Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Guardianship Act 1987 (the Act) as follows:

(a) to change the circumstances in which the Guardianship Tribunal (the
Tribunal) may make a guardianship order that will not be required to be
reviewed when it expires,

(b) to add to the range of functions that may be exercised by the Tribunal when,
at the discretion of the President of the Tribunal, it is constituted by fewer than
3 members and to make provision for the composition and procedure of the
Tribunal when so constituted,

(c) to provide that the Registrar of the Tribunal may, at the discretion of the
President of the Tribunal, exercise certain functions of the Tribunal, and to
provide for certain decisions of the Registrar made in the exercise of those
functions to be reviewable by the Tribunal,

(d) to extend the maximum term of office of a member of the Tribunal from
3 years to 5 years.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.

Clause 3 is a formal provision that gives effect to the amendments to the
Guardianship Act 1987 set out in Schedule 1.

Clause 4 amends the Powers of Attorney Act 2003 by omitting a provision made
redundant as a consequence of the amendment made by Schedule 1 [14].

Clause 5 provides for the repeal of the proposed Act after all of the amendments
made by the proposed Act have commenced. Once the amendments have
commenced the proposed Act will be spent and section 30 of the Interpretation Act
1987 provides that the repeal of an amending Act does not affect the amendments
made by that Act.

Schedule 1 Amendments
Guardianship orders that are not required to be reviewed
Schedule 1 [4] changes the circumstances in which the Tribunal may make a
guardianship order that is not required to be reviewed at its expiration, so that such
an order can be made 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 its expiration. The Tribunal may still review the order if the Tribunal
considers it necessary or if certain persons request a review.

Fewer than 3 Tribunal members may deal with certain matters
Schedule 1 [5], [6] and [8] simplify the language of subsections dealing with the
different member categories of the Tribunal. Proposed section 49 (3) (a) (which is
inserted by Schedule 1 [5]) also makes an amendment to the qualifications of legal
members of the Tribunal, by broadening the category to include all Australian
lawyers.

Section 51 of the Act provides that the Tribunal is, for the purpose of exercising its
functions, to be constituted by no fewer than 3 and no more than 5 members, of
whom at least 1 must be a legal member, at least 1 must be a professional member
and at least 1 must be a community member. However, section 51A provides that the
Tribunal may be constituted by 1 or 2 members if the Tribunal is exercising functions
in respect of certain listed functions.

Schedule 1 [10] repeals section 51A and inserts a new section, as follows:

Section 51A (1) includes an expanded list of functions that a Tribunal constituted by
fewer than 3 members may exercise, at the discretion of the President of the Tribunal.

When the Tribunal is constituted by fewer than 3 members, the President is no longer
required to nominate such members in writing.

Existing section 51A (2) provides that the persons who may constitute the Tribunal
are the President, the Deputy President and such other members of the Tribunal as
the President may nominate. The new section 51A (2) and (4) specify, respectively,
that:

(a) when the Tribunal is constituted by 2 members, the 2 members can be any
combination of the different member categories but must not be from the same
member category, that is, they must not both be legal members, both be
professional members or both be community members, and

(b) when the Tribunal is constituted by a single member for the purpose of
exercising the Tribunal’s function of reviewing a decision of the Registrar, the
single member must be either the President of the Tribunal, the Deputy
President of the Tribunal or a legal member, and

(c) when the Tribunal is constituted by 2 members for the purpose of exercising
the Tribunal’s function of reviewing a decision of the Registrar, at least one
member must be either the President of the Tribunal, the Deputy President of
the Tribunal or a legal member.

Section 51A (3) provides that, when the Tribunal is constituted by 1 or 2 members,
the Tribunal may exercise its functions under Division 2 of Part 6 even if the
substantive proceedings are not before the Tribunal.

Section 51A (5) defines terms used in the proposed section.

Schedule 1 [9] omits the current provision specifying who is the presiding member
of the Tribunal, which is substituted by Schedule 1 [11].

Schedule 1 [11] specifies who is to be the presiding member at any sitting of the
Tribunal. The new section 51B differs from current section 51 (3) and 51A (2) by
providing that, if the Tribunal is constituted by a single member, that member is the
presiding member and, if the Tribunal is constituted by fewer than 3 members and
does not include the President of the Tribunal, the Deputy President of the Tribunal
or a legal member, the presiding member is the member of the Tribunal whom the
President of the Tribunal nominates.

Schedule 1 [12] provides for the determination of questions of law arising at a sitting
of the Tribunal. At present, questions of law are determined by the presiding member
of the Tribunal. The amendment provides that, in the case of a Tribunal constituted
by fewer than 3 members, if the presiding member of the Tribunal is not the President
or the Deputy President of the Tribunal or a legal member, then the presiding member
may not determine a question of law arising at a sitting of the Tribunal. In those
circumstances, the presiding member must refer the question of law to the President
of the Tribunal, the Deputy President of the Tribunal or a legal member nominated
by the President of the Tribunal for decision and must then decide the question of law
according to the decision on the reference.

Schedule 1 [15] limits the power of the presiding member at a sitting of the Tribunal
to order a person to appear before the Tribunal to give evidence or produce
documents so that the power will only apply if the presiding member is the President
of the Tribunal, the Deputy President of the Tribunal or a legal member.

Schedule 1 [21] provides that, when the Tribunal is constituted by fewer than
3 members, the Tribunal is only required to provide each party with formal written
reasons for a decision that relates to consent to major treatment, a review of a
guardianship order, a refusal of a request to review a guardianship order, a review of
a financial management order, a refusal of a request to review a financial
management order, a review of the appointment of a financial manager or a refusal
of a request to review the appointment of a financial manager. The Tribunal, when
constituted by fewer than 3 members, is not required to provide formal written
reasons for other decisions unless a party to the proceedings has requested reasons
within 14 days of the decision or an appeal against the decision has been made to the
Supreme Court.

Schedule 1 [17], [18] and [22] make consequential amendments.

Tribunal may join parties
Schedule 1 [14] extends the power of the Tribunal to join parties to proceedings
before the Tribunal, so that it applies to any proceedings before the Tribunal, not just
proceedings under the Guardianship Act 1987. This would include proceedings
before the Tribunal under the Powers of Attorney Act 2003 relating to the review of
powers of attorney.

Withdrawal of applications
Schedule 1 [16] provides that an application to the Tribunal (whether under the
Guardianship Act 1987 or any other Act) cannot be withdrawn except with the
consent of the Tribunal.

Exercise of certain functions of the Tribunal by the Registrar
Schedule 1 [7] omits the existing provision concerning the appointment of the
Registrar and other staff of the Tribunal, which is substituted by proposed section
67B by Schedule 1 [19].

Schedule 1 [19] provides for the appointment of a Registrar and other staff, sets out
the functions of the Tribunal that the Registrar may exercise and provides for the
review of decisions of the Registrar exercising such functions, as follows:

Proposed section 67B provides for the appointment of a Registrar and other staff (in
updated terms).

Proposed section 67C sets out the functions of the Tribunal that the Registrar may
exercise, at the discretion of the President of the Tribunal. For example, the section
provides for the Registrar to dismiss an application if satisfied, on the face of the
application, that the Tribunal does not have jurisdiction to deal with the application
and to dismiss an application for want of prosecution. Alternatively, the Registrar
may refer a particular matter to the Tribunal if the Registrar considers it more
appropriate for the Tribunal to deal with the matter.

Proposed section 67D provides for the confirmation of decisions by the Registrar and
provides that the Registrar must provide formal written reasons for any decision to
refuse a request to review a guardianship order, to refuse a request to review a
financial management order or to refuse a request to review the appointment of a
financial manager.

Proposed section 67E provides for the review of certain decisions of the Registrar
exercising functions of the Tribunal, either on the Tribunal’s own motion or on the
application of a party to proceedings before the Registrar. Those decisions are a
refusal of a request to review a guardianship order, a refusal of a request to review a
financial management order or a refusal of a request to review the appointment of a
financial manager. The section also provides for the conduct of reviews of decisions
of the Registrar and for the making of orders on such reviews.

Term of office of Tribunal members
Schedule 1 [23] provides that a member of the Tribunal can be appointed to hold
office for a maximum period of 5 years (rather than the current maximum period of
3 years).

Schedule 1 [27] provides that the extension of the maximum term of members does
not apply to the current appointment of current members of the Tribunal.

Other amendments
Schedule 1 [1] inserts definitions of terms used in the proposed amendments.

Schedule 1 [2] updates a reference to an Act that has been renamed.

Schedule 1 [3], [24] and [25] update references to a repealed Act and its provisions.

Schedule 1 [13] transfers two provisions concerning proceedings before the Tribunal
to a more appropriate Division.

Schedule 1 [20] makes the language used in a section consistent.

Schedule 1 [26] provides for the making of savings and transitional regulations
consequent on the enactment of the proposed Act.

Schedule 1 [27] inserts savings and transitional provisions consequent on the
enactment of the proposed Act.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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