Page 705 - Week 03 - Thursday, 22 March 1990
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and seems to me to be an accessible and comprehensive law which will meet a need in the community. I commend this report to the Assembly, and I say again that we certainly endorse the principles and the ideas that it sets out.
MS MAHER (11.14): This is an issue which I have been following closely for quite some time. I am pleased that my colleague Mr Collaery has drawn the Assembly's attention to the important report from the Australian Law Reform Commission on guardianship and management of property. As Executive Deputy to the Chief Minister on social and family policy, I can tell members that this report has been eagerly sought after by the community.
In many families in the ACT one or more members cannot adequately manage their day-to-day affairs or their property. This can be due to disability, mental illness, brain damage, senility or the effects of drug and alcohol abuse. Legally, we are far behind the rest of Australia in regard to this issue. This report has been at the drafting stage for many years, and I am pleased to see that at long last it is finally in the public arena.
When the person who is unable to manage his or her affairs is below the age of 18, the law is quite clear. The Family Law Act 1975 and the Children's Services Act 1986 govern the legal position of children, and in most cases the parents become responsible for providing assistance. However, adults in the ACT, who find themselves unable to manage their affairs, face confusing and clearly inadequate legislation. Their families who care and want the best for them are faced with a law which is concerned with only property matters and which was enacted last century in New South Wales. It has since been repealed in that State.
I would like to expand on the Attorney-General's statement and outline some of the more important issues that we will have to consider. The Lunacy Act 1898 - the name is reason enough to remove it from the books - has a number of faults. It aims at people suffering from senility or drug and alcohol related diseases. It focuses on property management, but there are no standards for the quality of management of property. Very few of its provisions deal with personal matters, such as medical approval for treatment or personal development.
It does not require orders to be reviewed periodically to ensure that they are still effective. I consider it important that orders be reviewed so that they can reflect changing needs of individual people. The fact that at present they are not is a direct contravention of the United Nations Declaration on the Rights of Mentally Retarded Persons. Most important of all, basic principles, such as presumption of competency unless proven otherwise or that the least restrictive alternative should be chosen, simply do not apply in the Lunacy Act.
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