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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Guardianship Amendment Bill 2007
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Guardianship Act 1987 No 257 2
4 Amendment of Powers of Attorney Act 2003 No 53 2
5 Repeal of Act 2
Schedule 1 Amendments 3
I certify that this public bill, which originated in the Legislative Assembly, has
finally passed the Legislative Council and the Legislative Assembly of New
South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2007
New South Wales
Guardianship Amendment Bill 2007
Act No , 2007
An Act to amend the Guardianship Act 1987 with respect to the review of
guardianship orders, the constitution of the Guardianship Tribunal, the exercise of
certain functions of that Tribunal by its Registrar and the review of the exercise of
those functions and the term of office of members of that Tribunal; and for other
purposes.
I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Clause 1 Guardianship Amendment Bill 2007
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Guardianship Amendment Act 2007.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Guardianship Act 1987 No 257
The Guardianship Act 1987 is amended as set out in Schedule 1.
4 Amendment of Powers of Attorney Act 2003 No 53
The Powers of Attorney Act 2003 is amended by omitting section 35 (4).
5 Repeal of Act
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
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Guardianship Amendment Bill 2007
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
[1] Section 3 Definitions
Insert in alphabetical order in section 3 (1):
community member means a member of the Tribunal in the
member category referred to in section 49 (3) (c).
legal member means a member of the Tribunal in the member
category referred to in section 49 (3) (a).
member category means a category of member of the Tribunal
provided for by section 49 (3).
professional member means a member of the Tribunal in the
member category referred to in section 49 (3) (b).
Registrar means the Registrar of the Tribunal.
[2] Section 3 (1), definition of "exempt premises"
Omit "Education Reform Act 1990" from paragraph (a) (i) of the definition.
Insert instead "Education Act 1990".
[3] Section 3 (1), definition of "officer"
Omit the definition. Insert instead:
officer means a person employed under Chapter 1A of the Public
Sector Employment and Management Act 2002 in the
Government Service to enable the Tribunal to exercise its
functions.
[4] Section 16 Guardianship orders
Omit section 16 (2A). Insert instead:
(2A) A guardianship order may contain a statement to the effect that
the order will not be reviewed under section 25 (2) (b) at the
expiration of the period for which it has effect, but only if the
Tribunal is satisfied that, in all the circumstances, it is in the best
interests of the person who is the subject of the order that the
order is not reviewed at the expiration of that period.
Note. Section 25 (1) and (2) (a) provide for the review of a guardianship
order on the Tribunal's own motion or at the request of any person
entitled to request a review. Those rights to review are unaffected by any
statement in the guardianship order that the order will not be reviewed
under section 25 (2) (b) at its expiration.
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Guardianship Amendment Bill 2007
Schedule 1 Amendments
[5] Section 49 Constitution of the Tribunal
Omit section 49 (3). Insert instead:
(3) Of the members of the Tribunal:
(a) at least 3 must be persons who are Australian lawyers of at
least 7 years' standing (legal members), and
(b) at least 3 must be persons (such as medical practitioners,
psychologists and social workers) who, in the opinion of
the Minister, have experience in assessing or treating
persons to whom Part 3, 4 or 5 relates (professional
members), and
(c) at least 4 must be persons (other than those referred to in
paragraph (a) or (b)) who, in the opinion of the Minister,
have had experience with persons to whom Part 3, 4 or 5
relates (community members).
[6] Section 49 (4)
Omit "members of the Tribunal referred to in subsection (3) (a)".
Insert instead "legal members of the Tribunal".
[7] Section 50 Registrar and other staff of the Tribunal
Omit the section.
[8] Section 51 Composition of the Tribunal
Omit section 51 (1). Insert instead:
(1) For the purposes of exercising its functions the Tribunal is to be
constituted by no fewer than 3 and no more than 5 of its members
of whom:
(a) at least 1 is a legal member, and
(b) at least 1 is a professional member, and
(c) at least 1 is a community member.
[9] Section 51 (3)
Omit the subsection.
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Guardianship Amendment Bill 2007
Amendments Schedule 1
[10] Section 51A
Omit the section. Insert instead:
51A Fewer than 3 Tribunal members may deal with certain matters
(1) Despite section 51 (1), the Tribunal may, at the discretion of the
President of the Tribunal, be constituted by 1 or 2 members if the
Tribunal is exercising its functions referred to in:
(a) Division 4 (Assessment and review of guardianship
orders) of Part 3, or
(b) Division 2 (Review and revocation of financial
management orders) of Part 3A, or
(c) Division 3 (Review of appointment of manager) of
Part 3A, or
(d) section 36 (Who may give consent) in respect of giving
consent to the carrying out of minor treatment or major
treatment (but not special treatment or treatment in the
course of a clinical trial), or
(e) Part 5A (Reciprocal arrangements), or
(f) Division 2 (Proceedings before the Tribunal) of Part 6
(other than functions under section 65), or
(g) section 67E (Review of decisions of the Registrar).
(2) When the Tribunal is constituted by 2 members, the members
must not be in the same member category.
(3) When constituted by 1 or 2 members, the Tribunal may exercise
functions referred to in subsection (1) (f) even if the substantive
proceedings are not currently before that sitting of the Tribunal.
(4) For the purpose of exercising the function of reviewing a decision
of the Registrar referred to in subsection (1) (g), the Tribunal
(when constituted by 1 or 2 members) must be constituted by or
include the President, the Deputy President or a legal member.
(5) In this section, clinical trial, major treatment, minor treatment
and special treatment have the same meanings as in Part 5.
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Guardianship Amendment Bill 2007
Schedule 1 Amendments
[11] Section 51B
Insert after section 51A:
51B Presiding member of Tribunal
The presiding member at any sitting of the Tribunal is to be:
(a) in the case of the Tribunal constituted by one member--
that member, or
(b) if the Tribunal is so constituted as to include the President
of the Tribunal--the President of the Tribunal, or
(c) if the Tribunal is so constituted as not to include the
President of the Tribunal but is so constituted as to include
the Deputy President of the Tribunal--the Deputy
President of the Tribunal, or
(d) if the Tribunal is so constituted as to include neither the
President nor the Deputy President of the Tribunal but is so
constituted as to include a legal member--the member of
the Tribunal who is a legal member, or, if there is more
than one legal member, such one of those members as the
President of the Tribunal nominates, or
(e) if the Tribunal is so constituted as to include neither the
President nor the Deputy President of the Tribunal nor a
legal member--the member of the Tribunal that the
President of the Tribunal nominates.
[12] Section 54 Voting
Omit section 54 (3). Insert instead:
(3) Despite subsection (1), questions of law arising at a sitting of the
Tribunal are to be determined:
(a) if the presiding member is the President or Deputy
President of the Tribunal or a legal member--by the
presiding member of the Tribunal, or
(b) if the presiding member is not the President or Deputy
President of the Tribunal or a legal member--by:
(i) referring the question of law to the President or
Deputy President of the Tribunal or a legal member
nominated by the President for the purposes of this
section for decision, and
(ii) determining the question of law according to the
decision on the reference.
Page 6
Guardianship Amendment Bill 2007
Amendments Schedule 1
[13] Part 6, Division 2, heading
Omit the heading to the Division. Insert before section 53:
Division 2 Proceedings before the Tribunal
[14] Section 57A Tribunal may join parties
Omit "under this Act" from section 57A (1).
Insert instead "(whether under this or any other Act)".
[15] Section 60 Compulsion of witnesses
Omit section 60 (1). Insert instead:
(1) The President or Deputy President of the Tribunal or the member
presiding at a sitting of the Tribunal (if that person is a legal
member), or any other legal member nominated in writing by the
President for the purposes of this section, may, by instrument in
writing, require any person on whom the instrument is served
personally or by post:
(a) to appear before the Tribunal for the purpose of giving
evidence, or
(b) to produce to the Tribunal any document that is relevant to
the proceedings before the Tribunal,
at a time, date and place specified in the instrument.
(1A) The President or Deputy President of the Tribunal or the member
presiding at a sitting of the Tribunal, or any legal member
nominated in writing by the President for the purposes of this
section, may:
(a) require a person who appears before the Tribunal to be
sworn for the purpose of giving evidence on oath, and
(b) administer such an oath.
[16] Section 64A
Insert after section 64:
64A Withdrawal of applications
An application to the Tribunal (whether under this or any other
Act) cannot be withdrawn except with the consent of the
Tribunal.
Page 7
Guardianship Amendment Bill 2007
Schedule 1 Amendments
[17] Section 67 Appeals to the Supreme Court
Omit section 67 (2) (a). Insert instead:
(a) in the case of a prescribed decision made by the Tribunal
in the exercise of a function under section 51A or of a
decision made in the exercise of a function under section
64 (2)--within the period ending 28 days after the relevant
decision has been made, or
[18] Section 67 (7)
Insert after section 67 (6):
(7) In this section:
prescribed decision means a decision made in the exercise of a
function under:
(a) section 36 in respect of giving consent to minor treatment,
or
(b) Part 5A, or
(c) Division 2 of Part 6, or
(d) section 67E.
[19] Part 6, Division 3A
Insert after section 67A:
Division 3A Registrar and other staff of Tribunal
67B Registrar and other staff of Tribunal
A Registrar and such other staff as are necessary for the purpose
of enabling the Tribunal to exercise its functions are to be
employed under Chapter 1A of the Public Sector Employment
and Management Act 2002.
67C Functions of the Registrar
(1) The Registrar may, at the discretion of the President of the
Tribunal, exercise any function of the Tribunal in respect of:
(a) dismissing an application, at any stage of the proceedings,
if satisfied on the face of the application that the Tribunal
does not have jurisdiction to hear and determine the
application, or
Example of lack of jurisdiction. The Tribunal does not have
jurisdiction to hear and determine an application for a
guardianship order in respect of a person who is under the age of
16 years.
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Guardianship Amendment Bill 2007
Amendments Schedule 1
(b) dismissing an application, at any stage of the proceedings,
for want of prosecution including, but not limited to,
unreasonable delay by the applicant in providing the
Tribunal with requested information, or
(c) refusing (under section 25A) a request to review a
guardianship order, or
(d) refusing (under section 25O) a request to review a
financial management order on an application under
section 25R, or
(e) refusing (under section 25T) a request to review the
Tribunal's appointment of the manager of a protected
person's estate, or
(f) recognising (under section 48B) a person's status as the
guardian of another person or as the manager of the estate
of another person, or
(g) joining (under section 57A) a person as a party to any
proceedings before the Tribunal, or
(h) granting leave (under section 58 (1)) for a person to be
represented by an Australian legal practitioner or an agent,
or
(i) making orders (under section 58 (3)) requiring and
securing separate representation for a person, or
(j) giving directions as to the conduct of any proceedings
before the Tribunal, or
(k) adjourning proceedings before the Tribunal (under section
64 (1)), or
(l) consenting to the withdrawal of an application to the
Tribunal (under section 64A).
(2) The President of the Tribunal may direct the Registrar to refer the
exercise of a function in a particular matter to the Tribunal (as
constituted under section 51 or 51A). The Registrar must comply
with such a direction.
(3) The Registrar may refer a particular matter to the Tribunal if the
Registrar considers it would be more appropriate for the Tribunal
(as constituted under section 51or 51A) to deal with the matter.
(4) The Registrar constitutes the Tribunal for the purposes of
exercising any functions of the Tribunal conferred on the
Registrar under this section. However, sections 65, 66, 68 (1A),
69 and 71 do not apply when the Registrar constitutes the
Tribunal.
Page 9
Guardianship Amendment Bill 2007
Schedule 1 Amendments
67D Decisions of Registrar
(1) A decision of the Registrar made in the exercise of a function of
the Tribunal is to be confirmed, as soon as practicable after the
order arising out of the decision of the Registrar is made, in a
written instrument that is:
(a) signed by the Registrar or, if it is not practicable for the
Registrar to sign the instrument, by the President or
Deputy President, and
(b) furnished to each of the parties unless, in the particular
case, the Registrar considers that there is an appropriate
reason not to furnish such an instrument to any or all
parties.
(2) In the case of a decision under section 67C (1) (c)(e), the
Registrar must furnish each party to the proceedings before the
Registrar with formal written reasons for the decision as soon as
practicable after giving the decision. The reasons for a decision
may be included in the instrument confirming the decision or in
a separate instrument.
(3) No decision of the Registrar is to be vitiated merely because of
any informality or want of form.
(4) The Registrar must cause a record to be kept of any decision
made by the Registrar in the exercise of any function under
section 67C and of the reasons for that decision.
(5) The regulations may make further provision with respect to the
keeping of records of the exercise of any function under section
67C.
67E Review of decisions of the Registrar
(1) The Tribunal may, on its own motion, review any decision of the
Registrar made under section 67C (1) (c)(e).
(2) The Tribunal must review any decision of the Registrar made
under section 67C (1) (c)(e) at the request of any person who
was a party to the proceedings before the Registrar.
(3) A request by a person for a review of a decision of the Registrar
must be made:
(a) within the period ending 14 days after the day on which the
written instrument setting out the formal reasons for the
decision is furnished to the person, or
(b) within such further time as the Tribunal may, in any case,
allow.
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Guardianship Amendment Bill 2007
Amendments Schedule 1
(4) On reviewing a decision of the Registrar, the Tribunal must
conduct a re-hearing of the matter and may take into
consideration evidence that was not before the Registrar at the
time of the decision under review.
(5) On reviewing a decision of the Registrar, the Tribunal may make
such orders as it thinks fit and may:
(a) confirm the decision, or
(b) set aside the decision.
(6) Unless the Tribunal otherwise orders, a decision made by the
Registrar in a matter to be reviewed remains in force until a
decision is made at the review.
(7) There is no right of appeal under section 67 from a decision made
by the Registrar under section 67C.
Note. Nothing prevents a person making a further application to the
Tribunal in respect of any matter that has been the subject of a decision
by the Registrar.
[20] Section 68 Decisions of Tribunal
Omit "giving" from section 68 (1B). Insert instead "making".
[21] Section 68 (1C)
Omit the subsection. Insert instead:
(1C) Despite subsection (1B), the Tribunal is not required to provide
formal written reasons for a prescribed decision made in the
exercise of a function under section 51A or for a decision made
in the exercise of a function under section 64 (2), unless:
(a) a party to the proceedings concerned requests the Tribunal,
within the period ending 14 days after the relevant decision
has been made, to specify its reasons for the decision, or
(b) an appeal against the decision is instituted under
section 67.
[22] Section 68 (3)
Insert after section 68 (2):
(3) In this section:
prescribed decision means a decision made in the exercise of a
function under:
(a) section 36 in respect of giving consent to minor treatment,
or
(b) Part 5A, or
Page 11
Guardianship Amendment Bill 2007
Schedule 1 Amendments
(c) Division 2 of Part 6, or
(d) section 67E.
[23] Schedule 1 Provisions relating to the Tribunal
Omit "3 years" from clause 1 (1). Insert instead "5 years".
[24] Schedule 1, clause 2 (3)
Omit "Public Sector Management Act 1988".
Insert instead "Public Sector Employment and Management Act 2002".
[25] Schedule 1, clause 2 (3)
Omit "Part 8". Insert instead "Chapter 5".
[26] Schedule 3 Savings and transitional provisions
Insert at the end of clause 1 (1):
Guardianship Amendment Act 2007
[27] Schedule 3, Part 6
Insert after clause 12:
Part 6 Provisions consequent on enactment of
Guardianship Amendment Act 2007
13 Definition
In this Part:
amending Act means the Guardianship Amendment Act 2007.
14 Giving of reasons for decisions
Section 68 (1C), as substituted by the amending Act, extends to
decisions made before the commencement of the amendment.
15 Functions of Registrar
Section 67C applies so as to extend the power of the Registrar to
exercise functions in relation to applications made and
proceedings pending on the commencement of that section.
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Guardianship Amendment Bill 2007
Amendments Schedule 1
16 Term of office of Tribunal members
The amendment made to clause 1 (1) of Schedule 1 by the
amending Act does not apply to a person who was, immediately
before the commencement of the amendment, a member of the
Tribunal, unless that person is later appointed to a further term of
office.
Page 13
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