Public Trustee (Public Trustee and Guardian) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 25 March 2020.)

Mr PICTON (Kaurna) (16:49): I indicate that I am the lead speaker for the opposition. As is often the case, I am representing the shadow attorney-general in consideration of this piece of legislation. I indicate that the opposition is undertaking further consultation and, as has been the case for a number of pieces of legislation, is reserving its final position on this legislation until the other place. However, I indicate that we have some significant reservations about the legislation as it is being presented and it is likely that we will be opposing this when it comes to the Legislative Council.

In simple terms, this bill seeks to merge two statutory positions and their offices: the Public Trustee and the Public Advocate. The Public Trustee and the Public Advocate are key institutions in our state. They have different and critical roles. The Public Trustee is largely responsible for the preparation of wills and enduring powers of attorney, acting as the executor for deceased estates and acting as the administrator of estates, appointed by SACAT, for persons when they are unable to look after their own health, safety or welfare or manage their own affairs.

The Public Advocate is appointed as guardian of last resort by SACAT for persons unable to look after their own safety, health or welfare or manage their own affairs. Services provided by the Public Advocate typically include management of the accommodation, health and access needs of the protected persons.

There are many reasons why these statutory roles and their offices were developed and maintained as separate bodies. Only two other jurisdictions in Australia have merged their advocate and trustee roles. The Attorney-General herself referenced the key differences between the two bodies in her second reading explanation. These include that one is subject to ministerial direction but the other is not. Under the proposed bill, the combined position of the public trustee and guardian would be subject to ministerial direction depending upon what piece of paper they were holding or what email they were reading at any given time.

The vast majority of those who use the Public Advocate or the Public Trustee use just one of them. A small number, around 700 people, use both services. They are amongst the most vulnerable people in the state, who require a state body to make important life decisions and administer their day-to-day affairs. Many also receive support with day-to-day tasks from medical, disability or aged-care workers. The overlap of these 700 people is the so-called justification for merging these roles.

There are claims from the government in relation to generic improvements to customer service and streamlining that they are justifying this bill with, but they have not referred to the tension that quite properly arises in tribunals and less formal settings between the two bodies that represent what is best for a person and what they can afford. This commonly manifests in debates about housing. The advocate may push for a more expensive form of housing that better meets a person's needs, while the trustee may push back on affordability. Both parties have the interests of the client at heart, even though they hold different views.

The arguments between them often uncover the best solution for the client. Where agreement cannot be reached, there are processes for a third party to make a determination. This makes sense. It is what has been done for decades. It is what happens in three-quarters of our states and territories. The opposition believes that there is a significant risk that, where these roles are combined, worse decisions could be made. This is critical because the state has full decision-making power for these vulnerable people. Our initial consultations have uncovered significant concerns about the welfare of our most vulnerable clients.

The Attorney-General has acknowledged that, under this bill, all the various functions of the two bodies will be maintained. The only practical difference is the management or streamlining of mutual clients. The government's own talking points on the bill say:

It is anticipated that as a result of the merger there will be greater opportunities for:

1. A single entry point or point of contact for general client matters or enquiries;

2. Coordinated communication with clients around their needs and the management of their affairs;

3. Improved responsiveness for complex matters that have urgent or pressing needs; and

4. Better information sharing through the use of shared ICT systems.

It is strange that the government cannot find a way to improve customer service and information sharing without abolishing one statutory role and creating confusion with the new one. This raises significant questions. The Attorney-General has claimed that this is not a budget savings measure, but they have chosen their words very carefully. The Attorney-General has not committed to no further or future budget cuts; they have said that this bill is not linked to a budget savings measure in previous budgets. The government's talking points also state:

Work is already being undertaken by the Public Trustee and the Public Advocate to manage implementation issues that may arise.

The government should be up-front about whether this means that their agencies are pre-empting any decision by parliament or whether there are implementation problems that they are not willing to discuss in public.

This bill could be like asking a lawyer to be both the prosecution and the defence in the same case because one client is sometimes on each side of the law. This bill is like asking ambulance officers and paramedics to undertake police duties because one of their patients sometimes needs the police as well. The arguments do not stack up.

When we are dealing with the most vulnerable people in the state, the arguments need to be watertight. The bill allows, but does not require, different people to undertake the trustee and guardianship roles when someone requires both. This is not good enough, and the 700 people in this situation deserve better.

We also note the limited consultation that was undertaken in relation to this bill: 22 groups were approached for comment, feedback was provided by eight, but only three of these were from outside the government. No feedback was sought or received directly from those under guardianship or under administration, nor from their families. I again indicate that the opposition has significant concerns about this legislation. We will be finalising this position between the houses, but, as indicated, there is significant consultation that we are undertaking and significant concerns that we have in relation to this legislation.

Mr TEAGUE (Heysen) (16:57): I take the opportunity to rise to make some observations in commending the bill to the house. It will continue a path of reform in this most vital area of advocacy in our state. As the Office of the Public Advocate has noted, the intention of the government is to merge the offices of the Public Trustee and the Public Advocate, and that is the work that this bill puts into place. The aim in progressing these reforms, as adverted to by the Office of the Public Advocate, is to improve the services that are available to vulnerable South Australians.

In that regard, these reforms should be welcomed, as they will better facilitate the provision of those services by bringing the functions into one office. As the office indicates, the Public Trustee acts as the financial administrator for South Australians who cannot manage their own affairs, preparing wills and managing enduring powers of attorney for eligible customers and acting as executor for deceased estates. The reforms mean that those areas of advocacy and trustee functions will now be able to be performed within the combined role.

While this bill amends quite a number of different acts in bringing about this reform, I just note that the main work that it does is to amend the Public Trustee Act 1995 so as to bring the appointment of the new public trustee and guardian within the functions of that act. So there is therefore to be seen amendment to section 4(1) of the Public Trustee Act so that the office relevantly of the Public Trustee becomes the Office of the Public Trustee and Guardian. In the same vein, part 2 of the Guardianship and Administration Act 1993 is repealed, and part 2 as it presently stands is that part of the Guardianship and Administration Act that deals with the creation of the Office of the Public Advocate and the appointment process to that role.

As I say, there are a number of amendments to different acts, but the primary function, in terms of consolidation of the role, the appointment and the functions, is to be found in the amendments that are made to the Public Trustee Act. Also noteworthy are the expanded functions and powers of the public trustee and guardian that are to be set out in section 5(2) of the amended act. I note in particular section 5(2)(b), that the public trustee and guardian is to act as the guardian of last resort for persons with a mental incapacity.

What is appropriately emphasised by the government in the course of consolidating these roles and bringing about these reforms is that this is not about reducing funding and it is not about a measure to reduce the public investment in this area. On the contrary, it is about ensuring that the public resources that are devoted to this area are most efficiently deployed for the provision of better services to those who require the services of the public trustee and guardian.

In this context, I want to make particular mention of the reforms that have occurred in this area over the course of the last 20 years, including in particular reforms in a related way that have occurred in the last decade in relation to the community visitor program that has been established in South Australia. When one reflects on the reforms that have established the Community Visitor Scheme in order to do the very valuable work that it does in support of those with mental incapacity, I think of the former public advocate John Harley.

He was a long time public advocate in our state—nine years in all—and as I understand it only the second public advocate. He was followed by Dr John Brayley who is now the state's Chief Psychiatrist. So significant was John Harley's contribution that when John Brayley was taking on the role he was known as John the Third, following on from his predecessors. John Harley practised law extensively in South Australia. He held a number of significant positions consistent with his professional and personal commitments, and they included roles at the top level of the legal profession. He was president of the Law Society and he was chairman of the guardianship board, among other roles.

One of the key disappointments, as I understand, that John took with him on his retirement from the role of Public Advocate was that, notwithstanding having seen a great deal of advance in relation to advocacy for those who came to his role, he was not able to leave the position having a community visitor scheme in place. It is something that then began to occur and was introduced in the years following John's time, and it has since become an important part of the range of services that are now well established in South Australia.

In recognising the tremendous service of John Harley in the role, I emphasise that this is an area which is by definition within the responsibility of government to structure and provide services, and it is naturally evolving and changing over time. So, just as we have seen reforms in relation to the establishment of the Community Visitor Scheme, particularly over that last decade, as I indicated, it should not be surprising that over time we see where the consolidation of services, the bringing together of different agencies and individuals who are able to make a contribution in this space, should be welcomed. The public and the community should expect that governments will have a constant eye to reform in this space with a view to maximising the benefits to those who receive these services while also ensuring that where public funds are applied it is done so in the most appropriate way.

As I indicated at the outset, I commend the bill to the house. I commend those who have served in the role of Public Advocate. I have singled out for some observations the very good work of John Harley in his role, now some years ago, and I look forward to the continued good work of the new public trustee and guardian, the subject of the bill.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (17:09): Firstly, I thank both the member for Kaurna from the opposition and the member for Heysen for their contributions. Restructuring government entities is sometimes of great interest to members in the parliament, but often not, so I appreciate the attention that has been given by two of our members to this.

I would urge all members to give some thought as we go through the management of this bill, and obviously in committee and the like, to think about the occasions in their own constituencies when there has been some tension exposed between a constituent or within a constituent's family and the draw upon these two resources, either the Public Trustee and that agency or, indeed, the Public Advocate. These matters are usually fraught with distress, if I can be as general as possible there.

Sometimes it relates to the access to funds that the Public Trustee might hold on behalf of a constituent or a member of a family who has come to complain about failure to give adequate resource or access or timely provision of their funds. I suppose even more distressing are circumstances where someone is under a guardianship order, and a person under the Public Advocate has been appointed to manage either some decision-making in sometimes all matters but it might be access to health treatment, an aged-care facility or a disability service, about which there is again conflict amongst family members.

As members of parliament, it is probably one of the most difficult areas we are called upon to assist with because frequently we are dealing with somebody who has some diminished capacity, whose money is either being held by the Public Trustee or their decision-making has been curtailed as a result of a Public Advocate representative taking responsibility. Quite often with that, the person has a split family around them. If they have family at all, it is a split family. Some think that the appointed advocate or trustee is doing a good job, and they think they should be continuing to manage the estate or decision-making, and others are objecting to it and will be laying out all sorts of allegations and accusations as to the failings of this public entity.

As I have said before in this parliament, these two agencies pick up areas of responsibility and work in circumstances where nobody else can do it. Obviously for members who are in happy families, they are able to sort these issues out, they are able to support someone within their family or friendship group to get through a difficult period, or it may be prolonged but they are able to manage that. Of course, with less intrusive supports, they are able to do that and sometimes completely on their own to support someone who is in the situation.

But, invariably, when an order is made ultimately by a court and/or in which there has been appointment by agreement for the management of estates, it is to serve a purpose that frankly nobody else wants to do. So I have some sympathy for the obvious conflicts that will continue to be there but which the workforce in both Public Trustee and Public Advocate officers are skilled at addressing.

Of course, there are situations from time to time, and I have had them brought to my attention. For example, when there is a complaint, often by a family member, that with the sale of the deceased's home—who might have been a relative or a person who needs to go into some other care and the sale of their home is needed to be done—there has been an unacceptable delay in the arrangements for the sale of that property.

One often finds in these sorts of complaints that there is a need for the proceeds of the asset to either support the person who is under care to be able to access other accommodation, such as a smaller flat, an aged-care facility or a disability service, and/or there is a very impatient beneficiary who is going to get access to some fund or asset. We can talk about self-interest and we can talk about family disputes, but the reality is that they are there. I place on record the appreciation we should all have for these public entities that undertake this responsibility.

The whole purpose of this legislation is to bring together these two valued and valuable entities that have a massive overlap of clientele and to ensure that we provide a better service for the customers. There are at least 700 of them that are already directly overlapped; that is, the trustee is handling money or an asset base and, similarly, they have a guardian appointed who has some role in relation to decision-making on behalf of the person.

It should not be beyond the wit of a responsible government and a parliament to make sure that we come up with a legislative framework to protect the consumer, to protect the person who is the client here, but also provide a degree of accountability, accessibility and transparency for the relatives who are often sitting on the perimeter and, sadly, are often in conflict. We have that responsibility to do it.

In trying to bring this matter together in a model that is effective, the government has obviously looked around the country. The last time I looked at guardianship and administration models around the country was when SACAT was established in South Australia—that is, our South Australian Civil and Administrative Tribunal—which brought together the two big jurisdictions: the review of administrative decisions made by the Guardianship Board and the Residential Tenancies Tribunal, and progressively since that time areas of work of other jurisdictions have been transferred to their responsibility.

These two big bodies of work came together—that is, tenants seeking relief or landlords seeking enforcement in relation to residential tenancies and guardians seeking to have either continuation and/or variation or extinguishment of guardianship orders, and the Guardianship Board to do that. So two quite different roles were brought together under the same roof. In fact, they came together under a statutory roof to start with. Attorney-general Rau was the architect of bringing those two entities together in that legislation, and we dealt with it here in the parliament.

More recently, since our government has come into office, we have continued the recommendations of His Honour former justice David Bleby, who conducted a review of that agency and who recommended that they geographically come together, and that is exactly what has happened. The Collinswood Guardianship Board facility where the Public Advocate was has changed in its structure and it has come over out of Collinswood, in the old ABC building as it was often called, and into the city. It is now co-located with other members of the SACAT and it operates together. We have had a transfer legislatively and we have had a bringing together physically of the personnel who do those two main roles. As I said, other jurisdictions have been added to it. So it can be done.

One of the things that the previous attorney-general was very mindful of, I think, and quite rightly so, was firstly to bring together a gradual transfer of jurisdictions from other courts and tribunals and not overload the new structure too quickly. I think he was right. There have been several tranches of SACAT legislation to transfer. I think the last lot that was transferred over included the Equal Opportunity Tribunal.

Mr Picton: The previous attorney was right.

The Hon. V.A. CHAPMAN: Yes, he was, absolutely, at the time, and we recognised the significance from opposition of that being transferred and not simply overloading something too much. In fact, the previous government, again via minister Rau as the minister for industrial relations, came to the parliament with a new structure for SAET, which was to take over responsibility of industrial tribunal matters and the industrial court and set up a new model, except for the words in referencing the South Australian Employment Tribunal as also being a court. There is a very short clause at the beginning of that model.

The whole structure of SAET was exactly the same as SACAT, and the minister of the day, minister Rau, said, 'Look, I have done it that way because it is the ultimate intention that SAET will combine with SACAT, but it is too early to do that and so we will be doing that a bit down the track.' As it turned out, of course, they did not ever do it and it is now well known that the members who are sitting in the SAET were not at all happy about the prospect of having to be put in with SACAT. That is fine. That was the position they took and the previous government backed off that idea.

But minister Rau was right in saying, 'Don't overload a new structure with too many areas of responsibility too quickly.' In this regard, we are not in any way seeking to add on other areas of responsibility. However, what has happened, and I think it is important I advise the parliament of this, is that the Public Advocate has attracted—probably because she is so good at what she does—some extra responsibility. I want to explain to the parliament what that is.

She is currently our acting community visitor. As members would be aware, we have a Community Visitor Scheme, which helps to provide an unannounced audit process of visitors to mental health institutions. It was established under the Mental Health Act when that was reformed a number of years ago. Until recent years, Mr Maurice Corcoran was the Principal Community Visitor. He retired from that position and Anne Gale, our Public Advocate, is at present the acting Principal Community Visitor and we thank her very much for taking on that responsibility.

Another thing that happened is that we established an extra role for the Community Visitor Scheme only a couple of weeks ago under COVID-19 law where we needed to set up a structure to be able to set guidelines and review a process for detention of people with a disability during COVID-19. I will not go into all the detail, but it was largely to deal with the fact that disability facilities were concerned about keeping people in a confined area or in their room to try to manage social distancing, especially if there was a lack of understanding as to the behavioural need to keep separate from people—for example, people who might be intellectually disabled who go up and hug people. It is a wonderful thing to do, but with COVID-19 it is obviously not a good thing to do.

We dealt with that a couple of weeks ago. We asked the Community Visitor Scheme to take on an extra role and we appointed Dr Bruggemann as a reviewer. I think he is called an 'authorised person' under that legislation.

So the Public Advocate's role over the years has changed, but in more recent times some extra areas of responsibility have been taken on by that office and part of that—I suppose really a third area—is that the Public Advocate has had a very significant role in assisting a number of their clients to access the NDIS arrangements, that is, the establishment of their plan and funding under that new structure. There are a few quite onerous areas of responsibility that have come about just as a result of the events in the last couple of years.

With that, I just want to say that we as a government have had to look at how we might provide a better service. We think this is the best model available, following the ACT. We agree with the strategy that was established under the establishment of SACAT under the former attorney-general, John Rau, that we have to be gradual about that and we do have to respect the need for the client base that we are dealing with to be able to cope with that transition, as well.

There has been a significant amount of consultation and we think we have it right. I hear from the member for Kaurna that he may have some areas of additional reform or restructure or amendment. I am not sure how far his comments go to potentially translating into amendment, but if there are extra matters that need to be accommodated to make this work we are happy to consider them. We are happy to hear about those, but I have to say that quite a lot of people have been consulted in relation to this area.

Finally, because the staff are so critical and are so trained in the specialty service provision of both trustee and guardianship matters, it is absolutely critical that they be brought with us in this transition for this to work. There has also been a significant period of ongoing negotiation and consultation with the Public Service Association (PSA), because they, of course, are the representative for many of those employed in that way. We will see how we go in that regard.

I am happy to move into committee. We might not get too much of it done tonight, but I am happy for us to get started. I have our officer with us here and ready to go. I commend the bill to the house and seek that it now be read a second time.

Bill read a second time.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (17:27): I move:

That this bill be now read a third time.

This is refreshing; nevertheless, I confirm the invitation to the opposition if they have any matters they want to raise between houses. If there is an opportunity for us to work through and resolve this, we would like to do so as best we can. If the member for Kaurna has any other questions in relation to consultation, I am happy to provide those.

For the benefit of the house, I will just find my submissions list, because in my second reading explanation, I briefly referred to the importance of the ongoing consultation with the Public Service Association. In addition to that consultation, the acting Public Trustee, Ms Nicolle Rantanen, whom I think I have mentioned before, has been consulted, and the Public Advocate, Ms Anne Gale, is frequently consulted. I meet with these two on a three to four-weekly basis to try to keep up to date with what is happening in their divisions and obviously to provide any support and receive any requests from them that need to be advanced.

Consultation was undertaken with a number of the staff at the Office of the Public Advocate—there are some 16 of them; the Public Service Association, which I have referred to; the acting Chief Psychiatrist; the Legal Services Commission; the Aged Rights Advocacy Service; Purple Orange, which, for those who are not aware, is an entity that provides support to the disability community and is a disability advocate; the Crown Solicitor on technical points in relation to part of the bill that is before us; and South Australia Police, who, incidentally, have given their indication of support.

Also consulted were the Law Society of South Australia; the South Australian Civil and Administrative Tribunal, which, for obvious reasons, has a role in relation to the making and review of guardianship administration orders; Aged and Community Services; Carers SA; Council on the Ageing; Intellectual Disability Association SA; Mental Health Coalition of SA; Spastic Centres of South Australia; the South Australian Council of Social Services; the South Australian Council on Intellectual Disability; National Disability Services; the Department for Health and Wellbeing; and the Department of Human Services. I do not have any particulars of any others.

I am advised that that is the entire list. I was just checking to see whether the Supreme Court, Magistrates Court or District Court were consulted, but they do not actually have a role in relation to the review of these matters, although I think I should place on the record that they do of course deal with the administration of estates. They make orders sometimes for probate or administration of estates that are ultimately put into operation by the Public Trustee, who then becomes the appointed agency to do that. That is really the position we have in relation to consultation. If that assists the opposition to check between the houses with any of the people who have been consulted, then I hope it does so because we would like this matter to be advanced in an effective manner.

Bill read a third time and passed.