This article was produced by the Commission and appeared in the August 2012 issue of the Law Institute Journal.
The VLRC recommends greater powers and increased funding for the Public Advocate.
The Victorian Law Reform Commission’s (VLRC) Guardianship: Final report, tabled in April by the Attorney-General Robert Clark, contains 440 recommendations for reform of Victoria’s guardianship laws, including a call for greater powers for the Public Advocate.
The July LIJ column gave an overview of the VLRC recommendations to establish a new guardianship Act to reduce complexity and better meet the needs of the range of people who use the system.
This month’s column focuses on recommendations contained in the report relating to greater powers for the Public Advocate.
The Public Advocate is established under the Guardianship and Administration Act 1986 (G&A Act) as an independent statutory official with a broad charter to protect and promote the rights of all Victorians with a disability, especially those people with impaired decision-making ability.
The Public Advocate functions as set out in the original legislation include:
- being the guardian of last resort;
- being an advocate for people with a disability;
- the power to enter and inspect premises for those people with a disability for whom the Victorian government has responsibilities; and
- the responsibility to engage in community education and public awareness about the G&A Act and the rights of people with disabilities.
The VLRC believes that the Public Advocate should continue to perform most existing functions of the role and also be given a range of additional responsibilities with appropriate increases in funding.
The VLRC found that the abuse and exploitation of people with disabilities who are unable to make their own decisions continues to be a major concern. To address these concerns, the VLRC recommends that the Public Advocate be given greater powers to ensure that those who abuse, exploit or neglect people with disabilities will face serious consequences.
A stronger supervisory, regulatory and investigative role fits well with the Public Advocate’s existing responsibilities to protect and promote the rights of people with disabilities.
The VLRC recommends that the Public Advocate’s expanded investigation powers include receiving and investigating complaints about the misuse of powers by private individuals or organisations appointed to substitute decision-making roles.
It is also proposed that the Public Advocate assume a monitoring role over the activities of private guardians, supporters and co-decision makers by undertaking own-motion investigations when deemed necessary.
The VLRC recommends that the Public Advocate should be able to exercise the following powers when conducting an investigation:
- the ability to serve a written notice on a person requiring them to give the Public Advocate specified documents or other materials relevant to an investigation being undertaken;
- the ability to serve a written notice on a person requiring them to give written answers to questions and requiring a person to attend a conference for the purposes of seeking to resolve a matter being investigated.
It is further recommended that it should be an offence for a person to refuse or fail to provide information or to attend a conference or interview when directed to do so by the Public Advocate.
To support the entry and inspection powers contained in the current legislation, the VLRC proposes that the Public Advocate should be able to apply to VCAT or the Magistrates’ Court of Victoria for a warrant authorising entry to premises if the Public Advocate believes that a person with impaired decision-making ability on the premises is being abused, exploited or neglected.
The VLRC also recommends a stronger community education role for the Public Advocate.
In making these recommendations, the VLRC notes that the Public Advocate will need to engage additional staff with specialised skills to perform the new functions. This includes staff with investigative and evidence-gathering skills to investigate allegations in the form of complaints received by the Public Advocate and to undertake own-motion investigations.
Complementing the proposals of greater powers, role and responsibilities is the recommendation that the Public Advocate receive additional funding to perform the new functions.
Copies of the Guardianship: final report are available from the VLRC and www.lawreform.vic.gov.au/inquiries/guardianship.