4.128 One of the major difficulties in applying the Commonwealth decision-making model is determining the appropriate interaction of supporters and representatives with other supporters and representatives, as well as state and territory appointed decision-makers, such as guardians and administrators. The NSW Government observed that important issues in relation to this interaction include:
Whether state-based appointees should automatically be appointed under the Commonwealth scheme.
If different persons are appointed, whether a Commonwealth appointee’s authority would override the authority of a state-based appointee where the scope of their appointments may intersect (for example, would a decision by a representative under the NDIS affecting a person’s accommodation override a decision by a state-based guardian in relation to accommodation?).
The mechanism for resolution of disputes between Commonwealth appointees and state-based appointees. It is important to recognise that state-based appointments include both Tribunal/Court appointed and principal-appointed arrangements, such as enduring guardianship.
The institution of double-duties upon appointees under both Schemes and whether this might make people reluctant to be appointed.
The recognition of Commonwealth appointees in State-based legislation and vice versa.
4.129 Stakeholders raised a wide range of interaction issues and possible scenarios. In some cases, support for the Commonwealth decision-making model was qualified by concerns about whether it would be able to interact successfully with state and territory appointments of substitute decision-makers, such as guardians and administrators.
4.130 One starting point was that, ideally, where appointments are made under both Commonwealth and state or territory legislation, the same person should be appointed—to avoid multiple representatives, duplication of roles and duties, and problems where different representatives for the same person disagree about how to support decision-making. That is,
where there are several systems in which a person may have an appointed decision‐maker, those systems must integrate and, where appropriate, allow the same decision‐maker to act in all systems.
4.131 Where different Commonwealth and state and territory representatives are appointed, this may ‘create conflict and ambiguity for the person and the support agency about who should provide support, obtain personal information and make decisions in a given situation’. Justice Connect stated that this situation
has the potential to create inconsistency between roles and responsibilities of supporters or representatives appointed under Commonwealth laws, and those appointed under existing state and territory legislation. In turn, this may further confuse the vulnerable or cognitively impaired people who require assistance making decisions and their supporters and representatives who already deal with complicated State and Territory laws.
4.132 It was said to be ‘highly desirable’ that the same person be appointed. The appointment of an existing state or territory appointed decision-maker should be ‘permitted and encouraged’.
4.133 To some extent, this is already the case under some existing Commonwealth schemes. For example, the Nominee Rules provide that the CEO is to have regard to a ‘presumption’ that a court-appointed decision maker or a participant-appointed decision-maker should be appointed as an NDIS nominee.However, there may be circumstances where it is not appropriate for a state or territory appointed decision-maker to be a representative for Commonwealth purposes.
Existing state or territory appointment
4.134 The following section explains how the ALRC envisages Commonwealth decision-making schemes would interact with those at the state and territory level. This issue is closely related to the chosen mechanism for appointing representatives; and highlights the need for parallel reform of state and territory guardianship and administration laws to integrate with the Commonwealth decision-making model. Chapter 5 examines in more detail how the model might interact with state and territory systems, in the particular context of the NDIS.
4.135 Under supporter and representative schemes, a Commonwealth agency would be responsible for recognising that a person is a representative for the purposes of the particular scheme being administered, whether or not the agency actually appoints the person. The agency would have to be satisfied that the person actually needs a representative—that is, a representative decision-maker is being appointed, or recognised as a last resort and not as a substitute for appropriate support.
4.136 Some assessment of the person’s support needs must take place before a representative is appointed for them. If there is an existing state or territory appointed guardian or administrator, there would be more reason to suggest the person also needs a representative for the purposes of the Commonwealth scheme, particularly where the appointment has been made in accordance with criteria consistent with the National Decision-Making Principles.
4.137 Even so, the appointment of that person as a representative should not be automatic. While there may be a presumption of appointment or recognition, the agency’s decision may depend on the nature and scope of the state or territory appointment. Where the existing appointee has been appointed by the person themselves, for example under a power of attorney, the presumption may be seen as stronger—because it reflects the person’s will and preferences. Against that, however, a tribunal appointment provides procedural standards and safeguards.
4.138 In some contexts, the agency may still decide that the appointee under state or territory law is not suitable for appointment, and appoint another person as the representative.
4.139 In the ALRC’s view, the Commonwealth representative’s authority would override the authority of a state or territory appointee where the scope of their appointments overlap. That is, where a matter concerns a decision being made for the purposes of the Commonwealth legislation, the Commonwealth representative is responsible.
4.140 AGAC raised an example of possible interaction issues. It expressed concern about the possibility of Centrelink appointing a representative who is different from an existing state-appointed administrator or financial manager with responsibility for managing all other aspects of a person’s financial affairs for a person whose primary income is a Centrelink benefit. In the ALRC’s view, this situation can be expected to arise only rarely because the administrator or financial manager would generally be appointed as the Centrelink representative, if one is needed. Even where this does not occur, the problems caused may not be insuperable, given consultation and cooperation. In any case, if the administrator is effectively unable to perform any residual role, there may be no continuing need for the state or territory appointment.
No existing appointment
4.141 Where there is no existing appointment, and no other potential representative exists, such as a family member or other supporter, agencies may need to explore other options.
4.142 In some circumstances, these options may include applying to a state or territory guardianship board or tribunal for the appointment of a person with powers and responsibilities comparable to those of a representative under the relevant Commonwealth scheme. This possibility, which raises a range of interaction and other issues, is discussed in more detail in the context of the NDIS in Chapter 5.
4.143 Under some state or territory regimes, it may already be possible for a Commonwealth agency, or some other person, to apply for the appointment of a state or territory guardian or administrator to ensure that a person is available to make decisions.
4.144 This has already occurred in NSW, for example, where the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) has appointed the Public Guardian, in part, to ensure that there is someone to perform the duties of a nominee for a participant in the NDIS. The NCAT stated that the appointment of a guardian ‘solely for this purpose’, where there is a friend or relative who could be considered as a nominee by the National Disability Insurance Agency, would not be consistent with the principles of the NSW legislation.
4.145 If Commonwealth agencies were to have regular recourse to state and territory guardianship and administration systems to find people suitable for appointment as representatives, this would have resource and funding implications for state and territory governments.
Implications for state and territory laws
4.146 The interaction between Commonwealth and state and territory systems may be difficult in practice if states and territories retain ‘existing decision-making systems, particularly given the substitute decision-making nature of many such systems’. The OPA (Qld) observed that proposals to address possible conflict between systems would require ‘extensive cooperation and communication between state‐based guardianship tribunals and public guardians, and individual Commonwealth agencies who may have appointed representative decision makers’.
4.147 In fact, a number of issues arise that may require legislative change to resolve, if state or territory guardians and administrators are to perform roles under Commonwealth schemes.
4.148 The first concerns duties and obligations. A person appointed by a state or territory body, such as NCAT, would have duties under state or territory legislation, as well as under the Commonwealth law. While these duties may sometimes be interpreted as consistent, there may be times when they conflict.
4.149 Most obviously, under state legislation, a guardian may have a duty to make decisions in the best interests of the person represented, while having a duty under Commonwealth legislation to ensure that the person’s own will and preferences direct the decision. While it seems clear that, when making decisions for the purposes of Commonwealth legislation, Commonwealth legislative duties would apply, the person may then be in breach of duties owed as a guardian under state or territory legislation making it difficult, if not impossible, for them to continue to act in the latter role.
4.150 Legislative change may also be required to allow state or territory appointees to be appointed under orders that better align with duties and responsibilities under Commonwealth legislation—for example, so that they can make both lifestyle and financial decisions under the NDIS.
NSW Government, Submission 135.
See, eg, National Association of Community Legal Centres, Submission 127; Vicdeaf, Submission 125; Justice Connect and Seniors Rights Victoria, Submission 120; Office of the Public Advocate (Qld), Submission 110; ADACAS, Submission 108; Offices of the Public Advocate (SA and Vic), Submission 95; AGAC, Submission 91.
Offices of the Public Advocate (SA and Vic), Submission 95.
Office of the Public Advocate (Qld), Submission 05.
Office of the Public Advocate (Qld), Submission 110.
Justice Connect and Seniors Rights Victoria, Submission 120.
ADACAS, Submission 108.
Justice Connect and Seniors Rights Victoria, Submission 120.
National Disability Insurance Scheme (Nominee) Rules 2013 (Cth) r 4.8(a). See Ch 5.
Consistently with the Safeguards Guidelines. While attention is being given here to the interaction of representatives, the whole thrust of the Commonwealth decision-making model is to encourage supported decision-making and to minimise the need to appoint representatives in the first place.
In some circumstances, s 109 of the Australian Constitution may operate to ensure that the responsibility of a state or territory appointed decision-maker extends only to those areas not covered by the decision-making powers of the Commonwealth representative.
AGAC, Submission 91.
Except perhaps where Centrelink is not aware of the existing appointment. See ‘Information sharing’ below.
See KCG  NSWCATGD 7.
See Ibid . Referring to Guardianship Act 1987 (NSW) ss 4, 14(2). Most importantly, s 14(2) requires NCAT, in considering whether to make a guardianship order to have regard, among other things, to the importance of preserving the person’s existing family relationships and the practicability of services being provided to the person without the need for the making of such an order.
National Association of Community Legal Centres, Submission 127. The NSWCID stated that a ‘national approach is highly desirable that involves a high degree of consistency and symbiosis between State/Territory and Commonwealth approaches’: NSW Council for Intellectual Disability, Submission 131.
Office of the Public Advocate (Qld), Submission 110.
For example, under the Guardianship Act 1987 (NSW) a guardian has a duty to ensure that the ‘freedom of decision and freedom of action’ of the person represented is ‘restricted as little as possible’; and that the person is ‘encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs’: Guardianship Act 1987 (NSW) s 4.
See, however, National Disability Insurance Scheme (Nominee) Rules 2013 (Cth) r 5.7. This is discussed in Ch 5.