Question 4–6 How should supporters and representatives under the Commonwealth decision-making model interact with state or territory appointed decision-makers?
4.84 One of the key difficulties in applying the Commonwealth decision-making model is determining the appropriate interaction of supporters and representatives with other supporters and representatives and state and territory appointed decision-makers, such as guardians and administrators.
4.85 Stakeholders such as the Financial Services Council submitted that ‘harmony between State and Territory Guardianship and Administration laws and Commonwealth laws is highly desirable so as to enhance the effectiveness of disability services on a national level’.
4.86 There are a number of possible approaches to the issue of interaction between supporters and representatives, and state or territory appointed decision-makers. The ALRC is interested in stakeholder feedback on this issue, including on two possible approaches outlined below.
4.87 Under the first approach, which reflects the current position, it is possible to have a Commonwealth supporter or representative and a state or territory appointed decision-maker.
4.88 Under a second possible approach, where a state or territory decision-maker has been appointed, a new assessment of the support needs of the participant should be undertaken for Commonwealth purposes.
4.89 Under the first approach, it is possible to have a Commonwealth supporter or representative and a state or territory appointed decision-maker. In circumstances where they are appointed in relation to different decisions or areas of decision-making, this should operate without difficulty and may be facilitated by amendment of state and territory legislation to ensure state and territory appointments are as confined in scope and time as possible and, therefore, less likely to overlap with any Commonwealth appointment.
4.90 In circumstances where there is some overlap between the areas of decision-making in relation to which they have been appointed, there is a need to ensure that the authority of the state and territory decision-maker ‘is recognised under the Commonwealth Scheme’.
4.91 As a result, there is also a need to consider mechanisms for resolving any conflict between the two. 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.
4.92 Where the scope of state or territory decision-making powers are not inconsistent with those of a Commonwealth decision-maker, harmonisation mechanisms may need to be considered. Stakeholders submitted that, to the greatest extent possible,
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.
4.93 The ALRC suggests that it may be beneficial to propose a duty to facilitate consultation between Commonwealth, state and territory appointees, and to permit, but not require, that one person act under all systems. Importantly, under the ALRC model, representatives and state or territory appointed decision-makers will be subject to the relevant duties arising from the legislation under which they were appointed, which may differ.
4.94 Under a second possible approach, where a state or territory decision-maker has been appointed, a new assessment of the support needs of the participant should be undertaken for Commonwealth purposes. If the person requires fully supported decision-making, then a representative should be appointed, either by the person, or using a Commonwealth appointment mechanism. Under this approach, the ALRC considers that the appointment of the existing state or territory appointed decision-maker as a representative should be permitted and encouraged, but not automatic.
4.95 A number of stakeholders expressed the view that it would desirable for people to have one Commonwealth representative, who is also the relevant state or territory appointed decision-maker. For example, the Financial Services Council submitted that, in the context of the NDIS, state and territory appointed decision-makers should be the default nominee.
4.96 This approach would make provision for the recognition of existing state and territory appointed decision-makers but would also provide sufficient flexibility to allow for circumstances where it is not appropriate for a state or territory appointed decision-maker to be a representative for Commonwealth purposes.
4.97 Even where an existing representative or state or territory appointed decision-maker was appointed, the appointee would be subject to the provisions of the particular Commonwealth legislation relating to their role and duties, and associated safeguards.
Financial Services Council, Submission 35. See, also, Law Council of Australia, Submission 83.
Australian Guardianship and Administration Council, Submission 51.
Office of the Public Advocate (Qld), Submission 05.
See, eg, Australian Guardianship and Administration Council, Submission 51; Financial Services Council, Submission 35.
Financial Services Council, Submission 35.