CHAIRMAN —On behalf of the committee, I would like to welcome representatives of the Attorney-General’s Department. The department previously appeared before the committee at its Canberra hearing on 23 March this year. Witnesses: as you would be aware, the committee does not require you to give evidence under oath. But these hearings are legal proceedings of the parliament and warrant the same respect as proceedings of the House itself—and I expect you have heard that before. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. We have received your department’s various submissions and they have been authorised for publication. I invite one of you to make a brief opening statement of up to five minutes and then we will ask some questions. The reason for your reappearance is that we have conducted our series of public hearings around the country, there have been a few questions raised and you might be able to enlighten us as to those.

Mr Arnaudo —In fact, we are very grateful for an invitation to return and answer any further questions that the committee might have following its hearings across the country. Of the people you have here, I look after the human rights area, age discrimination in particular; Dr Smrdel looks after legal assistance issues; Mr Syme looks after relationship services for separating families; and Mr Osborne looks after family law. I have to apologise, in that Amanda Davies, who was here at the last committee hearing, is caught in a plane, but I have some information here as well about powers of attorney from the Commonwealth’s perspective. I can also assist on privacy issues because the division which Human Rights Branch sits in also looks after privacy issues—and I understand that you have the Australian Bankers Association coming on later this afternoon as well—so we might be able to assist you in that way. If we are not able to provide answers here, we will take the questions on notice and try and respond to them as quickly as we can.

CHAIRMAN —Thank you for that. A constant recurring issue has been enduring powers of attorney: inconsistencies among the various state jurisdictions, in some cases lack of recognition across state borders, and the fact that there is no register of enduring powers of attorney either at a state level or at a national level—and I suspect that the problems that have been raised have been the problems of our federal system, to an extent. To what degree do you think the department would be supportive of uniform provisions with respect to enduring powers of attorney, firstly, and also the establishment of a national register? If you do support a national register—or, for that matter, a series of state registers—what provisions for privacy would you include?

Mr Arnaudo —I think the issue of a harmonious approach to various legal regimes across the country is something that the Commonwealth has been pursuing for some time. There is a recent committee report as well. The Attorney-General’s Department, and the Attorney himself, through the Standing Committee of Attorneys General, tries to advance those measures, particularly, for example, in the area of the national recognition provisions for powers of attorney. At the last meeting of the SCAG, the Standing Committee of Attorneys General, in April, that issue was raised, together with many other issues of broader harmonisation.

We continue to pursue those areas with the states and territories, but largely—as you say, Chairman—it is one of the issues that we have as a federal system that responsibilities for some of these issues fall primarily with the states and territories. We can try and encourage them to pursue these sorts of initiatives by demonstrating to them the advantages of having a more harmonised approach.

My understanding is that the situation with a harmonised approach to powers of attorney remains the same as at our appearance earlier this year. South Australia, the Northern Territory and Western Australia are still jurisdictions that have not adopted the SCAG model provisions that were developed in 2000.

CHAIRMAN —Is there a reason for that? Have you put pressure on them or maybe given them a hurry-up?

Mr Arnaudo —I think it really comes down to their own legislative priorities within the states themselves.

CHAIRMAN —So they have agreed to do it in principle?

Mr Arnaudo —I am not sure particularly for each one, but I think that the Standing Committee of Attorneys General has agreed, as a matter of principle, that that is a way to advance reform in this area.

I will just go on. In terms of the issue of national registers, at the moment there is no national register. There are differing requirements across the states and territories, including registration, where they do need to register or not. In some states there is no need for registration. We do not have an issue right now. We are not pursuing that issue, in a sense; it is not on our agenda. But there are a range of matters that you would clearly have to consider in developing that. Privacy is one, as you mentioned, as well—what level of information would be available to the general public in terms of finding out whether or not there is a power of attorney? There are also other implications such as cost, clearly; the roles and responsibilities; and also who would be responsible for maintaining various records, given the interaction between the states and the territories in terms of their laws as well. I suspect that really, in the first instance, you would probably need to undertake a feasibility study to make sure that we had thought those issues out and also clearly involve the states and territories in that process, because, as I said before, some of them already have registration processes in place; others do not.

CHAIRMAN —One of the things that the Attorney wanted us to look into is access to the law for older people. We have had evidence that, for reasons of transport difficulties, some older people cannot get to legal advice and also that, where people might have reduced personal financial circumstances, they can no longer afford the advice even if they can get to where it is provided. Do you have a view of the possibility or desirability of some sort of rebate, perhaps a bit like the private health insurance rebate, to give, for example, people either on a pension or in receipt of a Commonwealth seniors health card, say, $500 towards legal fees each year? Alternatively, a figure of, say, $200 has been put forward as a one-off payment. Do you have a view of that? While you are answering: of course, for the last little while Commonwealth legal aid has been used for Commonwealth legal matters, which is not unreasonable, and the states fund their own matters. It has been put to us by the Victorian legal aid commission that maybe 10 per cent of our Commonwealth aid should be untied so that they could use it for purposes benefiting seniors. I suppose we also, under the Constitution, have the ability to mandate its use for that purpose, were we to untie a proportion of our funding.

Mr Arnaudo —I will hand over to Dr Smrdel, who looks after those legal assistance type issues.

Dr Smrdel —In relation to the first question you raised, the department does not have a view on the rebate aspect. The way we fund is through funding agreements direct with legal aid commissions or community legal centres, so dealing with persons seeking legal assistance themselves and going through a rebate process is not something that I am aware that the department has considered. Clearly, if that is something that the committee writes up in its report then obviously that is something that we will consider at that stage, but it is certainly not currently under consideration by the government.

In relation to untying the 10 per cent of Commonwealth funds for legal aid commissions, I think this issue was addressed to Katherine Jones, who appeared for the legal assistance area at the last hearing. I think we responded to that. We took that as a question on notice, and there is probably no change to that answer—that is, the issue of untying 10 per cent for state legal aid commissions to have a discretion to use some funding is not currently under consideration. I note that legal aid commissions do have some discretion as to how to use Commonwealth funds, to some extent, but Victoria Legal Aid have obviously raised it, so they see that as an issue. But I think, again, it is not currently under consideration, nor is consideration of the Commonwealth-state divide. The Commonwealth only funds for Commonwealth matters. That is not currently under consideration. But again I make the point that, if the committee in making its report makes any recommendations in that regard, it is certainly something that we will take on board.

CHAIRMAN —Are the states using all of our Commonwealth funding for legal aid, or is some of it unspent?

Dr Smrdel —There is a difference between the surplus conditions that the various legal aid commissions operate under. Some have a greater Commonwealth surplus and others would spend close to the funding that is allocated to them. There is certainly a difference across the legal aid commissions, and Victoria are probably one of the legal aid commissions that would have a strong Commonwealth surplus. But, in discussions with us, they have certainly indicated a variety of mechanisms that they see to reduce the Commonwealth surplus. As I said, there is some ability for legal aid commissions to use their discretion in applying Commonwealth funds.

CHAIRMAN —The surplus just goes back into revenue, doesn’t it? Or is it carried over?

Dr Smrdel —It is carried over.

Mr MURPHY —During our inquiry a number of problems have been brought to our attention—for example, the fact that banks are loath to recognise enduring powers of attorney made interstate and the fact that it is not clear whether a new power of attorney revokes a previous power of attorney made interstate. Has any work been undertaken by the A-G’s Department to address these problems? For a politician, a problem is an opportunity. Let us be positive: are there opportunities?

Mr Arnaudo —It is largely a matter for the states and territories. In a sense, between the states and territories is probably where we have a role as well in terms of trying to achieve a more harmonious approach. You gave the example of banks, and clearly banks work across state boundaries. But principally it is very much an issue for the states and territories.

Mr KELVIN THOMSON —I did not realise there was anything these days that was still an issue for the states and territories. I am surprised.

Mr MURPHY —Is the department educating the states?

Mr Arnaudo —Again, that is through our attempts and the Attorney-General’s attempts in the Standing Committee of Attorneys General in terms of harmonising laws generally, particularly laws where they facilitate business and so on to drive a more harmonious approach. Powers of attorney are clearly an area where the opportunity is there for some reform. It is something that has been on the agenda for some time and has been highlighted not only by this committee but also by other committees.

Mr MURPHY —So you do not feel that you can do much more?

Mr Arnaudo —Again it really comes down to amending legislation at a state and territory level. We do not control their parliaments. We can encourage—I suppose that is the best we can do.

Mr MURPHY —At the public hearing on 23 March, the department advised the committee that advance care planning was being considered by the Health Ministers Conference. The committee notes that there are different formal documents for advance care directives covered by different state legislation—for example, the advance care directives in Queensland under the Queensland Powers of Attorney Act 1998 and the refusal of medical treatment certificate in Victoria under the Victorian Medical Treatment Act 1988. Against that background, can the department inform the committee of any issues that have come to its attention in relation to the differing state legislation governing advance care planning?

Mr Arnaudo —As we said at our previous appearance at this committee in March, that is primarily a matter for the Australian Health Ministers Conference. The provisions of the SCAG draft mutual recognition provisions for the powers of attorney were not designed to accommodate medical or welfare type powers of attorney, which probably come into the sphere of the advance care directives that you were mentioning earlier. We see that as a matter that the health ministers as a whole are pursuing. We keep a watching brief on this issue, because it clearly has an impact on some areas of our policy, but it is very much being driven at a Commonwealth level through the Department of Health and Ageing.

Mr KELVIN THOMSON —There was some evidence from you previously on family relationship centres and the use of them by grandparents and the like. Have the family relationship centres been expressly promoted to older people?

Mr Arnaudo —I might hand over to Mr Syme. I was looking after the family relationship centres in March and now I am looking after age discrimination. David Syme will be able to help you with that question.

Mr Syme —Certainly grandparents have been part of the audience to which they have been promoted. As Mr Arnaudo mentioned last time, a specific fact sheet was developed for grandparents. In addition, part of the role of family relationship centres is to get into their communities and to promote their services to grandparents. They are actually required to engage with local groups, and grandparent groups are specifically mentioned. We are certainly aware of centres that have been doing that through things such as running information sessions for grandparents. We are also aware of others who have been going and meeting with various groups, so they are actually getting out into their local community. Grandparents are certainly part of the mix of clients and certainly the centres are being promoted as a place where grandparents can go for information and advice but also where they may well be involved in dispute resolution issues with the parents of the children.

Mr KELVIN THOMSON —The committee has had some submissions that registration of family agreements would help protect the interests of older people. I wonder whether you have had any thoughts about that or any views about the sorts of considerations there would be in developing a national or state based registration system for family agreements.

Mr Syme —Could you elaborate on that in terms of family agreements? Does that mean parenting plans or consent orders, for example? What sort of agreement?

Mr KELVIN THOMSON —I think it is being expressed to us quite broadly. Obviously we are looking at this question of powers of attorney and a registration system for them, then people bowl up this idea that if family agreements are registered then that might help older people in terms of protection of their rights. The kind of thing that gets talked about is where an older person moves into the house of a son or daughter and brings money and assets into that. Often we do not get to first base—there is nothing in writing at all—but people think it would be desirable to have these things more formal in order to better protect the interests of the older person in the event of subsequent disagreement or falling out.

Mr Arnaudo —That is an issue in which we have an interest in terms of the Family Law Act, and Mr Osborne can explain a bit more about that aspect. Again, in terms of the management of property—mortgages or informal mortgages—loans and so on, a lot of that might be a matter that falls primarily to the states and territories, given our constitutional limitations. Matt, do you want to add anything further?

Mr Osborne —The only comment I would make on that point is that in the response we provided previously I think we indicated that the Family Law Act as it stands is capable of taking into account the interests of third parties. It is expressed very broadly in terms of the power to alter property interests and to make appropriate orders reflecting the various interests, which would include those of grandparents.

Mr Arnaudo —That would occur if there were a separation between the primary couple. The Family Court could then take that into account. It is probably not the complete answer in terms of setting one up and then having a registration process, because that would involve issues that might fall more towards the states and territories than we would have constitutional power over—because, again, the family law system is based on the marriage power.

Mr KELVIN THOMSON —There has also been a certain amount of evidence regarding the question of monitoring the exercise of powers of attorney. Do you have any view about the need for independent monitoring, how that might be done or whether you think that is all too hard?

Mr Arnaudo —Ultimately, we do not have a view on that specifically, because it is not an area for which we are primarily responsible. At a Commonwealth level we do not have powers of attorney laws. Again, it comes through the harmonised approach that the Standing Committee of Attorneys General has put forward. If having an independent monitoring and scrutiny role is seen as something that is useful across the country, that is something we would say should be adopted across the country. Because we do not have legislation whereby we could say, ‘Let’s have an independent approach,’ it is a bit difficult. So I suspect our view would be that we do not really have a strong view on that other than encouraging a harmonised approach across the whole of the Commonwealth.

CHAIRMAN —There have been a range of views given to us on mandatory reporting of financial abuse, some people strongly in favour and many people strongly against. There seem to be views on the privacy implications of mandatory reporting. Would federal privacy laws need to be amended in the event that mandatory reporting became required or implemented?

Mr Arnaudo —I think it is definitely an issue that would need to be considered. By ‘mandatory reporting of financial abuse’, do you mean where a bank might, for example, say, ‘We have a suspicion here’—

CHAIRMAN —A bank or a relative.

Mr Arnaudo —The Privacy Act clearly covers banks and private sector organisations as well. It has in place arrangements to allow disclosure of information where that is appropriate—for example, with the consent of the person whose personal information it relates to or where a law authorises or requires the disclosure as well. So there are arrangements already in place whereby the Privacy Act would probably cover those sorts of situations. There are a number of ways that you could manage the privacy issues. Legislation might be one way to provide clearer certainty, but there are also other ways in terms of providing notification to people when you collect the information originally that it could be used for a purpose, for example, of disclosing that information in the event that someone has a reasonable suspicion that there had been financial abuse. I would be happy to take that question further on notice, perhaps, and get a more detailed answer from the privacy branch of our department. The national privacy principles set out under the Privacy Act are set up to try and facilitate disclosure of information. Where there is a good policy purpose for that to occur, I do not think it would be an insurmountable issue to manage.

CHAIRMAN —Thank you for that. We appreciate you appearing before us.