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New South Wales
Guardianship and Protected Estates
Legislation Amendment Bill 2002
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Guardianship Act 1987 No 257 2
4 Amendment of Protected Estates Act 1983 No 179 2
5 Amendment of Administrative Decisions Tribunal Act 1997
No 76 2
6 Amendment of Defamation Act 1974 No 18 2
Schedules
1 Amendment of Guardianship Act 1987 3
2 Amendment of Protected Estates Act 1983 7
3 Amendment of Administrative Decisions Tribunal Act 1997 17
4 Amendment of Defamation Act 1974 26
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, , 2002
New South Wales
Guardianship and Protected Estates
Legislation Amendment Bill 2002
Act No , 2002
An Act to amend the Guardianship Act 1987, the Protected Estates Act 1983 and
the Administrative Decisions Tribunal Act 1997 to make provision for the
Administrative Decisions Tribunal to hear and determine appeals against, or to
review, certain decisions and orders relating to guardianship matters and the
management of estates of protected persons; to make further provision with respect
to the functions of the Protective Commissioner; 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.
Chairman of Committees of the Legislative Assembly.
Clause 1 Guardianship and Protected Estates Legislation Amendment Bill 2002
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Guardianship and Protected Estates Legislation
Amendment Act 2002.
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 Protected Estates Act 1983 No 179
The Protected Estates Act 1983 is amended as set out in Schedule 2.
5 Amendment of Administrative Decisions Tribunal Act 1997 No 76
The Administrative Decisions Tribunal Act 1997 is amended as set out
in Schedule 3.
6 Amendment of Defamation Act 1974 No 18
The Defamation Act 1974 is amended as set out in Schedule 4.
Page 2
Guardianship and Protected Estates Legislation Amendment Bill 2002
Amendment of Guardianship Act 1987 Schedule 1
Schedule 1 Amendment of Guardianship Act 1987
(Section 3)
[1] Section 3 Definitions
Insert in alphabetical order in section 3 (1):
ADT means the Administrative Decisions Tribunal established
by the Administrative Decisions Tribunal Act 1997.
[2] Section 25M Tribunal may commit estate of protected person to
management
Omit section 25M (2). Insert instead:
(2) Despite section 68 (1), an order under subsection (1) (a) does
not authorise the person appointed as manager to interfere in
any way with the estate concerned unless:
(a) such directions of the Supreme Court as are relevant to
the management of the estate have been obtained, or
(b) the Protective Commissioner has, under section 30 (3)
of the Protected Estates Act 1983, authorised the person
to exercise functions in respect of the estate.
[3] Section 25M (3)
Insert "or authorisation by the Protective Commissioner" after "the Court".
[4] Section 67 Appeals to the Supreme Court
Insert "(whether under this or any other Act)" after "before the Tribunal" in
section 67 (1).
[5] Section 67 (1A)
Insert after section 67 (1):
(1A) A person who has appealed to the ADT under section 67A
against a decision of the Guardianship Tribunal may not appeal
to the Supreme Court under this section in respect of the same
decision. However, the person may appeal to the Supreme
Page 3
Guardianship and Protected Estates Legislation Amendment Bill 2002
Schedule 1 Amendment of Guardianship Act 1987
Court under this section if the appeal under section 67A is
withdrawn with the approval of the ADT for the purpose of
enabling the Supreme Court to deal with the matter.
[6] Section 67A
Insert after section 67:
67A Appeals to ADT
(1) An appeal may be made to the ADT against a decision of the
Guardianship Tribunal under any of the following provisions:
(a) section 6K,
(b) section 6MA,
(c) section 14,
(d) section 25C,
(e) section 25E,
(f) section 25H,
(g) section 25P,
(h) section 25U,
(i) section 28.
(2) An appeal to the ADT under this section may be made by a
person who was a party to the proceedings (whether as
provided by section 3F or otherwise) in which the decision of
the Guardianship Tribunal was made.
(3) If any such person has appealed to the Supreme Court under
section 67 against a decision of the Guardianship Tribunal, the
person may not appeal to the ADT under this section in respect
of the same decision. However, the person may appeal to the
ADT under this section if the appeal under section 67 is
withdrawn with the approval of the Supreme Court for the
purpose of enabling the ADT to deal with the matter.
(4) An appeal under this section is an external appeal within the
meaning of the Administrative Decisions Tribunal Act 1997.
Page 4
Guardianship and Protected Estates Legislation Amendment Bill 2002
Amendment of Guardianship Act 1987 Schedule 1
[7] Section 68 Decisions of Tribunal
Insert after section 68 (1B):
(1BA) If the decision concerned is made under a provision referred to
in section 67A (1), the Tribunal must also, when providing
reasons for the decision in accordance with subsection (1B),
advise each party to the proceedings that the decision may be
appealed against under section 67A to the ADT.
[8] Section 80A
Insert after section 80:
80A Review by ADT of guardianship decisions of Public Guardian
(1) An application may be made to the ADT for a review of a
decision of the Public Guardian that:
(a) is made in connection with the exercise of the Public
Guardian's functions under this Act as a guardian, and
(b) is of a class of decision prescribed by the regulations for
the purposes of this section.
(2) An application under this section may be made by:
(a) the person to whom the decision relates, or
(b) the spouse of the person, or
(c) the person who has the care of the person to whom the
decision relates, or
(d) any other person whose interests are, in the opinion of
the ADT, adversely affected by the decision.
[9] Section 107A
Insert after section 107:
107A Evidentiary certificates in relation to persons under guardianship
A certificate issued by the Public Guardian stating that, on a
specified date or during a specified period, a specified person
was or was not subject to a guardianship order is admissible in
any legal proceedings under this or any other Act and is
evidence of the matters so certified.
Page 5
Guardianship and Protected Estates Legislation Amendment Bill 2002
Schedule 1 Amendment of Guardianship Act 1987
[10] Schedule 3 Savings and transitional provisions
Insert at the end of clause 1 (1):
Guardianship and Protected Estates Legislation Amendment
Act 2002, to the extent that it amends this Act
[11] Schedule 3
Insert at the end of the Schedule (with appropriate Part and clause numbers):
Part Provisions consequent on enactment of
Guardianship and Protected Estates
Legislation Amendment Act 2002
Application of amendments
Subject to the regulations, an amendment made to this Act by
the Guardianship and Protected Estates Legislation
Amendment Act 2002 does not apply to or in respect of any
decision or order made under this Act before the
commencement of the amendment.
Page 6
Guardianship and Protected Estates Legislation Amendment Bill 2002
Amendment of Protected Estates Act 1983 Schedule 2
Schedule 2 Amendment of Protected Estates Act 1983
(Section 4)
[1] Section 4 Definitions
Insert in alphabetical order in section 4 (1):
ADT means the Administrative Decisions Tribunal established
by the Administrative Decisions Tribunal Act 1997.
MHRT means the Mental Health Review Tribunal constituted
under the Mental Health Act 1990.
[2] Section 4 (1), definition of "Tribunal"
Omit the definition.
[3] Section 4 (3)
Omit the subsection.
[4] Section 5 Protective Commissioner and other officers
Omit section 5 (3), (8) and (9).
[5] Sections 16, 17, 18, 19, 20, 21 and 36
Omit "Tribunal" wherever occurring. Insert instead "MHRT".
[6] Section 21 Appeals to Court against management orders
Insert after section 21 (2):
(2A) If the person to whom the order relates has appealed to the
ADT under section 21A against the order, the person may not
appeal to the Court under this section against the same order.
However, the person may appeal to the Court under this section
if the appeal under section 21A is withdrawn with the approval
of the ADT for the purpose of enabling the Court to deal with
the matter.
Page 7
Guardianship and Protected Estates Legislation Amendment Bill 2002
Schedule 2 Amendment of Protected Estates Act 1983
[7] Sections 21A and 21B
Insert after section 21:
21A Appeals to ADT against estate management orders made by
Magistrate or MHRT
(1) An appeal may be made to the ADT against an order by a
Magistrate or the MHRT under this Division that the estate of
a person be subject to management under this Act.
(2) An appeal to the ADT under this section may be made by:
(a) the person to whom the order relates, or
(b) any other person who was a party to the proceedings in
which the order was made.
(3) If the person to whom the order relates has appealed to the
Court under section 21 against the order, the person may not
appeal to the ADT under this section against the same order.
However, the person may appeal to the ADT under this section
if the appeal under section 21 is withdrawn with the approval
of the Court for the purpose of enabling the ADT to deal with
the matter.
(4) An appeal under this section is an external appeal within the
meaning of the Administrative Decisions Tribunal Act 1997.
21B Notice of reasons for orders and appeal rights
(1) If a Magistrate or the MHRT makes an order under this
Division that the estate of a person be subject to management
under this Act, the Magistrate or MHRT must, if requested to
do so by any party to the proceedings (including the person to
whom the order relates), provide the party with formal written
reasons for the order as soon as practicable after making the
order.
(2) In providing those reasons, the Magistrate or MHRT must also
advise the party concerned that the order may be appealed
against to the ADT under section 21A.
Page 8
Guardianship and Protected Estates Legislation Amendment Bill 2002
Amendment of Protected Estates Act 1983 Schedule 2
[8] Section 23A Protected person cannot deal with estate committed to
management
Insert after section 23A (5):
(6) An application may be made to the ADT for a review of the
Protective Commissioner's decision under subsection (5)
whether or not to approve of the giving or withdrawal of an
authorisation under this section.
(7) An application for review under subsection (6) may be made
by:
(a) the person managing the protected person's estate, or
(b) the protected person, or
(c) the spouse of the protected person, or
(d) any other person who, in the opinion of the ADT, has a
genuine interest in the matter to which the Protective
Commissioner's decision relates.
[9] Section 28A
Insert after section 28:
28A Review by ADT of decisions by Protective Commissioner under
this Division
(1) An application may be made to the ADT for a review of a
decision of the Protective Commissioner that:
(a) is made in connection with the exercise of the Protective
Commissioner's functions under this Division, and
(b) is of a class of decision prescribed by the regulations for
the purposes of this section.
(2) Subsection (1) does not apply if the decision by the Protective
Commissioner was made in accordance with a direction given
by the Court to the Protective Commissioner.
(3) An application under this section may be made by:
(a) the protected person in respect of whose estate the
decision was made, or
(b) the spouse of the protected person, or
Page 9
Guardianship and Protected Estates Legislation Amendment Bill 2002
Schedule 2 Amendment of Protected Estates Act 1983
(c) any other person whose interests are, in the opinion of
the ADT, adversely affected by the decision.
[10] Section 30
Omit the section. Insert instead:
30 Protective Commissioner may authorise and direct functions of
managers
(1) If a person is appointed by the Court under section 22 as
manager of the estate of a protected person, the Protective
Commissioner may, by order:
(a) authorise the person appointed as manager to have such
functions in respect of the estate as the Protective
Commissioner may specify (being functions of the same
kind as those specified in section 24 (2) in respect of an
estate committed to management by the Protective
Commissioner but without the limitation referred to in
section 24 (3)), and
(b) give such directions with respect to the exercise of those
functions as the Protective Commissioner thinks fit.
(2) An order by the Protective Commissioner under subsection (1)
is subject to the regulations or to any direction by the Court.
(3) If a person is appointed by the Guardianship Tribunal under
section 25M (1) (a) of the Guardianship Act 1987 as manager
of the estate of a protected person, the Protective
Commissioner may, by order:
(a) authorise the person appointed as manager to have such
functions in respect of the estate as the Protective
Commissioner may specify (being functions of the same
kind as those specified in section 24 (2) in respect of an
estate committed to management by the Protective
Commissioner but without the limitation referred to in
section 24 (3)), and
(b) give such directions with respect to the exercise of those
functions as the Protective Commissioner thinks fit.
(4) An order by the Protective Commissioner under subsection (3)
is subject to the regulations or to any order of the Guardianship
Tribunal.
Page 10
Guardianship and Protected Estates Legislation Amendment Bill 2002
Amendment of Protected Estates Act 1983 Schedule 2
[11] Section 30A
Insert after section 30:
30A Review by ADT of decisions by Protective Commissioner in
relation to managers
(1) An application may be made to the ADT for a review of a
decision by the Protective Commissioner under section 30 in
relation to the functions of a person appointed as manager of
the estate of a protected person.
(2) Subsection (1) does not apply if the decision by the Protective
Commissioner was made in accordance with a direction given
by the Court to the Protective Commissioner.
(3) An application under this section may be made by:
(a) the person appointed as manager, or
(b) any other person who, in the opinion of the ADT, has a
genuine interest in the matter to which the Protective
Commissioner's decision relates.
[12] Section 31 Security in respect of management
Insert ", including security comprising the assets of the protected person,"
after "security" in section 31 (1).
[13] Section 31 (5)
Insert after section 31 (4):
(5) Any amount lodged with the Protective Commissioner as
security under this section may, subject to any order of the
Court, be invested by the Protective Commissioner in any
investment in which a trustee may invest trust funds in
accordance with the Trustee Act 1925.
Page 11
Guardianship and Protected Estates Legislation Amendment Bill 2002
Schedule 2 Amendment of Protected Estates Act 1983
[14] Sections 31A and 31B
Insert after section 31:
31A Managers may lodge estate funds with Protective Commissioner
(1) The manager of the estate of a protected person may, subject to
any order of the Court under this Division, lodge with the
Protective Commissioner any money that comprises the whole
or part of the estate of the protected person.
(2) Any such money lodged with, and held by, the Protective
Commissioner is referred to as estate funds.
(3) The Protective Commissioner may invest estate funds in the
same manner as money in the trust fund may be invested under
Part 4.
(4) Accordingly:
(a) Part 4 applies to and in respect of the investment of any
estate funds by the Protective Commissioner, and
(b) references in that Part to money in the trust fund are
taken to include references to any estate funds.
31B Financial plans
(1) The Protective Commissioner may prepare a financial plan in
respect of the estate of a protected person (including an estate
that is not managed by the Protective Commissioner).
(2) In the case of an estate that is not managed by the Protective
Commissioner, a financial plan may be prepared by the
Protective Commissioner but only with the agreement of the
manager of the estate.
(3) The Protective Commissioner may, in accordance with
section 8, charge a fee for the preparation of a financial plan
under this section.
Page 12
Guardianship and Protected Estates Legislation Amendment Bill 2002
Amendment of Protected Estates Act 1983 Schedule 2
[15] Section 33
Omit the section. Insert instead:
33 Orders by Court as to management of estates of protected
persons
(1) The Court may make such orders as it thinks fit in relation to
the administration and management of the estates of protected
persons.
(2) The Court may also make such orders as it thinks fit in
connection with authorising, directing, supervising and
enforcing the exercise of the functions of managers under this
Act.
[16] Section 50 Protected person and relatives to be consulted
Omit section 50 (1). Insert instead:
(1) Before the Protective Commissioner takes any action in respect
of the estate of a protected person, the Protective Commissioner
must determine whether the action is of such a nature that the
protected person or the relatives of the protected person should
be consulted in relation to the action.
[17] Section 57 Application of money in reserve fund
Insert after section 57 (b):
(c) payment of any costs not ordered by a court to be
charged against a particular estate or otherwise not
properly chargeable against a particular estate,
(d) payment of any costs not ordered by a court to be
charged against a particular estate but otherwise
properly chargeable against a particular estate where
there are insufficient funds in the particular estate to
meet the costs,
(e) payment of any costs incurred by the Protective
Commissioner in obtaining any kind of advice or in any
legal proceedings to which the Protective Commissioner
is or is made a party where the costs are such that,
because of general interest and the importance of the
Page 13
Guardianship and Protected Estates Legislation Amendment Bill 2002
Schedule 2 Amendment of Protected Estates Act 1983
subject-matter of the advice or proceedings, they should
not, in the opinion of the Protective Commissioner, be
charged against a particular estate.
[18] Section 70 Power to carry orders and directions into effect
Insert "or Protective Commissioner" after "the Court" where firstly
occurring in section 70 (1).
[19] Section 70 (1)
Omit "directs for giving effect to any order".
Insert instead "or Protective Commissioner directs for giving effect to any
order or direction".
[20] Section 70 (2)
Insert "or direction" after "order".
[21] Section 70 (3)
Omit the subsection.
[22] Section 70A
Insert after section 70:
70A Failure to comply with directions of Protective Commissioner
A person must not fail to comply with any direction that is
given to the person by the Protective Commissioner in
accordance with the Protective Commissioner's functions under
this Act.
Maximum penalty: 100 penalty units.
[23] Section 77 Costs may be paid out of estate
Omit "where the Protective Commissioner exercises the jurisdiction and
powers of the Court under Division 4 of Part 3" from section 77 (3).
Insert instead "under section 30".
Page 14
Guardianship and Protected Estates Legislation Amendment Bill 2002
Amendment of Protected Estates Act 1983 Schedule 2
[24] Section 79
Omit the section. Insert instead:
79 Directions by Protective Commissioner as to visitors
The Protective Commissioner may:
(a) by order, direct an authorised officer under the Mental
Health Act 1990 or any other specified person:
(i) to visit a protected person (other than a protected
person who is a patient), and
(ii) to report in writing to the Protective
Commissioner on the state of mind, bodily
health and general condition of the protected
person and on the care and treatment of the
protected person, and
(b) by order, direct that such information as the Protective
Commissioner thinks necessary be given to the person
directed to visit the protected person as to the nature and
extent of the assets of the protected person and as to the
orders made under this Act in respect of the person, and
(c) order that any fees and expenses arising in connection
with the visit be paid out of the estate of the protected
person.
[25] Section 79A
Insert after section 79:
79A Evidentiary certificates in relation to financial management orders
A certificate issued by the Protective Commissioner stating
that, on a specified date or during a specified period, the estate
of a specified person was or was not subject to management
under this Act is admissible in any legal proceedings under this
or any other Act and is evidence of the matters so certified.
Page 15
Guardianship and Protected Estates Legislation Amendment Bill 2002
Schedule 2 Amendment of Protected Estates Act 1983
[26] Section 80A
Insert after section 80:
80A Proceedings for offences
Proceedings for an offence under this Act are to be disposed of
summarily.
[27] Section 82 Rules of Court
Omit section 82 (3).
[28] Schedule 1 Savings and transitional provisions
Insert at the end of clause 1 (1):
Guardianship and Protected Estates Legislation Amendment
Act 2002, to the extent that it amends this Act
[29] Schedule 1
Insert after Part 2:
Part 3 Provisions consequent on enactment of
Guardianship and Protected Estates
Legislation Amendment Act 2002
7 Application of amendments
Subject to the regulations, an amendment made to this Act by
the Guardianship and Protected Estates Legislation
Amendment Act 2002 does not apply to or in respect of any
decision or order made under this Act before the
commencement of the amendment.
Page 16
Guardianship and Protected Estates Legislation Amendment Bill 2002
Amendment of Administrative Decisions Tribunal Act 1997 Schedule 3
Schedule 3 Amendment of Administrative Decisions
Tribunal Act 1997
(Section 5)
[1] Section 4 Definitions
Omit the definitions of Appeal Panel and appealable decision from
section 4 (1).
Insert instead:
Appeal Panel of the Tribunal means:
(a) in relation to an external appeal--an Appeal Panel of
the Tribunal constituted in accordance with section 22,
or
(b) in relation to an internal appeal--an Appeal Panel of the
Tribunal constituted in accordance with section 24.
[2] Section 4 (1)
Insert in alphabetical order:
decision-maker, in relation to an external appeal, means the
person or body that made the decision that is the subject of the
appeal.
external appeal means an appeal referred to in Part 1A of
Chapter 7.
internal appeal means an appeal made under Part 1 of
Chapter 7 against a decision of the Tribunal.
[3] Section 4 (3)
Insert "or a decision that is subject to an external appeal" after "a reviewable
decision".
[4] Section 22 Constitution of the Tribunal for particular proceedings
(including Appeal Panel for external appeals)
Insert "(other than the functions of an Appeal Panel)" after "its functions"
in section 22 (1).
Page 17
Guardianship and Protected Estates Legislation Amendment Bill 2002
Schedule 3 Amendment of Administrative Decisions Tribunal Act 1997
[5] Section 22 (1A) and (1B)
Insert after section 22 (1):
(1A) In exercising its functions in relation to an external appeal
(other than an external appeal referred to in subsection (1B)),
the Tribunal is to be constituted by an Appeal Panel consisting
of at least 3 members assigned by the President to the Panel for
the purpose of the proceedings.
(1B) In exercising its functions in relation to an external appeal
made under section 67A of the Guardianship Act 1987 or
section 21A of the Protected Estates Act 1983, the Tribunal is
to be constituted by an Appeal Panel consisting of:
(a) 1 presidential judicial member, and
(b) 1 other judicial member, and
(c) 1 non-judicial member, appointed on the
recommendation of the Minister administering the
Guardianship Act 1987, who has experience in dealing
with persons who have a disability (as referred to in
section 3 (2) of that Act).
[6] Section 22 (2)
Insert "(including proceedings in relation to an external appeal)" after
"particular proceedings".
[7] Section 22 (3) (b1)
Insert after section 22 (3) (b):
(b1) if the proceedings concern the hearing of an external
appeal--the nature and status of the decision-maker
who made the decision concerned,
[8] Section 22 (3A)
Insert after section 22 (3):
(3A) There may be more than one sitting of an Appeal Panel
constituted under this section at the same time.
Page 18
Guardianship and Protected Estates Legislation Amendment Bill 2002
Amendment of Administrative Decisions Tribunal Act 1997 Schedule 3
[9] Section 22 (4)
Omit "The provisions".
Insert instead "Except in relation to an external appeal referred to in
subsection (1B), the provisions".
[10] Section 22 (5)
Insert "in relation to an internal appeal" after "Tribunal".
[11] Section 24 Appeal Panel of the Tribunal (internal appeals)
Omit section 24 (1). Insert instead:
(1) In exercising its functions in relation to an internal appeal, the
Tribunal is to be constituted by an Appeal Panel consisting of
at least 3 members assigned by the President to the Panel for
the purpose of the proceedings.
[12] Section 24 (2) and (3)
Insert "constituted under this section" after "Appeal Panel" wherever
occurring.
[13] Section 67 Parties to proceedings before Tribunal
Insert after section 67 (2):
(2A) The parties to proceedings before the Tribunal for an external
appeal are as follows:
(a) any person who, being entitled to do so under an Act,
has appealed to the Tribunal against the decision
concerned (the appellant),
(b) any person who has been made a party to the
proceedings in accordance with subsection (4) or the
rules of the Tribunal,
(c) if the Attorney General intervenes in the proceedings
under section 69--the Attorney General,
(d) any person specified by or under any other Act as a
party to the proceedings.
Page 19
Guardianship and Protected Estates Legislation Amendment Bill 2002
Schedule 3 Amendment of Administrative Decisions Tribunal Act 1997
(2B) In the case of an external appeal, the decision-maker is entitled
to be a party to the proceedings but cannot (unless the decision-
maker agrees) be made a party to any such appeal.
(2C) The rules of the Tribunal may, in respect of an external appeal,
make provision for the parties to any such appeal (including the
designation of a respondent or other person to assist the
Tribunal in the proceedings).
[14] Section 67 (3)
Omit "In an appeal". Insert instead "In an internal appeal".
[15] Section 67 (4)
Omit the subsection. Insert instead:
(4) The Tribunal may, by order, make a person who is not a party
to proceedings for:
(a) an original decision, or
(b) a review of a reviewable decision, or
(c) an external appeal,
a party to the proceedings, either of its own motion or on the
written application of the person, if the Tribunal is satisfied that
the interests of the person are likely to be affected by the
original decision or are affected by the reviewable decision or
the decision that is the subject of the external appeal.
[16] Section 68 Tribunal may decide persons whose interests affected by a
decision
Omit "this Act" from section 68 (1). Insert instead "this or any other Act".
[17] Section 68 (3)
Insert "(other than a decision that is the subject of external appeal)" after "a
decision".
[18] Section 69 Intervention by Attorney General
Insert "or for an external appeal" after "reviewable decision" in section
69 (2).
Page 20
Guardianship and Protected Estates Legislation Amendment Bill 2002
Amendment of Administrative Decisions Tribunal Act 1997 Schedule 3
[19] Section 71 Representation of parties
Insert after section 71 (4):
(4A) Without limiting subsections (1) and (4), the Tribunal may:
(a) in the case of an external appeal made under section
67A of the Guardianship Act 1987--appoint any
person the Tribunal thinks fit to represent a party to the
proceedings who:
(i) is a protected person within the meaning of that
Act, or
(ii) is a person in respect of whom a guardianship
order (within the meaning of that Act) has been
made or in respect of whom an application for
such an order has been refused, and
(b) in the case of an external appeal made under section
21A of the Protected Estates Act 1983--appoint any
person the Tribunal thinks fit to represent a party to the
proceedings who is a protected person within the
meaning of that Act.
[20] Section 72 Notice of application to be served on other parties
Insert after section 72 (2):
(3) A reference in this section:
(a) to an application includes a reference to an external
appeal that is made to the Tribunal, and
(b) to an applicant includes a reference to the person who
makes any such appeal.
[21] Section 72A
Insert before section 73:
72A Interpretation
A reference in this Part (other than section 89):
(a) to an application includes a reference to an external
appeal that is made to the Tribunal, and
(b) to an applicant includes a reference to the person who
makes any such appeal.
Page 21
Guardianship and Protected Estates Legislation Amendment Bill 2002
Schedule 3 Amendment of Administrative Decisions Tribunal Act 1997
[22] Section 90 Rules may provide for practice and procedure
Omit "on appeal" in section 90 (2) (b).
Insert instead "in relation to internal appeals and external appeals".
[23] Chapter 7, heading
Omit "from decisions of Tribunal".
[24] Chapter 7, Part 1, heading
Omit "appeal rights". Insert instead "appeals".
[25] Section 112 Appealable decisions of the Tribunal
Insert "(including any such decision made in relation to an external appeal)"
after "Panel" in section 112 (3).
[26] Section 113 Right to appeal against appealable decisions of the Tribunal
Insert "under this Part" after "appeal" wherever occurring in section
113 (2)(4).
[27] Chapter 7, Part 1A
Insert after section 118:
Part 1A External appeals
Note. Chapter 6 also contains procedural provisions in relation to external appeals.
118A Conferral of jurisdiction to hear and determine external appeals
(1) The Tribunal has jurisdiction under an Act to hear and
determine an appeal against a decision or a class of decisions
(referred to in this Part as an appealable decision) if the Act:
(a) provides that an appeal may be made to the Tribunal
against any such decision (or class of decisions) made
by the decision-maker:
(i) in the exercise of functions conferred or imposed
by or under the Act, or
(ii) in the exercise of any other functions of the
decision-maker identified by the Act, and
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Guardianship and Protected Estates Legislation Amendment Bill 2002
Amendment of Administrative Decisions Tribunal Act 1997 Schedule 3
(b) specifies that any such appeal made under the Act is an
external appeal within the meaning of this Act.
Note. External appeals to the Tribunal may be made under the following
provisions:
section 67A of the Guardianship Act 1987
section 21A of the Protected Estates Act 1983
(2) A provision of an Act that provides that a decision-maker's
decision may be appealed against to the Tribunal extends to:
(a) a decision made by a person to whom the function of
making the appealable decision has been delegated, or
(b) if the provision specifies the decision-maker by
reference to the holding of a particular office or
appointment--a decision by any person for the time
being acting in, or performing any of the duties of, the
office or appointment, or
(c) a decision made by any other person authorised to
exercise the function of making the appealable decision.
118B Grounds for external appeals and time and procedure for making
appeals
(1) An external appeal may be made:
(a) as of right, on any question of law, or
(b) by leave of the Appeal Panel hearing the appeal, on any
other grounds.
(2) An external appeal must be made:
(a) within 28 days after the decision-maker provides, in
accordance with the Act under which the external
appeal is made, the party with written reasons for the
appealable decision, or
(b) within such further time as the Appeal Panel may allow.
(3) An external appeal is to be made in the manner prescribed by
the rules of the Tribunal.
(4) Subject to any interlocutory order made by the Appeal Panel,
an external appeal does not affect the operation of the
appealable decision or prevent the taking of action to
implement the decision.
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Guardianship and Protected Estates Legislation Amendment Bill 2002
Schedule 3 Amendment of Administrative Decisions Tribunal Act 1997
118C Appeal Panel to determine external appeals
(1) The Appeal Panel hearing an external appeal is to determine
the appeal and make such orders as it thinks appropriate in the
light of its decision.
(2) The orders that may be made by the Appeal Panel on any such
appeal include, but are not limited to, any of the following:
(a) an order affirming or setting aside the decision the
subject of the external appeal,
(b) an order remitting the matter to be heard and decided
again by the person or body that made the decision,
either with or without the hearing of further evidence, in
accordance with the directions of the Appeal Panel,
(c) an order made in substitution for the decision the
subject of the external appeal.
(3) A decision of the Appeal Panel in relation to an external appeal
takes effect on the date on which it is given or such later date
as may be specified in the decision.
(4) The Appeal Panel is to cause a copy of its decision and the
reasons in writing for that decision to be served on each party
to the appeal.
118D References of questions of law to Supreme Court
(1) An Appeal Panel determining an external appeal may, of its
own motion or at the request of a party, refer a question of law
arising in the appeal to the Supreme Court for the opinion of
the Court.
(2) The Supreme Court has jurisdiction to hear and determine any
question of law referred to it under this section.
(3) If a question of law arising in an external appeal has been
referred to the Supreme Court under this section, the Appeal
Panel is not:
(a) to give a decision in the appeal to which the question is
relevant while the reference is pending, or
(b) to proceed in a manner, or make a decision, that is
inconsistent with the opinion of the Supreme Court on
the question.
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Guardianship and Protected Estates Legislation Amendment Bill 2002
Amendment of Administrative Decisions Tribunal Act 1997 Schedule 3
[28] Section 119 Right of appeal to Supreme Court
Omit "(whether in proceedings under Part 1 or otherwise)" from section
119 (1).
[29] Section 126 Publication of names or identification of persons involved
in certain proceedings
Insert after section 126 (1A) (b):
(b1) proceedings in relation to an external appeal made under
section 67A of the Guardianship Act 1987 or section
21A of the Protected Estates Act 1983,
(b2) proceedings in relation to a reviewable decision made
under the Guardianship Act 1987 or the Protected
Estates Act 1983,
[30] Section 138 Notices, service and lodgment of documents
Insert "or other decision-maker" after "administrator" in section 138 (1) (c).
[31] Schedule 2 Composition and functions of Divisions
Insert "(other than in relation to an external appeal)" after "enactments" in
clause 2 (1) of Part 4.
[32] Schedule 2, Part 4, clause 2 (1)
Insert in alphabetical order:
Guardianship Act 1987
Protected Estates Act 1983
[33] Schedule 5 Savings and transitional provisions
Insert at the end of clause 1 (1):
Guardianship and Protected Estates Legislation Amendment
Act 2002, to the extent that it amends this Act
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Guardianship and Protected Estates Legislation Amendment Bill 2002
Schedule 4 Amendment of Defamation Act 1974
Schedule 4 Amendment of Defamation Act 1974
(Section 6)
Section 17P
Insert after section 17O:
17P Matters arising under Protected Estates Act 1983
There is a defence of absolute privilege for a publication of a
report to the Protective Commissioner under section 79 of the
Protected Estates Act 1983.
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