Aged and disability advocates are calling on "Kiara's Law" to get all family guardianship matters taken out of the South Australian Civil and Administrative Tribunal (SACAT) and sent directly into the Supreme Court or to commence in a lower court with access to justice, to higher courts, after vulnerable elderly and disabled (aka "protected") persons have been left "parked" before the SACAT for months and even years, with no outcome, whilst their human and legal rights are grossly violated.
"Kiara's Law" takes its name after a woman with Cerebral Palsy who was subjected to horrific human rights abuses by SACAT and other State government authorities for two years. Kiara came to the attention of the ASU after an NDIA Planner breached her privacy by leaking two professional reports written for her mother. This breach was an act of retribution by the Planner for being challenged at the Administrative Appeals Tribunal (AAT) by the Support Coordinator. Despite a legally compliant Enduring Power of Attorney (EPOA) written by a professional legal firm declaring her parents as legal guardians, "Kiara" was forced to endure two years under the constant spectre of being ripped out of her loving family's care, before finally having the application by the Adult Safeguarding Unit (ASU) denied by SACAT.
Forensic Social Worker and human rights advocate, Matilda Bawden, said, "Kiara's situation should never have been allowed to happen. Kiara had no voice and her wishes were never sought, whilst all her legal protections were suspended. SACAT had no lawful authority to even entertain the ASU application which, on its face, was malicious and lacking in a single fact on which an application could successfully demonstrate Kiara's alleged cognitive incapacity for making decisions for herself. Worse still, the ASU was given two long years during which it embarked upon a "fishing expedition" including: creating a "dirty file"; making multiple fraudulent reports to multiple other authorities; and refusing to meet with Kiara, her family or NDIS support team." Yet despite this, the ASU still failed to produce a single example of a bad or detrimental decision by Kiara or her EPOA's. Meanwhile, the SACAT forced Kiara to undergo capacity assessments against her wishes and without her consent.
"The experience has severely traumatised Kiara and her entire family," Ms. Bawden said. "The ASU case was based entirely upon the fact that Kiara had chosen to use my NDIS services and this was its sole objection. Amidst its zeal to target Kiara's NDIS Support Coordinator, Kiara just became its collateral damage. Having a disability doesn't instantly render a person cognitively impaired and unable to make sound decisions as capacity must be assumed," however, SACAT entertains all applications without any discernment or scrutiny of the allegations. There is no need for any evidence of a "protected" person making dangerous, risky or unsound decisions for themselves. All that is needed is an application. Consequently, we are seeing completely obscure third parties lodging spurious applications made out of spite, and often family conflict, but with no evidence of the person being harmed in any way at all."
"Once the State of South Australia takes hold of an individual, that person is effectively sent to a gulag and their identity is erased. The vulnerable are dead under the law! Parents, siblings and significant others (including personal counsellors, psychologists, doctors, NDIS practitioners) have absolutely no say", Ms. Bawden said. "State "guardians" don't even have to meet with the "protected" individuals; who often don't know the name or face of their so-called "guardian" as no-one has to respond to the needs of the protected person."
Ms Bawden said, "Current guardianship laws and processes are dangerous and they are being abused daily. A challenging disability or illness is now sufficient to render someone sufficiently mentally incompetent for State guardianship orders. An application, no matter how frivolous or vexatious, is enough to see a vulnerable person snatched away and cut off from their entire community, whilst legislative protections are bypassed entirely."
Meanwhile, a disability or symptoms of illness are weaponised against unsuspecting families even where they are not at risk physically, emotionally or economically, but invariably they are denied the right to supportive decision making (e.g., via NDIS, EPOA or immediate family).
Among many other things, Kiara's Law demands that:
- A "Duty of Care" by the State is clearly enshrined in legislation. It must be the case that the State does owe a Duty of Care to every person who is the subject of a guardianship application. The Crown of South Australia has a long history in the Supreme Court of denying that it owes any Duty of Care to its citizens and brazenly breaching the "Model Litigant" rules of conduct by arguing obscene positions in the courts which the community would never, in all good conscience, accept or tolerate;
- The Adult Safeguarding Unit be defunded and shut down, to ensure the ASU and the Crown cannot behave like a Stasi Chamber – nameless faceless, unaccountable and untouchable – whilst prosecuting and persecuting innocent civilians. Currently, the ASU and OPA don't even have to physically appear at the SACAT and often the families impacted have never met their persecutors;
- All guardianship matters to be decided in the regular Courts, where the Rules of Evidence apply, to ensure that innocent people are not incarcerated or deprived of their liberties and freedoms by the State based on rumour, innuendo, hearsay, conflicts of interest, personal prejudices or bias. There must be NO COST to anyone for having these matters heard, given the extreme public interest in protecting innocent and vulnerable citizens from persecution and wrongdoing by the State.
- All matters of family conflict regarding EPOA's and Advanced Care Directives (ACD) be given directly to the Supreme Court to resolve, where the legal rights of citizens cannot be trespassed by parties with conflicting interests and/or no interest in the welfare of the vulnerable person. Guardianship must never be exploited to override familial supports, marital relationships or parental authority or consent in favour of the State;
- Audio and video recordings of all interactions with government officials must be made permissible - to ensure the preservation of critical information and evidence for the courts; especially where public rogue officials behave against the interests of the "protected person". Audio and video recordings are now lawful even in aged care institutions and must equally be available in State-run and NDIS-funded facilities also.
- Guardianship orders must not to be made where NDIS services are in place to support decision-making. Guardianship must never be used to undermine or bypass the participant's the right to "choice and control" under the NDIS. NDIS matters must not be the subject of interference, control or regulation from the State. This is to ensure that service providers cannot be maliciously persecuted by the State and that the State cannot profit from any guardianship application;
- The "least restrictive alternative", "guardian of last resort", "capacity must be assumed" & "dignity of risk" principles must be applied and vigorously enforced in all cases brought before any Court or Tribunal by the State.
- The preservation (not destruction) of any evidence concerning the abuse, neglect or standards of care of the vulnerable person. At present public officials are demanding videos and pictures be removed from mobile phones and devices showing injuries or evidence of harm or abuse which may damage the State taken by family members, carers and professional NDIS staff.
- Complaints against rogue public officials can be taken directly to the Commissioner for Public Employment (CPE) who is then directly answerable for the mis/representations by any officer of the Crown before any court, tribunal, Ombudsman, Parliament, Commission or other forum of inquiry. At present, complaints of official misconduct are routinely dismissed and whitewashed as the CPE has no active or direct role in enforcing its own: Public Sector Values; Public Sector Values & Behaviours Framework; Code of Ethics; and, Ethics for the South Australian Public Sector.
Key Facts:
South Australian Civil and Administrative Tribunal abuses the human and legal rights of most vulnerable.
About us:
Matilda is a Forensic Social Worker with 30 years experience specialising in complex and compounding psychosocial barriers; including child protection, homelessness, poverty and disabilities. Matilda is a Former National Secretary of Whistleblowers Australia who has been a tireless champion of social justice causes and has dedicated her life to ensuring integrity and transparency in public office and public sector accountability.
Matilda has featured in local, national and international news media for her passionate work in defending the human rights of the most vulnerable and disenfranchised members of society and was featured in the SBS Insight program ("Bullies at Work"), exposing corruption at the highest levels of government, including courtrooms in the form of the "Scheme Critical List".
In 2010, Matilda carried out extensive research into the NCA bombing; consolidating known facts in the case. This research was referred to the Office of Prime Minister by a member of the Legislative Council seeking a Royal Commission inquiry into those findings.By 2012, Matilda assisted a mining company Director to secure two major legal victories worth multi-millions, before the NSW & South Australian Supreme Courts, by conducting Discovery & providing instruction to his legal counsel on the conduct of the NSW case. This was won on her instruction to have a single A4 page entered retrospectively into evidence.
