Carers recognition in Tasmania 

This article states the law of Tasmania. The Carer Recognition Act 2023 (Tas) is the most recent of the Australian carers recognition statutes, and it is the cleanest illustration of what this family of legislation does and does not do¹. Where the Western Australian and Northern Territory Acts leave the question of enforceability to be inferred, Tasmania answers it in a section of its own.

A note on currency. The text relied on here is the Act as made, No 1 of 2023, assented to on 20 April 2023 and commencing on assent. No consolidated version was located, so later amendments have not been checked and currency should be confirmed against the Tasmanian register before a provision is relied on.

Three objects, three mechanisms

Section 3 states the objects: to formally recognise, promote and value the contribution of carers; to enact a Carers Charter and a Tasmanian Carer Action Plan; and to set out the obligations of Agencies to monitor and report in relation to both.

The middle object is the structural one. Tasmania creates two instruments rather than one. The Charter is in the Act itself, as Schedule 1; the Action Plan is made outside the Act by the Minister. Keeping them apart is the first thing to get right, because they are amended by different means and cited differently.

A self-contained definition, and a relational limit

Section 4 defines a carer as a person who provides unpaid care and support to a family member, or friend, who has disability; has mental ill health; has a chronic or life-limiting condition; has alcohol or other drug dependence; is frail or aged; or is a child, if the person is an informal kinship carer of the child.

Two features distinguish this from the Western Australian and Northern Territory definitions.

First, it is self-contained. Neither "disability" nor "mental ill health" is cross-referred to another Act. In Western Australia and the Northern Territory, the disability and mental illness grounds are defined by other statutes, so the prior question in those jurisdictions is which definition the cross-reference imports. In Tasmania there is no such question, and the six grounds are read on their own terms.

Second, it carries a relational limit that the other Acts do not. The care must be provided to a family member, or friend. A person providing unpaid care to a stranger — a neighbour with no established relationship, say — is outside the definition on its face, however substantial the care.

The word unpaid does the work that express exclusions do elsewhere. Western Australia and the Northern Territory exclude care given under a contract of service or for services, and care given as organised community work; Tasmania has no such subsections because paid care never enters the definition. Note also what is absent: there is no provision, of the kind found in the other two Acts, saying that a person is not a carer merely because they are a spouse, parent or guardian. Tasmania does not need it, since the relationship is a requirement rather than a disqualification.

The sixth ground is unusual and worth noticing. An informal kinship carer of a child is a carer, without the child needing to have a disability or illness. That extends the Act beyond the disability and ageing context in which the other statutes sit.

The Charter and the Action Plan

Section 5 does one thing: the Carers Charter is set out in Schedule 1. The seven principles in the Schedule cover treatment of carers as individuals with their own needs; consultation on policies, programs and resources; access to information and services; support to participate in the social, political, economic and cultural life of Tasmania; recognition and support in accessing services; respect for a carer's knowledge of the person cared for; and the ability to raise concerns without the carers or such persons suffering adverse repercussions.

Every principle is expressed as what carers should have or be. That is deliberate, and s 8 confirms it.

Section 6(1) requires the Minister to approve a Tasmanian Carer Action Plan — a plan of actions to support carers, to be taken by Agencies or by other persons or entities with an interest in supporting carers. Under s 6(3) the Minister may amend it, or revoke and substitute it; under s 6(4) the Minister must ensure a copy as in force from time to time goes to the chief executive officer of each Agency and is available for public viewing on a departmental website.

This is a distinctively Tasmanian device. The other carers Acts in this series operate through the Charter alone. Tasmania adds an executive instrument that can be rewritten without returning to Parliament, and that is where the substantive commitments to carers actually sit.

Who is bound

Section 7 imposes both duties on Agencies — State Service Agencies. Each must take reasonable steps to implement the Tasmanian Carer Action Plan and the Carers Charter, and each must monitor and report to the Minister on the steps taken.

Compare the reach of the other Acts. The Northern Territory extends Charter obligations to applicable organisations, a class that runs down the contracting chain to entities delivering services under contract, and requires annual reports available for public inspection. Tasmania does neither. Contracted service providers are not bound by s 7, reporting is to the Minister rather than the public, and the Act sets no reporting cycle or deadline at all.

The standard is also weaker. "Reasonable steps to implement" is less than the Western Australian requirement to comply with the Charter, and it merges the awareness and action limbs that the Northern Territory keeps separate.

Section 8, and why it matters most

Section 8 is the provision to take away from this Act. It provides that nothing in the Act gives rise to, or is to be taken into account in, any civil cause of action; that nothing in it operates to create in any person any legal rights; and that nothing in it affects the validity of, or provides grounds for review of, any judicial or administrative act or omission. Section 8(3) adds that where an Agency must consider particular matters or comply with particular requirements under another law, the Act does not require it to act inconsistently with that law.

Three consequences follow, and they are the answer to most problem questions on this statute.

A carer cannot sue on the Charter. A breach of the Charter cannot be pleaded as a jurisdictional error or other ground of review of an administrative decision, because s 8(2)(b) provides that nothing in the Act affects the validity of, or provides grounds for review of, any judicial or administrative act or omission. And the Charter cannot be a mandatory relevant consideration, for the same reason rather than a different one: a failure to consider it could only bite if it founded a ground of review, and s 8(2)(b) removes that.

Read s 8(1) to its own limit. The words taken into account are confined to any civil cause of action; s 8(1) is not a general direction that the Act be ignored, and an answer that says the Act "cannot be taken into account at all" has over-claimed the section. Where the Act bites outside a civil claim, it is ss 8(2)(a) and (b) doing the work.

Section 8 is not peculiar to Tasmania in substance — carers recognition statutes generally create duties running to organisations rather than rights running to carers. What is peculiar is that Tasmania says so expressly, which removes the argument. Where a client's real complaint is that an agency ignored their caring role, the remedy lies elsewhere: in the decision-making statute the agency was actually applying, in anti-discrimination law, or in a complaints jurisdiction.

Review and administration

Section 10(1) requires the Minister to cause a review of the operation of the Act to be completed within five years after the first anniversary of its commencement, and every five years after that. Read carefully: the clock starts at the first anniversary, not at commencement. Section 11 assigns administration to the Minister for Community Services and Development, and the Department of Premier and Cabinet, until an order is made under s 4 of the Administrative Arrangements Act 1990 (Tas).

Applying this in a problem question

1. Test the relationship first. Is the person cared for a family member or friend? If not, the definition is not satisfied and nothing else in the Act applies.
2. Confirm the care is unpaid, and identify which of the six grounds in s 4 is engaged.
3. Identify the body. Is it a State Service Agency? If it is a contracted provider, s 7 does not reach it.
4. Separate the two instruments. Is the obligation said to arise under the Charter in Schedule 1, or under the Action Plan approved under s 6(1)?
5. Apply the s 7 standard as it is written — reasonable steps to implement, and monitoring and reporting to the Minister.
6. Then apply s 8 to whatever remedy is being sought, and say so explicitly. An answer that finds a Charter breach without addressing s 8 has not finished.

Self-check

• Have I applied the relational limit as an element, rather than treating the grounds of care as the whole test?
• Have I kept the Charter and the Action Plan distinct, and cited the Charter by Schedule 1 clause?
• Have I checked whether the body is an Agency before applying s 7?
• Have I addressed s 8 before concluding that anything is enforceable?