The Federation Press

The Adult Guardianship Experiment

Tribunals and popular justice


During the 1980s, Australia remade its ‘adult guardianship’ laws that governed people unable to manage their own affairs or property. The reforms embraced UN principles and took a common pattern with reformist North American and European countries - with one key exception. The rest of the world chose courts to administer the laws; Australia created specialist multi-disciplinary tribunals.

This book compares the work of guardianship tribunals and courts and argues forcefully that Australia’s adult guardianship experiment in popular justice is a success.

Carney and Tait present work on the Australian tribunals in NSW and Victoria and compare them with overseas studies on courts (and the Family Court of Australia). On every measure tribunals outperform courts. They are more inclusive. They pay more attention to social context and functioning, and are better at incorporating the affected person into the hearing, striking an ‘alliance’ with them. Courts, by contrast, favour alliances with families and the medical profession. Even in areas where courts might be expected to perform better, they are less successful than the tribunals, collecting and testing evidence and avoiding unnecessary intervention.


“This work stands as an important contribution to our understanding of the practice of guardianship boards and tribunals. ... It] focuses on what it calls “narratives of guardianship”, that is how tribunals handle evidence and reach their decisions. ...[It] is instructive, leading the reader to consider issues of both theory and practice. It is considered in its conclusions, which appear well supported and argued ... Inclusion in the text of case-study material including matters of money management, self-harm and sterilisation gives it a richness and relevance that will be readily appreciated by guardianship practitioners. This book is essential reading for all involved in substitute decision making.” - Journal of Family Studies, Vol 7 No 2, (Oct 2001)

Table of Contents

Introduction: Tribunals and substitute decision-making
Popular justice/ Substitute decision-makers/ Responsibilities of guardianship forums/ An empirical focus/ The analysis

Historical background
Guardianship as protection / Confinement and control/ Reformed guardianship procedures/ Australian reforms/ Conclusions

Introduction/ Institutional framework/ Key participants/ Some key differences between jurisdictions/ Conclusions

Popular justice and citizenship
Introduction/ Paradoxes of guardianship/ Citizenship and the state / Conclusions

The research process
Data and methods/ Changes in the research approach/ Some alternative perspectives/ Conclusions

Judicial decisions: a statistical profile
Introduction/ Data sources for courts and tribunals/ Obtaining and weighing the evidence/ Matching the decision to the need/ Conclusions

Narratives of guardianship: Consensus, access or systemic change?
Introduction/ Comparison 1: Routine money management/ Comparison 2: Self-harm/ Comparison 3: Sterilisation/ Conclusions

The hearing process: Encounters and ceremonies
Introduction/ Hearings as encounters/ Hearings as ceremonies/ Court ceremonies/ Conclusions

Guardianship outcomes: Changed lifestyles, satisfaction, or disappointment?
Introduction/ Outcomes in court systems/ Outcomes in tribunal systems/ Conclusion

Structures of justice
Introduction/ New South Wales and Victoria: Organisational structures/ Comparison with court systems/ Conclusions

Introduction/ Court-tribunal comparisons/ The state and popular justice/ Citizenship and the state/ Lessons for judicial reform?/ Conclusion

Of interest...