Maximising participation

10.32  The principle, that the ‘will, preferences and rights of persons who may require decision-making support must direct decisions that affect their lives’,^[65] is one of a set of four National Decision-Making Principles formulated by the ALRC in its report Equality, Capacity and Disability in Commonwealth Laws to ‘guide reform of Commonwealth laws and legal frameworks and the review of state and territory laws’.^[66] This principle is of particular importance in the appointment of a guardian or financial administrator. It is reflected in guardianship legislation in all states and territories, which requires that the tribunal must, prior to making an order, consider the views of the person who is the subject of a guardianship or financial administration application (the represented person).^[67]

10.33  Currently, all tribunals encourage attendance of the represented person at the hearing, where attendance is possible.^[68] Tribunals will also notify the represented person when an application is made for guardianship or financial administration concerning them,^[69] generally, by providing copies of the application to the person’s address. Some states will provide persons who are the subject of an urgent hearing with a verbal notice of the hearing.^[70]

10.34  The ALRC expressed a preliminary view in the Discussion Paper that a best practice model which reflects the principle of maximum participation should require the tribunal, where possible, to speak with the represented person, regardless of attendance at the hearing, before the tribunal appoints a guardian or financial administrator.^[71]

10.35  Stakeholders were strongly supportive of this approach.^[72] However, stakeholders identified other elements that should inform best practice models in maximising participation of the represented person. Reflecting these broader considerations, this recommendation is focused on the principle of maximum participation.

Best practice model

10.36  The ALRC considers that the Australian Guardianship and Administration Council is well placed to develop a best practice model to facilitate maximum participation of the represented person in the process of determining whether to appoint a guardian or financial administrator. The Council is comprised of state and territory tribunals, public advocates, guardians, and trustees. Its functions include ‘developing consistency and uniformity, as far as practicable in respect of significant issues and practices’ and ‘encouraging dialogue at a national level, and across relevant jurisdictions’.^[73]

10.37  Key elements of such a model could include:

• case management and support during the pre-hearing stage;

• composition of the tribunal for the purposes of a particular proceeding;

• ensuring an oral hearing is held for all substantive applications; and

• alternative methods for participation.

10.38  These approaches support and facilitate the exercise of a represented person’s right to access to justice under art 13 of the Convention on the Rights of People with Disabilities, which provides that access to justice should be provided ‘including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants’.^[74]

Pre-hearing support

10.39  As discussed above, the number of applications for guardianship and administration is increasing. This places increasing time pressures on tribunal members in hearing an application for guardianship or financial administration. A greater role for pre-hearing case management and support, therefore, provides an opportunity to maximise participation by the represented person.^[75]

10.40  For example, in the NCAT, a tribunal officer will liaise with applicants and the represented person. The officer explains tribunal processes, and obtains the views of the represented person on the application. The tribunal officer also assists in identifying how the represented person can best participate in the hearing, ensures that they receive a copy of all documents before the tribunal, and prepares a hearing report for the use of the tribunal and all the parties to the application.^[76]

10.41  Pre-hearing case management also presents an opportunity to address situations such as the example provided by ADA Australia where an applicant was required to inform the represented person of the application, but the notice of the hearing was never received by the represented person, and an appointment was made without the represented person’s involvement.^[77]

10.42  In considering how case management and pre-hearing support might be provided, stakeholders noted the importance of ensuring that the represented person is able to access support such as a ‘skilled communication partner to provide communication support and accessible information’.^[78]

Composition of the tribunal for the purposes of a particular proceeding

10.43  An advantage of multi-member panels, comprised of members with differing backgrounds and expertise, is that the evidence suggests that members with specific experience with people with disabilities or cognitive impairments may be able to engage better with the represented person.

10.44  Except in NSW,^[79] the President of each of the state and territory tribunals has the power to determine, in relation to a particular matter or class of matters, the number of members that might constitute the tribunal.^[80] However, it appears that only NSW and Tasmania convene multi-member panels regularly.^[81] In NSW, the legislation mandates that all hearings relating to applications seeking the appointment of a guardian and/or financial administrator be heard by a panel of three members: a lawyer, a professional member (for example, medical practitioner, psychologist or social worker with experience in disability), and a community member who has professional or personal experience with people with disabilities.^[82] The ALRC acknowledges that convening a multi-member panel for all initial applications requires a significant investment of resources. An alternative approach might be, for instance, to limit the use of such panels to complex matters.^[83]

Oral hearings

10.45  Attendance at an oral hearing is an important mechanism to maximise the participation of the represented person. In most states and territories, the tribunal retains a discretion to determine a matter, including a matter relating to the appointment of a guardian or financial administrator, without a hearing.^[84] While fact sheets and similar guidance generally refer to a matter going to hearing, AGAC should, in the proposed guidelines, specifically address the need to hold an oral hearing for the exercise of all substantive functions relating to guardianship or financial administration. In NSW for example, this requirement is contained in legislation.^[85]

Methods of participation

10.46  Stakeholders highlighted that maximising participation of the represented person hinges upon providing people who are unable to attend a hearing in person, with other means to participate.^[86] This could include, for example, access to video conferencing or telephone participation, or conducting hearings in alternative venues such as aged care facilities and hospitals.^[87] VCAT, for example, may conduct hearings via videoconference and teleconference, and in many locations, including hospitals.^[88]