Recommendation 6.9 – Representatives as a last resort

Australian Capital Territory

Response: Accept in Principle
Status: In progress

What has been achieved to date

The ACT Government is developing a community consultation plan on further reforms to guardianship and other legislation to facilitate Supported Decision Making, which will include discussion of relevant recommendations from the Disability Royal Commission.

ACT government response July 2024

These reforms to guardianship and administration laws will be included in the next stage of consultation and law reform as outlined in response to recommendation 6.4.

New South Wales

Response: Subject to further consideration
Status: Subject to further consideration

What has been achieved to date

The NSW Government is considering the recommendations about supported decision-making and guardianship reform and the advice from the NSW Guardianship Working Group.

NSW government response July 2024

The NSW Government is closely considering the recommended reforms in relation to supported decision making and reform of the guardianship framework. A Guardianship Working Group, made up of both government and non-government stakeholders has been engaged to inform the development of the NSW response to these recommendations. The Government is also undertaking a detailed assessment of the operational and resourcing impacts of reforms

Northern Territory

Response: Accept in principle
Status: Further work required

What has been achieved to date

The Attorney-General’s Department in the Northern Territory is working with the Northern Territory Public Guardian and Trustee in consideration of a review of legislation.

NT government response July 2024

The Northern Territory will consider legislative amendments as part a review of the Guardianship of Adults Act 2016 including consideration of the Victorian government’s approach and its viability in the Northern Territory’s service context.

Queensland

Response: Accept in principle
Status: Subject to further consideration

What has been achieved to date

The Queensland Government is carefully considering recommendations 6.4 to 6.18, which call for significant change to state and territory guardianship systems and legislation.

QLD government response

The Queensland Government remains committed to implementing the recommendations of the Disability Royal Commission. The Queensland Government has updated its responses to a range of Disability Royal Commission recommendations to reflect contemporary Queensland Government policy and commitments.

2025 Response

The Queensland Government recognises all people with disability and is committed to ongoing work to strengthen its already robust guardianship framework. 

The Queensland Government notes that recommendations 6.4 to 6.18 may require changes to Queensland's guardianship and administration framework. In consultation with key stakeholders, the Queensland Government will explore options to implement these recommendations.

South Australia

Response: Subject to further consideration
Status: Subject to further consideration

What has been achieved to date

The South Australian Government remains committed to considering this recommendation further, and will provide a response in due course.

SA government response July 2024

The South Australian government acknowledges the need for representative decision-making to only be used as a last resort. SACAT currently operates in a way that is consistent with the principles set out in this recommendation. Reform proposals relating to plenary orders and review and revocation of orders represent significant changes to the existing system. 

Further consideration of all the reform proposals to the Guardianship and Administration Act 1993 is required to ensure a coordinated approach to any amendments, and to understand any policy, operational and budgetary impacts.

Tasmania

Response: Accept
Status: Completed

What has been achieved to date

Following recent amendments to the Tasmanian Guardianship and Administration Act 1995 the appointment of a guardian or administrator is to be considered once least restrictive alternatives are no longer considered sufficient (meaning as a last resort).

These amendments address this recommendation.

TAS government response July 2024

The Tasmanian Government accepts this recommendation.

On commencement, the Guardianship and Administration Amendment Act 2023 will change the Guardianship and Administration Act 1995 so that the appointment of a guardian or administrator is to be considered once least restrictive alternatives are no longer considered sufficient (meaning as a last resort).

Victoria

Response: Accept
Status: Completed

What has been achieved to date

As stated in the Victorian Government response, the Guardianship and Administration Act 2019 (Vic), Victorian Civil and Administrative Tribunal Act 1998 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) give effect to this recommendation.

VIC government response July 2024

We accept this recommendation in full.

The Guardianship and Administration Act 2019 (Vic), Victorian Civil and Administrative Tribunal Act 1998 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) give effect to this recommendation.

Western Australia

Response: Subject to further consideration 
Status: Subject to further consideration

What has been achieved to date

The Guardianship and Administration Act 1990 (GAA) is currently being reviewed by the Law Reform Commission of Western Australia (LRCWA), for reporting to Government in late 2025. The LRCWA will provide advice and make recommendations on new legislation to enhance and update the GAA. The Government’s response to the findings and recommendations of the LRCWA report will then inform the final position on these Disability Royal Commission recommendations.

WA government response July 2024

The WA Government is giving further consideration to this recommendation. A final position is contingent on the recommendations of the Law Reform Commission in their review of the Guardianship and Administration Act 1990 (WA), as outlined in the WA Response to recommendation 6.4.

What the Disability Royal Commission said in the final report

States and territories should review and reform their guardianship and administration legislation to provide that representation orders should be made only as a last resort and in a way that is least restrictive of a person’s rights, autonomy and actions, as practicable in the circumstances. The reforms should include:

a) the repeal of provisions authorising plenary representation orders

b) a requirement that the relevant tribunal should make an order appointing a representative only if satisfied that:

• the proposed represented person does not have decision-making ability for one or more decisions
• the order is necessary, taking into account:
  • the will and preferences of the proposed represented person
  • the availability and suitability of less intrusive and restrictive measures, including formal and informal support arrangements, negotiation and meditation
• the order will promote the person’s personal and social wellbeing

c) a provision that the tribunal must take into account, in deciding whether a person (other than a public official) is suitable for appointment as a representative:

• the will and preferences of the proposed represented person
• the nature of the relationship between the proposed representative and the proposed represented person
• whether the proposed representative is likely to act honestly, diligently and in good faith
• whether the proposed representative has or may have a conflict of interest in relation to any of the decisions referred to in the order

d) a prohibition on a representation order made in the absence of the proposed represented person, unless the tribunal is satisfied that either:

• the represented person does not wish to attend the hearing in person
• the personal attendance of the represented person at the hearing is impracticable or cannot reasonably be arranged

e) a requirement that when considering whether a support or representation order should be made for a First Nations person, the tribunal should take into account:

• the likely impact of the order on the person’s culture, values, beliefs (including religious beliefs) and linguistic environment
• the likely impact of the order on the person’s standing or reputation in their community
• any other considerations pertaining to the person’s culture

f) provisions on the review and revocation of representation orders, including that:

• a representation order lapses on the expiration of three years after the date on which it is made, unless the tribunal has specified an expiry date (earlier than three years) in the order or the order is renewed
• a tribunal must conduct a review of representation order at least once within each three-year period after making the order
• when reviewing an order, the tribunal should consider:
  • whether the order is still necessary, considering the factors listed in b)
  • whether the representative is still eligible and suitable
  • whether the representative is meeting their responsibilities and carrying out their required functions.

More recommendations

View progress on other recommendations made by the Royal Commission.