardianship and Administration Tribunal (the Tribunal),
Public Advocate, Community Visitor Program and Office of Adult
Guardian. The GAA operates in partnership with the Powers of Attorney
Act 1998, which governs powers of attorney, enduring powers of attorney
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Guardianship and Administration and Other Acts Amendment Bill 2008
and statutory health attorneys. Both Acts provide for the substitute decision
making regime for adults with impaired decision making capacity. This
regime was largely based on the recommendations of the Queensland Law
Reform Commission (QLRC) in its Report No 49, Assisted and Substituted
Decisions.
In October 2005, the then Attorney-General and Minister for Justice
referred to the QLRC:
(i) a review of the confidentiality provisions of the guardianship
legislation (Stage One); and
(ii) a broader review of the guardianship legislation (Stage Two).
The QLRC completed Stage One of the review by providing the QLRC
Report to the Queensland Government in July 2007. The QLRC Report
contains recommendations on the confidentiality provisions in the
guardianship legislation. The QLRC Report explores the need for balance
in the guardianship system between protecting the privacy of persons with
impaired capacity and promoting accountability and transparency in
decision-making. The recommendations in the QLRC Report are aimed at
achieving a balance between these interests by enhancing the focus on open
justice and procedural fairness.
The Bill implements the QLRC recommendations (with some minor
modifications) that relate to legislative reform. The Bill provides for greater
openness in the guardianship system that will promote accountability and
transparency and increase community confidence in the guardianship
system. Greater openness will also result in improved outcomes for adults
with impaired decision-making capacity through open and accountable
decision-making. The Bill achieves this by:
· replacing the current regime of `confidentiality orders' with four
new types of orders: adult evidence orders, closure orders,
non-publication orders and confidentiality orders (collectively
called `limitation orders');
· establishing a legislative presumption of openness and requiring
serious harm or injustice to be demonstrated before the Tribunal
may make a limitation order; and
· generally permitting publication of information about Tribunal
proceedings provided the publication does not lead to
identification of the adult.
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Guardianship and Administration and Other Acts Amendment Bill 2008
Under the proposed amendments, the Tribunal will have strict legislative
criteria to observe before making an order to withhold information or
documents from an active party, to exclude a person from a hearing or
withhold the publication of information about a Tribunal hearing. The
Tribunal may only make such an order if it is necessary to avoid serious
harm or injustice to a person. The result is that the threshold for making a
limitation order (formally known as a confidentiality order) is high and the
circumstances where a limitation order can be made are limited.
The Bill provides that when the Tribunal is considering making a limitation
order to protect the confidentiality of health information, it only needs to be
satisfied that the release of the information would result in a "significant
health detriment" to a person. This is a lower threshold test than that of
"serious harm" which applies for the release of non-health related
information. This lower threshold recognises the special characteristics of
health information and that this type of information requires a different
standard of treatment when the Tribunal is considering making a limitation
order.
The Bill strengthens an active party's right to participate in hearings and be
accorded procedural fairness through the clearly defined legislative criteria
to guide the decisions of the Tribunal to make a limitation order. There are
requirements for the Tribunal to provide its decision and reasons to any
party who is aggrieved by the decision to make a limitation order. The
presumption that all hearings should be open to the public and that an
active party has a right to all documents or information that are credible,
relevant and significant, together with the above recommendations support
a more open and transparent guardianship system.
The only QLRC recommendation that has not been implemented in the Bill
is Recommendation 4-19. This recommendation proposes the Public
Advocate act in the role similar to that of a `contradictor' in limitation
order proceedings (excluding adult evidence orders) to provide
submissions to the Tribunal and act as a safeguard to ensure that the
Tribunal only makes orders in accordance with the new confidentiality
provisions. The Queensland Government decided not to implement this
recommendation because:
· this is a move towards intervention in individual cases and could
draw the Public Advocate away from its core role of systems
advocacy;
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Guardianship and Administration and Other Acts Amendment Bill 2008
· the suite of other safeguards to be implemented will result in
increased openness and transparency in the guardianship system;
and
· the Public Advocate will retain the right the Public Advocate
currently has to intervene in proceedings where the Public
Advocate believes there are systemic issues.
As an alternative, the Bill provides that the Public Advocate is to be
provided with all information available to the Tribunal when considering
making a limitation order, including any information or documents that are
being considered as the subject of the confidentiality order and a copy of
the Tribunal's decision and reasons. The Public Advocate will be able to
report on any systemic issues based on the information provided by the
Tribunal. This is more consistent with the systemic advocacy functions of
the Public Advocate.
Other GAA Amendments
The two other amendments included in this Bill assist to achieve better
workability of the GAA. The amendment to section 20 of GAA will clarify
that a management plan referred to in that section relates only to financial
matters so as to avoid administrators including irrelevant personal
information in a financial management plan to be provided to the Tribunal.
The Bill includes a new section 138AA in the GAA to provide that the
Tribunal may make a binding direction to a former attorney whose
authority to act as an attorney has ended. This provision is similar to
section 32B that provides for the making of binding directions by the
Tribunal to former guardians and administrators. This new section enables
the Tribunal to make a direction to a former attorney to provide information
about past decisions so that appropriate orders or actions can be taken to
protect the interests of that adult.
Amendments to Jury Act 1995
Currently, the Jury Act 1995 provides that after a jury in a criminal trial has
been sworn, the jurors must not separate (i.e. must remain together) until
they have given a verdict or have been discharged by the judge. The
exceptions to this requirement are that a judge must allow the jurors to
separate during a lunch or dinner adjournment to obtain meals and a judge
may allow the jury to separate before retiring to consider its verdict during
an adjournment of the court or while proceedings are held in the jury's
absence unless the judge considers allowing the jury to separate may
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Guardianship and Administration and Other Acts Amendment Bill 2008
prejudice a fair trial. Section 55(2) of the Act provides that, while a jury is
kept together outside court, the jurors must be provided with
accommodation, meals and refreshments as the judge directs.
The requirement for juries to be kept together while considering a verdict
can create difficulties for courts and inconvenience jurors. A number of
problems have been experienced in circumstances where suitable
accommodation for jurors is not readily available. This situation often
arises because jury deliberations do not start until late and major sporting
or other events have resulted in a lack of accommodation. In most other
jurisdictions in Australia, the court or a judge may allow a jury to separate
in criminal proceedings after it retires to consider its verdict.
To address these difficulties and recognising the family and personal
commitments of jurors, the amendment included in this Bill to the Jury Act
will give a trial judge discretion to allow a jury to separate, or an individual
juror to separate from the jury, after the jury has retired to consider its
verdict provided this would not prejudice a fair trial. If a judge decides to
exercise this discretion, there will also be provision for the judge to impose
conditions on a juror or jurors.
Amendments to Status of Children Act 1978
The purpose of the Status of Children Act 1978 (SCA) is to protect children
by conferring parental status on adults to enable them to exercise the
powers and responsibilities of parents under statute and common law to
care for their children.
The SCA creates parentage presumptions for the married mother of a child
born as a result of artificial insemination or a procedure where an embryo
fertilised outside her body is implanted in her womb (in vitro fertilisation).
The SCA also creates presumptions of law for the mother's husband or
male de facto partner. The donor of semen or ovum is presumed to not have
produced the semen or ovum and not to be the father or mother of the child
born as the result of such a procedure.
However, where an in vitro fertilisation procedure is performed on an
unmarried woman (a single woman or woman in a same sex relationship)
or a married woman without the consent of her husband, the donor of
semen or ovum is not excluded from any responsibilities or rights in
relation to a child born as the result of such a procedure.
This unintended anomaly creates uncertainty for the status of children born
as a result of such procedures and the rights and liabilities of donors of
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Guardianship and Administration and Other Acts Amendment Bill 2008
semen or ovum. The Bill addresses this anomaly by clarifying the
parentage status of children and the parentage status and rights and
liabilities of donors.
Estimated Cost for Government Implementation
The costs associated with the implementation of the Bill will be met within
existing resources.
Consistency with Fundamental Legislative Principles
Amendments to the GAA
The amendments to the GAA in the Bill do not breach any fundamental
legislative principles.
However, confidentiality provisions in legislation will require the balancing
of the need to provide for accountability and transparency in
decision-making against the privacy rights of a person.
Stage One of the guardianship review was guided by: the principle of open
justice; the requirements of procedural fairness and the protective nature of
the guardianship system. The QLRC formed the view that greater openness
would result in an increase in public confidence by bringing more
accountability and transparency to decision-making processes and increase
public awareness of the role of the guardianship system. Although there is
now greater openness in the guardianship system, the Bill maintains
appropriate protection of a person's confidential information, including
prohibitions against publication of certain information and the ability of the
Tribunal to make limitation orders.
Also, the Bill inserts a new provision, section 138AA into the GAA that
allows the Tribunal to make a direction, which is binding upon a former
attorney after the appointment of the attorney has ended. There are no time
limits on when the binding direction can be made upon a former attorney.
Section 138AA will apply to a former attorney whose appointment ended
prior to the commencement of this section. This will impose a retrospective
obligation on a former attorney whose appointment ended prior to the
commencement of this section, but the hearing is held and the binding
direction is made after the commencement of this section.
The retrospective operation of section 138AA is justified. A person who
has accepted an appointment to act as an attorney (whether before or after
this section commenced) is under stringent and onerous responsibilities
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Guardianship and Administration and Other Acts Amendment Bill 2008
and duties and must act in the best interests of the adult. For example, in
circumstances where the adult with impaired capacity has been neglected,
abused or exploited by the former attorney, the Tribunal may wish to issue
a direction to the former attorney for the provision of information or other
matters considered necessary to protect the interests of the adult. An
attorney who has used his or her position to gain a benefit to the detriment
of the adult should be held accountable for such actions, irrespective of
when the abuse occurred or how long the appointment has ended. If there is
no authority for the Tribunal to make the former attorney provide the
information, the attorney may be able to avoid any legal responsibility for
their actions to the detriment of the adult with impaired capacity.
Amendments to the Status of Children Act 1978
The proposed amendments to the Status of Children Act 1978 amendment
will be made retrospectively to clarify the rights and liabilities of donors
and the parentage status of children born as a result of fertilisation
procedures.
Ensuring the retrospective operation of the provision is important for the
clear parentage and identity of a child born in these circumstances.
Retrospectivity will also ensure that ongoing legal relationships are not
unintentionally created between the mother and the donor/s and the child
and the donor/s.
Amendments to the Jury Act 1995
The amendments to the Jury Act 1995 are consistent with fundamental
legislative principles.
Consultation
The Guardianship and Administration Tribunal, the Adult Guardian, the
Public Advocate, the Commissioner for Children and Young People, Legal
Aid Queensland, the QLRC and the Pubic Trustee have been consulted on
the proposed amendments to the Guardianship and Administration Act
2000.
The Chief Justice of Queensland, the Chief Judge of the District Court, the
Chief Magistrate, the Director of Public Prosecutions, Legal Aid
Queensland, Queensland Law Society and Bar Association of Queensland
have been consulted on the proposed amendment to the Jury Act 1995.
The Queensland Fertility Group was consulted on the proposed amendment
to the Status of Children Act 1978.
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Guardianship and Administration and Other Acts Amendment Bill 2008
Is the Bill substantially uniform or complementary with
Commonwealth or another State's legislation
The Guardianship and Administration Act 2000 and the Jury Act 1995 are
not Acts that are uniform or complementary with Commonwealth or
another State's legislation.
The Status of Children Act 1978 and similar legislation in other States and
Territories was introduced in the 1970s to remove discrimination against
children based on the marital status of their parents and to provide legal
certainty about the parentage of children.
With the development of assisted reproductive technologies, amendments
were made to legislation containing the parentage presumptions in most
States and Territories in the 1990s to clarify the status of parents, children
and donors. This occurred in 1988 in Queensland following the passage of
the Status of Children Act Amendment Act 1988.
Since this time, most States and Territories have passed amendments to
legislation providing for the status of children conceived using donor
material.
Notes on Provisions
Part 1 Preliminary
Clause 1 sets out the short title of the Act to be the Guardianship and
Administration and Other Acts Amendment Act 2008.
Clause 2 sets out the commencement date for Parts 1, 2 and 3 as a day to be
fixed by proclamation and the commencement date for Parts 4 and 5 is on
assent.
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Guardianship and Administration and Other Acts Amendment Bill 2008
Part 2 Amendment of Guardianship and
Administration Act 2000
Clause 3 states that this part amends the Guardianship and Administration
Act 2000 (GAA).
Clause 4 amends section 20 to clarify that a management plan prepared by
an administrator under this section relates only to financial information.
Clarification to this effect will avoid administrators providing irrelevant or
personal information in a management plan that is provided to the Tribunal.
Clause 5 amends section 80A. Section 80A is the definition section for
chapter 5A (Consent to sterilisation of child with impairment). The phrase
`confidentiality order' is omitted from the list of definitions for the
purposes of chapter 5A, as the Bill provides for a new regime for
confidentiality orders. These types of orders are now described as
limitation orders and they are defined in the new section 99B.
Clause 6 amends section 80E by replacing the reference to section 109 with
section 109B and removing the reference to section 158. Section 80E
describes which of the provisions of chapter 7 apply in relation to chapter
5A. The amendments in this Bill to provide for the new regime for
confidentiality provisions will now apply to chapter 5A. The reference to
section 109 is no longer relevant as this Bill creates a new section 109. The
new section 109B provides for a new type of confidentiality order called an
`adult evidence order' and this section is not relevant to chapter 5A
proceedings. Section 158 will now apply to chapter 5A so the reference to
section 158 that says that section 158 does not apply, should be omitted.
Clause 7 provides that section 80G and chapter 5A part 3, division 4 are
omitted. Section 80G provides for the making of confidentiality orders in
chapter 5A proceedings. The provisions in chapter 5A, part 3, division 4
describe how and to whom the Tribunal will provide their decision and
reasons. As the confidentiality provisions in the GAA will now apply to
chapter 5A proceedings, the sections omitted by this clause are no longer
required.
Clause 8 amends section 98 to include a provision that the Tribunal must
also include in their annual report details and type of limitation orders
made by the Tribunal during that year. The new sub-section 98(1)(a)(ii) is
included in this amendment because Clause 24 of the Disability Services
and Other Legislation Amendment Act 2008 passed on 30 April 2008 also
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Guardianship and Administration and Other Acts Amendment Bill 2008
amended section 98 to include a requirement for details of orders made
under the new Chapter 5B (Restrictive practices) be taken into account.
Clause 9 inserts a new section 99A (Definitions for part 1) and section 99B
(Types of limitation order).
The new section 99A (Definitions for part 1) provides for the definition of
"health information', `significant health detriment' and `document' for the
purposes of chapter 7, part 1 (Tribunal proceedings). The terms `health
information' and `significant health detriment' apply where an application
for a limitation order is made and it relates to `health information' for a
person. In relation to these applications `serious harm' to the person
includes a `significant health detriment'. A `significant health detriment' to
a person means significant identifiable detriment to any of the following:
the person's physical or mental health or wellbeing; the person's health
care or the person's relationship with a health provider (including the
person's willingness to fully disclose relevant information to the health
provider).
The word `document' for the purposes of part 1 includes a photograph,
drawing, model or other object.
The new section 99B (Types of limitation order) describes the new types of
limitation orders that can be made by the Tribunal. The types of limitation
orders that may be made by the Tribunal are: an adult evidence order; a
closure order; a non-publication order and a confidentiality order. These
orders are described in the new sections 109B, 109C, 109D and 109E
respectively.
Clause 10 amends sections 108 and section 109 by omitting both these
sections and replacing these sections with new sections 108 to 109I.
The new section 108 (Procedural fairness and access) provides that the
Tribunal must observe the rules of procedural fairness and describes the
rights of an active party to access documents or information before the
Tribunal and to be given a reasonable opportunity to present their case.
This section does not prevent the Tribunal from making a confidentiality
order under the new section 109E that will displace the active party's right
to access a document or other information.
The new section 109 (Open) provides that a hearing by the Tribunal of a
proceeding must be in public. However, the Tribunal may make an adult
evidence order or a closure order under the new sections 109B and 109C
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Guardianship and Administration and Other Acts Amendment Bill 2008
respectively that will override the requirement that the hearing must be in
public.
The new section 109A (Basis of consideration for limitation order) sets out
the criteria the Tribunal must take as the basis of its consideration before a
limitation order is made.
The new section 109B (Adult evidence order) provides the authority for the
Tribunal to make an adult evidence order. An adult evidence order will
allow the Tribunal to obtain relevant information that the Tribunal would
not otherwise receive from the adult in the proceeding in the absence of
anyone else, including for example a member of the public or a particular
person, including an active party. The Tribunal may make an adult evidence
order only if satisfied it is necessary to avoid serious harm or injustice to a
person or to obtain relevant information the Tribunal would not otherwise
receive. If the relevant information is `health information' about a person,
serious harm to a person includes `significant health detriment' to the
person. This section also creates an offence if a person contravenes an adult
evidence order and provides for a maximum penalty of 200 penalty units.
The new section 109C (Closure order) provides the authority for the
Tribunal to make a closure order. A closure order will allow the Tribunal to
close a hearing or part of a hearing to all or some members of the public
and/or to exclude a particular person, including an active party, from a
hearing or part of a hearing. The Tribunal may make a closure order only if
satisfied it is necessary to avoid serious harm or injustice to a person and
only to the extent that it is necessary. If the hearing or part of the hearing
concerns `health information' about a person, serious harm to a person
includes `significant health detriment'. This section also creates an offence
if a person contravenes a closure order and provides for a maximum
penalty of 200 penalty units.
The new section 109D (Non-publication order) provides the authority for
the Tribunal to make a non-publication order. A non-publication order will
allow the Tribunal to prohibit the publication of information about a
Tribunal proceeding, the publication of which is not prohibited by the new
section 112. The Tribunal may make a non-publication order only if the
Tribunal is satisfied it is necessary to avoid serious harm or injustice to a
person and only to the extent that it is necessary. If the publication of
information concerns `health information' about a person, serious harm to
a person includes `significant health detriment'.
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Guardianship and Administration and Other Acts Amendment Bill 2008
In the circumstances where the information relates to health information
about a person, an application can be made to the Tribunal for a
non-publication order by an interested person for the person to whom that
information relates. An interested person is defined in schedule 4 to mean a
person who has a sufficient and continuing interest in the other person. If
the application relates to health information about a person, the application
can be made to the Tribunal even after the person has died. Also, if a
non-publication order that relates to health information about a person is
made before the person's death, the death of the person does not affect the
order.
This section also creates an offence if a person contravenes a
non-publication order and provides for a maximum penalty of 200 penalty
units.
The new section 109E (Confidentiality order) provides the authority for the
Tribunal to make a confidentiality order. A confidentiality order will allow
the Tribunal to withhold from an active party or other person a document, a
part of a document or other information that is before the Tribunal. The
Tribunal may make a non-publication order only if the Tribunal is satisfied
it is necessary to avoid serious harm or injustice to a person and only to the
extent that it is necessary. If the document or other information concerns
`health information' about a person, serious harm to a person includes
`significant health detriment'. This section also creates an offence if a
person contravenes a confidentiality order and provides for a maximum
penalty of 200 penalty units.
The new section 109F (Non-publication or confidentiality order made
before hearing) allows the Tribunal to make a non-publication order or a
confidentiality order before a hearing of the proceeding starts. However,
the order will be vacated at the start of the hearing to allow a party who
may be affected by the making of the non-publication order or
confidentiality order, to appear before the Tribunal and make submissions
about the making of the limitation order. If a non-publication order or
confidentiality order is made before a hearing of the proceeding starts,
sections 109G and 109I do not apply to that order.
The new section 109G (Standing for limitation order) provides that any
party that would be adversely affected by a proposed limitation order has
standing to be heard in relation to the making of the limitation order. This
section also provides that an active party or any entity affected by a
limitation order may appeal the Tribunal decision to make the order to the
court.
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Guardianship and Administration and Other Acts Amendment Bill 2008
The new section 109H (Making and notifying decision for limitation order)
provides that as soon as practicable after hearing any submissions about the
making of a limitation order, the Tribunal must give its decision and then
after making its decision, notify and give a copy of the decision to: the
adult; another active party in the proceeding; each entity heard in relation
to the order and the Public Advocate. This section also allows any other
person who requests a copy of the decision to be given a copy of the
decision, provided that the copy of the decision does not contravene section
112 (that is, the decision must not contain any information that is likely to
lead to the identification of the adult by a member of the public or by a
member of a section of the public to whom the information is published).
Section 109H also provides that within 28 days of making its decision
about a limitation order, the Tribunal must give to the Public Advocate all
the information and relevant documents the Tribunal has considered in the
making of the limitation order, including the document or other
information being considered as the subject of the confidentiality order.
The new section 109I (Written reasons for limitation order and copy of
reasons) applies when the Tribunal decides to make a limitation order.
Other than for an adult evidence order, the Tribunal must give written
reasons for its decision to make a limitation order. The Tribunal may give
written reasons for its decision to make an adult evidence order. The
Tribunal must give a copy of its written reasons within 28 days of making
the decision to: the adult; each other active party; each entity heard in
relation to the order and the Public Advocate. This section also allows any
other person who requests a copy of the written reasons to be given a copy
of the written reasons, provided that the copy of the written reasons does
not contravene section 112 (that is, the written reasons must not contain
any information that is likely to lead to the identification of the adult by a
member of the public or by a member of a section of the public to whom
the information is published).
Clause 11 provides for the replacement of section 112 with a new section
112. The new section 112 describes when information about a Tribunal
proceeding may be published. A non-publication order made under the
provisions of section 109D may override the provisions of this section that
allows the publication of certain information. The new section 112
provides that generally information about a guardianship proceeding may
be published. However, this section further provides that a person must not,
without a reasonable excuse, publish information about a guardianship
proceeding to the public or a section of the public if the publication is
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Guardianship and Administration and Other Acts Amendment Bill 2008
likely to lead to the identification of the adult by a member of the public or
by a member of a section of the public to whom the information is
published. There is a maximum penalty of 200 penalty units for a breach of
this section.
However, there are exceptions to the prohibition on the publication of
information as provided for in section 112(2) above. Firstly, if there has
been a publication of information in contravention of the GAA, the Adult
Guardian or Public Advocate are permitted, if they consider it necessary in
the public interest, to publish information in response to that prohibited
publication. Also, if the adult the subject of the proceedings has died,
information about the Tribunal proceeding may be published (apart from
any health information that has been made subject of a non-publication
order under section 109D(6)). Lastly, a court or the Tribunal may make an
order that information that is otherwise prohibited from publication under
this section may be published, if it is in the public interest or the interests of
the adult.
Clause 12 amends section 138. Section 138 describes when the Tribunal
may give or make advice, directions or recommendations to various parties
involved in Tribunal proceedings. A note will be included after section
138(1) about section 143(d) that provides for an offence for a person to
disobey a lawful order or direction of the Tribunal. Also, section 138(5) is
to be omitted. This section provides that a guardian, administrator or
attorney must comply with a direction given by the Tribunal unless that
person has a reasonable excuse. Given section 143(d) provides for the same
offence, section 138(5) is not necessary.
Clause 13 inserts a new section 138AA (Directions to former attorney).
Section 138AA provides the Tribunal with the authority to make a binding
direction to an attorney whose authority to act as an attorney has ended (a
former attorney). The direction must only be necessary because of the
ending of the former attorney's power and relate to the matter or matters
the subject of the appointment. This provision is similar to section 32B of
the GAA that relates to binding directions issued to former guardians and
administrators. This new section will ensure that in situations where past
abuse or exploitation of an adult by an attorney has occurred, the Tribunal
may make a direction to the former attorney so that appropriate actions can
be taken to protect the interests of that adult.
Clause 14 inserts a new section 143A (Exclusion of disruptive person from
tribunal). The Tribunal is authorised to exclude a disruptive person from a
hearing and may authorise the Tribunal's staff to use necessary and
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Guardianship and Administration and Other Acts Amendment Bill 2008
reasonable help and force to remove the disruptive person. The order of the
Tribunal made under this section is taken to be an authorising law for the
purposes of section 16 of the Police Powers and Responsibilities Act 2000,
that will allow a police officer to help the Tribunal staff to remove a
disruptive person from the Tribunal hearing.
Clause 15 provides for the replacement of sections 156, 157 and 158 with
new sections 156, 157, 158 and 158A.
The new section 156 (Making and notifying decision) does not apply to the
making of a limitation order. The Tribunal must make its decision within a
reasonable time after the matter is heard and as soon as practicable after
making its decision must notify and give a copy of its decision to the adult,
another active party in the proceeding and another person who was given
notice of the hearing (under section 118). This section also allows any other
person who requests a copy of the decision to be given a copy of the
decision, provided that the copy of the decision does not contravene section
112 (that is, the decision must not contain any information that is likely to
lead to the identification of the adult by a member of the public or by a
member of a section of the public to whom the information is published).
This section also provides that the copy of the decision that is provided
must include a notice that states that if the person is aggrieved by the
decision, they may obtain written reasons by making a written request
within 28 days after the person is given the notice.
The new section 157 (Order postponing giving copy of decision) allows the
Tribunal to make a postponement order. A postponement order will allow
the Tribunal to postpone the notifying and giving a copy of its decision to a
person under section 156, if the Tribunal is satisfied on reasonable grounds
that the delay is necessary to avoid serious harm to a person or avoid the
effect of the order being defeated. The maximum period the order may be
postponed from being notified and given to a person is 14 days. However,
this postponement order may be renewed but only if there are exceptional
circumstances justifying the renewal. An exceptional circumstance may be
where the adult is an acute mental state and receipt of the decision may
result in a decline in the adult's mental state.
The new section 158 (Written reasons for decision) does not apply to the
making of a limitation order. Section 158 provides that if directed by the
President of the Tribunal to give written reasons for the decision, the
Tribunal must give written reasons for the decision within 28 days after the
later of either the day the decision was made or the day the direction was
given. A person aggrieved by a decision may also request the Tribunal to
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Guardianship and Administration and Other Acts Amendment Bill 2008
provide written reasons (see section 156(6)) and the Tribunal must provide
written reasons to the aggrieved person within 28 days after receiving the
request.
The new section 158A (Copy of reasons to be given) does not apply to the
making of a limitation order. Section 158A describes to whom the Tribunal
gives its written reasons and includes the adult concerned in the matter and
each other active party in the proceeding. (Section 119 describes who is an
active party for a proceeding). This section also allows any other person
who requests a copy of the written reasons to be given a copy of the written
reasons, provided that the copy of the written reasons does not contravene
section 112 (that is, the written reasons must not contain any information
that is likely to lead to the identification of the adult by a member of the
public or by a member of a section of the public to whom the information is
published).
Clause 16 amends section 164. Section 164 describes who may appeal
against a Tribunal decision and they are known as an `eligible person'. This
amendment adds a further category to the list of who is an eligible person
that may appeal against a Tribunal decision. This additional category is a
party or entity who is entitled to appeal under section 109G(2) in relation to
the making of a limitation order.
Clause 17 amends section 164A to include a further subsection that
describes when the notice of appeal may be filed when a postponement
order is made under section 157. When the Tribunal has made a
postponement order, the notice of appeal may be filed within 28 days after
the later of: the last day of the specified period or periods or the date of the
written reasons for the Tribunal's decision.
Clause 18 provides for the replacement of section 193 (Report after
investigation or audit) with a new section 193 and section 193A.
The new section 193 (Report after investigation or audit) provides that after
the Adult Guardian has carried out an investigation or audit in relation to an
adult, the Adult Guardian must prepare a written report and give a copy of
the written report to any person who requested the investigation or audit
and to every attorney, guardian or administrator for the adult. The Adult
Guardian must also allow an interested person to inspect a copy of the
report and obtain a copy (at the interested person's own expense). An
interested person is defined in schedule 4. The Adult Guardian may also, if
the Adult Guardian considers it appropriate, remove information from a
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copy of the report that is to be given, provided or inspected if that
information is likely to result in a person's identification.
The new section 193A (Prohibited use of report after investigation or audit)
provides that a person who has accessed a copy of an investigation report
by the Adult Guardian must not (except if there is a reasonable excuse)
publish information contained in the report to the public or section of the
public, if the publication is likely to result in the identification of a person
(whose identifying information has been removed by the Adult Guardian in
that report) by a member of the public or by a member of the section of the
public to whom the information is published. This section creates an
offence if a person contravenes this section and provides for a maximum
penalty of 200 penalty units. This section does not apply to persons to
whom section 249 (Protected use of confidential information) applies and
to an attorney. Section 249 describes the duty of confidentiality for certain
persons, such as guardians or administrators. Section 74 of the Powers of
Attorney Act 1998 describes the duty of confidentiality for an attorney.
Clause 19 amends section 246 that provides for the definitions to be used in
part 4 of Chapter 11. Part 4 of chapter 11 provides for the protection from
liability and dealing with information under the GAA. Section 246 includes
further definitions such as: `commission', `confidential information',
`consultant', `relevant person', `relevant tribunal person', `substituted
decision-making review' and `use'.
Clause 20 provides for the replacement of sections 249 and 250 with the
new sections 249, 249A and 250.
The new section 249 (Protected use of confidential information) describes
the obligations of a `relevant person' (as defined in section 246) for the use
or disclosure of confidential information (also defined in section 246). A
relevant person is only permitted to use the confidential information for the
purposes of this Act or as provided for under section 249(3).
The new section 249A (Prohibited use of confidential information)
provides that a relevant person (as defined in section 246) must not use
confidential information (also defined in section 246) that is gained
because of being a relevant person, or because of an opportunity being
given by being a relevant person, other than for the purposes of the GAA or
as provided for in section 249(3), unless the person has a reasonable
excuse. The maximum penalty for a contravention of this section is 200
penalty points.
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Guardianship and Administration and Other Acts Amendment Bill 2008
The new section 250 (Disclosure of information about investigations)
provides the authority of the Adult Guardian to disclose information about
an investigation to the public or section or the public about an issue the
subject of an investigation by the Adult Guardian, if the Adult Guardian is
satisfied the disclosure is in the public interest. When determining whether
it is in the public interest to disclose information under this section, the
Adult Guardian must have regard to any likely prejudice to the
investigation, any need to protect the identity of a complainant or other
entity and any other circumstance of urgency. Also, if the information
contains any adverse statements about the entity that would normally
require the entity be given an opportunity to comment upon those adverse
statements, the Adult Guardian must have regard to this but may decide to
publish the adverse statement/s without giving the entity an opportunity to
comment upon the adverse statement/s, if the disclosure of the adverse
statement/s is necessary and reasonable in the public interest.
Clause 21 inserts a new section 267 (Directions to former attorney) that
provides for the transitional operation of the new section 138AA included
in this Bill. This section provides that section 138AA also applies in
relation to a person whose appointment as attorney for a matter ended
before the commencement of this section. This section will allow for the
retrospective operation of section 138AA, so that when the appointment of
an attorney ends prior to the commencement of section 138AA, the
Tribunal may make a binding direction to that former attorney under
section 138AA.
Clause 22 amends Schedule 4 (Dictionary) to include the new definitions
used in this Bill. These new definitions include: `adult for chapter 7
proceedings', `adult evidence order', `closure order', `confidentiality
order', `document', `guardianship proceeding', `health information'.
`limitation order', `non-publication order', `power of attorney' and
`significant health detriment'. The definition of `forensic examination' is
also amended as a consequence of the amendment to the Police Powers and
Responsibilities Act 2000. The definition of `management plan' is also
amended as a consequence of the amendment to section 20 of the GAA.
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Guardianship and Administration and Other Acts Amendment Bill 2008
Part 3 Amendment of Powers of
Attorney Act 1998
Clause 23 states that this part amends the Powers of Attorney Act 1998
(POA).
Clause 24 provides for the replacement of section 74 with the new sections
74 and 74A.
The new section 74 (Protected use of confidential information) describes
the obligations of an attorney or statutory health attorney for the use or
disclosure of confidential information. Confidential information is defined
in section 74(4). An attorney or statutory health attorney who gains
confidential information because of being an attorney or statutory health
attorney, or because of an opportunity being given by being an attorney or
statutory health attorney is only permitted to use the confidential
information for the purposes of the POA or as provided for under section
74(3).
The new section 74A (Prohibited use of confidential information) provides
that an attorney or statutory health attorney must not use confidential
information (defined in section 74(4)) that is gained because of being an
attorney or statutory health attorney, or because of an opportunity being
given by being an attorney or statutory health attorney unless the person
has a reasonable excuse. The maximum penalty for a contravention of this
section is 200 penalty points.
Part 4 Amendment of Jury Act 1995
Clause 25 states that this part amends the Jury Act 1995.
Clause 26 replaces section 53 of the Jury Act 1995. The new section 53
continues to include a general provision prohibiting a jury in a criminal
trial from separating after it has been sworn in until it has given its verdict
or been discharged by the judge. A trial judge will continue to have power
to allow the jury to separate during an adjournment or while proceedings
are held in their absence and be required to allow the jury to separate
during a lunch or dinner adjournment to obtain meals.
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Guardianship and Administration and Other Acts Amendment Bill 2008
Section 53 also includes a new provision in subsection 5 which gives
discretion to a trial judge, after a jury has retired to consider its verdict, to
allow the jury to separate, or an individual juror to separate from the jury, if
the judge considers that allowing the jury or juror to separate would not
prejudice a fair trial. The trial judge also has power to impose conditions on
the jury or juror in such circumstances and it is an offence for a juror not to
comply with any conditions imposed.
If a juror separates from the rest of the jury in contravention of section 53
the validity of proceedings is not affected although the juror may be
punished summarily for contempt of court. The judge can also discharge
the jury if the judge considers that the contravention would prejudice a fair
trial if the contravention is discovered before the verdict is given.
Clause 27 inserts a new section 78 in the Act. This new section is a
transitional provision for section 53. It provides that sections 53(5) and (6),
which give a judge discretion to allow a jury to separate after retiring to
consider its verdict and power to impose conditions on jurors in such
circumstances, only apply where the jury retires on or after commencement
of the new section 53.
Part 5 Status of Children Act 1978
Clause 28 states that this part amends the Status of Children Act 1998.
Clause 29 makes amendments to section 14 to clarify the retrospective
operation of the parentage of children provisions in certain situations.
Section 14(1) is amended to make the provisions of division 2, subdivision
2 (Fertilisation procedures - married women with consent) and section 18
(Artificial insemination) apply to pregnancies and children referred to in
sections 15, 16, 17 or 18, regardless of whether the pregnancy or birth
occurred before or after the passing of the Status of Children Act
Amendment Act 1988.
Section 14(2) is amended to clarify that nothing in any provision of
division 2, subdivision 2 (Fertilisation procedures - married women with
consent) or section 18 (Artificial insemination) affects the vesting in
possession or in interest of any property that occurred before the passing of
the Status of Children Act Amendment Act 1988.
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Guardianship and Administration and Other Acts Amendment Bill 2008
A new section 14(2A) is inserted. This subsection provides that the
provisions of division 2, subdivision 3 (other than section 18) apply:
· in relation to a pregnancy mentioned in section 18AA or 18AB,
whether the pregnancy happened before or after the
commencement of the Guardianship and Administration and
Other Acts Amendment Act 2008, part 5, whether or not it
resulted from a procedure carried out in Queensland; and
· in relation to any child born as a result of any pregnancy
mentioned in section 18AA or 18AB, whether or not the child
was born before or after the Guardianship and Administration
and Other Acts Amendment Act 2008, part 5.
A new section 14(2B) is also inserted. It provides that nothing in
subdivision 2, subdivision 3 (other than section 18) affects the vesting in
possession or in interest of any property that occurred before the passing of
the Guardianship and Administration and Other Acts Amendment Act
2008, part 5.
Clause 30 inserts a new subdivision 1 and heading, "Subdivision 1
Interpretation".
Clause 31 inserts a new subdivision 2 and heading, "Subdivision 2
Fertilisation procedures - married women with husband's consent", and a
new section 14B. The new section 14B provides that the subdivision
applies if a married woman undergoes a fertilisation procedure with the
consent of her husband.
The creation of these new subdivisions 1 and 2 (together with subdivision 3
created by Clause 35) make it simpler to ascertain the different
presumptions and rights and liabilities pertaining to the different
circumstances in which a child may be born.
Clause 32 omits the words, "in accordance with the consent of her
husband" from section 15(2).
Clause 33 omits the words "in accordance with the consent of her husband"
from section 16(2).
Clause 34 omits the words "in accordance with the consent of her husband"
from section 17(2).
Clause 35 inserts after section 17, a new subdivision 3 and heading,
"Subdivision 3 Fertilisation procedures - other married women and
unmarried women" and creates a new section, section 17A.
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Guardianship and Administration and Other Acts Amendment Bill 2008
The new section 17A provides that subdivision 3 applies if a woman who is
not married undergoes a fertilisation procedure or a married woman,
without the consent of her husband, undergoes a fertilisation procedure.
Clause 36 amends section 18 by replacing the heading with a new heading,
"Artificial insemination" and, as the new section 17A clarifies the
application of the section, removes reference to a woman who is not
married or who is married but undergoes the procedure without her
husband's consent. It also clarifies a reference to the man who produced the
semen in section 18(2).
Clause 37 inserts new sections, section 18AA and 18AB.
The new section 18AA refers to procedures where fertilisation is by the
implanting in the womb of a woman an embryo derived from her ovum and
fertilised outside her body by semen produced by a man who is not her
husband.
If a woman becomes pregnant by such a procedure, the section states:
· that the man who produced the semen has no rights and liabilities
in relation to any child born unless, at any, time he becomes the
husband of the child's mother;
· if the man becomes the husband of the child's mother, his rights
and liabilities are the rights and liabilities of a father of a child,
but unless there is agreement to the contrary, are restricted to the
rights and liabilities that arise after the man becomes the
mother's husband.
The new section 18AB refers to procedures where fertilisation is by the
implanting in the woman of a woman an embryo derived from an ovum
produced by another woman and fertilised by semen produced by a man
who is not the first mentioned woman's husband.
If a woman becomes pregnant by such a procedure, the following
presumptions of law are made irrebuttable:
· the woman who underwent the procedure is presumed to have
produced the ovum and to be the mother of any child born;
· the woman who produced the ovum used in the procedure is
presumed not to be the mother of any child born.
Further, if a woman becomes pregnant by such a procedure, the section
states:
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Guardianship and Administration and Other Acts Amendment Bill 2008
· that the man who produced the semen has no rights and liabilities
in relation to any child born unless, at any, time he becomes the
husband of the child's mother;
· if the man becomes the husband of the child's mother, his rights
and liabilities are the rights and liabilities of a father of a child,
but unless there is agreement to the contrary, are restricted to the
rights and liabilities that arise after the man becomes the
mother's husband.
© State of Queensland 2008
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