Public Trustee (Public Trustee and Guardian) Amendment Bill

Second Reading

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.