TOO MANY TASMANIANS STRIPPED OF THEIR DIGNITY IN BROKEN SYSTEM

by Greg Barns (Printed in The Hobart Mercury, Sunday 11 July 2021)

Guardianship laws must focus on nothing other than promoting decency through enforceable human rights.

A couple of Saturdays ago an advertisement in this newspaper caught the eye of many. 
It was different. “In some parts of the world, if you experience a setback you are sent for treatment”, 
was the opening paragraph of this full page ad. 
In some parts of the world, that treatment can mean losing your home, 
having your possessions sold without your permission, 
having your finances taken charge of, with no access to them. 
You are rendered powerless, you have no say. 
And neither do the people who care about you,” 
the advertisement continued.

This powerful message was the work of Futago, a local branding and design agency, 
working for its client Advocacy Tasmania, a nongovernment organisation for the vulnerable in our community. 
The point of the advertisement, which continued down the page along the same lines, 
was to make us aware of the gross paternalism and unfairness that is the guardianship system in Tasmania.

The Guardianship and Administration Board which administers the law in Tasmania 
and the Public Trustee which is meant to administer the resources 
of those who need assistance in making decisions for themselves, 
run this system which sees far too many people simply stripped of their dignity, 
their capacity as human beings to control their destiny and their families and loved ones, 
as the advertisement noted, ignored.

An example of this appalling state of affairs was illustrated in a powerful story 
by Sue Bailey in the Sunday Tasmanian on May 23.

When he was in hospital, a man had his belongings sold without his consent by the Public Trustee. 
They cancelled a funeral plan he had been paying for, for 11 years. 
Leanne Groombridge, the energetic and courageous CEO of Advocacy Tasmania has taken up the case 
and, as the story reported, in her letter to the Ombudsman has said 
the man “does not recall the Public Trustee having any discussion with him about his belongings or his finances, 
nor does he have any written advice to confirm any attempt to communicate with him, 
or to inform him of the decisions being made on his behalf”.

This is not the only case of complaint about the Public Trustee, a government entity. 
Nor is it an isolated instance of the Guardianship and Administration Board 
and the legislation it works under being found wanting.

While the Attorney-General has now announced an inquiry into the Public Trustee 
because of the Sunday Tasmanian story and Ms Groombridge’s tenacity, it is missing the big picture. 
There needs to be a review of the legislation and the Guardianship and Administration Board. 
The system of guardianship is inhumane, 
and too often the inalienable right we have to make our own decisions is simply paid lip service.

A letter sent by Advocacy Tasmania, which these days is called Your Say, 
to the Deputy Premier Jeremy Rockliff on May 31, 
noted the “Guardianship and Administration system continues to violate fundamental human rights 
across its various agencies by exploiting the outdated and ineffective legislation in force”.

The legislation dates back to 1995. 
The letter cites some horrific examples of how dreadful a state of affairs is tolerated by legislators, 
lawyers, health professionals and institutions such as the Public Trustee.

Under the law “Emergency Guardianship or Administration orders can be made 
without a formal hearing and over the telephone in exceptional circumstances. 
Applications are frequently made by social workers employed by the hospital, 
who are not required to provide an evidentiary basis for the application beyond their ‘professional opinion’. 
Whilst designed to be in place for only 28 days, 
the order can be extended for a further 28 days with minimal justification from the applicant. 
Often, the person affected is not notified of the order 
and is not supported to respond to the application for full and formal guardianship or administration 
which frequently follows an emergency order,” the letter observes. This is the stuff of Kafka.

And the case referred to here is simply illustrative of a culture which results in cases 
where individuals “have had no contact for months on end 
or been banned from contacting their administrator/guardian 
and have had the administrator/ guardian make decisions, 
including selling property and treasured items without consultation,” the letter observes.

The system is broken. It is not driven by a human rights culture because in Tasmania the legal system 
and the bureaucracy rarely allow that phrase to fall from their lips, 
let alone ensure it is front and centre of rules and practices in theory designed to protect the vulnerable.

The Gutwein government should heed the powerful Advocacy Tasmania advertisement, 
it should listen to the numerous stories of abuses of power by a system 
which allows and perpetuates a culture of paternalistic and arrogant decision making. 
To inquire into one of the problems, the Public Trustee, misses the point. 
We need guardianship laws which are focused on nothing other than 
promoting decency through enforceable human rights.

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Hobart barrister Greg Barns SC is a human rights lawyer and former adviser to state and federal Liberal governments.