GUARDIANSHIP AND ADMINISTRATION AND OTHER ACTS AMENDMENT BILL 2003

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GUARDIANSHIP AND ADMINISTRATION AND OTHER ACTS AMENDMENT BILL 2003

Queensland GUARDIANSHIP AND ADMINISTRATION AND OTHER ACTS AMENDMENT BILL 2003

Queensland GUARDIANSHIP AND ADMINISTRATION AND OTHER ACTS AMENDMENT BILL 2003 TABLE OF PROVISIONS Section Page PART 1--PRELIMINARY 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 PART 2--AMENDMENT OF GUARDIANSHIP AND ADMINISTRATION ACT 2000 2 Act amended in pt 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3 Insertion of new s 11A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 11A Primary focus--adults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 4 Amendment of s 20 (Management plan). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 5 Amendment of s 21 (Advice to registrar of titles if appointment concerns land) ........................................... 9 6 Amendment of s 28 (Periodic review of appointment) . . . . . . . . . . . . . . . . . 9 7 Replacement of s 29 (Other review of appointment) . . . . . . . . . . . . . . . . . . 9 29 Other review of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 8 Amendment of s 31 (Appointment review process) . . . . . . . . . . . . . . . . . . . 10 9 Replacement of s 32 (Tribunal to advise of change or revocation of appointment) .......................................... 10 32 Tribunal to advise of change, revocation or ending of appointment . 10 32A Additional requirements if change, revocation or ending of appointment and interest in land involved ................. 10 10 Amendment of s 44 (Right of guardian or administrator to information). . . 11 11 Amendment of s 50 (Keep property separate). . . . . . . . . . . . . . . . . . . . . . . . 11 12 Omission of ss 52 and 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 13 Amendment of s 68 (Special health care) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 14 Amendment of s 76 (Health providers to give information) . . . . . . . . . . . . . 12

2 Guardianship and Administration and Other Acts Amendment Bill 2003 15 Insertion of new ch 5A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 CHAPTER 5A--CONSENT TO STERILISATION OF CHILD WITH IMPAIRMENT PART 1--PRELIMINARY 80A Definitions for ch 5A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 80B Sterilisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 PART 2--CONSENT BY TRIBUNAL 80C When tribunal may consent and effect of consent . . . . . . . . . . . . . . . 15 80D Whether sterilisation is in child's best interests. . . . . . . . . . . . . . . . . 15 PART 3--TRIBUNAL PROCEEDINGS Division 1--General 80E Relationship with ch 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 80F Members constituting tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 80G Open. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Division 2--Applications 80H Who may apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 80I How to apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 80J Tribunal advises persons concerned of hearing . . . . . . . . . . . . . . . . 21 80K Who is an "active party" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 80L Child representative must be appointed . . . . . . . . . . . . . . . . . . . . . . 22 Division 3--Proceeding 80M Advice, directions and recommendations . . . . . . . . . . . . . . . . . . . . . 23 Division 4--Decision 80N Decision and reasons to each active party . . . . . . . . . . . . . . . . . . . . . 24 Division 5--Appeal 80O Appellant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 PART 4--OTHER PROVISIONS ABOUT CONSENT TO STERILISATION OF CHILD 80P Health providers to give information . . . . . . . . . . . . . . . . . . . . . . . . 25 80Q No less protection than if adult gave consent . . . . . . . . . . . . . . . . . . 25 16 Amendment of s 82 (Functions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 17 Replacement of s 101 (Members constituting tribunal) . . . . . . . . . . . . . . . . 26

3 Guardianship and Administration and Other Acts Amendment Bill 2003 101 Members constituting tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 18 Amendment of s 102 (Presiding member) . . . . . . . . . . . . . . . . . . . . . . . . . . 27 19 Amendment of s 105 (Way question of law to be decided) . . . . . . . . . . . . . 27 20 Insertion of new s 105A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 105A Court's opinion on question of law . . . . . . . . . . . . . . . . . . . . . . . . . . 27 21 Amendment of s 108 (Procedural fairness) . . . . . . . . . . . . . . . . . . . . . . . . . . 28 22 Amendment of s 110 (Procedural directions) . . . . . . . . . . . . . . . . . . . . . . . . 28 23 Amendment of s 118 (Tribunal advises persons concerned of hearing) . . . . 29 24 Replacement of s 119 (Who is an "active party") . . . . . . . . . . . . . . . . . . . . . 29 119 Who is an "active party" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 25 Omission of s 120 (Notice of intention to be an active party). . . . . . . . . . . . 30 26 Replacement of s 122 (Withdrawal of application). . . . . . . . . . . . . . . . . . . . 30 122 Withdrawal by leave. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 27 Amendment of s 129 (Interim order) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 28 Amendment of s 130 (Tribunal to ensure it has all relevant information and material). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 29 Amendment of s 138 (Advice, directions and recommendations) . . . . . . . . 31 30 Insertion of new s 138A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 138A Tribunal may dismiss frivolous etc. applications . . . . . . . . . . . . . . . 31 31 Insertion of new ch 7, pt 4A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 PART 4A--DISPUTE RESOLUTION 145A Definition for pt 4A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 145B Purpose of dispute resolution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 145C Referral to dispute resolution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 145D Appointment of mediator. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 145E Mediator must disclose conflict of interest . . . . . . . . . . . . . . . . . . . . 33 145F Procedure at dispute resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 145G Evidence from dispute resolution inadmissible . . . . . . . . . . . . . . . . . 33 145H Mediator to maintain secrecy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 145I Mediator's report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 145J Settlement of issues at dispute resolution . . . . . . . . . . . . . . . . . . . . . 35 32 Amendment of s 152 (Tribunal authorisation or approval) . . . . . . . . . . . . . . 35

4 Guardianship and Administration and Other Acts Amendment Bill 2003 33 Amendment of s 163 (Tribunal may suspend decision pending appeal). . . . 35 34 Amendment of s 164 (Appellant) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 35 Insertion of new s 164A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 164A Notice of appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 36 Amendment of s 174 (Functions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 37 Amendment of s 183 (Right to information). . . . . . . . . . . . . . . . . . . . . . . . . 36 38 Insertion of new ch 8, pt 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 PART 3A--POWER TO CONSENT TO FORENSIC EXAMINATION 198A Consent to forensic examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 39 Insertion of new s 248A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 248A Protection for person carrying out forensic examination with consent ................................... 38 40 Amendment of s 260 (Management by public trustee) . . . . . . . . . . . . . . . . . 38 41 Insertion of new ch 12, pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 PART 6--TRANSITIONAL PROVISION FOR GUARDIANSHIP AND ADMINISTRATION AND OTHER ACTS AMENDMENT ACT 2003 262C Application of amended s 29 to reviews of existing appointments . . 38 262D Effect of contravention of repealed ss 52 and 53. . . . . . . . . . . . . . . . 39 262E Person given notice of hearing able to become active party . . . . . . . 39 262F Interim orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 42 Amendment of sch 2, s 1 (Financial matter) . . . . . . . . . . . . . . . . . . . . . . . . . 40 43 Amendment of sch 2, s 2 (Personal matter) . . . . . . . . . . . . . . . . . . . . . . . . . 40 44 Amendment of sch 2, s 13 (Approved clinical research) . . . . . . . . . . . . . . . 41 45 Amendment of sch 4 (Dictionary). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 PART 3--AMENDMENT OF CHILD PROTECTION (INTERNATIONAL MEASURES) ACT 2003 46 Act amended in pt 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 47 Amendment of sch 4 (Dictionary). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 PART 4--AMENDMENT OF CHILDREN SERVICES TRIBUNAL ACT 2000 48 Act amended in pt 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 49 Amendment of s 24 (Registrar of tribunal) . . . . . . . . . . . . . . . . . . . . . . . . . . 44 50 Amendment of s 28 (Constitution of tribunal for review). . . . . . . . . . . . . . . 44

5 Guardianship and Administration and Other Acts Amendment Bill 2003 51 Amendment of s 32 (Reconstituting tribunal) . . . . . . . . . . . . . . . . . . . . . . . . 45 52 Amendment of s 79 (Preliminary conferences). . . . . . . . . . . . . . . . . . . . . . . 45 53 Replacement of s 80 (Single member may constitute tribunal for preliminary conference) ................................... 45 80 Constitution of tribunal for preliminary conference . . . . . . . . . . . . . 46 PART 5--AMENDMENT OF POWERS OF ATTORNEY ACT 1998 54 Act amended in pt 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 55 Amendment of s 86 (Keep property separate). . . . . . . . . . . . . . . . . . . . . . . . 46 56 Insertion of new s 104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 104 Protection for person carrying out forensic examination with consent ...................................... 46 57 Amendment of s 123 (Court may dismiss frivolous etc. applications) . . . . . 47 58 Amendment of sch 2, s 1 (Financial matter) . . . . . . . . . . . . . . . . . . . . . . . . . 47 59 Amendment of sch 2, s 2 (Personal matter) . . . . . . . . . . . . . . . . . . . . . . . . . 47 60 Amendment of sch 2, s 13 (Approved clinical research) . . . . . . . . . . . . . . . 47 61 Amendment of sch 3 (Dictionary). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

2003 A BILL FOR An Act to amend the Guardianship and Administration Act 2000, and for other purposes

s1 8 s4 Guardianship and Administration and Other Acts Amendment Bill 2003 The Parliament of Queensland enacts-- 1 PART 1--PRELIMINARY 2 1 Short title Clause 3 This Act may be cited as the Guardianship and Administration and 4 Other Acts Amendment Act 2003. 5 PART 2--AMENDMENT OF GUARDIANSHIP AND 6 ADMINISTRATION ACT 2000 7 2 Act amended in pt 2 Clause 8 This part amends the Guardianship and Administration Act 2000. 9 3 Insertion of new s 11A Clause 10 Chapter 2, after section 11-- 11 insert-- 12 `11A Primary focus--adults 13 `(1) Adults with impaired capacity are the primary focus of this Act. 14 `(2) However, chapter 5A1 deals with children with an impairment.'. 15 4 Amendment of s 20 (Management plan) Clause 16 (1) Section 20, before `nominee'-- 17 insert-- 18 `appropriately qualified'. 19 1 Chapter 5A (Consent to sterilisation of child with impairment)

s5 9 s7 Guardianship and Administration and Other Acts Amendment Bill 2003 (2) Section 20-- 1 insert-- 2 `(2) The tribunal, or its appropriately qualified nominee, may approve a 3 management plan. 4 `(3) In this section-- 5 "appropriately qualified", for a nominee in relation to a management 6 plan, means having the qualifications or experience appropriate to 7 approve the plan.'. 8 5 Amendment of s 21 (Advice to registrar of titles if appointment Clause 9 concerns land) 10 Section 21(1), `the tribunal must'-- 11 omit, insert-- 12 `the tribunal and the administrator must each, within 3 months of the 13 appointment,'. 14 6 Amendment of s 28 (Periodic review of appointment) Clause 15 Section 28, after `administrator'-- 16 insert-- 17 `(other than the public trustee or a trustee company under the Trustee 18 Companies Act 1968)'. 19 7 Replacement of s 29 (Other review of appointment) Clause 20 Section 29-- 21 omit, insert-- 22 `29 Other review of appointment 23 `The tribunal may review an appointment of a guardian or administrator 24 for an adult at any time-- 25 (a) on its own initiative; or 26 (b) on the application of any of the following-- 27 (i) the adult; 28

s8 10 s9 Guardianship and Administration and Other Acts Amendment Bill 2003 (ii) an interested person for the adult; 1 (iii) the public trustee; 2 (iv) a trustee company under the Trustee Companies Act 1968.'. 3 8 Amendment of s 31 (Appointment review process) Clause 4 Section 31(5)(c)-- 5 omit, insert-- 6 `(c) the appointee is an administrator appointed for a matter involving 7 an interest in land and the appointee fails to advise the registrar 8 of titles of the appointment as required under section 21(1); or 9 (d) the appointee has otherwise contravened this Act.'. 10 9 Replacement of s 32 (Tribunal to advise of change or revocation Clause 11 of appointment) 12 Section 32-- 13 omit, insert-- 14 `32 Tribunal to advise of change, revocation or ending of appointment 15 `(1) This section applies if-- 16 (a) the tribunal changes or revokes the appointment for an adult of a 17 guardian or administrator; or 18 (b) the tribunal is given advice of the ending of an appointment 19 under section 26 or 57.2 20 `(2) The registrar of the tribunal must take reasonable steps to advise the 21 adult and any remaining guardians and administrators of the change, 22 revocation or ending of the appointment. 23 `32A Additional requirements if change, revocation or ending of 24 appointment and interest in land involved 25 `(1) This section applies if-- 26 2 Section 26 (Automatic revocation) or 57 (Advice of change of successive appointee)

s 10 11 s 13 Guardianship and Administration and Other Acts Amendment Bill 2003 (a) an administrator was appointed for a matter involving an interest 1 in land; and 2 (b) either-- 3 (i) the tribunal changes or revokes the appointment; or 4 (ii) the tribunal is given advice of the ending of the appointment 5 under section 26 or 57. 6 `(2) The registrar of the tribunal and any remaining administrator 7 appointed for a matter involving an interest in land must, within 3 months 8 of the change, revocation or ending of the appointment, advise the registrar 9 of titles of the change, revocation or ending of the appointment. 10 `(3) If the registrar of titles receives an advice, the registrar of titles must 11 enter the advice in a file maintained for the purpose.'. 12 10 Amendment of s 44 (Right of guardian or administrator to Clause 13 information) 14 Section 44(6), `This section'-- 15 omit, insert-- 16 `Subject to subsection (5), this section'. 17 11 Amendment of s 50 (Keep property separate) Clause 18 Section 50(1), as a penalty-- 19 insert-- 20 `Maximum penalty--300 penalty units.'. 21 12 Omission of ss 52 and 53 Clause 22 Sections 52 and 53-- 23 omit. 24 13 Amendment of s 68 (Special health care) Clause 25 Section 68(1), `may consent'-- 26

s 14 12 s 14 Guardianship and Administration and Other Acts Amendment Bill 2003 omit, insert-- 1 `may, by order, consent'. 2 14 Amendment of s 76 (Health providers to give information) Clause 3 (1) Section 76(2) and (3), after `who is treating'-- 4 insert-- 5 `, or has treated,'. 6 (2) Section 76(4)-- 7 omit, insert-- 8 `(4) The information to be given by a health provider who is treating, or 9 has treated, the adult includes information about-- 10 (a) the nature of the adult's condition at the time of the treatment; 11 and 12 (b) the particular form of health care being, or that was, carried out; 13 and 14 (c) the reasons why the particular form of health care is being, or 15 was, carried out; and 16 (d) the alternative forms of health care available for the condition at 17 the time of the treatment; and 18 (e) the general nature and effect of each form of health care at the 19 time of the treatment; and 20 (f) the nature and extent of short-term, or long-term, significant risks 21 associated with each form of health care; and 22 (g) for a health provider who is treating the adult--the reasons why 23 it is proposed a particular form of health care should be carried 24 out.'. 25 (3) Section 76(8), `This section'-- 26 omit, insert-- 27 `Subject to subsection (7), this section'. 28 (4) Section 76(9)-- 29 omit, insert-- 30

s 15 13 s 15 Guardianship and Administration and Other Acts Amendment Bill 2003 `(9) This section does not limit-- 1 (a) a guardian's right to information under section 44; or 3 2 (b) the tribunal's right to information under section 130;4 or 3 (c) an attorney's right to information under the Powers of Attorney 4 Act 1998, section 81.5'. 5 15 Insertion of new ch 5A Clause 6 After section 80-- 7 insert-- 8 `CHAPTER 5A--CONSENT TO STERILISATION OF 9 CHILD WITH IMPAIRMENT 10 `PART 1--PRELIMINARY 11 `80A Definitions for ch 5A 12 `In this chapter-- 13 "active party" see section 80K.6 14 "alternative forms of health care" includes menstrual management 15 strategies and alternative forms of sterilisation. 16 "chapter 5A application" means an application under this chapter for 17 consent to the sterilisation of a child7 with an impairment. 18 "child representative" see section 80L.8 19 3 Section 44 (Right of guardian or administrator to information) 4 Section 130 (Tribunal to ensure it has all relevant information and material) 5 Powers of Attorney Act 1998, section 81 (Right of attorney to information) 6 Section 80K (Who is an "active party") 7 "Child", if age rather than descendancy is relevant, means an individual who is under 18--Acts Interpretation Act 1954, section 36 (Meaning of commonly used words and expressions). 8 Section 80L (Child representative must be appointed)

s 15 14 s 15 Guardianship and Administration and Other Acts Amendment Bill 2003 "confidentiality order" see section 80G(2).9 1 "health care", of a child, is care or treatment of, or a service or a 2 procedure for, the child-- 3 (a) to diagnose, maintain, or treat the child's physical or mental 4 condition; and 5 (b) carried out by, or under the direction or supervision of, a health 6 provider. 7 "impairment" means a cognitive, intellectual, neurological, or psychiatric 8 impairment. 9 "sterilisation" see section 80B. 10 `80B Sterilisation 11 `(1) "Sterilisation" is health care of a child who is, or is reasonably 12 likely to be, fertile that is intended, or reasonably likely, to make the child, 13 or to ensure the child is, permanently infertile. 14 15 Examples of sterilisation-- 16 Endometrial oblation, hysterectomy, tubal ligation and vasectomy. `(2) However, sterilisation does not include health care without which an 17 organic malfunction or disease of the child is likely to cause serious or 18 irreversible damage to the child's physical health. 19 20 Example-- 21 If the child has cancer affecting the reproductive system and, without the health care, 22 the cancer is likely to cause serious or irreversible damage to the child's physical 23 health, the health care is not sterilisation. 9 Section 80G (Open)

s 15 15 s 15 Guardianship and Administration and Other Acts Amendment Bill 2003 `PART 2--CONSENT BY TRIBUNAL 1 `80C When tribunal may consent and effect of consent 2 `(1) On an application made under part 3,10 the tribunal may, by order, 3 consent to the sterilisation of a child with an impairment. 4 `(2) The tribunal may consent to the sterilisation only if the tribunal is 5 satisfied the sterilisation is in the best interests of the child. 6 `(3) A child's sterilisation, to which the tribunal has consented, is not 7 unlawful. 8 `80D Whether sterilisation is in child's best interests 9 `(1) The sterilisation of a child with an impairment is in the child's best 10 interests only if-- 11 (a) one or more of the following applies-- 12 (i) the sterilisation is medically necessary; 13 (ii) the child is, or is likely to be, sexually active and there is no 14 method of contraception that could reasonably be expected 15 to be successfully applied; 16 (iii) if the child is female--the child has problems with 17 menstruation and cessation of menstruation by sterilisation 18 is the only practicable way of overcoming the problems; and 19 (b) the child's impairment results in a substantial reduction of the 20 child's capacity for communication, social interaction and 21 learning; and 22 (c) the child's impairment is, or is likely to be, permanent and there 23 is a reasonable likelihood, when the child turns 18, the child will 24 have impaired capacity11 for consenting to sterilisation; and 25 (d) the sterilisation can not reasonably be postponed; and 26 (e) the sterilisation is otherwise in the child's best interests. 27 `(2) Sterilisation is not in the child's best interests if the sterilisation is-- 28 10 Part 3 (Tribunal proceedings) 11 See schedule 4 (Dictionary).

s 15 16 s 15 Guardianship and Administration and Other Acts Amendment Bill 2003 (a) for eugenic reasons; or 1 (b) to remove the risk of pregnancy resulting from sexual abuse. 2 `(3) In deciding whether the sterilisation is in the child's best interests, 3 the tribunal must-- 4 (a) ensure the child is treated in a way that respects the child's 5 dignity and privacy; and 6 (b) do each of the following-- 7 (i) in a way that has regard to the child's age and impairment, 8 seek the child's views and wishes and take them into 9 account; 10 (ii) to the greatest extent practicable, seek the views of each of 11 the following persons and take them into account-- 12 (A) any parent or guardian of the child; 13 (B) if a parent or guardian is not the child's primary carer, 14 the child's primary carer; 15 (C) the child representative for the child; 16 (iii) take into account the information given by any health 17 provider who is treating, or has treated, the child; and 18 (c) take into account-- 19 (i) the wellbeing of the child; and 20 (ii) alternative forms of health care that have proven to be 21 inadequate in relation to the child; and 22 (iii) alternative forms of health care that are available, or likely 23 to become available, in the foreseeable future; and 24 (iv) the nature and extent of short-term, or long-term, significant 25 risks associated with the proposed sterilisation and available 26 alternative forms of health care. 27 `(4) The child's views and wishes may be expressed in the following 28 ways-- 29 (a) orally; 30 (b) in writing; 31 (c) in another way including, for example, by conduct. 32

s 15 17 s 15 Guardianship and Administration and Other Acts Amendment Bill 2003 `PART 3--TRIBUNAL PROCEEDINGS 1 `Division 1--General 2 `80E Relationship with ch 7 3 `(1) The following provisions of chapter 7 apply in relation to a 12 4 chapter 5A application and a proceeding under this part-- 5 � part 1 (other than sections 101 and 109) 6 � section 122 7 � part 3 (other than section 125) 8 � part 4 (other than sections 128, 129, 134, 138 and 138A) 9 � part 6 (other than section 158) 10 � part 8 (other than section 164) 11 � part 10.13 12 `(2) The remaining provisions of chapter 7 do not apply in relation to a 13 chapter 5A application or a proceeding under this part. 14 `(3) However, this part contains additional provisions that apply in 15 relation to a chapter 5A application and a proceeding under this part. 16 `80F Members constituting tribunal 17 `(1) At a hearing of a chapter 5A application, the tribunal must be 18 constituted by 3 members. 19 `(2) To the extent practicable, the tribunal must include-- 20 12 Chapter 7 (Tribunal proceedings) 13 Part 1 (General), sections 101 (Members constituting tribunal) and 109 (Open), section 122 (Withdrawal of application), part 3 (Participation), section 125 (Representative may be appointed), part 4 (Proceeding), sections 128 (Tribunal may stay decision pending hearing), 129 (Interim order), 134 (Report by tribunal staff), 138 (Advice, directions and recommendations), 138A (Tribunal may dismiss frivolous etc. applications), part 6 (Decision), section 158 (Decision and reasons to the adult and each active party), part 8 (Appeal), section 164 (Appellant), part 10 (Other provisions about proceedings)

s 15 18 s 15 Guardianship and Administration and Other Acts Amendment Bill 2003 (a) the president, a deputy president or a legal member; and 1 (b) a member who is a paediatrician; and 2 (c) a personal experience member. 3 `(3) In this section-- 4 "paediatrician" means a specialist registrant in paediatrics under the 5 Medical Practitioners Registration Act 2001. 6 `80G Open 7 `(1) Generally, a hearing by the tribunal of a proceeding in relation to a 8 chapter 5A application must be in public. 9 `(2) However, if the tribunal is satisfied it is desirable to do so because of 10 the confidential nature of particular information or matter or for another 11 reason, the tribunal may, by order (a "confidentiality order")-- 12 (a) give directions about the persons who may or may not be present; 13 and 14 (b) direct a hearing or part of a hearing take place in private; and 15 (c) give directions prohibiting or restricting the publication of 16 information given before the tribunal, whether in public or in 17 private, or of matters contained in documents filed with, or 18 received by, the tribunal; and 19 (d) give directions prohibiting or restricting the disclosure to some or 20 all of the active parties in a proceeding of-- 21 (i) information given before the tribunal; or 22 (ii) matters contained in documents filed with, or received by, 23 the tribunal; or 24 (iii) subject to subsection (3), the tribunal's decision or reasons. 25 `(3) The tribunal may make a confidentiality order prohibiting or 26 restricting disclosure of the tribunal's decision or reasons to the child only 27 if the tribunal considers disclosure to the child might be prejudicial to the 28 physical or mental health or wellbeing of the child. 29 `(4) The tribunal may not make a confidentiality order that is likely to 30 affect the ability of an active party to form and express a considered view 31 about the proposed sterilisation. 32

s 15 19 s 15 Guardianship and Administration and Other Acts Amendment Bill 2003 `(5) The tribunal may make a confidentiality order on its own initiative 1 or on the application of an active party. 2 `(6) A person must not contravene a confidentiality order, unless the 3 person has a reasonable excuse. 4 Maximum penalty for subsection (6)--200 penalty units. 5 `Division 2--Applications 6 `80H Who may apply 7 `(1) An application may be made to the tribunal for consent to the 8 sterilisation of a child with an impairment. 9 `(2) The application may only be made by-- 10 (a) a parent or guardian of the child; or 11 (b) another interested person. 14 12 `80I How to apply 13 `(1) Unless the tribunal directs otherwise, a chapter 5A application 14 must-- 15 (a) be written; and 16 (b) be signed by the applicant; and 17 (c) be filed with the tribunal; and 18 (d) comply with subsections (2) to (5). 19 `(2) The application must include all of the following information-- 20 (a) the reason for the application, including information about why 21 the proposed sterilisation would, in the applicant's view, be in the 22 child's best interests;15 23 (b) a detailed description of-- 24 (i) the child's impairment; and 25 14 See schedule 4 (Dictionary). 15 See section 80C (When tribunal may consent and effect of consent).

s 15 20 s 15 Guardianship and Administration and Other Acts Amendment Bill 2003 (ii) how the child communicates; and 1 (iii) the impact of the impairment on the child's capacity for 2 communication, social interaction and learning; 3 (c) whether the child has been informed of the application; 4 (d) whether the child has indicated the child does not wish to have 5 the proposed sterilisation;16 6 (e) information about the help, if any, the child might need at the 7 hearing of the application; 8 (f) if urgent action is required--an explanation of the urgency; 9 (g) any other information in relation to the wellbeing of the child the 10 applicant considers relevant; 11 (h) to the best of the applicant's knowledge, information about the 12 following persons-- 13 (i) the applicant; 14 (ii) the child; 15 (iii) any parent or guardian of the child; 16 (iv) if a parent or guardian of the child is not the primary carer 17 of the child, the primary carer of the child; 18 (v) a doctor who is treating the child. 19 `(3) The information required under subsection (2)(h) is to enable the 20 tribunal to give notice of the hearing and must consist of-- 21 (a) each person's name; and 22 (b) either-- 23 (i) details the applicant knows of the person's address and 24 telephone and facsimile number; or 25 (ii) if the applicant does not know the details--a way known to 26 the applicant of contacting the person. 27 `(4) The application must also include a report by a doctor who is 28 treating the child. 29 `(5) The report must state in detail information about-- 30 16 See section 80D(4) (Whether sterilisation is in child's best interests)

s 15 21 s 15 Guardianship and Administration and Other Acts Amendment Bill 2003 (a) the child's impairment and the impact of the impairment on the 1 child's capacity for communication, social interaction and 2 learning; and 3 (b) the proposed sterilisation, including information about-- 4 (i) the reason for the proposed sterilisation, including 5 information about why the proposed sterilisation would, in 6 the doctor's view, be in the child's best interests; and 7 (ii) whether the child is, or is reasonably likely to be, fertile; 8 and 9 (iii) the type of proposed sterilisation and a description of the 10 procedure; and 11 (iv) when and where the proposed sterilisation would be carried 12 out; and 13 (v) why the sterilisation can not be reasonably postponed; and 14 (vi) any alternative forms of health care that have proven to be 15 inadequate in relation to the child; and 16 (vii) alternative forms of health care that are available, or likely 17 to become available, in the foreseeable future; and 18 (viii) any risks to the child if the proposed sterilisation is carried 19 out; and 20 (ix) any risks to the child if the proposed sterilisation is not 21 carried out; and 22 (x) the likely long term social and psychological effects of the 23 sterilisation on the child; and 24 (xi) whether the child's impairment is, or is likely to be, 25 permanent. 26 `80J Tribunal advises persons concerned of hearing 27 `(1) At least 7 days before the hearing of a chapter 5A application, the 28 tribunal must give notice of the hearing to the child and, as far as 29 practicable, to-- 30 (a) the applicant; and 31 (b) any parent or guardian of the child; and 32

s 15 22 s 15 Guardianship and Administration and Other Acts Amendment Bill 2003 (c) if a parent or guardian of the child is not the primary carer of the 1 child, the primary carer; and 2 (d) a doctor who is treating the child; and 3 (e) the child representative for the child; and 4 (f) anyone else the tribunal considers should be notified. 5 `(2) However, the tribunal is not required to give notice to the child if the 6 tribunal considers that notice to the child might be prejudicial to the 7 physical or mental health or wellbeing of the child. 8 `(3) Also, if the president or presiding member of the tribunal is satisfied 9 urgent action is required, the president or presiding member may, by 10 direction under section 110,17 direct that the time stated in subsection (1) be 11 reduced. 12 `80K Who is an "active party" 13 `Each of the following persons is an "active party" for a proceeding in 14 relation to a chapter 5A application-- 15 (a) the child; 16 (b) the applicant; 17 (c) any parent or guardian of the child; 18 (d) if a parent or guardian of the child is not the primary carer of the 19 child, the primary carer of the child; 20 (e) a doctor who is treating the child; 21 (f) the child representative for the child; 22 (g) a person joined as a party to the proceeding by the tribunal. 23 `80L Child representative must be appointed 24 `(1) As soon as possible after a chapter 5A application is made, the 25 tribunal must appoint a person to separately represent the child before the 26 tribunal (a "child representative"). 27 17 Section 110 (Procedural directions)

s 15 23 s 15 Guardianship and Administration and Other Acts Amendment Bill 2003 `(2) A person is eligible for appointment as a child representative only if 1 the person is a lawyer18 who has experience in dealing with children with 2 an impairment. 3 `(3) The child representative must-- 4 (a) act in the child's best interests; and 5 (b) have regard to any expressed views or wishes of the child; and 6 (c) to the greatest extent practicable, present the child's views and 7 wishes to the tribunal. 8 `(4) To ensure the child representative has all the information necessary 9 to act in the child's best interests, the tribunal may order a person, for 10 example, a parent or a doctor who is treating, or has treated, the child, to 11 give the child representative information about the child. 12 `(5) If the tribunal orders a person to give information under 13 subsection (4), the person must comply with the order unless the person 14 has a reasonable excuse. 15 `(6) It is a reasonable excuse for a person to fail to give information 16 because giving the information might tend to incriminate the person. 17 `(7) Subject to subsection (6), this section overrides-- 18 (a) any restriction, in an Act or the common law, about the disclosure 19 or confidentiality of information; and 20 (b) any claim of confidentiality or privilege, including a claim based 21 on legal professional privilege. 22 `Division 3--Proceeding 23 `80M Advice, directions and recommendations 24 `(1) Once a chapter 5A application is made to the tribunal, the tribunal 25 may-- 26 (a) give the advice or directions about the application it considers 27 appropriate; or 28 18 "Lawyer" means a barrister, solicitor, barrister and solicitor or legal practitioner of the High Court or the Supreme Court of a State--Acts Interpretation Act 1954, section 36 (Meaning of commonly used words and expressions).

s 15 24 s 15 Guardianship and Administration and Other Acts Amendment Bill 2003 (b) make the recommendations it considers appropriate about action 1 an active party should take. 2 `(2) If the tribunal gives advice or a direction or makes a 3 recommendation, it may also-- 4 (a) continue with the application; or 5 (b) adjourn the application; or 6 (c) dismiss the application. 7 `(3) The tribunal may also give leave for an active party to apply to the 8 tribunal for directions about implementing the recommendation. 9 `Division 4--Decision 10 `80N Decision and reasons to each active party 11 `(1) Generally, the tribunal must give a copy of its decision, and any 12 written reasons for its decision, on a chapter 5A application to each active 13 party in the proceeding. 14 `(2) Generally, the tribunal must also give a copy of its decision to each 15 person given notice of the hearing of the application. 16 `(3) However, a confidentiality order may displace the requirement to 17 give copies of its decision or reasons.19 18 `(4) The tribunal may also give a copy of its decision or reasons to 19 anyone else as required by a tribunal order. 20 `Division 5--Appeal 21 `80O Appellant 22 `(1) An active party for a proceeding under this part may, by notice, 23 appeal to the court against a tribunal decision in relation to the proceeding. 24 `(2) The court's leave is required for an appeal other than an appeal on a 25 question of law only. 26 19 See section 80G (Open).

s 15 25 s 15 Guardianship and Administration and Other Acts Amendment Bill 2003 `(3) In this section-- 1 "tribunal decision" includes a declaration, order or direction of the 2 tribunal. 3 `PART 4--OTHER PROVISIONS ABOUT CONSENT TO 4 STERILISATION OF CHILD 5 `80P Health providers to give information 6 `(1) The purpose of this section is to ensure the tribunal, in deciding 7 whether to consent to sterilisation of a child, has all the information 8 necessary to make an informed decision. 9 `(2) The tribunal may order a health provider who is treating, or has 10 treated, the child to give information to the tribunal, including-- 11 (a) the type of information mentioned in section 80I(5); and 12 (b) any other relevant information. 13 `(3) The health provider must comply with the order, unless the health 14 provider has a reasonable excuse. 15 `(4) It is a reasonable excuse for a health provider to fail to give 16 information because giving the information might tend to incriminate the 17 health provider. 18 `(5) Subject to subsection (4), this section overrides-- 19 (a) any restriction, in an Act or the common law, about the disclosure 20 or confidentiality of information; and 21 (b) any claim of confidentiality or privilege. 22 `80Q No less protection than if adult gave consent 23 `A person carrying out sterilisation of a child to which the tribunal has 24 consented under this part is not liable for an act or omission to any greater 25 extent than if the child were an adult with capacity to consent and the act or 26 omission happened with the adult's consent.'. 27

s 16 26 s 17 Guardianship and Administration and Other Acts Amendment Bill 2003 16 Amendment of s 82 (Functions) Clause 1 (1) Section 82(1)(h) and (i)-- 2 renumber as section 82(1)(i) and (j). 3 (2) Section 82(1)-- 4 insert-- 5 `(h) consenting to the sterilisation of a child with an impairment; '.20 6 17 Replacement of s 101 (Members constituting tribunal) Clause 7 Section 101-- 8 omit, insert-- 9 `101 Members constituting tribunal 10 `(1) At a hearing, the tribunal must be constituted by 3 members unless 11 the president considers it appropriate for the proceeding to be heard by the 12 tribunal constituted by 2 members or a single member. 13 `(2) To the extent practicable, the tribunal when constituted by 14 3 members must include-- 15 (a) the president, a deputy president or a legal member; and 16 (b) a professional member; and 17 (c) a personal experience member. 18 `(3) To the extent practicable, the tribunal when constituted by 19 2 members must be constituted by-- 20 (a) the president, a deputy president or a legal member; and 21 (b) a professional member or a personal experience member. 22 `(4) When constituted by a single member-- 23 (a) the tribunal must be constituted by a legal member or a 24 professional member; and 25 (b) the single member is taken to be the presiding member. 26 20 See chapter 5A (Consent to sterilisation of child with impairment).

s 18 27 s 20 Guardianship and Administration and Other Acts Amendment Bill 2003 `(5) Despite subsections (2), (3) and (4), when constituted to hear an 1 application for a warrant to enter a place and to remove an adult,21 the 2 tribunal must be constituted by or include 1 of the following members-- 3 (a) the president; 4 (b) a deputy president who was eligible for appointment under 5 section 86(5)(a); 6 (c) a legal member.'. 7 18 Amendment of s 102 (Presiding member) Clause 8 Section 102(1), `3 members'-- 9 omit, insert-- 10 `2 or 3 members'. 11 19 Amendment of s 105 (Way question of law to be decided) Clause 12 Section 105-- 13 insert-- 14 `(5) This section does not apply if the tribunal has referred a question of 15 law to the court for opinion.'. 16 20 Insertion of new s 105A Clause 17 After section 105-- 18 insert-- 19 `105A Court's opinion on question of law 20 `(1) The tribunal may, at any stage of a proceeding and on the terms it 21 considers appropriate, refer a question of law relevant to the proceeding to 22 the court for opinion. 23 `(2) The court may-- 24 (a) hear and decide the question; and 25 21 See chapter 7 (Tribunal proceedings), part 5 (Particular proceedings or orders), division 2 (Entry and removal warrant), particularly section 149 (Issue of entry and removal warrant).

s 21 28 s 22 Guardianship and Administration and Other Acts Amendment Bill 2003 (b) remit the question, with its opinion, to the tribunal. 1 `(3) The tribunal must give effect to the court's opinion.'. 2 21 Amendment of s 108 (Procedural fairness) Clause 3 Section 108(2) and (3)-- 4 omit, insert-- 5 `(2) Each active party in a proceeding must be given a reasonable 6 opportunity to present the active party's case and, in particular, to inspect a 7 document before the tribunal directly relevant to an issue in the proceeding 8 and to make submissions about the document. 9 `(3) However-- 10 (a) the tribunal may displace the right to inspect the document in a 11 confidentiality order;22 and 12 (b) the tribunal rules may prescribe conditions in relation to 13 inspection of the document.'. 14 22 Amendment of s 110 (Procedural directions) Clause 15 Section 110(6) and (7)-- 16 omit, insert-- 17 `(6) If the tribunal engages a person under subsection (2)(b), the tribunal 18 must pay the person an amount prescribed under a regulation. 19 `(7) If the tribunal gives a direction under subsection (2)(c) or (e), the 20 tribunal may direct that a party pay for the examination or for the 21 preparation and production of the report or document. 22 `(8) In this section-- 23 `"psychologist" means a general registrant under the Psychologists 24 Registration Act 2001.'.'. 25 22 See section 109 (Open).

s 23 29 s 24 Guardianship and Administration and Other Acts Amendment Bill 2003 23 Amendment of s 118 (Tribunal advises persons concerned of Clause 1 hearing) 2 (1) Section 118(1), `14 days'-- 3 omit, insert-- 4 `7 days'. 5 (2) Section 118(2) to (7)-- 6 renumber as section 118(3) to (8). 7 (3) Section 118-- 8 insert-- 9 `(2) However, the tribunal is not required to give notice to the adult if any 10 of the following apply-- 11 (a) the tribunal considers that notice to the adult might be prejudicial 12 to the physical or mental health or wellbeing of the adult; 13 (b) the tribunal considers the adult is evading the hearing; 14 (c) the adult is-- 15 (i) temporarily or permanently unconscious; or 16 (ii) unable to be located after the tribunal has made reasonable 17 inquiries into the adult's whereabouts.'. 18 (4) Section 118(6) as renumbered, `Failure'-- 19 omit, insert-- 20 `Subject to subsection (2), failure'. 21 24 Replacement of s 119 (Who is an "active party") Clause 22 Section 119-- 23 omit, insert-- 24 `119 Who is an "active party" 25 `Each of the following persons is an "active party" for a proceeding in 26 relation to an adult-- 27 (a) the adult; 28 (b) if the adult is not the applicant--the applicant; 29

s 25 30 s 27 Guardianship and Administration and Other Acts Amendment Bill 2003 (c) if the proceeding is for the appointment or reappointment of a 1 guardian, administrator or attorney for the adult--the person 2 proposed for appointment or reappointment; 3 (d) any current guardian, administrator or attorney for the adult; 4 (e) the adult guardian; 5 (f) the public trustee; 6 (g) a person joined as a party to the proceeding by the tribunal.'. 7 25 Omission of s 120 (Notice of intention to be an active party) Clause 8 Section 120-- 9 omit. 10 26 Replacement of s 122 (Withdrawal of application) Clause 11 Section 122-- 12 omit, insert-- 13 `122 Withdrawal by leave 14 `An application may be withdrawn only with the tribunal's leave.'. 15 27 Amendment of s 129 (Interim order) Clause 16 (1) Section 129(4), `28 days'-- 17 omit, insert-- 18 `6 months'. 19 (2) Section 129(6)-- 20 renumber as section 129(7). 21 (3) Section 129-- 22 insert-- 23 `(6) However, an interim order may be renewed only if the period of the 24 renewal, when added to the period of the original interim order and any 25 previous renewals, is not more than 6 months.'. 26

s 28 31 s 30 Guardianship and Administration and Other Acts Amendment Bill 2003 28 Amendment of s 130 (Tribunal to ensure it has all relevant Clause 1 information and material) 2 Section 130-- 3 insert-- 4 `(2) At the tribunal's request, a person who has custody or control of 5 information or material that the tribunal considers is necessary to make an 6 informed decision about the matter must give the information or material to 7 the tribunal, unless the person has a reasonable excuse. 8 `(3) The tribunal may order a person to give information or material to 9 the tribunal. 10 `(4) If the tribunal orders a person to give it information or material, the 11 person must comply with the order, unless the person has a reasonable 12 excuse. 13 `(5) It is a reasonable excuse for a person to fail to give information or 14 material because giving the information or material might tend to 15 incriminate the person. 16 `(6) Subject to subsection (5), this section overrides-- 17 (a) any restriction, in an Act or the common law, about the disclosure 18 or confidentiality of information; and 19 (b) any claim of confidentiality or privilege, including a claim based 20 on legal professional privilege.'. 21 29 Amendment of s 138 (Advice, directions and recommendations) Clause 22 Section 138(2)(c)-- 23 omit. 24 30 Insertion of new s 138A Clause 25 After section 138-- 26 insert-- 27 `138A Tribunal may dismiss frivolous etc. applications 28 `(1) The tribunal may dismiss an application at any stage of a proceeding 29 if the tribunal-- 30

s 31 32 s 31 Guardianship and Administration and Other Acts Amendment Bill 2003 (a) considers the application is frivolous, trivial, or vexatious; or 1 (b) is satisfied the application is misconceived or lacks substance. 2 `(2) The tribunal may dismiss the application on its own initiative or on 3 the application of an active party.'. 4 31 Insertion of new ch 7, pt 4A Clause 5 After section 145-- 6 insert-- 7 `PART 4A--DISPUTE RESOLUTION 8 `145A Definition for pt 4A 9 `In this part-- 10 "dispute resolution" means dispute resolution under this Act. 11 `145B Purpose of dispute resolution 12 `The purpose of dispute resolution is-- 13 (a) to identify and reduce the issues in dispute between the active 14 parties to a proceeding; and 15 (b) to promote settlement of the issues in dispute. 16 `145C Referral to dispute resolution 17 `(1) At any stage of a proceeding, the tribunal may, with the president's 18 approval, refer the active parties to dispute resolution. 19 `(2) The tribunal may give directions and make orders about the conduct 20 of a dispute resolution. 21 22 Example of tribunal direction-- 23 To help a person participate in a dispute resolution, the tribunal may direct that the 24 person be allowed to use the services of an interpreter.

s 31 33 s 31 Guardianship and Administration and Other Acts Amendment Bill 2003 `145D Appointment of mediator 1 `(1) This section applies if the active parties to a proceeding are referred 2 to dispute resolution. 3 `(2) The president must appoint a tribunal member, other than the 4 president, as mediator to conduct the dispute resolution. 5 `(3) A tribunal member, other than a tribunal member hearing the 6 proceeding, may be appointed as the mediator. 7 `145E Mediator must disclose conflict of interest 8 `(1) This section applies if-- 9 (a) a mediator appointed to conduct a dispute resolution becomes 10 aware the mediator has an interest in an issue being considered in 11 the dispute resolution; and 12 (b) the interest could conflict with the proper performance of the 13 mediator's functions for the dispute resolution. 14 `(2) The mediator must disclose the issue giving rise to the conflict to the 15 president constituted for the proceeding. 16 `(3) After making the disclosure-- 17 (a) the mediator may disqualify himself or herself; or 18 (b) may continue to conduct the dispute resolution only with the 19 agreement of the president and the active parties. 20 `(4) In this section-- 21 "interest" means direct or indirect financial or other interest. 22 `145F Procedure at dispute resolution 23 `Subject to any directions given or orders made by the tribunal, the way a 24 dispute resolution is conducted is at the mediator's discretion. 25 `145G Evidence from dispute resolution inadmissible 26 `(1) Evidence of anything said or done in the course of a dispute 27 resolution is inadmissible in any proceeding. 28 `(2) However-- 29

s 31 34 s 31 Guardianship and Administration and Other Acts Amendment Bill 2003 (a) evidence of something said or done in the course of a dispute 1 resolution is admissible in a proceeding if all active parties 2 participating in the dispute resolution agree to the admission of 3 the evidence; or 4 (b) if an active party participating in a dispute resolution makes a 5 threat against another person, evidence of something said or done 6 in the course of the dispute resolution relevant to the threat is 7 admissible in a proceeding in which the threat is relevant; or 8 (c) if 1 of the active parties participating in a dispute resolution 9 admits to emotionally, mentally or physically abusing the adult, 10 evidence of the admission is admissible in a proceeding in which 11 the abuse is relevant. 12 `145H Mediator to maintain secrecy 13 `(1) A mediator must not disclose information about a matter coming to 14 the mediator's knowledge during dispute resolution, unless the mediator 15 has a reasonable excuse. 16 `(2) Without limiting what is a reasonable excuse, it is a reasonable 17 excuse to disclose information if-- 18 (a) the disclosure is permitted under section 145G; or 19 (b) the disclosure is made under section 145I. 20 `145I Mediator's report 21 `The mediator must report to the tribunal on the following-- 22 (a) whether a dispute resolution happened; 23 (b) if a dispute resolution happened-- 24 (i) when the dispute resolution took place; and 25 (ii) who participated in the dispute resolution; and 26 (iii) whether or not the active parties participating in the dispute 27 resolution reached a settlement of the issues in dispute. 28

s 32 35 s 34 Guardianship and Administration and Other Acts Amendment Bill 2003 `145J Settlement of issues at dispute resolution 1 `(1) This section applies if the active parties to a proceeding in relation to 2 an application reach a settlement of the issues in dispute during a dispute 3 resolution. 4 `(2) The settlement must be-- 5 (a) in writing; and 6 (b) signed by each of the active parties; and 7 (c) filed with the tribunal. 8 `(3) Without conducting a hearing or further hearing, the tribunal may 9 decide the application in terms of the settlement if the tribunal-- 10 (a) considers the terms of the settlement are in the best interests of 11 the adult about whom the application was made; and 12 (b) could otherwise give a decision in those terms under this or 13 another Act.'. 14 32 Amendment of s 152 (Tribunal authorisation or approval) Clause 15 Section 152(2) to (4)-- 16 omit, insert-- 17 `(2) The tribunal may approve an investment as an authorised 18 investment.'. 19 33 Amendment of s 163 (Tribunal may suspend decision pending Clause 20 appeal) 21 Section 163(1), before `part 6 or 7'-- 22 insert-- 23 `chapter 5A or'. 23 24 34 Amendment of s 164 (Appellant) Clause 25 Section 164(1), `may appeal'-- 26 23 Chapter 5A (Consent to sterilisation of child with impairment)

s 35 36 s 37 Guardianship and Administration and Other Acts Amendment Bill 2003 omit, insert-- 1 `may, by notice, appeal'. 2 35 Insertion of new s 164A Clause 3 After section 164-- 4 insert-- 5 `164A Notice of appeal 6 `A notice of appeal must, unless the court orders otherwise-- 7 (a) be filed in the court registry within 28 days after the date of the 8 tribunal decision appealed from, or the date of the written 9 reasons for the tribunal's decision, whichever is later; and 10 (b) be served as soon as practicable on all active parties to the 11 proceeding.24'. 12 36 Amendment of s 174 (Functions) Clause 13 (1) Section 174(2)(f) and (g)-- 14 renumber as section 174(2)(g) and (h). 15 (2) Section 174(2)-- 16 insert-- 17 `(f) consenting to a forensic examination under section 198A;25'. 18 37 Amendment of s 183 (Right to information) Clause 19 Section 183(5), `However, this section'-- 20 omit, insert-- 21 `Subject to subsection (4), this section'. 22 24 See the Uniform Civil Procedures Rules 1999, rules 784 (Procedure for appeals to a court from other entities) and 785 (Application of rules to appeals and cases stated under this part). 25 Section 198A (Consent to forensic examination)

s 38 37 s 39 Guardianship and Administration and Other Acts Amendment Bill 2003 38 Insertion of new ch 8, pt 3A Clause 1 After section 198-- 2 insert-- 3 `PART 3A--POWER TO CONSENT TO FORENSIC 4 EXAMINATION 5 `198A Consent to forensic examination 6 `The adult guardian may consent to the forensic examination of an adult 7 with impaired capacity for consenting to the examination if-- 8 (a) the adult guardian reasonably considers the examination is in the 9 adult's best interests; and 10 (b) any of the following apply-- 11 (i) no guardian or attorney for the adult is appointed or 12 available to consent for the adult to the examination; 13 (ii) any guardian or attorney for the adult who is available has 14 failed to consent; 15 (iii) the adult guardian reasonably considers the adult's interests 16 would not be adequately protected if the consent of any 17 guardian or attorney for the adult were sought.26 18 19 Example of forensic examination that may be in an adult's best interests-- 20 A forensic examination to obtain evidence that a criminal offence has been committed 21 against the adult.'. 39 Insertion of new s 248A Clause 22 After section 248-- 23 insert-- 24 26 See also section 248A (Protection for person carrying out forensic examination with consent).

s 40 38 s 41 Guardianship and Administration and Other Acts Amendment Bill 2003 `248A Protection for person carrying out forensic examination 1 with consent 2 `(1) A person carrying out an authorised forensic examination of an adult 3 is not liable for an act or omission to any greater extent than if the adult 4 were an adult with capacity to consent and the act or omission happened 5 with the adult's consent. 6 `(2) An authorised forensic examination is not unlawful. 7 `(3) In this section-- 8 "authorised forensic examination" of an adult means a forensic 9 examination of the adult, consent to which has been given by-- 10 (a) a guardian for the adult; or 11 (b) the adult guardian under section 198A.'. 12 40 Amendment of s 260 (Management by public trustee) Clause 13 Section 260(2), from `Act--'-- 14 omit, insert-- 15 `Act, the public trustee is taken to be appointed by the tribunal as the 16 person's administrator for all financial matters.'. 17 41 Insertion of new ch 12, pt 6 Clause 18 Chapter 12, after section 262B-- 19 insert-- 20 `PART 6--TRANSITIONAL PROVISION FOR 21 GUARDIANSHIP AND ADMINISTRATION AND OTHER 22 ACTS AMENDMENT ACT 2003 23 `262C Application of amended s 29 to reviews of existing appointments 24 `Section 29, as in force after the commencement of this section (the 25 "commencement"), applies in relation to an appointment of a guardian or 26 administrator made before the commencement. 27

s 41 39 s 41 Guardianship and Administration and Other Acts Amendment Bill 2003 `262D Effect of contravention of repealed ss 52 and 53 1 `(1) This section applies if, before the commencement of this section 2 (the "commencement"), an administrator contravened section 52 or 5327 3 as in force before the commencement. 4 `(2) For the purposes of deciding whether the administrator is no longer 5 competent,28 the contravention may be taken into account as a 6 contravention of the Act as if the Guardianship and Administration Act and 7 Other Acts Amendment Act 2003, section 12 had not been enacted. 8 `262E Person given notice of hearing able to become active party 9 `(1) This section applies if before the commencement of this section (the 10 "commencement")-- 11 (a) a person is given a notice under section 11829 as in force 12 immediately before the commencement; and 13 (b) the person had not, under section 120 as in force immediately 14 before the commencement (the "repealed section"),30 given the 15 tribunal a notice as permitted under the repealed section. 16 `(2) After the commencement-- 17 (a) the repealed section continues to apply in relation to the person 18 as if it had not been repealed; and 19 (b) if the person gives the tribunal a notice as permitted under the 20 repealed section, the person is taken to be an active party in the 21 proceeding. 22 27 Section 52 (Unauthorised real estate transaction only with approval) and 53 (Unauthorised security transaction only with approval) 28 See, for example, section 31(5)(d) (Appointment review process), section 155(2)(c) (Suspension of guardianship order or administration order) or section 195(2)(c) (Suspension of attorney's power). 29 Section 118 (Tribunal advises persons concerned of hearing) 30 Section 120 (Notice of intention to be an active party)

s 42 40 s 43 Guardianship and Administration and Other Acts Amendment Bill 2003 `262F Interim orders 1 `(1) This section applies in relation to an interim order made before the 2 commencement of this section (the "commencement") under 3 section 129.31 4 `(2) Section 129, as in force immediately before the commencement, 5 continues to apply in relation to the order as if the Guardianship and 6 Administration Act and Other Acts Amendment Act 2003, section 27 had 7 not been enacted.'. 8 42 Amendment of sch 2, s 1 (Financial matter) Clause 9 Schedule 2, section 1(m) to (q)-- 10 omit, insert-- 11 `(m) undertaking a real estate transaction for the adult; 12 (n) dealing with land for the adult under the Land Act 1994 or Land 13 Title Act 1994; 14 (o) undertaking a transaction for the adult involving the use of the 15 adult's property as security (for example, for a loan or by way of 16 a guarantee) for an obligation the performance of which is 17 beneficial to the adult; 18 (p) a legal matter relating to the adult's financial or property 19 matters.'. 20 43 Amendment of sch 2, s 2 (Personal matter) Clause 21 (1) Schedule 2, section 2(h)-- 22 renumber as schedule 2, section 2(i). 23 (2) Schedule 2, section 2-- 24 insert-- 25 `(h) whether to consent to a forensic examination of the adult; '. 32 26 31 Section 129 (Interim order) 32 See also section 248A (Protection for person carrying out forensic examination with consent).

s 44 41 s 45 Guardianship and Administration and Other Acts Amendment Bill 2003 44 Amendment of sch 2, s 13 (Approved clinical research) Clause 1 Schedule 2, section 13-- 2 insert-- 3 `(1A) However, a comparative assessment of health care already proven 4 to be beneficial is not medical research. 5 6 Examples-- 7 � a comparative assessment of the effects of different forms of administration of a 8 drug proven to be beneficial in the treatment of a condition, for example, a 9 continuous infusion, as opposed to a once-a-day administration, of the drug 10 � a comparative assessment of the angle at which to set a tilt-bed to best assist an 11 adult's breathing.'. 45 Amendment of sch 4 (Dictionary) Clause 12 (1) Schedule 4, definitions "active party", "authorised real estate 13 transaction", "authorised security transaction", "health care", 14 "primary carer", "security transaction" and "sterilisation"-- 15 omit. 16 (2) Schedule 4-- 17 insert-- 18 ` "active party"-- 19 (a) for chapter 5A, see section 80K; or 33 34 20 (b) otherwise, see section 119. 21 "alternative forms of health care", for chapter 5A, see section 80A. 22 "chapter 5A application", for chapter 5A, see section 80A. 23 "child representative", for chapter 5A, see section 80L. 35 24 "confidentiality order"-- 25 (a) for chapter 5A, see section 80G(2);36 or 26 33 Chapter 5A (Consent to sterilisation of child with impairment) 34 Section 80K (Who is an "active party") 35 Section 80L (Child representative must be appointed) 36 Section 80G (Open)

s 46 42 s 47 Guardianship and Administration and Other Acts Amendment Bill 2003 (b) otherwise, see section 109(2). 1 "dispute resolution", for chapter 7, part 4A, see section 145A. 37 2 "forensic examination" of an adult means a medical or dental procedure 3 for the adult that is carried out for forensic purposes, other than 4 because the adult is suspected of having committed a criminal 5 offence.38 6 "health care"-- 7 (a) for chapter 5A, see section 80A; or 8 (b) otherwise, see schedule 2, section 5. 9 "impairment", for chapter 5A, see section 80A. 10 "primary carer", for a person, means a person who is primarily 11 responsible for providing support or care to the other person. 12 "sterilisation"-- 13 (a) for chapter 5A, see section 80B; or 14 (b) otherwise, see schedule 2, section 9.'. 15 PART 3--AMENDMENT OF CHILD PROTECTION 16 (INTERNATIONAL MEASURES) ACT 2003 17 46 Act amended in pt 3 Clause 18 This part amends the Child Protection (International Measures) 19 Act 2003. 20 47 Amendment of sch 4 (Dictionary) Clause 21 (1) Schedule 4, definition "registrar"-- 22 37 Chapter 7 (Tribunal proceedings), part 4A (Dispute resolution) 38 For procedures in relation to an adult suspected of having committed an indictable offence, see the Police Powers and Responsibilities Act 2000, chapter 8 (Powers in relation to persons in custody), part 3 (Medical and dental procedures).

s 47 43 s 47 Guardianship and Administration and Other Acts Amendment Bill 2003 omit. 1 (2) Schedule 4-- 2 insert-- 3 ` "Children Services Tribunal" means the Children Services Tribunal 4 established under the Children Services Tribunal Act 2000, section 8.39 5 "Guardianship and Administration Tribunal" means the Guardianship 6 and Administration Tribunal established under the Guardianship and 7 Administration Act 2000, section 81.40 8 "registrar", in relation to a Queensland court, means-- 9 (a) if the Queensland court is the Supreme Court--a registrar of the 10 Supreme Court; or 11 (b) if the Queensland court is the District Court--a registrar, within 12 the meaning of the District Court of Queensland Act 1967, of the 13 court; or 14 (c) if the Queensland court is the Childrens Court--the person who, 15 under the Childrens Court Act 1992, section 27,41 holds the same 16 office for the Childrens Court as a registrar of the District Court 17 or the clerk of a Magistrates Court; or 18 (d) if the Queensland court is a Magistrates Court--the clerk of the 19 court; or 20 (e) if the Queensland court is the Children Services Tribunal--the 21 registrar of the Children Services Tribunal; or 22 (f) if the Queensland court is the Guardianship and Administration 23 Tribunal--the registrar of the Guardianship and Administration 24 Tribunal.'. 25 (3) Schedule 4, definition "Queensland Court", paragraph (e)-- 26 omit, insert-- 27 `(e) the Children Services Tribunal; or 28 (f) the Guardianship and Administration Tribunal.'. 29 39 Children Services Tribunal Act 2000, section 8 (Children Services Tribunal) 40 Guardianship and Administration Act 2000, section 81 (Tribunal) 41 Childrens Court Act 1992, section 27 (Court officials)

s 48 44 s 50 Guardianship and Administration and Other Acts Amendment Bill 2003 PART 4--AMENDMENT OF CHILDREN SERVICES 1 TRIBUNAL ACT 2000 2 48 Act amended in pt 4 Clause 3 This part amends the Children Services Tribunal Act 2000. 4 49 Amendment of s 24 (Registrar of tribunal) Clause 5 (1) Section 24(5)-- 6 omit. 7 (2) Section 24(4)-- 8 renumber as section 24(5). 9 (3) Section 24-- 10 insert-- 11 `(4) The registrar may delegate the registrar's powers under this Act to an 12 appropriately qualified member of the tribunal's staff.'. 13 (4) Section 24-- 14 insert-- 15 `(6) In this section-- 16 "appropriately qualified", for a person to whom a power may be 17 delegated, includes having the qualifications, experience or standing 18 appropriate to exercise the power. 19 20 Example of `standing'-- 21 A person's classification level in the public service.'. 50 Amendment of s 28 (Constitution of tribunal for review) Clause 22 (1) Section 28(5)-- 23 omit. 24 (2) Section 28(4)-- 25 renumber as section 28(5). 26 (3) Section 28(3)-- 27

s 51 45 s 53 Guardianship and Administration and Other Acts Amendment Bill 2003 omit, insert-- 1 `(3) The tribunal must be constituted by 3 members unless a direction is 2 made under section 80(2)42 or the president directs otherwise under 3 subsection (4). 4 `(4) For a child-related employment review, the president may direct that 5 the tribunal be constituted by 2 members or a single member.'. 6 (4) Section 28-- 7 insert-- 8 `(6) The tribunal, when constituted by 2 members, must include at least 9 1 member who is a lawyer of at least 5 years standing. 10 `(7) The tribunal, when constituted by a single member, must be 11 constituted by a member who is a lawyer of at least 5 years standing.'. 12 51 Amendment of s 32 (Reconstituting tribunal) Clause 13 Section 32(3), `28(4)'-- 14 omit, insert-- 15 `28(5)'. 16 52 Amendment of s 79 (Preliminary conferences) Clause 17 (1) Section 79(2)(b) to (g)-- 18 renumber as section 79(2)(c) to (h). 19 (2) Section 79(2)-- 20 insert-- 21 `(b) stay the operation of a reviewable decision under section 70;43'. 22 53 Replacement of s 80 (Single member may constitute tribunal for Clause 23 preliminary conference) 24 Section 80-- 25 42 Section 80 (Constitution of tribunal for preliminary conference) 43 Section 70 (Stay of reviewable decision's operation)

s 54 46 s 56 Guardianship and Administration and Other Acts Amendment Bill 2003 omit, insert-- 1 `80 Constitution of tribunal for preliminary conference 2 `(1) This section applies if the tribunal constituted for a review consists 3 of 3 members and the parties to the review have been required to attend a 4 preliminary conference. 5 `(2) The president or presiding member may direct that, for the 6 preliminary conference, the tribunal may be constituted by a single 7 member or 2 members. 8 `(3) However, only a tribunal constituted by 3 members may stay the 9 operation of a reviewable decision if the decision maker opposes the 10 staying of the decision's operation.'. 11 PART 5--AMENDMENT OF POWERS OF ATTORNEY 12 ACT 1998 13 54 Act amended in pt 5 Clause 14 This part amends the Powers of Attorney Act 1998. 15 55 Amendment of s 86 (Keep property separate) Clause 16 Section 86(1), as a penalty-- 17 insert-- 18 `Maximum penalty--300 penalty units.'. 19 56 Insertion of new s 104 Clause 20 After section 103-- 21 insert-- 22 `104 Protection for person carrying out forensic examination 23 with consent 24 `(1) A person carrying out a forensic examination of a principal to which 25 an attorney for the principal has consented is not liable for an act or 26

s 57 47 s 60 Guardianship and Administration and Other Acts Amendment Bill 2003 omission to any greater extent than if the act or omission happened with the 1 principal's consent and the principal had capacity to consent. 2 `(2) A forensic examination, to which the attorney has consented, is not 3 unlawful.'. 4 57 Amendment of s 123 (Court may dismiss frivolous etc. Clause 5 applications) 6 Section 123(1)(a), after `frivolous'-- 7 insert-- 8 `, trivial'. 9 58 Amendment of sch 2, s 1 (Financial matter) Clause 10 Schedule 2, section 1(n), after `dealing with land'-- 11 insert-- 12 `for the principal'. 13 59 Amendment of sch 2, s 2 (Personal matter) Clause 14 (1) Schedule 2, section 2(g) and (h)-- 15 renumber as schedule 2, section 2(h) and (i). 16 (2) Schedule 2, section 2-- 17 insert-- 18 `(g) whether to consent to a forensic examination of the principal; '. 44 19 60 Amendment of sch 2, s 13 (Approved clinical research) Clause 20 Schedule 2, section 13-- 21 insert-- 22 `(1A) However, a comparative assessment of health care already proven 23 to be beneficial is not medical research. 24 44 See also section 104 (Protection for person carrying out forensic examination with consent).

s 61 48 s 61 Guardianship and Administration and Other Acts Amendment Bill 2003 1 Examples-- 2 � a comparative assessment of the effects of different forms of administration of a 3 drug proven to be beneficial in the treatment of a condition, for example, a 4 continuous infusion, as opposed to a once-a-day administration, of the drug 5 � a comparative assessment of the angle at which to set a tilt-bed to best assist a 6 principal's breathing.'. 61 Amendment of sch 3 (Dictionary) Clause 7 Schedule 3-- 8 insert-- 9 ` "forensic examination" of a principal means a medical or dental 10 procedure for the principal that is carried out for forensic purposes, 11 other than because the principal is suspected of having committed a 12 criminal offence.45'. 13 14 � State of Queensland 2003 45 For procedures in relation to a principal suspected of having committed an indictable offence, see the Police Powers and Responsibilities Act 2000, chapter 8 (Powers in relation to persons in custody), part 3 (Medical and dental procedures).

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