Strengthening

human rights:
Protecting
the vulnerable

March 2011
Strengthening human rights: protecting the vulnerable
In a mature democracy like Australia, human rights are about targeted rights improvement
and protections for our most vulnerable people.

For most of us, a free press, responsible government and the rule of law ensure our
freedom and protection. But there is always more to be done for those who remain
marginalised and vulnerable.

The Government’s responsibility is to protect these people and respond to these gaps. It’s
a responsibility I take very seriously.

From day one of my administration, I put the care for the most vulnerable in our community
at the heart of my Government as well as working to strengthen individual rights.

We have introduced laws that redress discrimination, protect vulnerable groups, and
prevent the abuse of power. We have delivered more resources to people in need.

It was NSW Labor who set up the NSW Anti-Discrimination Board and the Administrative
Decision Tribunal to provide independent external review of Government decisions.

And it was NSW Labor who established the Office of the Privacy Commissioner and the
Community Relations Commission to promote equal rights and responsibilities. This has
been a tradition I have been proud to continue.

In recent times we have:

• Improved rights and protections for same sex couples;

• Empowered a specialist tribunal to pursue the objects of the Mental Health Act and
provide for the care, treatment and control of persons who are mentally ill;
• Fought for the rights and protections for the victims of asbestos-related diseases;
• Strengthened the Charter of Victims Rights;
• Recognition of NSW’s Indigenous peoples in the NSW Parliament and the NSW
Constitution;
• Introduced a number of measures to protection democracy and transparency such as
political donation reforms and freedom of information;
• Rights for the victims of domestic violence to secure leave rights from the public
service; and
• Created a Trustee & Guardian – an entity that improves the services provided the
former Protective Commissioner for people with disabilities, and significantly expands
them across NSW.
In addition, we have:

• Increased funding to legal aid from $26.5 million in 1996 to $98.4 million in 2009;
• Provided during 2006-11 $1.3 billion for 29,000 additional places in disability
services and
• a further $2 billion to double the number of places by 2016; and
• Negotiated a landmark agreement to ensure payments to asbestos victims valued
at $1.7 billion.

However, the reforms in this policy go even further.

We will seek to amend the NSW Constitution to give people a guaranteed right to vote, our
greatest human rights protection in a mature democracy.

We will hold an inquiry into the establishment of a Human Rights Commission and respond
to its recommendations. It would be similar to what exists in other States and Territories
around Australia.

We will act to ensure greater government accountability and transparency.

We will amend the Anti Discrimination Act to prohibit discrimination against more
vulnerable groups such as those who are victims of domestic violence.

Moreover, we will introduce amendments that strengthen the

human rights of people with cognitive impairments and disabilities.

A re-elected Keneally Labor Government is committed to a fair

society in which rights are respected and our most vulnerable
people are cared for.
What this policy means for you

Better human rights protection is about the creation of a fairer society. The Keneally Labor
Government is committed to this ideal. These reforms deliver on that commitment:

• The insertion of the right to vote in the Constitution is a historic reform that will
ensure your freedom and your right to be heard into the future.

• An inquiry into the establishment of a Human Rights Commission will drive a

renewal of our human rights culture through the people and the government and will
further help ensure no person or group is left out of the human rights conversation.

• An analysis of judicial review will help ensure and expand your rights for a review of
government decisions further guaranteeing your right to always have a say.

• The proposed amendments to the Anti-discrimination Act will ensure you cannot be
discriminated against if you are in an unpaid vocational industry placement or
training, a person with an impairment doing paid or unpaid work in a sheltered
workshop, a volunteer, a person who has experienced domestic violence, or a
person who has been the victim of a crime.

All this means a fairer society, a kinder society and one with greater opportunity for all.
That’s something we will all benefit from.

ACTION:
Amend the Anti Discrimination Act to protect vulnerable groups
„ Amend the Anti Discrimination Act to prohibit discrimination against volunteers, unpaid
workers, victims of crime and domestic violence

Make it easier for people to apply for judicial review of government decisions that
affect their rights and interests
„ Release a discussion paper outlining options for the reform of the law of judicial review
to ensure greater government accountability and transparency

Amend the NSW Constitution to guarantee the right to vote

„ Amend the NSW Constitution to guarantee the right to vote by inserting the right to vote
and entrenching that right so that it cannot be changed other than by referendum

Increased autonomy and a Public Advocate for people with disabilities

„ Implement recommendations of the report on substitute decision-making to increase the
rights and autonomy of people with disabilities and consult with relevant stakeholders to
develop a proposal for the establishment of an Office of the Public Advocate

NSW Labor | Strengthening human rights | March 2011 3

Reviewing compensation laws for families of asbestos victims
„ A re-elected Keneally Government will make it a priority to respond to the
recommendations of the Law Reform Commission

Hold an inquiry into the creation of a NSW Human Rights Commission

„ Hold an inquiry into the creation of a NSW Human Rights Commission to further and
more broadly protect and promote human rights – similar to what exists in other States
and Territories around Australia

NSW Labor | Strengthening human rights | March 2011 4

Labor and human rights
A fair society is at the heart of what the Keneally Government stands for. NSW Labor
believes that all people are created equal in their entitlement to dignity and respect, and
should have an equal chance to achieve their potential. We will not allow the benefits of
change to be concentrated in a few hands, or located only in privileged communities. The
benefits must be shared by all our people. A Labor Government has a critical role in
ensuring fairness by ensuring equal opportunity and rights and removing unjustifiable
discrimination. This policy delivers on those core beliefs.

Our challenges
The best path to human rights protection is often a heavily debated one.

In NSW a system of parliamentary oversight, independent supporting bodies and targeted

legislation has provided effective human rights protection and promotion. This includes,
for example, the Legislative Review Committee, which scrutinises proposed legislation and
regulations introduced into NSW Parliament, the NSW Ombudsman, NSW Anti
Discrimination Board, Office of the Privacy Commissioner, Community Relations
Commission and the Administrative Decision Tribunal.

Committed to this framework, NSW Labor has responded to the recommendations of

these independent bodies and community concerns and instituted a wide range of reforms.
In recent years, the NSW Labor Government has enacted a suite of legislation that
removes discrimination against unmarried heterosexual and same sex couples. The NSW
Labor Government has also overseen the passage of legislation furthering the rights of
many vulnerable groups.

Nevertheless, the Keneally Government recognises that we must continually seek to

improve the way in which human rights are protected, and to identify those that need
particular protection. The biggest challenge in the protection of human rights is that society
is constantly evolving. This can create new vulnerable groups and people in new social
structures without protection. These issues come before the Government through our
independent bodies, elected representatives, the media, and lobby groups and it is the
Government’s task to respond.

We are committed to this process of constant improvement. The proposals in this policy
respond to a call for a greater focus on human rights protection and promotion, the
protection a set of vulnerable people who have been identified as in need of that
protection, clarification of our rights and more rights for us to question government
decisions, and a more transparent and accountable government.

NSW Labor | Strengthening human rights | March 2011 5

Our Record

LABOR OPPOSITION
„ Established the Legislative Review Committee to „ The Opposition has no policy on human rights.
scrutinise legislation and regulation to ensure
compliance with human rights standards.
„ In 2009, we passed the NSW Trustee and „ The Shadow Attorney General, Greg Smith
Guardian Act to accord rights to people with opposed these reforms saying that people with
disabilities so that they may live with dignity and cognitive impairments or disabilities are so
as much autonomy as possible, and to create the dangerous that security guards would be needed
NSW Trustee & Guardian to better serve their to protect the public. (SMH, 23.06.2009)
needs.
„ In the last 12 months, the NSW Government paid „ The Shadow Attorney General has talked about
out over $60 million in compensation to over taking it easy on people who commit crimes, but
4,500 victims to help with their rehabilitation. has not said anything about supporting the
victims of their crimes.
„ Established the Jackson Commission into James „ The Howard Government refused to come to the
Hardie asbestos funding in 2003 table and help asbestos victims when James
Hardie first moved offshore to the Netherlands.
The success of bringing James Hardie to
account resided squarely with NSW Labor.
„ Peter Costello dragged his feet on taxation
„ Negotiated a landmark agreement to ensure
reform that would have assisted the asbestos
payments to victims valued at $1.7 billion for the
fund, and was dragged kicking and screaming to
next 40 years with Bernie Banton and the ACTU
make the reforms by victims, unions and the
in 2004 and 2005
NSW Government
„ In 2007, the then Health Minister Tony Abbott
called Mr Banton’s petition containing the
„ Passed laws in 2006 which extended further signatures of 17,000 people supporting the listing
benefits for dust diseases claimants in the of the mesothelioma drug Alimta on the
context of broader personal injury reform Pharmaceutical Benefits Scheme (PBS) a "stunt"
and suggested that Mr Banton's motives were
"not pure"
„ When the intervention of the global economic
crisis brought the future of the asbestos
compensation fund into doubt, the NSW Labor „ In NSW, the Coalition has done nothing. No
Government took the lead in securing a rescue reform proposals. No legislation. No action
package with the Commonwealth and together
we injected a loan of $320 million into the Fund.
„ Established the NSW Anti Discrimination Board.
Introduced the Anti Discrimination Act 1977.
„ Established the Community Relations
Commission to promote equal rights and
responsibilities for all residents of NSW and
seeks to advance community harmony,
participation and access to services.
„ In 2010, introduced a relationships register to
protect the rights of those in unmarried and same
sex relationships.
„ In 2010, legalised non commercial surrogacy
arrangements.
„ In 2008 passed legislation which removed the
power of the Government Executive to make
decisions the care detention and treatment of
mentally ill people, transferring that power to the
specialist Mental Health Review tribunal
NSW Labor | Strengthening human rights | March 2011 6
„ In 2008 changed definition of de-facto partner to
include a same sex partner.
„ Introduced the Workplace Surveillance Act 2005.
This Act seeks to prohibit covert surveillance of
an employee without appropriate notice.
„ Introduced the Health Records and Information
Privacy Act 2002. This Act provides a right of
access to health information held by both public
and private sector organisations in NSW, and
sets up a framework for resolving complaints
about the handling of health information.
„ Introduced the Crimes (Forensic Procedures) Act
2000. The Act regulates the use and destruction
of material obtained and sets out rules for placing
and matching profiles derived from forensic
material on a national DNA database.
„ In 1999 amended the Property Relationships Act
to accord the same property rights to people in
same sex relationships as people in heterosexual
relationships.
„ Introduced the State Records Act 1998.
„ Established the Office of the NSW Privacy
Commissioner. Introduced the Privacy and
Personal Information Protection Act 1998. This
Act provides for a set of privacy standards
(Information Protection Principles) for the New
South Wales public sector which regulate the
way public sector agencies handle personal
information and also created the Office of NSW
Privacy Commissioner.
„ Established the Administrative Decisions
Tribunal to provide independent, external review
of government decisions as well as to adjudicate
disputes between private citizens including anti
discrimination complaints and professional
misconduct inquiries. Introduced the
Administrative Decisions Tribunal Act 1997.
„ Introduced the Criminal Records Act 1991
(introduced spent convictions). Spent convictions
schemes offer persons convicted of less serious
offences, who have since completed lengthy
periods of good behaviour, the opportunity to
start afresh as law-abiding and productive
members of society.
„ Introduced the Listening Devices Act 1984. This
Act regulates use of listening devices and the
admissibility of evidence collected as a result.
„ Established the NSW Anti Discrimination Board.
Introduced the Anti Discrimination Act 1977.
„ Passed laws to strengthen the Charter of Victims
Rights
„ Launched a new victims’ access line that
provides a one-stop-shop for information about
dealing with the justice system
„ Made it much simpler to apply for compensation,
and made changes to speed up the process of
awarding compensation
NSW Labor | Strengthening human rights | March 2011 7
„ Required Prosecutors to certify in court that they
have consulted with victims on pleas and facts
„ Established a specialist unit to protect the
confidential communications of victims of sexual
assault

NSW Labor | Strengthening human rights | March 2011 8

Amend the NSW Constitution to guarantee the right to vote
The right to vote and be heard by our elected representatives is fundamental to our system
of democracy and to the protection of our rights. Yet the right to vote in NSW State
elections is not expressly guaranteed by the NSW Constitution1. A number of provisions
refer to persons entitled to vote2, but that entitlement is to be found in the Parliamentary
Electorates and Elections Act3, and the prevailing view is that this can be changed by an
ordinary act of Parliament4.

The only guaranteed right to vote arises from section 22 of the Constitution, and the only
effect of s22 is that a persons right to vote in periodic Legislative Council elections is to be
the same as his or her entitlement to vote in general elections of the Legislative
Assembly5. Section 7A of the Constitution purports to entrench s22 so that it can not be
directly or impliedly amended or repealed unless such a change is approved by the people
in a referendum6. However, there is no constitutional guarantee of person’s right to vote for
the Legislative Assembly7. The view has also been taken that there is no right to vote
implied by the Constitution, and that it is up to the Parliament to decide who is entitled to
vote8.

In the 21st century it is not good enough that the people of NSW do not possess a
guaranteed right to vote. Such a right is essential to the protection of human rights. It is
through our system of democracy in which elected representatives are held accountable to
the people, that the people are able to require reform and protection of their rights from
their government. Therefore, a re-elected Keneally Labor Government will seek to insert in
the NSW Constitution a right to vote in general elections of the Legislative Assembly
(subject to the current exceptions contained in the Parliamentary Electorates and Elections
Act - for example those under 18 and mentally ill). It is envisaged that under s22 of the
Constitution, this will secure the right to vote for both the Legislative Assembly and
Legislative Council.

NSW Labor will also seek to entrench this right, by expanding the provisions of s7B, which
provides certain provisions can only be amended by referendum, to apply to it. It is
expected that this will also provide for the entrenchment of the requirement for a
referendum (i.e. so that it itself can only be amended by referendum) as s7B already
provides for this.

Further detailed advice will be sought on these proposals after the election, and the way
they will be achieved necessarily remain subject to that advice. However, our preliminary
advice indicates that Parliament has the power to make these changes in the manner
described, and by an ordinary act of Parliament (i.e. without the requirement for a
referendum). The right to vote will be subject to reasonable limitations that exist such as
age, citizenship and so forth.

1
See Twomey A (2004), The Constitution of New South Wales, Riverwood NSW, The Federation Press, pp
329 – 331.
2
See for example ss 11B, 28 and 28A
3
Part 3B
4
Ibid at 1 p 331
5
Ibid at 1 pg 330
6
Ibid at 1 pg 330
7
Ibid at 1 pg 330
8
Ibid at 1 pg 331
NSW Labor | Strengthening human rights | March 2011 9
ACTION:
„ Amend the NSW Constitution to guarantee the right to vote by
inserting the right to vote and entrenching that right so that it can
not be changed other than by referendum

NSW Labor | Strengthening human rights | March 2011 10

Hold an inquiry into the creation of a Human Rights
Commission

In NSW human rights oversight, protection and promotion is provided by a number of

independent bodies. These include the Legislative Review Committee of Parliament, the
Anti-Discrimination Board, the NSW Ombudsman, the Office of the Privacy Commissioner,
the Community Relations Commission, and the Administrative Decisions Tribunal.

The Anti-Discrimination Board (NSWADB) plays a prominent role in ensuring people are
treated fairly and that human rights are protected in NSW. The Board administers the
NSW Anti-Discrimination Act and aims to promote anti-discrimination and equal
opportunity principles and policies. The Board provides an enquiry and complaints service
and has dealt with more than 34,000 cases in its 32 years of operation, helping to
safeguard rights. Further it actively promotes human rights awareness through
consultations, education programs, seminars, talks, participation in the community
functions and written information. The Board advises government, which takes these
principles into account in making sound and positive policy decisions.

The Australian Human Rights Commission (HREOC) also provides an oversight role but at
a Commonwealth level. It reviews the conduct of Commonwealth agencies, administers
Commonwealth legislation, and promotes human rights issues of national concern. The
Commission can conciliate complaints, intervene in litigation, investigate alleged breaches
of human rights and recommend action. It also provides advice and makes submissions to
parliament and the government on laws, policies and programs, and undertakes and
coordinates research into human rights and discrimination issues.

Within the framework provided by these human rights protections, there is scope to
consider establishing a NSW Human Rights Commission, to further and more broadly
protect and promote Human Rights in NSW.

If re-elected a Keneally Labor Government will hold a Parliamentary Inquiry into the
proposal to create a commission. The inquiry will be asked to determine the rights and
responsibilities of such a commission including:

• The NSW human rights based legislation it should administer.

• Taking over the responsibilities of the NSWADB.
• Resolving complaints of breaches of human rights under NSW legislation through
conciliation and/or other means.
• Providing education and raising awareness about human rights issues in NSW.
• Researching human rights issues and advising the Government.
• Undertaking projects and activities aimed at eliminating human rights abuses.
• The appointment of a commissioner or commissioners.

The inquiry will also be asked to take into account the work being undertaken by Standing
Committee of Attorneys General to harmonise anti-discrimination laws nationally. The
proposal to integrate the administration of the Commonwealth, State and Territory
discrimination (while maintaining separate but harmonised laws) including cooperative
administrative arrangements between Commissions will be of particular relevance to this
inquiry.

NSW Labor | Strengthening human rights | March 2011 11

It is envisaged that a Human Rights Commission would bring a greater level of focus to the
protection and promotion of human rights in NSW. Such a Commission would provide a
dedicated institution to promote, protect, respect and defend a wide set of rights. Its use of
primarily non-adversarial process such as mediation and conciliation would provide the
NSW people with a cheaper and more accessible alternative to the courts to resolve a
wide range of human rights concerns. It would ensure the human rights aspects of all
actions of government are properly evaluated, in full view of the public eye, and promote a
greater human rights culture.

To date in NSW the existing independent review bodies and our democratic system of
government have done a good job of protecting human rights and resolving human rights
concerns.

In Government NSW Labor has responded to community concerns and these bodies and
passed numerous laws to redress discrimination, protect marginalised groups, and prevent
the abuse of power. These range from the introduction of the Relationships Register (to
protect the rights of unmarried couples and those in same sex relationships), to the
recognition of Aboriginal people in the NSW constitution, to the creation of the NSW
Trustee & Guardian (to better protect the rights of the disabled).

ACTION:
„ Hold an inquiry into the creation of a NSW Human Rights
Commission to further and more broadly protect and promote
human rights

NSW Labor | Strengthening human rights | March 2011 12

Make it easier for people to apply for judicial review of
government decisions that affect their rights and interests
Judicial review allows courts to determine whether Government administrative bodies and
officials have acted within the legal boundaries of their powers. It does not permit a court
to consider the merits of administrative action, or one that the court disagrees with in terms
of policy. It does, however, give people rights to ensure that decisions are made fairly,
rationally and in accordance with law.

Currently in NSW, judicial review exists only as a common law right—unlike the
Commonwealth, Queensland and Tasmania, we do not have a Judicial Review Act. While
procedures surrounding applications for judicial review are set out in the Supreme Court’s
procedural legislation, there is in NSW no legislation which sets out clear grounds for
judicial review.

Under existing common law, judicial review can occur in relation to local councils making
traffic control decisions that adversely affect residents; the legality of Government
department decisions in relation to the granting of permits, licences and entitlements (such
as water access licences and liquor licences); or professional disciplinary board that have
denied a person procedural fairness.

Issuing a Discussion Paper canvassing options for improved judicial review in NSW is
aimed at making the law clearer for everybody and encouraging more and better
accountability and transparency in Government decision-making. People could be made
more easily aware of their rights and therefore more easily access judicial review. Clear
laws would also encourage better compliance in agency decision-making. This would also
potentially address corruption risks.

The Discussion Paper provides options for reform of common law rights, and it also
provides options for new laws that advance the law of judicial review to further promote
Government accountability and transparency.

This includes the introduction of a general duty to provide reasons for all Government and
administrative decision-makers – this would ensure individuals are made fully aware of
why a decision has been a certain way, and allow them to consider what further rights they
may have. It would also address corruption risks by making Government decision-makers
give clear reasons.

It also discusses clarifying whether certain classes of decisions are judicially reviewable –
for example, decisions of the Governor in Council, certain Cabinet decisions which affect
individuals (that is, not policy decisions), and decisions made under published guidelines
and regulations (instead of just decisions made under legislative authority). The aim is to
promote transparency and accountability.

ACTION:
„ Release a discussion paper outlining options for the reform of
the law of judicial review to ensure greater government
accountability and transparency

NSW Labor | Strengthening human rights | March 2011 13

Amend the Anti-Discrimination Act to protect unprotected
vulnerable groups
The Anti-Discrimination Act provides a wide range of protections against discrimination. In
their jobs people are protected from discrimination on the grounds of race, sex, disability,
relationship status, carer responsibilities, sexual orientation and preference. However,
there is no prohibition on discrimination against volunteers or unpaid workers (although
they are protected against sexual harassment).

Also, there is no prohibition on discrimination against people on the grounds of their having
been a victim of crime. In 2009, the Government increased the maximum amount of
compensation that can be received from $40,000 to $100,000.

Volunteers and unpaid workers

As regards volunteers and unpaid workers, this means a range of people miss out on
these crucial protections, such as students on work experience placements, persons in
unpaid vocational industry placement or training, and persons with an impairment doing
paid or unpaid work in a sheltered workshop. Moreover, these people are often required to
work unpaid, for example, to gain experience and entry into an industry, to get back into
employment, as social inclusion for older or disabled people, or to prevent further
disadvantage9.

The Keneally Labor Government understands that discrimination against unpaid workers is
no less damaging just because it occurs outside a formal employment relationship, and
this is particularly so in the case of such vulnerable people. It is not acceptable, and if re-
elected will amend the Act to prohibit discrimination against volunteers and unpaid workers
on all of the grounds referred to above.

Victims of crime

Victims of crime are particularly susceptible to unfair discrimination in the workplace. A

recent report by the Queensland Working Women’s Service10 relayed several instances of
discrimination against victims of domestic violence. One woman, “Jane”, was dismissed
after her abusive partner came to her office and started yelling at her. Jane's employer
said he had to fire her because he owed clients and staff a duty of care and the abuse
constituted an occupational health and safety issue. Jane could not make a claim for unfair
dismissal because she was a casual employee who had been at the company for less than
12 months. Another, “Holly”, was fired after missing work because of bruising and swelling
on her face. As stated by one of the reports authors11, “there is a real lack of
understanding and awareness that stable employment is crucial for victims of domestic
violence…it provides the means for independence to leave the abusive relationship”.

Victims groups in NSW have also called for the legislation, such as Howard Brown from
Victims of Crime Assistance League and Martha Jabour Executive Director of the
Homicide Victims Support Group. Both have indicated that discrimination in the workplace
is an issue for all victims of crime including the families of homicide victims.

9
Equality Act for a Fairer Victoria: Equal Opportunity Review Final Report, June 2008: paragraph 5.144
10
Domestic Violence Discrimination in the Workplace: Is Statutory Protection Necessary: Sep 2010
11
Ms Alana Heffernan
NSW Labor | Strengthening human rights | March 2011 14
Mr Brown has reported receiving complaints from victims who have been refused leave
after experiencing the trauma of being a victim of crime. He also reports that victims can
sometimes encounter difficulties in obtaining time off work to attend court when they are
required to give evidence as a witness. Ms Jabour relayed a number of case examples
where the family members of a homicide victim have had problems obtaining leave to
attend counselling and support group meetings. Another encountered resistance in
seeking flexible study arrangements from an educational institution. It is also possible that
victims of non-domestic violence assault could experience the same kind of discrimination
as that suffered by “Holly” in the example drawn from the Queensland Working Women’s
Service report.

Given the specific examples of discrimination against victims of crime occurring in the
workplace and in educational institutions, a re-elected Keneally Government will extend
the proposed new prohibition to those areas.

It is also foreseeable that due to the physical and emotional and/or mental trauma which
can occur as a result of being a victim of crime, a person so affected could be refused
certain services. For example, an exclusive nightclub might refuse entry to a victim like
“Holly” on the basis of her physical appearance. Similarly, it is also possible that a
domestic violence victim in “Jane’s” position might be refused temporary accommodation
at a hotel if the manager had a misguided belief that, like “Jane’s” employer, her presence
would breach a supposed duty of care to other clients and staff.

Therefore, a re-elected Keneally Government will also extend this prohibition to the
provision of goods and services, registered clubs and accommodation.

NSW Labor | Strengthening human rights | March 2011 15

Reviewing compensation laws for families of asbestos victims

Asbestos victims and their representatives have recently requested changes to the way
compensation is paid to dependants following the loss of a loved one.

It is important that families are fairly compensated for their loss. And it is also important
that the compensation regime operating in NSW is the best and fairest that it can be.

That is why the Keneally Government referred this area of law to the Law Reform
Commission, who will look at this matter in depth and seek comment from stakeholders
and the community.

This action is supported by stakeholders such as the NSW Bar Association and the
AMWU.

The NSW Labor Government has a proud record of supporting asbestos victims, and it is a
record that we are privileged to uphold and contribute to. The dedication of asbestos
victims, their families and supporters to achieving justice is an inspiration to all Australians.

ACTION:
„ A re-elected Keneally Government will make it a priority to
respond to the recommendations of the Law Reform Commission

NSW Labor | Strengthening human rights | March 2011 16

Increased autonomy and a Public Advocate for people with
disabilities

In 2009 the NSW Government referred the issue of Substitute Decision Making for People
Lacking Capacity to the Standing Committee on Social Issues.

Recently the Committee released its report containing a number of recommendations to

improve the rights and protections of these people, in particular, to increase their right to
autonomy.

A re-elected Keneally Government will immediately commence implementation of the

recommendations to amend the Trustee & Guardian Act (T&G Act):

• To ensure that a person is not considered incapable of making a decision simply

because they have a disability.
• To explicitly require a presumption of capacity as the starting point for capacity
considerations.
• By the insertion of a provision that a person is not presumed to lack capacity simply
because they make a decision that is in the opinion of others unwise.
• So the Mental Health Review Tribunal is not required to consider the need for a
financial management order during a mental health inquiry following detention in a
mental health facility or undertakes a forensic review of a case unless evidence of a
need for such an order arises.
• To require bodies considering a financial management order to be satisfied that the
order is in the person’s best interests.
• So that bodies empowered to terminate financial management orders when a patient is
released from a facility or ceased to be under guardianship can terminate the order if
there is no longer a need for another person to manage their affairs or if it is in their
best interests to terminate the order even if they have not regained the capacity to
manage their affairs (subject to the test in s25P of the Guardianship Act).
• To allow the Supreme Court to vary or revoke an order regarding the care of a person,
even where the person remains incapable of managing their affairs) on the application
of the person or other specified interested parties.
• To allow the NSW Trustee & Guardian to assume management of the estate of a
person under a financial management order upon the death of a private manager
previously appointed and until a new manager is appointed by the relevant court or
tribunal.

And the implementation of recommendations to:

• Amend the Guardianship Act to mirror the T&G Act so that it allows the Tribunal to
make an order for the management of the whole or part of the estate of a person.
• Amend the T&G Act and Guardianship Act to allow the NSW Trustee and the Guardian
with the discretion to decide how private managers must lodge accounts for review and
exempting from liability for the exercise of this discretion, subject to the establishment
of a proper risk assessment mechanism and consultation with stakeholders.

A number of other recommendations (20, 29, 30, 31, 32 and 34) will be the subject of
further consultation. Other recommendations made to amend the Guardianship Act will
also be considered by the Minister for Disability Services. Recommendations 1, 4 and 5

NSW Labor | Strengthening human rights | March 2011 17

will be referred to the Law Reform Commission for further advice given their complex
nature.

A re-elected Keneally Government will consult with relevant stakeholders and develop a
proposal to establish an Office of the Public Advocate to defend the rights of people with
impaired decision-making ability.

The Public Advocate’s duties would include investigating agencies that provide services to
people with impaired decision making ability and initiating legal action when necessary to
protect their rights.

ACTION:
„ Implement recommendations of the report on substitute decision
making to increase the rights and autonomy of people with
disabilities and make it a priority to consult with relevant
stakeholders to develop a proposal for the establishment of an
Office of the Public Advocate

NSW Labor | Strengthening human rights | March 2011 18

 www.kristinakeneally.com.au

Authorised and printed by Michael Lee, 377 Sussex Street Sydney NSW 2000.