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The Public Advocate in 2020? Professor Neil Rees, Chairperson, VLRC OPA 25th Anniversary Symposium: The Future of Adul

The Public Advocate in 2020? Professor Neil Rees, Chairperson, VLRC OPA 25th Anniversary Symposium: The Future of Adult Guardianship 29 July 2011. Creation. The Public Advocate is the brainchild of the Cocks Committee Succinct description of role Albertan and South Australian influences

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The Public Advocate in 2020? Professor Neil Rees, Chairperson, VLRC OPA 25th Anniversary Symposium: The Future of Adul

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  1. The Public Advocate in 2020? Professor Neil Rees, Chairperson, VLRC OPA 25th Anniversary Symposium: The Future of Adult Guardianship 29 July 2011

  2. Creation • The Public Advocate is the brainchild of the Cocks Committee • Succinct description of role • Albertan and South Australian influences • Combination of the Public Guardian and the Official Representative • Cocks Committee straddled Coalition and Labor governments • OPA established with cross-party support • Early influence of Ben Bodna • Started small: 20 staff and a budget of $1 million • Moderate growth: now 85 staff and a budget of $8.5 million

  3. Characterisation • Unique—an independent statutory official with a broad role to safeguard the rights and interests of people with disabilities. • The Public Advocate is an agency ‘combining public guardianship responsibilities with an ombudsman-like mandate to protect the rights of people with disabilities’. (Carney and Tait) • Not a provider of traditional services (other than those associated with the role of a guardian), but not just a ‘complaints body’. • Role and impact has changed depending upon the events of the day, funding, and the identity of the Public Advocate.

  4. Functions • The Cocks Committee recommended five functions for the Public Advocate: • guardian of last resort • promotion of community involvement in decision-making • investigation of abuse or exploitation • the power to investigate, report and make recommendations to the appropriate minister on aspects of the Guardianship and Administration Board Act 1986 • general advocacy for people with disabilities.

  5. Independence • Independence of the Public Advocate has been and continues to be fundamental. • The Public Advocate enjoys a greater degree of formal independence than many other statutory officers • 7 year appointment (straddles two governments) • Only removable upon resolution of both Houses of Parliament • Responsible minister is the Attorney-General • Some shortcomings when compared to other statutory officers • Cf Ombudsman’s and Auditor-General’s powers to report to Parliament

  6. VLRC reference • A ‘once in a generation’ opportunity to re-visit the policy which underpins guardianship laws. • One matter for the VLRC to consider is ‘the functions, powers and duties of the Public Advocate’. • Much has changed since the Cocks Committee reported: • Users of guardianship laws—an ageing community • Legal landscape—UN Convention on the Rights of Persons with Disabilities and the Victorian Human Rights Charter • Community views about people with impaired decision-making capacity appear to be evolving • Other related laws—powers of attorney, mental health and disability laws—are also evolving.

  7. Possible new functions for OPA • A broader range of regulatory functions and powers? • Expanded powers to investigate allegations of abuse, neglect or exploitation of people with a disability? • Power to instigate civil penalty proceedings in cases of abuse, neglect or exploitation? • Assume regulatory functions now performed by VCAT—review annual reports by administrators? • Stronger and clearer systemic and individual advocacy powers for people with disabilities? • Expanded role in making VCAT hearings more accessible and less stressful • Assisting with evidence gathering? • Promoting therapeutic jurisprudence?

  8. Possible new functions for OPA • Training and supporting private guardians and people holding powers of attorney • Ongoing advisory role for people holding private appointments? • Supervisory role in relation to access to an electronic register of personal and VCAT appointments? • Co-ordination role in relation to a volunteer ‘supporter’ program? • A role in relation to accommodation decisions for some people living in ‘closed’ residential care facilities?

  9. Accountability • Now standard practice to permit ‘merits review’ of decisions by statutory officers affecting people’s rights, interests and legitimate expectations • Centrelink • ATO • In NSW it has been possible since 2003 to review individual decisions made by the Public Guardian and the NSW Trustee and Guardian • Widespread support for this practice • Should it be possible for individual decisions of the Public Advocate to be reviewed by VCAT?

  10. The Public Advocate in 2020 • Widespread support for the work of the Public Advocate • 81 submissions on VLRC website • Many support an extension of the Public Advocate’s role • Unusual for a public official to receive such a high level of support • Three factors will continue to influence the effectiveness of the Public Advocate • A high public profile • Independence • Adequate funding

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