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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2025-09-02 Daily Xml
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Guardianship and Administration (Tribunal Proceedings) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 21 August 2025.)

The Hon. H.M. GIROLAMO (Deputy Leader of the Opposition) (17:00): I rise as the speaker for the opposition on the Guardianship and Administration (Tribunal Proceedings) Amendment Bill 2025. This bill makes important and practical amendments to the Guardianship and Administration Act 1993. Its central purpose is to improve the way our system responds to vulnerable South Australians, particularly those in hospital, by ensuring timely and effective tribunal hearings.

The bill introduces a new mechanism for hearings where a person is an inpatient of an incorporated hospital. Under the new section 65A the South Australian Civil and Administrative Tribunal will be required to hear such matters as a priority and in any event within 14 days of an application being made and preliminary steps being completed. This is a sensible and compassionate reform. It means that families, health professionals and the individuals concerned will not be left waiting in limbo at a critical time in their lives.

Importantly, the bill also recognises the need for flexibility in notice provisions. SACAT will have discretion in these expedited cases to dispense with notice to certain other interested persons, particularly where the individual is being discharged to their home, into aged care or to live with an applicant. At the same time the bill balances this efficiency with fairness by allowing persons who were not notified to later apply to vary or revoke an order without the usual requirement of proving a change in circumstances. This strikes an appropriate balance between natural justice and the need for timely decision-making.

The bill also makes changes to the review periods for guardianship and administration orders. For those in detention the maximum period before a first review will increase from six months to one year, with subsequent reviews able to be set up to three years apart. For other protected persons the maximum interval will extend from three to five years. These changes will reduce unnecessary reviews in uncontentious matters, allowing SACAT to focus its resources on cases where real concerns exist, while still retaining the discretion to bring forward reviews when needed.

Taken together, these reforms will make our guardianship and administration framework more responsive, more efficient and better balanced. On behalf of the opposition I confirm our support of the bill. We believe it represents a practical improvement to the act and that it will deliver real benefits both to the individuals affected and to the operations of SACAT. I commend the bill to the chamber.

The Hon. J.S. LEE (17:03): I rise today to speak in support of the Guardianship and Administration (Tribunal Proceedings) Amendment Bill 2025. This bill represents a pragmatic and compassionate step forward in improving the efficiency of our health and legal systems, particularly for some of the most vulnerable members of our community: hospital inpatients with impaired decision-making capacity. At the heart of this bill is a simple but important goal: to reduce unnecessary delays in discharging patients from hospital by streamlining the process of appointing guardians or administrators through SACAT.

These delays are not just bureaucratic inconveniences; they have real human consequences. Prolonged hospitals stays can negatively impact a patient's wellbeing, increase stress on families and place avoidable strain on our already stretched health system.

The introduction of section 65A, which requires SACAT to prioritise applications for hospital inpatients and hear them within 14 days, is a welcome reform. While SACAT already aims for this benchmark, enshrining it in legislation alongside increased funding will help ensure consistency and accountability. It is important to note, however, that this is specifically addressing hearings, not decisions. My trust is that SACAT will continue to make decisions at the first hearing to ensure that this change has its intended effect.

The bill also allows SACAT to shorten or dispense with notice requirements in appropriate circumstances. This is a commonsense provision, especially where decisions are easily reversible, such as short-term respite care. It is still extremely important that hospitals continue to make reasonable efforts to contact all interested persons and that SACAT applies these powers judiciously. The right to be heard must not be compromised. I commend the inclusion of a safeguard allowing interested persons who were not notified of expedited proceedings to apply to vary or revoke orders without needing to prove a change in circumstances. This is a fair and balanced approach that respects procedural justice while enabling timely action.

The bill also proposes longer review periods for SACAT orders: up to 12 months for initial reviews of detained persons, three years for subsequent reviews and five years for other cases. This will reduce administrative burden and allow SACAT to focus its resources where they are most needed. Importantly, SACAT retains discretion to set shorter review periods where appropriate. This bill aligns with the broader health system reforms and aged-care transition strategies.

It is encouraging that the additional funding of $3.8 million over two years and $1.7 million annually from 2027-28 shows a strong signal of the government's commitment. But funding alone is not enough. Implementation must be robust and hospitals must be supported to submit complete applications without delay. I believe this bill is a sensible and necessary reform. It balances urgency with fairness, and compassion with practicality. With those remarks, I commend the bill.

The Hon. S.L. GAME (17:07): I rise to speak on the government's Guardianship and Administration (Tribunal Proceedings) Amendment Bill 2025. This proposal seeks to amend the Guardianship and Administration Act 1993 to expedite guardianship and administration proceedings in the South Australian Civil and Administrative Tribunal.

According to the Attorney-General, these amendments will help facilitate the timely discharge of hospital patients with impaired decision-making capacity. However, even the Attorney-General acknowledges that there are limited commonwealth-funded aged-care places into which these patients can be discharged. Nevertheless, the government is determined to pursue these measures, despite receiving concerns from stakeholders such as Dementia Australia, Council on the Ageing, Aged Rights Advocacy Service as well as the Law Society, and no doubt many others.

We can all agree that hospital patients should be discharged upon completion of their treatment or when they are well enough to reside in some other form of accommodation. However, in cases where a patient suffers from mental impairment, there are often very complex decisions to be made that require considerable thought, input, assessment and, most importantly, appropriate advocacy for the patient, who is extremely vulnerable given their difficulty in making important decisions about their own care and accommodation.

This proposal to expedite proceedings so that SACAT can deal with applications within 14 days will add further significant pressure to hospital patients and their families, who are forced to make difficult decisions about care and accommodation. What about vulnerable individuals without supportive families or partners? What will happen to them? Where will they go? Who will be looking out for them? Given the rise of elder abuse in our community, we should not forget patients with abusive partners or manipulative relatives or friends who might seize the opportunity to take control of the vulnerable person's life.

This is why the proposed removal of the tribunal's obligation to give notice to other interested persons in relation to expedited proceedings is highly concerning. Input from all interested persons regarding the future care and accommodation of a vulnerable patient should be valued by the tribunal, not bypassed in the rush to discharge a patient from hospital.

All stakeholders have raised this removal of notifying interested persons as a significant concern, with the Law Society stating that, if other persons do not receive notice of an application, a family member who is not best placed to make decisions for the protected person may be appointed to a position of formal control. It is important to note that upon application to SACAT, a substituted decision-maker or guardian can be granted special powers to direct someone to live in a particular place, authorise someone to be detained in a particular place or authorise the use of force so that medical or dental treatment can be given.

Once in place, these and other similar orders are difficult to revoke. In its submission to the Attorney-General's office, the Aged Rights Advocacy Service stated:

…the proposed amendments undermine the autonomy and self-determination of older persons…the proposed provisions suggest a procedural urgency that may come at the expense of safeguards necessary to protect vulnerable individuals from being lost in the system. This is especially concerning considering the Federal and South Australian Governments' current contemplation of Human Rights legislation…We urge that any reform to the Act be guided by a balanced, rights-based approach that upholds the dignity, autonomy, and preference of the individual in all stages of decision-making.

Unfortunately, the Aged Rights Advocacy Service stated to our office that they did not receive a response from the Attorney-General's office. In communications with my office, they also expressed concern about the tight timeframe and overall tone of the government's approach regarding the consultation process. Dementia Australia expressed similar concerns about the bill's failure to uphold the rights of the aged:

Dementia Australia recommends…that all reasonable steps have been taken to ensure the rights of the person living with dementia to make their own decisions, including the provision of appropriate supports for decision-making. This aligns with the rights-based principles of the new Federal Aged Care Act.

There is clearly a fundamental inconsistency with this bill's intent to uphold the health and wellbeing of vulnerable individuals and the removal of important procedural safeguards despite widespread concerns from a range of stakeholders. It is disappointing that the government did not fully engage with stakeholders to construct a bill that sought to balance procedural urgency with some form of commitment to supported decision-making.

The Hon. R.P. WORTLEY (17:11): This bill will amend the Guardianship and Administration Act 1993 to reform SACAT proceedings under the act to help facilitate the timely discharge out of hospitals of patients with impaired decision-making capacity in three main ways. It will:

require SACAT to hear guardianship and administration applications in respect of hospital inpatients within 14 days of receipt of a complete application;

provide for expedited SACAT hearings of hospital applications by allowing SACAT to dispense with the requirement to notify all interested persons or to shorten the usual notification period of a hospital application in appropriate circumstances; and

amend the mandatory review periods of SACAT orders: G&A orders every five years (it was originally three years), and special powers orders every 12 months for first review (it was every six months) and every three years for subsequent review (it was every 12 months). SACAT maintains discretion to review earlier, which is made explicit in the bill.

There are circumstances when SACAT can determine not to notify interested persons. The bill gives examples of what could be considered appropriate circumstances, including:

where the application is for appointment of the Public Advocate or Public Trustee as guardian or administrator respectively and hospital staff have not identified, after reasonable inquiries, any other suitable appointee or interested person;

where the hospital has identified a willing and available relative or supporter of the patient for appointment as guardian and/or administrator but not identified, after reasonable inquiries, any other interested person; and/or

where discharge decisions are required that are not long term or difficult to reverse, such as discharge into short-term respite or transition care, back to the patient's home or to reside with the guardian.

Further, the bill will relax restrictions on interested persons making applications so that an interested person who was not notified of an expedited hearing does not need to demonstrate to SACAT that there has been a change of circumstances in order to make an application to SACAT at any time to vary or revoke an order.

There was targeted public consultation on the draft bill to a broad range of stakeholders, including hospitals, legal bodies, aged-care providers and organisations that promote and/or advocate for aged and disabled persons' rights, and invited comment on the bill. The SACAT Act already allows SACAT to make urgent interim orders without notice if satisfied that urgent action is required, for example, where a person is at imminent risk of personal or financial harm.

The government is providing an increase in ongoing funding and resources for SACAT to support these reforms, adding additional funding of $3.8 million over two years and $1.7 million per annum indexed from 2027-28.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (17:15): I thank honourable members for their contributions on this bill. The Guardianship and Administration Scheme is often a difficult and very personal one, a time when someone loses the ability to make decisions, whether financial or lifestyle, for themselves. This is a last resort when someone steps in essentially as a substitute decision-maker to make those decisions. It is often a time in people's lives and in those of their loved ones that is extraordinarily difficult to navigate. It often comes with a lot of emotion and feeling.

In this bill we are seeking to make it more efficient and effective in the way people navigate these systems, particularly, as I read out in my second reading contribution, when someone may be better off in an aged-care facility. A hospital, most agree, is worse for that person's wellbeing, as well as being worse for the hospital system, than an appropriate place in an aged-care facility.

In relation to the amendments filed by the Hon. Sarah Game, the government will not support those amendments. The amendments do a range of things; a number of the amendments do what is already required to be done by SACAT. Whilst I can understand and appreciate that they are well intentioned, they do not do anything different from what SACAT already does.

Then there are other amendments: the very first amendment would require SACAT to obtain an independent assessment of the ability of the person to look after their own health, safety and welfare and manage their own affairs before making a decision. That is exactly what SACAT does. The effect of that amendment would be to have a step before SACAT that assesses all the things SACAT already does and essentially put families through a second almost identical process that SACAT does. In our view, that is not good for the people going through the system who may have lost capacity and is not good for their family and loved ones to have two very similar if not identical processes to navigate. For those two reasons, we will not support the range of amendments put forward by the Hon. Sarah Game.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (17:19): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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