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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-06-02 Daily Xml
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Bills

Public Trustee (Public Trustee and Guardian) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 12 May 2020.)

The Hon. K.J. MAHER (Leader of the Opposition) (15:59): I rise to speak on this bill and indicate that I will be the lead speaker in this chamber for the opposition. 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 Public Advocate have different and critical roles.

The Public Trustee is largely responsible for the preparation of wills and enduring powers of attorney, acting as executor for deceased estates, and acting as the administrator of estates for persons approved by SACAT when they are unable to look after their own health, safety, welfare or manage their own affairs.

The Public Advocate is appointed as the guardian of last resort by SACAT for persons who are unable to look after their own safety, health and welfare or manage their own affairs. Services provided by the Public Advocate typically include management and decisions in relation to accommodation, health and access needs for 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 in another place referred to key differences between the two bodies in her second reading explanation, and there are indeed very key differences. These include that one is subject to ministerial direction but the other is not.

As we best understand it, under the proposed bill the combined position of Public Trustee and Public Advocate would be subject to ministerial direction depending on what piece of paper they were holding, what email they were reading or which client they were thinking about at any given time. The vast majority of those who use the services of the Public Advocate or Public Trustee use just one of them. A smaller number, around 700 people, use both the services at the same time, the Public Advocate and the Public Trustee. These are amongst the most vulnerable people in the state, who require statutory officers to make important life decisions and administer their day-to-day affairs and finances. Many also receive direct support with day-to-day tasks from medical, disability or aged-care workers.

The government, as we understand it, is using this so-called overlap of approximately 700 people as a justification for merging the roles, rolling out tired and generic claims of improved customer service, streamlining and better information sharing to justify what this bill seeks to do. The government has not referred to the tension that quite properly and occasionally arises, both in tribunals and in less formal settings, between the two bodies that seek to aim for what is best for a protected person, given what can be afforded.

For example, this can manifest itself in debate about housing. The Public Advocate may push for more expensive forms of housing that may better meet a person's need, while the Public Trustee may push back, based on the protected person's finances and affordability. Both parties have the interests of their client at heart, even though they may hold different views. These differences can often uncover a best solution for the client. Where agreement cannot be reached, there are processes for third-party determinations to be made. This makes sense. It is what has been done for decades and it is what happens in three-quarters of the states and territories of our commonwealth.

There is a significant risk when these roles are combined. Worse decisions can be made. This is critical, because the state has the full decision-making power for many of these vulnerable people. The opposition's initial consultations have uncovered significant concerns about the welfare of the most vulnerable clients. The Attorney-General has acknowledged that under this bill all of the various functions of the two bodies will be maintained, but the only practical difference the bill claims to achieve is the management or streamlining of mutual clients. The government's own talking points on the bill state that:

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 inquiries;

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, for all the government's will, they cannot find a way to improve customer service or improve information sharing without abolishing one statutory role and creating confusion within a new one. It raises serious concerns about their intents.

The Attorney-General has claimed that this is not a budget savings measure, but they have chosen their words around this very carefully. The Attorney-General has not committed to no future or further budget cuts. The government has only said that this bill is not linked to budget savings measures and previous budgets. It is not too long a bow to draw to raise grave concerns that the government could be streamlining these sorts of services, creating budget savings as a prelude to privatising many of the estate services that the combined entity would provide.

We know that before the election the now Premier famously claimed that he had no privatisation agenda. Next minute, we are seeing the Remand Centre, trams and trains being privatised. It is not too long a bow to consider that the government may be streamlining, making savings to privatise some of the services that a combined office would have.

The bill only allows but does not require different people to undertake the trustee and guardianship roles when somebody requires both. We do not believe that is good enough for the 700 people in this situation. We also note the limited consultation that was undertaken. We are informed that 22 groups were approached to comment and feedback was received by eight but only three of these were from outside government. I am not aware that any feedback was sought or received directly from those under guardianship and administration or their families.

All the arguments I have outlined so far that have caused us concern that were brought up in the other place are legitimate arguments but since that time we have seen examples of the challenges that arise from merging separate statutory roles with different responsibilities. In September 2019, the inaugural Principal Community Visitor, Mr Maurice Corcoran, left that role. In his final letter he highlighted concerns about the scheme. Immediately after he left, the government appointed the person who held the Office of the Public Advocate to hold the dual role of both Public Advocate and Principal Community Visitor.

We have seen in recent public discussions that information was received by the Public Advocate about the death of Ann Marie Smith but there is confusion about the role and what the responsibilities were when holding the role of Principal Community Visitor in giving advice to the minister. We do not point this out to criticise the individual holding these dual roles, we point it out to show the confusion that can arise when very separate and distinct functions are assigned to a single person. Wearing two hats has the potential to lead to system failures.

We often rightly criticise this government for taking so long to deliver on its promises or not delivering at all; in this case these changes were announced almost a year ago but we are only debating it in this chamber now. On this occasion we will actually compliment the government on dragging the chain because we think this is a bad proposal that will lead to some of the most vulnerable people receiving less services.

We think the risk to this proposal is real. The conflict that the bill would create is both a perceived and a real one. The claim that 700 people who use the services of both will benefit from the bill we think just does not hold water. The claim that those benefits that will come from streamlining services—better communication and a single point of contact—can be done without having to abolish a statutory body. We think there should be better oversight, not less oversight, and we believe the bill creates less oversight. For that reason, I can indicate that we will be opposing the bill at the second reading.

The Hon. M.C. PARNELL (16:08): The bill merges the Office of the Public Advocate and the Public Trustee, amalgamating the functions and services they each provide and replacing them with one statutory office of the public trustee and guardian. The Attorney-General in her second reading explanation said:

The focus of the reform is to achieve a better delivery of services to some of the state's most vulnerable people.

That is a worthy aspiration but the Greens are not convinced that this is what this proposed merger will achieve. I understand the Attorney-General consulted with a number of stakeholders and that some of them provided feedback. These include the Public Advocate, the Acting Chief Psychiatrist, the Legal Services Commission, the Aged Rights Advocacy Service, JFA Purple Orange, SAPOL, the Crown Solicitor and the Public Service Association.

As the Attorney-General's office was unwilling to provide us with copies of the feedback, we sought feedback directly from most of these organisations, and I would like to put some of their feedback on the record today. Before I do, I would just like to say that, whilst I am not a naturally suspicious person, when ministers refuse to provide copies of feedback or submissions, especially from statutory office holders or other key stakeholder groups, it does arouse suspicion that one or more of them must have been pretty unhappy.

For what it is worth—even though ministers rarely ask my advice, I would offer it anyway—I think if ministers were to disclose all the submissions and representations, they would then have a golden opportunity to tell us why they thought those stakeholders had got it wrong. Simply denying access to submissions arouses suspicion and those suspicions were found to be well-grounded when we did eventually get the feedback.

I will start with the Public Service Association. Correspondence received from the PSA states that their view arises from the concerns that were raised by their members in the Office of the Public Advocate. I quote:

In summary, those concerns are as follows:

The proposed merger would result in:

Vulnerable community members being disadvantaged by losing an independent, accountable, disinterested, advocate, and reduction in advocacy generally.

Reduction in public accountability and independence of the Advocate.

Conflicts of interest from the Public Trustee receiving income from the sale of properties (i.e. there is a profit motive), which may or may not be in the best interests of the person.

Loss of trust and credibility in the Public Advocate arising from an actual or perceived conflict of interest or at the very least a loss of independence.

Consequential from the above is a potential reduction in credibility of both organisations.

There is currently no duplication as suggested by the Attorney General. Both organisations perform different, if complementary, roles.

Financial management (Public Trustee) requires different approaches and skill sets from advocacy and support about rights and needs.

There are a number of operational, including Work Health and Safety, issues arising from the nature of the respective clients.

We believe the views of our members have substance, that their concerns are well-founded, and that the interests of their respective clients are their highest priority.

The Legal Services Commission provided feedback and they identified both advantages and disadvantages with the bill. In relation to the disadvantages they said:

The obvious disadvantage in this merger is the concentration of authority in one organisation which will be making all the decisions with regard to the protected person. Checks and balances are lost by combining the roles. This position is effectively a return to structures of the past, before the Public Advocate was established. There is a risk that some families will feel shut out from their loved one's care with few avenues for redress. Under the proposed merger, the only right of appeal against decisions of the new statutory authority would be in a limited capacity to the Ombudsman.

The Commission considers that future problems could be avoided if the amendment bill contained provisions for some easier form of review of the new Public Trustee and Guardian's decisions.

JFA Purple Orange's feedback was:

Purple Orange recognises that the draft Bill would predominantly give rise to structural changes that might deliver certain efficiencies. However, it appears that the role of the proposed Public Trustee and Guardian would differ from that of the Public Advocate in several ways, and this raises some concerns.

At present, under the Guardianship and Administration Act 1993, the Public Advocate is not subject to the control or direction of the Minister in performing any of his or her functions. Purple Orange is concerned the proposed amendment of section 6 of the Public Trustee Act (see s10 of the Bill) has now limited this. If the two offices are merged, we believe it is important to maintain the independence of the Public Trustee and Guardian with respect to his or her functions as Guardian.

Purple Orange is also concerned by the removal of the Public Advocate's functions with respect to giving advice on powers that may be exercised in relation to mentally-incapacitated persons. We view this as an important safeguard for individuals, and it should not be lost.

We also note that while the Public Advocate currently has a role in giving advice on the operation of the Guardianship and Administration Act 1993, suggesting appropriate alternatives to taking action under the Act, monitoring administration of the Act and recommending legislative change if required, the proposed Public Trustee and Guardian would not have any equivalent powers. We believe relevant Ministers would benefit from receiving advice from the Public Trustee and Guardian on such matters, and that this would help to protect the interests of individuals affected.

In closing, Purple Orange urges all Parliamentarians to be satisfied that there has been an extensive and authentic consultation with individuals who are under the mandate of the Public Advocate and Public Trustee, as well as their family members and supporters, prior to making legislative changes to the role of the Public Advocate. It is vital that their voices are heard and taken into account when making decisions that affect their lives.

I will now provide some feedback from the Aged Rights Advocacy Service (ARAS). In their feedback to the Attorney-General, ARAS made the following comments:

ARAS notes the community concern raised in other jurisdictions when combining the roles of Public Trustee and Guardian. ARAS notes that there is significant power by one statutory authority over a vulnerable person. Another community concern is that potentially crucial life decisions could be made on the basis of costs and ARAS welcomes further information as to how potential conflict of interest would be managed.

The other key issue is the skills and knowledge of the two current organisations are currently different and the need to ensure that resourcing of a combined organisation, including appropriate skills and knowledge, delivers the outcome sought by the Bill.

I know that was a lot of material to put on the record but, as I said, we had to find that information for ourselves because it was not forthcoming from the Attorney. So the question of how potential conflicts of interest or competing interests would be managed was also an issue that was raised by the current staff in the Office of the Public Advocate. The Greens share their concerns.

An example of this conflict that was raised with us is where the public trustee and guardian makes a decision to relocate a person into an aged-care facility where this also requires the sale of that person's home. While the decision about the place of residence is required to be made in the best interests of the person, the public trustee and guardian receives income for selling that person's property which means they have a financial interest in the decision. As it was put to my staff, they have competing interests but the same boss. When this was put to the Attorney-General's office, the response received was that:

…the Public Trustee and Guardian will have an overarching duty to act in the best interests of their client.

However, the conflict of interest—real or perceived—is still there.

Another important issue and a problem we have with this proposed merger is that the public advocacy and advice role of the current Office of the Public Advocate, which is independent of the government and the minister of the day, is being rolled into the public trustee and guardian role. The Attorney-General tells us that these proposed reforms substantially mirror reform undertaken by the ACT in 2016. However, I have since learnt that there is a fundamental difference between what the ACT did and what is being proposed here.

The ACT recognised the importance of the independence of the advocacy role of the public advocate and they did not merge this into the public trustee and guardian role. Instead, they kept the public advocate function as a separate role, putting this into the role of the Children and Young People Commissioner, which is an independent statutory position within their Human Rights Commission. To me, that makes much more sense than what is being proposed in this bill for South Australia.

In conclusion, based on all the feedback we have received from key stakeholders, the Greens will not be supporting this bill at this stage. I would urge the government to go back to the stakeholders, to go back to the protected persons and their families, as suggested in the submissions, and to negotiate with these stakeholders amendments which deal with the issues which have been raised, only some of which I have touched on today. To put it quite bluntly, if this bill is put to a second reading vote today, without further consultation or a commitment to further inquiry such as through a parliamentary committee, then the Greens will have no choice but to vote against it at the second reading.

The Hon. C. BONAROS (16:19): I rise to speak to the government's Public Trustee (Public Trustee and Guardian) Amendment Bill 2020. We are not satisfied the potential benefits, including the better delivery of service and even the cost-saving benefits which the government has indicated it is looking for here, will not come at the detriment of our most vulnerable South Australians. Two heads are better than one, especially when it comes to safeguarding our most vulnerable people. It is, in our view, sensible for a financial decisionmaker to remain distinct and separate from an advocate for health, accommodation, lifestyle and access decisions.

Just because two offices have the word 'public' in them, it does not mean they are the same and the lines should not be drawn. The Public Trustee fulfils a vastly different role to that of the Office of the Public Advocate. When individuals in our community need help with the administration of their finances, and in the absence of a satisfactory alternative, the Public Trustee steps in as financial manager, making decisions about present and future financial needs. It provides a range of estate, trust and taxation services, monitors private administrators and managers, and the management and custody of property.

In distinct contrast, the Office of the Public Advocate is appointed to advocate for individuals. It is appointed to promote the rights of adults with impaired decision-making capacity in relation to health care, housing, lifestyle and access decisions. In ordinary situations, a guardian would ideally be a family member or friend. When no-one is suitable, the Office of the Public Advocate steps in as a guardian, usually of last resort.

We are advised the Public Trustee currently has 4,602 clients. The Office of the Public Advocate has 1,256 clients. According to the figures provided to us, 834 of those are mutual clients. However, just because two agencies share mutual clients does, it does not mean it is a good idea to merge them. Employees of the Public Trustee and the Office of the Public Advocate have, as we have heard, vastly different expertise.

Public Trustee employees tend to come from finance, administration, information and communications technology, customer service and legal backgrounds. The Office of the Public Advocate employs around 24 people and I am told around 17 of those employees act in guardian roles with social work backgrounds. They are experienced and trained to deal with clients with intellectual disabilities, dementia and brain injuries, amongst a number of other disabilities.

We are not satisfied that financial managers have the skill set to advocate for disability. We also know that over 400 Public Advocate clients do not need a financial manager. It is sad and unfortunate that, for some people, protections cannot be provided by family or friends. As we have seen in the recent most horrific treatment and subsequent death of Ann Marie Smith, some South Australians have no-one to protect them at all. They have no-one to ensure oversight and no-one to give them a voice. That is the saddest part of all.

SA-Best is concerned that if the roles were merged, as is proposed by the government, money would be a deciding factor in many of the decisions to the detriment of clients and their rights and needs. We have been told that the two offices currently communicate cordially; they are not often in conflict, but that does not mean they are never in conflict.

Concern has been raised with me, as it has with the Hon. Mark Parnell, regarding the potential for conflict in instances where, for example, a client wishes to return home to live after an extended hospital stay but the optimal financial outcome is the sale of that home. Which interests would prevail in that situation? Would it all come down to money? Critically, what would be the long-term impact of that decision on the individual involved?

It is important for clients to recognise, and be comforted by, the clear distinction between the roles of the Public Advocate and the Public Trustee. Even if that conflict of interest is real or perceived, it is, as the Hon. Mark Parnell stated, still there. I am told it is not uncommon for representatives of the Public Trustee to be bailed up after a hearing by unhappy clients. These situations are often diffused by employees of the Office of the Public Advocate. It will make their role more difficult if clients view them as financial decision-makers too, as opposed to a separate entity.

The government has already moved, according to the advice we have received in our briefing, to save costs by merging the premises of the Public Trustee and the Public Advocate into the same building. I understand that move is happening irrespective of the outcome of this bill come this Friday. Savings will no doubt be made in terms of administration staffing manning the new joint reception desk, but this in itself raises health and safety issues, many of which have been canvassed with us in our subsequent meetings with stakeholders.

There are clients who are banned from contact with the Public Trustee as a result of prior harassment and issues concerning financial arrangements, and a shared reception means guardians will now be forced to visit those clients potentially in their homes. There appears to have been little regard for the move to shared premises and how conflicts with existing clients and those who are banned will be dealt with.

It is worth noting that the Independent Commission Against Corruption's 'Evaluation of the practices, policies and procedures of the Public Trustee', tabled in parliament on 26 September 2017, had 19 key recommendations. None of those recommendations concerned a merger with the Office of the Public Advocate, as I understand it, and perhaps it would be more prudent for the government to first address concerns raised by the commissioner in that evaluation before contemplating the sorts of measures that we are contemplating in this bill.

If you were to write your will tomorrow, Mr President, would you leave the guardianship of your children to the same person who controlled their finances? What if you had never met them? It would make me nervous leaving all that power to one person, a person not known to me, with no checks and balances. We must continue to keep two heads in the process so that the entire decision-making process does not rest with one.

In relation to that point, it is worth noting that we now know, perhaps more than before, just how important it is to keep as many heads in the game as possible when it comes to the care of our most vulnerable citizens. Mahatma Gandhi famously noted:

The true measure of any society can be found in how it treats its most vulnerable members.

As a society we have become acutely aware of our failings in relation to a vulnerable member of our community very recently in the case that has saddened and sickened all of us. We need to tread cautiously because we know just how dire the consequences can be if we do not.

Both the Public Trustee and the Office of the Public Advocate are safety nets for people who have nobody else to catch them but, as I said before, just because both offices have the word 'public' in them does not mean they are the same. I think the government has, I am afraid, done little to convince us that the benefits proposed in this bill outweigh the detriments that vulnerable members of our communities will be faced with. What we now know, more than ever, again, is that we absolutely need to keep as many heads in the game as we can.

Like the Hon. Mark Parnell and the Greens, SA-Best does not support this bill in its current form. If this bill does go to a vote today, then we too will have no option but to oppose it. Again, we effectively are urging the government very strongly to go back to the drawing board and reconsider its proposal in relation to this bill. With those words, I indicate that we will not be supporting this bill in its current form.

The Hon. F. PANGALLO (16:30): I rise in support of the remarks by my SA-Best colleague the Hon. Connie Bonaros, by the Leader of the Opposition the Hon. Kyam Maher, and also by the Greens' the Hon. Mark Parnell, and I, too, will speak against the Public Trustee (Public Trustee and Guardian) Amendment Bill 2020.

This bill wants to merge the offices of the Public Trustee and the Public Advocate. I completely reject the Attorney-General's assertions that a merger of these two distinct and separate specialised services will provide a more 'holistic approach' to providing better and coordinated services to their respective clients. In this instance, 'holistic approach' is code for amalgamating two well-functioning, expertly staffed existing agencies with completely different purposes into one generic service so that there will be no independence in their respective decision-making and there will be widespread confusion trying to fathom what function they are performing at any given time as a new one-stop-shop entity.

The Public Trustee and the Public Advocate will become one person and the two agencies will become one department. My serious and well-founded concerns and suspicions about this are many. Firstly, it is abundantly clear the Public Guardian and the Public Advocate have very different functions that are often inevitably and unavoidably at odds with each other. The Public Trustee undertakes the personal financial management of funds and taxation, wills and estates, legal matters and enduring powers of attorney. It is focused on a person's financial circumstances and to manage their estate, not their lives.

In the past, as a journalist, I have investigated its shabby conduct in several cases brought to my attention by aggrieved family members. I am still getting complaints as a member of parliament. Its conduct has also been scrutinised by various parliamentary inquiries, and there have also been some serious probity issues. While I expect they are being addressed now, the Public Trustee needs to be accountable and to be able to maintain a high standard of service delivery and trust expected of such an institution. They should focus on a person's financial circumstances and manage their estates, not their lives.

The Public Advocate, established under a completely different act, for good reason, is the guardian of last resort to provide health, safety, welfare, lifestyle and wellbeing support to people who may mentally or physically lack capacity to do it themselves. Often, the Public Advocate does just that: advocates on behalf of the person with the Public Trustee, private financial institutions and service providers. These are sometimes robust discussions and disputes arise, which are then worked through by the respective officeholders, each operating under the legislative powers and responsibilities they have. Some of these disputes end up back at SACAT and some in the courts, where it is very important that these roles play their expert parts.

A very important distinction about the Public Advocate is they are expressly not subject to ministerial direction or control. They can act without fear or favour and are not constrained by the financial opinions of the Public Trustee, a state government agency or a service provider. They must be able to maintain this degree of independence.

We are told the Public Trustee currently has 4,602 clients. The Office of the Public Advocate has 1,256 clients—834 of those clients are mutual clients. The clients of the Public Trustee and the Public Advocate (and they are not all clients of both) are often extremely vulnerable and can have reduced physical and/or mental capacity. They rely heavily, often over a lifetime, upon the two very distinct and different functions of these respective departments.

If these two roles and departments are merged, the public, families and clients of the respective agencies will be unavoidably confused about the new functions of each. If these are combined, then who can they go to, say, if they have a dispute with the Public Trustee over a financial or legal matter? The same person and the same department? They will effectively have lost their Public Advocate, and the opposite applies if they want to raise a financial matter with the Public Trustee about an action the Public Advocate has taken.

Remember, many people are ordered to come under the Public Trustee and/or the Public Advocate by SACAT, sometimes when things have already gone badly for clients and considerable work needs to be done on one or many aspects of their lives. The South Australian Public Trustee and the Public Advocate have worked tirelessly to establish trust and credibility with the public, families and clients—crucial values which can be very difficult to establish and maintain with such a vulnerable client group whose day-to-day lives are very much in the hands of these offices.

The conflicts of interest and complaints—that the government acknowledges this will inevitably create—will, according to the Attorney-General, be worked out later. This sentence always strikes fear and suspicion in me when I hear it in this place, and I often do. To me it is almost always an alternative to the more honest answer of, 'I don't know.' The valued skill sets of the people in the Office of the Public Trustee and the Public Advocate's offices are highly specialised and have evolved over time, such that both are very strong and effective in their respective roles. If you have ever dealt with these offices, as I have, you will be in no doubt as to the commitment to carry out their responsibilities and obligations to the letter.

Staff in the respective offices have conscientiously built up their skills, expertise and understanding of their clients' broad-ranging situations and circumstances over the years. These specialised skill sets will be lost and/or devalued, along with the loss of professional credibility, as they are expected to deliver a holistic service, whatever that means. Why would you deliberately disrupt this? Where is the evidence that there will be a better delivery of its services under a merger, as the Attorney-General claims? The Attorney-General has stated that this is not a cost-cutting exercise, but these offices are being physically co-located this month, and it has already been announced that some administrative functions will be shared.

With the merging of two very senior roles, their offices, roles and functions, there will inevitably be savings. Where will those cost savings be applied? In my experience—and I am sure my Labor and Greens colleagues will back me up on this—government-initiated mergers have never resulted in more staff and more resources. This is a typically arrogant move from a government that only introduced the bill to the Legislative Council on 14 May 2020. This is a government that has come to expect the Legislative Council to rush through its bills without proper scrutiny. Here it is, trying to do this again, with its stated intention to merge the offices of the Public Trustee and the Public Advocate and to combine the roles from 1 July 2020, that is, in less than eight weeks' time.

Here we are, some two weeks after its introduction with scant information about stakeholder views, being asked to pass a major piece of legislation that will impact the lives of thousands of the most vulnerable South Australians. Did the Public Trustee or Public Advocate ask for this? Did the Attorney-General consult with experts in their field, like Mr Maurice Corcoran, past principal community visitor, or Niki Vincent, our Commissioner for Equal Opportunity, and others before rushing ahead? More importantly, if she did, did she listen to them? I think not.

Mr Corcoran has already expressed his concern, saying that at times there is a potential for conflict of interest and that other people from interstate in the public advocate role have expressed great concern about having the two merged. Did the Attorney-General consult the Public Trustee and the Public Advocate themselves, and what were their respective views?

We have had no logical explanation for the need for the bill in the first place, nor for its urgency. The only justification we were given in the Attorney-General's second reading explanation was that this reform mirrors that undertaken in the ACT in 2016, which is hardly a strong argument for a rushed and ill-advised bill such as this. Perhaps a look at merging the roles of the Community Visitor Scheme and the Public Advocate would be a better move for the Attorney-General to consider. The Attorney-General seems to be the only person who thinks this is a good idea, and we have no idea how she came up with it or why.

Tragically, the critical role of the Public Advocate has become even more apparent in recent weeks, with serious gaps between state and federal systems proven to have cost lives. These sad and tragic events have only consolidated my rejection of this bill, and for these reasons I will not be supporting it at the second reading.

The Hon. D.G.E. HOOD (16:41): I rise to speak to the Public Trustee (Public Trustee and Guardian) Amendment Bill 2020 and commend the bill to the council. The bill amends the Public Trustee Act of 1995 and various other acts to effect an amalgamation between the Office of the Public Trustee and the Office of the Public Advocate. I refer in particular to the provisions of the Guardianship and Administration Act of 1993, which contains the provision of the establishment, terms of engagement and powers of the Public Advocate.

With approximately 700 joint clients receiving support from both the Public Trustee and the Public Advocate, a merging of the two services will provide a greater opportunity to deliver a coordinated service for this client group. This important reform will result in one entity delivering a consistent, cohesive and streamlined service that takes a holistic approach to meeting clients' needs. Clients and their families can expect to go to one place for all their administration and guardianship needs, a clear step forward. This will provide greater coordination in relation to the management of their affairs, improved responsiveness for complex matters and more efficient information sharing.

The Public Trustee Act of 1995 facilitates a broad range of functions for the Public Trustee. These include the preparation of wills and enduring powers of attorney, acting as executor for deceased estates, personal financial management, funds management and even taxation assistance. Under the Guardianship and Administration Act of 1993, the Public Trustee can be appointed by the South Australian Civil and Administrative Tribunal (SACAT) as administrator in respect of the estates of persons unable to look after their own health, safety or welfare or unable to manage their own affairs due to mental health issues or other specified conditions.

Under the Guardianship and Administration Act of 1993, the Public Advocate may be appointed by SACAT as the guardian of last resort for persons unable to look after their own health, safety or welfare or unable to manage their own affairs, depending on their particular circumstances. The Public Advocate also has other important functions relating to the needs of mentally incapacitated persons, including systemic and individual advocacy, dispute resolution, education and investigation.

Circumstances where there is a dispute in a family over who should take responsibility for decision-making can be very vexed and difficult to deal with. Often, the family simply cannot agree on what is best for the client. Therefore, the Public Trustee and the Public Advocate and their hardworking staff deliver a vital service to South Australians. All the statutory functions of the Public Trustee and the Public Advocate are to be maintained under the reforms reflected in this bill. The Public Trustee will be named the public trustee and guardian, and all statutory functions currently held by the Public Trustee and the Public Advocate will become functions of the public trustee and guardian. I note that combining the functions of guardianship and administration within the one statutory office of the public trustee and guardian substantially echoes reform undertaken in the Australian Capital Territory in 2016.

As the Attorney-General has stated in the other place, there will be no reduction in services as a result of this merger. The budget of the Office of the Public Advocate, together with all of its staff, will be added to the budget and staff of the Public Trustee. The clear intention of this reform is to achieve a better service delivery to some of the state's most vulnerable people. This improvement in delivery will see better outcomes for clients.

The current ministerial power of control and direction on matters of policy will only be retained with respect to the functions of the Public Trustee. However, that power will not apply with respect to functions being transferred to the public trustee and guardian which are presently undertaken by the Public Advocate. Currently, under the Guardianship and Administration Act the functions of the Public Advocate are expressly not subject to ministerial direction or control, and that independence is retained with respect to the public trustee and guardian's future exercise of those functions.

This reform supports the main objective to improve and better coordinate the services provided to our vulnerable citizens. South Australians expect and deserve high-quality services that are tailored to their needs. This is particularly true for those who are vulnerable and require support due to limitations in their own capacity for decision-making for whatever reason.

I understand work is already being undertaken by the Public Trustee and the Public Advocate to manage the implementation issues that may arise. Consultation in the form of a draft bill has been provided to an extensive list of stakeholders for comment, including but not limited to the Chief Psychiatrist, the Law Society, the Legal Services Commission, Carers SA, Council of the Ageing, SACOSS, the Public Service and the South Australia Police.

This bill ensures our justice policies and legislative reforms reflect contemporary needs. This is one of the fundamental priorities outlined in our government's justice agenda. By merging the two separate service providers it is intended to eliminate confusion and double handling and to ensure a simpler, more consistent service for mutual clients that takes a more complete approach to meeting their needs. The principal purpose of this reform is to provide better service to clients. I commend the bill to the council.

The Hon. J.S.L. DAWKINS (16:46): I move:

That the debate be adjourned.

The council divided on the motion:

Ayes 8

Noes 11

Majority 3

AYES
Centofanti, N.J. Dawkins, J.S.L. Hood, D.G.E.
Lee, J.S. Lensink, J.M.A. Lucas, R.I. (teller)
Ridgway, D.W. Wade, S.G.
NOES
Bonaros, C. Bourke, E.S. Franks, T.A.
Hanson, J.E. Hunter, I.K. Maher, K.J. (teller)
Pangallo, F. Parnell, M.C. Pnevmatikos, I.
Scriven, C.M. Wortley, R.P.
PAIRS
Ngo, T.T. Darley, J.A.

Motion thus negatived.

The Hon. R.I. LUCAS (Treasurer) (16:50): In concluding the debate on the second reading, I am ever the pragmatist. As I understand it, that vote is a precursor to the fact that the majority of members in this chamber are going to vote against the second reading of the legislation. I must admit that I am surprised and disappointed at that. I understand the position that members have adopted, but I know in the discussion that I had with members yesterday if I had been aware that there was significant concern—that is, representatives of the parties—with the legislation and there was potentially the need for further discussion with the Attorney, I certainly would have indicated that the government was prepared to adjourn the debate for those discussions.

It would appear that members are not intent on having discussions, albeit the words of the Hon. Mr Parnell, which I am advised now do not stand. The Hon. Ms Franks indicated that I misinterpreted the literal words that he put on the record on behalf of the Greens, but I will leave that to be resolved within their party room. I certainly heard the phrase that if he was required to vote on the bill today, he would be voting against the second reading, but the reality is the reality. If the Greens are going to be required to vote against the second reading today, then so be it.

As I said, I think it is disappointing. I was not aware in the discussions we had yesterday in terms of the government's wish to progress three pieces of legislation that there was to be opposition to any of them. It may well be the opposition is opposing all of them. I suspect we will find that out when we get to the next bills in terms of those discussions. It is going to make it difficult in terms of managing processes in the house.

I accept the reality that it is what it is. Those who have the numbers are entitled to exercise the numbers as they so wish. We do normally, though not always, at least have the opportunity for the responsible minister to have discussions in relation to these bills with people who may well have significant concerns with the legislation to see whether or not some sort of compromise can be negotiated.

Members interjecting:

The PRESIDENT: Order!

The Hon. R.I. LUCAS: I accept entirely that it may well be that members' views are implacably opposed on this issue, albeit that the Attorney-General may be unaware or was not made aware that members' views were implacable in opposition to the legislation.

The Hon. M.C. Parnell: She knew this morning. She knew we were all voting against it this morning.

The Hon. R.I. LUCAS: Well, I did not know anything until lunchtime, when I was advised that if the bill was going to go through—

Members interjecting:

The PRESIDENT: Order!

The Hon. T.A. FRANKS: Point of order: the current speaker is actually assigning motivations to a range of other members, not only in this place but in the other place, and he cannot do that under the standing orders.

The Hon. R.I. Lucas: That's not a point of order.

Members interjecting:

The PRESIDENT: Order! The Treasurer will continue. It is not a point of order.

The Hon. R.I. LUCAS: It is clearly not a point of order, Mr President. I agree with the President.

The PRESIDENT: Treasurer, can you just conclude your remarks, please?

The Hon. R.I. LUCAS: I agree with the President's ruling on the issue.

The Hon. K.J. Maher interjecting:

The PRESIDENT: The honourable Leader of the Opposition!

Members interjecting:

The PRESIDENT: Order!

The Hon. R.I. LUCAS: All I can indicate is that at lunchtime today at about 1 o'clock I was advised by my office that the Attorney's office wished the bill to be adjourned for further consultation and discussions. That was the nature of the advice that I received at lunchtime today.

Members interjecting:

The PRESIDENT: Order!

The Hon. R.I. LUCAS: I was tied up in a series of meetings from mid-morning through to lunchtime and, when I surfaced, that was the advice I received. Nevertheless, the reality—

Members interjecting:

The PRESIDENT: Order!

The Hon. R.I. LUCAS: —is that those who have the numbers can exercise the numbers; I recognise that particular fact. I am ever a realist in relation to these particular issues. But as I said, it will make the operations of the council chamber a tad more difficult.

The council divided on the second reading:

Ayes 8

Noes 11

Majority 3

AYES
Centofanti, N.J. Dawkins, J.S.L. Hood, D.G.E.
Lee, J.S. Lensink, J.M.A. Lucas, R.I. (teller)
Ridgway, D.W. Wade, S.G.
NOES
Bonaros, C. Bourke, E.S. Franks, T.A.
Hanson, J.E. Hunter, I.K. Maher, K.J. (teller)
Pangallo, F. Parnell, M.C. Pnevmatikos, I.
Scriven, C.M. Wortley, R.P.
PAIRS
Darley, J.A. Ngo, T.T.

Second reading thus negatived.

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