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TASMANIA
__________
JUSTICE MISCELLANEOUS (ADVANCE CARE
DIRECTIVES) BILL 2022
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
PART 2 - GUARDIANSHIP AND ADMINISTRATION AMENDMENT
(ADVANCE CARE DIRECTIVES) ACT 2021 AMENDED
3. Principal Act
4. Section 2 amended (Commencement)
5. Section 5 amended (Section 3 amended (Interpretation))
6. Section 8 repealed
7. Section 13 amended (Section 31 amended (Advice or directions
as to guardianship orders))
8. Section 15 amended (Part 5A inserted)
9. Section 19 substituted
19. Section 45 amended (Consent of Board)
10. Sections 20 and 21 repealed
11. Section 22 substituted
22. Section 78 inserted
12. Section 23 substituted
23. Section 85 inserted
[Bill 41]-XI
13. Section 25 amended (Section 89 amended (Duty to keep
register))
14. Section 26 amended (Section 90 amended (Regulations))
PART 3 - TASMANIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ACT 2020 AMENDED
15. Principal Act
16. Schedule 3 amended (Protective Division)
PART 4 - CONCLUDING PROVISION
17. Repeal of Act
2
JUSTICE MISCELLANEOUS (ADVANCE CARE
DIRECTIVES) BILL 2022
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
SHANE DONNELLY, Clerk of the House
29 September 2022
(Brought in by the Minister for Justice, the Honourable Elise
Nicole Archer)
A BILL FOR
An Act to amend the Guardianship and Administration
Amendment (Advance Care Directives) Act 2021 and the
Tasmanian Civil and Administrative Tribunal Act 2020
Be it enacted by Her Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Justice
Miscellaneous (Advance Care Directives) Act
2022.
2. Commencement
(1) Except as provided by this section, this Act
commences on the day on which this Act
receives the Royal Assent.
[Bill 41] 3
Justice Miscellaneous (Advance Care Directives) Act 2022
Act No. of 2022
s. 2 Part 1 - Preliminary
(2) Part 3 commences on 21 November 2022.
4
Justice Miscellaneous (Advance Care Directives) Act 2022
Act No. of 2022
Part 2 - Guardianship and Administration Amendment (Advance Care s. 3
Directives) Act 2021 Amended
PART 2 - GUARDIANSHIP AND ADMINISTRATION
AMENDMENT (ADVANCE CARE DIRECTIVES) ACT
2021 AMENDED
3. Principal Act
In this Part, the Guardianship and
Administration Amendment (Advance Care
Directives) Act 2021* is referred to as the
Principal Act.
4. Section 2 amended (Commencement)
Section 2 of the Principal Act is amended by
omitting "on a day to be proclaimed" and
substituting "on 21 November 2022".
5. Section 5 amended (Section 3 amended
(Interpretation))
Section 5 of the Principal Act is amended -
(a) by omitting from paragraph (c)
"guardianship order" and substituting
"Guardianship stream proceedings";
(b) by inserting after paragraph (f) the
following paragraphs:
_______________________________________________________________
*No. 15 of 2021
5
Justice Miscellaneous (Advance Care Directives) Act 2022
Act No. of 2022
s. 6 Part 2 - Guardianship and Administration Amendment (Advance Care
Directives) Act 2021 Amended
(g) by omitting "human body."
from the definition of tissue
and substituting "human
body;";
(h) by inserting the following
definition after the definition
of tissue:
Tribunal means the
Tasmanian Civil and
Administrative Tribunal.
6. Section 8 repealed
Section 8 of the Principal Act is repealed.
7. Section 13 amended (Section 31 amended (Advice
or directions as to guardianship orders))
Section 13(b) of the Principal Act is amended by
omitting "Board" from paragraph (d) to be
inserted by that paragraph and substituting
"Tribunal".
8. Section 15 amended (Part 5A inserted)
Section 15 of the Principal Act is amended as
follows:
(a) by omitting "Board" from section 35K(1)
to be inserted by that section and
substituting "Tribunal";
6
Justice Miscellaneous (Advance Care Directives) Act 2022
Act No. of 2022
Part 2 - Guardianship and Administration Amendment (Advance Care s. 8
Directives) Act 2021 Amended
(b) by omitting "Board" from section 35K(2)
to be inserted by that section and
substituting "Tribunal";
(c) by omitting "Board" from section 35K(3)
to be inserted by that section and
substituting "Tribunal";
(d) by omitting "Board" from section 35P to
be inserted by that section and
substituting "Tribunal";
(e) by omitting "Board" from section
35S(2)(b) to be inserted by that section
and substituting "Tribunal";
(f) by omitting "Board" from section
35T(2)(b) to be inserted by that section
and substituting "Tribunal";
(g) by omitting "Board" from section
35U(5)(b) to be inserted by that section
and substituting "Tribunal";
(h) by omitting "Board" from section 35X(1)
to be inserted by that section and
substituting "Tribunal";
(i) by omitting "Board" from section 35X(2)
to be inserted by that section and
substituting "Tribunal";
(j) by omitting "Board" from section 35X(4)
to be inserted by that section and
substituting "Tribunal";
7
Justice Miscellaneous (Advance Care Directives) Act 2022
Act No. of 2022
s. 8 Part 2 - Guardianship and Administration Amendment (Advance Care
Directives) Act 2021 Amended
(k) by omitting "Board" from section
35X(5)(b) to be inserted by that section
and substituting "Tribunal";
(l) by omitting "Board" from section
35Y(2)(c) to be inserted by that section
and substituting "Tribunal";
(m) by omitting "Board", first occurring,
from section 35Z(1) to be inserted by
that section and substituting "Tribunal";
(n) by omitting "Board" from section
35Z(1)(c)(iii) to be inserted by that
section and substituting "Tribunal";
(o) by omitting "Board", twice occurring,
from section 35Z(2) to be inserted by
that section and substituting "Tribunal";
(p) by omitting "Board", twice occurring,
from section 35Z(3) to be inserted by
that section and substituting "Tribunal";
(q) by omitting "Board", twice occurring,
from section 35Z(4) to be inserted by
that section and substituting "Tribunal";
(r) by omitting "Board" from section 35Z(5)
to be inserted by that section and
substituting "Tribunal";
(s) by omitting "Board", twice occurring,
from section 35Z(6) to be inserted by
that section and substituting "Tribunal";
8
Justice Miscellaneous (Advance Care Directives) Act 2022
Act No. of 2022
Part 2 - Guardianship and Administration Amendment (Advance Care s. 8
Directives) Act 2021 Amended
(t) by omitting "Board" from section
35Z(6)(a) to be inserted by that section
and substituting "Tribunal";
(u) by omitting "Board" from section
35Z(6)(b) to be inserted by that section
and substituting "Tribunal";
(v) by omitting "Board" from section 35Z(7)
to be inserted by that section and
substituting "Tribunal";
(w) by omitting "Board" from section 35ZD
to be inserted by that section and
substituting "Tribunal";
(x) by omitting "Board" from paragraph (f)
of the definition of eligible person in
section 35ZF to be inserted by that
section and substituting "Tribunal";
(y) by omitting "Board" from the headnote
to section 35ZH to be inserted by that
section and substituting "Tribunal";
(z) by omitting "Board" from section 35ZH
to be inserted by that section and
substituting "Tribunal";
(za) by omitting "Board" from section
35ZI(4)(c) to be inserted by that section
and substituting "Tribunal";
(zb) by omitting "Board", twice occurring,
from section 35ZI(4)(d) to be inserted by
that section and substituting "Tribunal";
9
Justice Miscellaneous (Advance Care Directives) Act 2022
Act No. of 2022
s. 8 Part 2 - Guardianship and Administration Amendment (Advance Care
Directives) Act 2021 Amended
(zc) by omitting "Board" from section
35ZI(5)(a) to be inserted by that section
and substituting "Tribunal";
(zd) by omitting "Board" from section
35ZI(8) to be inserted by that section and
substituting "Tribunal";
(ze) by omitting "Board" from the headnote
to section 35ZJ to be inserted by that
section and substituting "Tribunal";
(zf) by omitting "Board", twice occurring,
from section 35ZJ to be inserted by that
section and substituting "Tribunal";
(zg) by omitting "Board" from the headnote
to section 35ZK to be inserted by that
section and substituting "Tribunal";
(zh) by omitting "Board" from section
35ZK(1) to be inserted by that section
and substituting "Tribunal";
(zi) by omitting "Board" from section
35ZK(2) to be inserted by that section
and substituting "Tribunal";
(zj) by omitting "Board" from section
35ZK(3) to be inserted by that section
and substituting "Tribunal";
(zk) by omitting "Board", first occurring,
from section 35ZK(4) to be inserted by
that section and substituting "Tribunal";
10
Justice Miscellaneous (Advance Care Directives) Act 2022
Act No. of 2022
Part 2 - Guardianship and Administration Amendment (Advance Care s. 8
Directives) Act 2021 Amended
(zl) by omitting "Board" from section
35ZK(4)(a) to be inserted by that section
and substituting "Tribunal";
(zm) by omitting "Board" from section
35ZK(4)(b) to be inserted by that section
and substituting "Tribunal";
(zn) by omitting "Board" from section
35ZK(5) to be inserted by that section
and substituting "Tribunal";
(zo) by omitting "Board", twice occurring,
from section 35ZK(6) to be inserted by
that section and substituting "Tribunal";
(zp) by omitting "Board" from section
35ZK(6)(b) to be inserted by that section
and substituting "Tribunal";
(zq) by omitting "Board", first occurring,
from section 35ZK(7) to be inserted by
that section and substituting "Tribunal";
(zr) by omitting "Board" from section
35ZK(7)(b)(v) to be inserted by that
section and substituting "Tribunal";
(zs) by omitting "Board", twice occurring,
from section 35ZK(8) to be inserted by
that section and substituting "Tribunal";
(zt) by omitting "Board" from section
35ZK(9) to be inserted by that section
and substituting "Tribunal".
11
Justice Miscellaneous (Advance Care Directives) Act 2022
Act No. of 2022
s. 9 Part 2 - Guardianship and Administration Amendment (Advance Care
Directives) Act 2021 Amended
9. Section 19 substituted
Section 19 of the Principal Act is repealed and
the following section is substituted:
19. Section 45 amended (Consent of Board)
Section 45 of the Principal Act is amended as
follows:
(a) by omitting paragraph (a) from
subsection (2) and substituting the
following paragraph:
(a) the wishes, directions,
preferences and values of the
person (including those
expressed in an advance care
directive) so far as they can be
ascertained; and
(b) by omitting from subsection (3) "section
76" and substituting "section 137 of the
Tasmanian Civil and Administrative
Tribunal Act 2020".
10. Sections 20 and 21 repealed
Sections 20 and 21 of the Principal Act are
repealed.
12
Justice Miscellaneous (Advance Care Directives) Act 2022
Act No. of 2022
Part 2 - Guardianship and Administration Amendment (Advance Care s. 11
Directives) Act 2021 Amended
11. Section 22 substituted
Section 22 of the Principal Act is repealed and
the following section is substituted:
22. Section 78 inserted
After section 77 of the Principal Act, the
following section is inserted in Division 4:
78. Protection from liability
(1) The Public Guardian and any person
acting under the direction of the Public
Guardian do not incur any personal
liability in respect of any act done or
omitted to be done in good faith in the
performance or exercise, or purported
performance or exercise, of any function
or power of the Public Guardian.
(2) Subsection (1) does not preclude the
Crown or the Public Guardian from
incurring liability that the Public Guardian
or other person mentioned in
subsection (1) would, but for that
subsection, incur.
(3) This section does not affect the operation
of section 72 of the Public Trustee Act
1930.
13
Justice Miscellaneous (Advance Care Directives) Act 2022
Act No. of 2022
s. 12 Part 2 - Guardianship and Administration Amendment (Advance Care
Directives) Act 2021 Amended
12. Section 23 substituted
Section 23 of the Principal Act is repealed and
the following section is substituted:
23. Section 85 inserted
After section 84 of the Principal Act, the
following section is inserted in Division 5:
85. Protection relating to reports and
information of Public Guardian
(1) A person who provides a document, makes
a report or gives information to the Public
Guardian -
(a) for the purpose of an application
under this Act, to assist in deciding
whether an application should be
made under this Act; or
(b) when requested so to do by the Public
Guardian-
is not subject to any liability for providing
the document, making the report or giving
the information so long as he or she acts in
good faith and has reasonable and
probable grounds for believing the
document, report or information to be true.
14
Justice Miscellaneous (Advance Care Directives) Act 2022
Act No. of 2022
Part 2 - Guardianship and Administration Amendment (Advance Care s. 13
Directives) Act 2021 Amended
(2) A person who provides a document, makes
a report or gives information as mentioned
in subsection (1) that is malicious or false
in any material particular is guilty of an
offence and is liable on summary
conviction to a fine not exceeding 20
penalty units.
(3) A person who is a personal information
custodian, within the meaning of the
Personal Information Protection Act 2004,
acting in good faith, does not commit a
breach of that Act by reason only of
collecting, using, disclosing or otherwise
dealing with personal information for the
purposes of this Act.
13. Section 25 amended (Section 89 amended (Duty to
keep register))
Section 25(b) of the Principal Act is amended by
omitting "Board" from paragraph (d) to be
inserted by that paragraph and substituting
"Tribunal".
14. Section 26 amended (Section 90 amended
(Regulations))
Section 26(b) of the Principal Act is amended as
follows:
15
Justice Miscellaneous (Advance Care Directives) Act 2022
Act No. of 2022
s. 14 Part 2 - Guardianship and Administration Amendment (Advance Care
Directives) Act 2021 Amended
(a) by omitting "Board" from paragraph (f)
to be inserted by that paragraph and
substituting "Tribunal";
(b) by omitting "Board" from paragraph (g)
to be inserted by that paragraph and
substituting "Tribunal".
16
Justice Miscellaneous (Advance Care Directives) Act 2022
Act No. of 2022
Part 3 - Tasmanian Civil and Administrative Tribunal Act 2020 Amended s. 15
PART 3 - TASMANIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ACT 2020 AMENDED
15. Principal Act
In this Part, the Tasmanian Civil and
Administrative Tribunal Act 2020* is referred to
as the Principal Act.
16. Schedule 3 amended (Protective Division)
Part 4 of Schedule 3 to the Principal Act is
amended as follows:
(a) by inserting the following definition after
the definition of administrator in clause
1:
advance care directive has the same
meaning as in the Guardianship
and Administration Act 1995;
(b) by inserting the following paragraph after
paragraph (f) in clause 5(2):
(fa) if the matter relates to the
provision of health care pursuant
to an advance care directive -
(i) the health practitioner,
within the meaning of
Part 5A of the
Guardianship and
Administration Act 1995,
_______________________________________________________________
*No. 24 of 2020
17
Justice Miscellaneous (Advance Care Directives) Act 2022
Act No. of 2022
s. 16 Part 3 - Tasmanian Civil and Administrative Tribunal Act 2020 Amended
proposing to provide the
health care; and
(ii) any authorised decision
maker, within the
meaning of Part 5A of the
Guardianship and
Administration Act 1995,
for the person who has
given the advance care
directive; and
(c) by inserting the following subclause after
subclause (1) in clause 8:
(1A) The Tribunal may adjourn a
hearing held in relation to an
advance care directive and, if the
Tribunal considers that there may
be grounds to make an interim
order or interim determination,
may make any interim order or
interim determination that it
considers appropriate in the
circumstances.
(d) by inserting in clause 8(2) "or interim
determination" after "order";
(e) by inserting in clause 8(3) "or interim
determination" after "an interim order";
(f) by inserting in clause 8(3) "or further
interim determination" after "further
interim order".
18
Justice Miscellaneous (Advance Care Directives) Act 2022
Act No. of 2022
Part 4 - Concluding Provision s. 17
PART 4 - CONCLUDING PROVISION
17. Repeal of Act
This Act is repealed on the first anniversary of
the day on which the last uncommenced
provision of this Act commenced.