Page 1160 - Week 04 - Tuesday, 10 April 2018
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Our understanding of guardianship has changed a lot over the past 30 years. Issues around guardianship and capacity have recently been the subject of renewed attention, nationally and internationally, especially in the wake of the United Nations Convention on the Rights of Persons with Disabilities. In his concept paper presented at the Harvard Law School project on disability in 2010, Professor of Law, Gerard Quinn stated:
… the issue of legal capacity reform is probably the most important issue facing the international legal community at the moment. It potentially affects everyone in their own lives and everyone has a stake in the debate. This is because the issues at stake actually transcend disability and cut to the heart of what we mean to be human.
Many Canberrans may find themselves or their loved ones with a decision-making disability due to having an intellectual disability, a mental illness, dementia, an acquired brain injury or due to drug or alcohol-related illness. The government recognises the importance of guardianship issues to Canberrans and asked the ACT Law Reform Advisory Council to inquire into the terms and operation of the Guardianship and Management of Property Act.
The council published its final report on its inquiry in 2016. The government also committed to developing a disability justice strategy to ensure that people with disability are treated equally before the law. While those discussions are ongoing, this is an opportunity to make sure that our existing guardianship framework is operating properly.
The amendment to the Crimes Act is a technical amendment to ensure that the powers of a guardian with respect to an accused who is unfit to plead are consistent across the statute book. This amendment clarifies that the power of the guardian is to notify the Supreme Court that it would be in the best interests of the accused to have a special hearing rather than a power to make an election on behalf of the accused.
While this may appear to be a minor distinction, it is nevertheless an important one, as has been outlined in helpful detail by my colleague Minister Stephen-Smith in her ministerial statement earlier today. This amendment ensures that a guardian’s powers in this instance are in line with the requirement under the Guardianship and Management of Property Act and are no more restrictive of the accused’s freedom of decision-making and action than is necessary.
In his comments Mr Hanson referred to amendments in the Civil Law (Wrongs) Act and the scrutiny committee comments, which requested further justification. It may be helpful for the record for me to read part of the letter that I sent to the scrutiny committee recently in regards to these particular amendments:
I note the Committee’s comment that further justification is required for the possible retrospective extension of a professional standards scheme that has expired in the ACT.
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