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Legislative Council - Fifty-Third Parliament, First Session (53-1)
2014-09-16 Daily Xml
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Statutes Amendment (SACAT) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 7 August 2014.)

The Hon. S.G. WADE (16:47): On 18 June this bill was introduced in the House of Assembly by the Attorney-General. The bill transfers the jurisdiction of the Guardianship Board and the Residential Tenancies Tribunal to the new South Australian Civil and Administrative Tribunal. In that context it is the first bill conferring jurisdiction. The original SACAT bill, if you like, put in place the structure but this is the first bill to actually confer jurisdiction on the tribunal.

We were originally told that this conferral bill would be before the parliament prior to the end of 2013. That did not happen. In that context it was interesting to note the comments made by the Attorney-General in The Advertiser last Friday, 12 September, trumpeting the success of these reforms. Mr Rau said that until now his reforms:

such as early guilty pleas and the creation of the SA Civil and Administrative Tribunal, had helped remove 'unnecessary clutter' from the court list but these coming reforms would go much further.

I certainly hope that the public can see those words for what they are, which is spin. SACAT cannot have helped remove unnecessary clutter from the court list because it has no jurisdiction, it has not heard a case. This is another example of the Attorney-General misrepresenting the reality on the ground.

In terms of this particular piece of legislation, a range of concerns have been raised in relation to issues such as the tenure of the current members of the Guardianship Board. The opposition has considered the legal and other issues raised and, whilst it appreciates that some legal precedent suggests that what the government has done does not accord with good practice, we do not propose any amendments in that regard.

In terms of the issue of the transfer of the mental health review function, there were certainly a range of views put to us about whether that transfer was appropriate. On balance, the opposition is of the view that the transfer of the functions may well be positive, but one thing that has disturbed us is the lack of consultation. In that context I will read from a submission made by the Mental Health Coalition to the Mental Health Act review. By way of introduction, the Mental Health Act review was undertaken by the Chief Psychiatrist and tabled in this parliament earlier this year. Four of the recommendations specifically related to SACAT. The Mental Health Coalition, in responding to the recommendations of the review, had the following things to say:

The feedback that the Mental Health Coalition of South Australia received highlighted a significant level of concern with the proposed transfer of mental health matters to an unknown entity in SACAT. It is not clear how the new entity will operate and there are concerns for the environment, culture, processes and expertise to be appropriate for people with mental illness.

There was a sense that there could be improvements to the current Guardianship Board run processes but also a fear that some of the good things about the current approach may be lost in the proposed changes. This in part reflects the lack of adequate consultation about processes that are very important to the lives of people with mental illness and their families.

Further in the submission it reads:

Based on our feedback, there needs to be consultation with a range of mental health stakeholders regarding the proposed changes to identify good aspects of current guardianship processes to maintain and improvements that could be made in transitioning to a new structure.

It has become clear that there has been a lack of consultation on the transfer of the function with mental health consumers, carers and stakeholders. It is the opposition’s view that that is unacceptable.

I should make it clear that I do not think the government made any attempt to hide the reforms. I seem to recall from the earliest briefings that the opposition received and I think in relation to the second reading of the Attorney-General even on the original SACAT bill, that it was foreshadowed that the Guardianship Board functions would be some of the early transfers to the new SACAT. But what I do think has occurred is that there has been a lack of effective engagement. There have been a number of factors that may well have contributed to that lack of effective engagement, but for whatever reasons it has not occurred.

In that regard it is not that the Attorney-General’s Department does not have expertise in this area; I would acknowledge the quality consultation work that was done in relation to the Disability Justice Plan and, in that sense, the cooperative stance that the relevant team of advisers had with the select committee on access to justice for people with disability. Of course, I acknowledge the work of the Hon. Tammy Franks and the Hon. Kelly Vincent on that piece of work.

Whilst it is not the core business of the Attorney-General’s Department to, shall we say, engage in consultation on social policy matters, in the Disability Justice Plan we saw good cross-government consultation. I am sure there is the expertise in the department to ensure effective consultation on this issue as well.

Clearly, there is a need for more clear information on the way SACAT will operate. As the quote from the Mental Health Coalition highlighted, there may well be both opportunities to preserve the good aspects of the current operations of the board and opportunities to improve the way things are done going forward.

Other issues have been raised; for example, the Chief Psychiatrist, in his review of the Mental Health Act, raised the issue about whether clients should have access to legal representation at no cost to themselves for hearings to consider treatment order applications. I acknowledge that, in discussions the opposition has had with the government, there is certainly an awareness of that and interest in that.

I think there also needs to be consultation on issues such as how the new SACAT will manage the mental health caseload. Again, the Chief Psychiatrist, in his Mental Health Act review, recommended that there be a ‘specific dedicated mental health list or stream supported by officers with mental health expertise,’ and to require that some reviews have three members.

My understanding is that the Greens received similar feedback to the opposition in terms of the lack of consultation with the mental health community. I now understand that that was influential in the amendments that the Greens have filed. I will let the Hon. Mr Parnell address that in more detail, but suffice to say that the Greens and opposition have had constructive discussions with the government about the strengths and weaknesses of the consultation thus far and what can be achieved going forward.

Certainly, the consultation up to this point has not been adequate. What we might be able to achieve while the bill is before the house may not be ideal, but it may be worth pursuing. From the opposition’s point of view, it is not an option to progress without real engagement of the people who are most affected. As the discussions with the government continue, I would stress that this consultation will aid SACAT by providing a surer foundation for the tribunal, both in terms of the understanding of its client group of the work of the tribunal, and also that client group’s trust in the tribunal.

I think it would also have a significant influence by way of preparation for the consultation that will need to occur in relation to the mental health legislation review, and also related matters such as the review of the mental incapacity law which is currently being facilitated by the Sentencing Advisory Council, chaired by former justice Duggan.

With those comments, I look forward to discussions with colleagues in this place and with the government to see what we can do to make sure not only that we provide the best statute possible in terms of the bill that is before us, but also that we make sure that the community is appropriately engaged to make sure that their voices have been heard and that their ideas have been given due consideration.

The Hon. M.C. PARNELL (16:59): I will make a brief contribution today, because I appreciate that the government has decided to not push this through to a final vote today, and hopefully not this week. I will say at the outset that the Greens supported the creation of the South Australian Civil and Administrative Tribunal, and we support most of the areas of work that the new tribunal is to undertake. We support the transfer of jurisdictions such as the Residential Tenancies Tribunal and the hearing of Freedom of Information Act disputes, and I think a recent addition to the list which we also support is that land valuation disputes that currently go to the Supreme Court will also now go to the new South Australian Civil and Administrative Tribunal. We support the framework and we support the creation of this tribunal.

The government I think made it quite clear very early on that two of the main jurisdictions that were to be transferred to the new body were the Residential Tenancies Tribunal and the Guardianship Board. I remember thinking at the time of hearing this, which is probably well over a year ago, that there would need to be a fair bit of consultation undertaken with stakeholders to see whether everybody is happy with the transfer and whether the rules, processes and procedures will in fact improve the delivery of justice and fairness to people who come to those jurisdictions. So, it did come to me as some surprise to discover that certain key stakeholders are saying that they were not consulted and that other stakeholders who were consulted are strenuously opposed to the transfer of the Guardianship Board to the new SACAT.

The newspaper The Advertiser a couple of weeks ago (it might have even been last week) did publish some of the concerns expressed by the Royal Australian and New Zealand College of Psychiatrists. They certainly wrote to me, they wrote to the opposition and I believe that the government now has a copy of their concerns. I will just read a couple of sentences, because I think they do go to the heart of this matter. What the Royal Australian and New Zealand College of Psychiatrists says is:

SACAT by its nature will introduce a process driven, legalistic system, which is at odds with the well-developed client, focussed approach that the Guardianship Board has developed in recent years. As with other states in Australia, the Guardianship Board here has regarded the management of citizens who are suffering from mental illness or mental incapacity as needing to be managed sensitively and kept separate from a system run in a predominately legalistic/bureaucratic manner.

I think that sentence probably sums up the fears and concerns of many stakeholders, and these are the matters we need to address before this bill can proceed in its current form. The College of Psychiatrists has made some assumptions which the government has strenuously denied. It says say that it is conscious of the need to maintain what is referred to as a 'therapeutic jurisdiction' and that it will not allow it to become too legalistic and process-driven, but the point remains that it has not yet convinced all stakeholders and in fact it has not consulted with some stakeholders.

On the back of these concerns, the Greens have filed amendments which basically seek to remove all the jurisdiction of the Guardianship Board from the new SACAT and effectively retain the status quo. Having filed those amendments, I want to make it clear that the Greens are not saying that there can never be reform in this area, and we are not even saying that SACAT can never be the appropriate body to deal with the types of matters currently conducted by the Guardianship Board. But what we are saying, following consultation that we have had and representations that have been made to us, is that we are not prepared to let that go through now without further inquiry.

I know the Attorney, who I met with today, is frustrated because he believes that a considerable amount of consultation has been undertaken, and I am sure he is right, but there is also some consultation that has not been undertaken. One simple exercise that I went through was to just go to the webpage of the Mental Health Coalition to have a look at who the stakeholders are in this field of mental health. When I say stakeholders, I mean community stakeholders, so not professional associations and not people who even necessarily work in the bureaucracy, but people who are in civil society.

We find that members of the Mental Health Coalition include Anglicare, Baptist Care and the Uniting Communities. There are also specialist groups, such as the Barossa/Gawler/Light Mental Health Focus Forum. You have Citizens Advocacy Research and Education, also known as CARE Inc. You have Carers SA. We have to remember that the people who fall within the jurisdiction of the Guardianship Board are people with diminished capacity and they are, in the main, reliant on carers, so carers are a key stakeholder group.

You also have another group with a wonderful acronym, COMIC (Children of Mentally Ill Consumers). They are clearly stakeholders in the legal system that deals with their parents. You have Community Support Inc., Diamond House (Clubhouse SA Inc.), Grow SA, Helping Hand Aged Care, Life Without Barriers, the Mental Illness Fellowship of SA, Mind SA, and again in the country the Murray Mallee Consumer Advisory Group, and I could go on through the list. The point is that there are some important stakeholders who are yet to be consulted in relation to these changes.

So, the Greens have tabled the amendment and our hope now is that the government, in a spirit of cooperation, will put the brakes on this process for a little while. Perhaps we can come back, maybe next month might be early enough (I hope it can be), and we will have more information available to us. We will know whether the psychiatrists have had their concerns alleviated. We can also explore some of the very recent correspondence that I have received in favour of moving the Guardianship Board to SACAT.

For example, a letter received just yesterday I think it was from the Public Advocate, John Brayley, claimed that, in supporting the Guardianship Board's move to SACAT:

It is our view that this will provide greater fairness, higher quality of decision making and service a robust foundation for guardianship and mental health jurisdictions for years to come.

We need to tease out some of these recent submissions. In relation to 'greater fairness', we need to know what has been the unfairness in the current system such that SACAT will provide greater fairness. In relation to 'higher quality decision-making', let us explore the quality of decision-making in the Guardianship Board, because certainly from its annual report I understand that appeals against its decisions have dropped considerably. There will, of course, always be appeals against decisions made in the mental health jurisdiction because people very often do not want to have treatment or, effectively, detention forced upon them. So, we need to explore some of these submissions.

The position the Greens are taking is that we are supportive of the bill, and we are not yet convinced that the Guardianship Board should be moved across. I am hoping that the government will, in a spirit of multiparty cooperation, work with us to either fix the problems that have been identified or to bring on board those who are still unconvinced that SACAT will provide a therapeutic jurisdiction for those with mental illness or reduced capacity.

The Hon. R.L. BROKENSHIRE (17:08): I rise on behalf of Family First to contribute briefly to the second reading debate on SACAT, and to indicate that we support in principle what the Attorney-General was trying to do, generally speaking, because if there can be more efficiencies in streamlining and improvement in tribunal processing across the state, then that would be a good thing because, particularly when it comes to residential tenancies and the tribunal, both from landlords and tenants we have had lots of complaints over many years about the inefficiencies, time delays and so on. If the intent of the Attorney-General is to streamline and speed up the processes, then we congratulate him on that and we would support that.

Following on from the Hon. Mr Stephen Wade and the Hon. Mr Mark Parnell, we have had representation from people who feel that they have not be consulted adequately when it comes to the issues around whether or not, for example, mental health and guardianship should be included in the SACAT, or whether they should retain their autonomy.

Having visited the Guardianship Board and met with the presiding officer and also the executive officer and staff several years ago, witnessed one of the tribunals on that day and met people who are actually involved in working in the tribunals, I would have to say that I was very impressed with the compassion that those staff have for their job. As has already been said in the chamber, it is a very delicate and difficult area. There is often stress with the families and relatives of those who are under the Guardianship Board and care, nurturing, and fair and proper consideration in how you go about that particular work is paramount.

Therefore, at this point in time if the Hon. Mr Mark Parnell was to put his amendment to a vote we would have to support that amendment. In the meantime, we will concur with the Liberal Party and the Greens and ask the government to do further consultation. We would like to see what the results of that are over the next few weeks.

I understand that the government does want to move on this reasonably quickly, but on the other hand they have to make sure that proper consultation occurs and we are not satisfied that that is the case as it stands. Therefore, we urge the government to now go out and consult, and if we get indications from the stakeholders, like the Guardianship Board and Mental Health Coalition, that they are happy with what the government is proposing then we would support the bill as it stands. To summarise, at the moment if the government were to go to the committee stage, we could not support it without supporting the amendment that the Hon. Mark Parnell has put forward. That is our position; we will hand it back to the government.

Debate adjourned on motion of Hon. G. A. Kandelaars.

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