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