Introduction and key legislation
The role of the Public Advocate was established under the Guardianship and Administration Act 1986 (Vic). On 1 March 2020, that Act was replaced by the Guardianship and Administration Act 2019 (Vic) (‘GA Act’).
The GA Act places the promotion of human rights and the dignity of people with disability at its centre (s 7). This is a change from the 1986 Act, which fostered the autonomy of people with disability, but subject to actions and decisions being in their best interests.
The Public Advocate’s functions on behalf of people with disability include:
- promoting the human rights of people with disability and developing their ability to act independently;
- protecting people with disability against abuse, neglect, and exploitation;
- advocating on a systematic or individual level;
- coordinating programs that achieve these goals;
- informing the public about the laws affecting people with disability.
A ‘disability’ is defined in the GA Act to mean a neurological impairment, intellectual impairment, mental disorder, brain injury, physical disability, or dementia.
The Public Advocate’s office is known as the Office of the Public Advocate (OPA).
Complaints and advocacy
The OPA provides advice in relation to complaints about services, treatment or attitudes of government departments and other agencies.
Complaints can be made to the:
- Victorian Ombudsman;
- Victorian Equal Opportunity and Human Rights Commission;
- Victorian Health Complaints Commissioner;
- Victorian Disability Services Commissioner;
- National Disability Insurance Scheme (NDIS) Quality and Safeguards Commission;
- Victorian Mental Health Complaints Commissioner.
If these avenues are inappropriate, the OPA may investigate the complaint if it involves abuse or exploitation or the need for guardianship.
The OPA can refer matters to the Community Visitors Program (see ‘Community Visitors Program’, below) and can seek government assistance on behalf of people with disability.
The OPA takes up issues of a systemic nature, investigating and researching matters that develop out of individual complaints. These activities may lead to law reform, the preparation of submissions to government, or the publication of reports.
Protection from abuse
Generally, where there is an allegation of abuse, maltreatment or exploitation of someone with disability, the OPA has the power to intervene if the person needs guardianship (s 16(1)(g) GA Act).
If the investigation is blocked by the person or agency involved in the alleged abuse – and there is evidence that the person is being illegally detained or is likely to suffer serious harm – an order can be sought from the Victorian Civil and Administrative Tribunal (VCAT) (the Guardianship List). VCAT can authorise active intervention with police assistance (s 43 GA Act).
VCAT may appoint a guardian for an adult with disability to make decisions about personal matters.
Any appointment VCAT makes must set safeguards and appropriate limitations on the guardian’s powers.
VCAT may appoint the Public Advocate as guardian when there is no other person who fulfils the requirements for the appointment (s 33 GA Act).
For more information about guardianship, see Chapter 8.6: Guardianship and medical treatment.
VCAT may appoint a guardian if it is satisfied that the person proposed for guardianship does not have decision-making capacity in relation to a personal matter, and there is need for the appointment, and the appointment will promote the person’s personal and social wellbeing.
Programs run by the Public Advocate
Community Visitors Program
The Community Visitors Program has a statutory base in the Mental Health Act 2014 (Vic), the Disability Act 2006 (Vic) (‘Disability Act’) and the Supported Residential Services (Private Proprietors) Act 2010 (Vic). The program is administered and coordinated by the OPA.
Community Visitors are community representatives who regularly visit:
- services and institutions for people with psychosocial or intellectual disabilities; and
- supported residential services registered with the Victorian Government Department of Health (‘Department of Health (Vic)’); or
- supported residential services in the non-government sector.
Community Visitors have the power to make inspections, access reports and documents, and consult with anyone involved in the provision of services or the administration of a facility.
Community Visitors visit on a regular basis to talk to residents/clients on issues such as the:
- adequacy of services;
- standards within the facility; and
- care and treatment being received.
Community Visitors respond to queries and enquire into complaints. If the issues are unable to be resolved at a local level, they can be raised with the OPA and ultimately with the relevant government minister. NDIS matters can be escalated to the NDIS Quality and Safeguards Commission (see ‘NDIS Quality and Safeguards Commission’, below).
Section 17 of the GA Act gives the Public Advocate similar powers as Community Visitors to visit, inspect and enquire.
Independent Third Person Program
The Independent Third Person (ITP) Program is coordinated by the OPA.
Police Operating Procedure 184.108.40.206 requires that an ITP be present when police officers are interviewing a victim, suspect or witness who has an intellectual disability, a mental illness, acquired brain injury or dementia.
The OPA runs information and training sessions for people wishing to volunteer as ITPs. ITPs are not advocates for people but are there to facilitate communication, help the person know their rights, and support the person through the process.
The Victorian Government (not OPA) operates an Intermediaries Program to assist children and people with disabilities who are victims or witnesses of certain crimes (mainly sexual offences). An intermediary assists the child or person with disability in their communication with police officers and court staff.
The program involves nine police stations (Bayside, Bendigo, Box Hill, Fawkner, Frankston, Geelong, Knox, Melbourne and Warrnambool) and the Magistrates’ Courts in Melbourne, Bendigo, Geelong and Warrnambool.
Where an intermediary is not available, an ITP should be engaged.
Corrections Independent Support Officer Program
Corrections Independent Support Officers (CISOs) are volunteers and OPA staff who assist and support prisoners with an intellectual disability in all Victorian prisons during internal prison disciplinary hearings. These hearings occur when prisoners are charged with a breach of the internal prison management regulations or rules.
The role of a CISO is to:
- provide information to the prisoner about the disciplinary hearing procedures;
- provide information to the prisoner about their rights during the process;
- assist with communication; and
- support the prisoner during the hearing.
The CISO provides this support to ensure the prisoner is provided with the best opportunity to understand and effectively participate in the hearing.
Advice and information
The OPA also offers advice and information about:
- guardianship and administration,
- supportive guardianship,
- supportive attorney,
- applications to VCAT,
- enduring powers of attorney;
- supportive attorneys;
- supported decision-making;
- the rights of people with disabilities;
- medical treatment decision-making;
- advance care directives;
The OPA’s Community Education Program provides written materials and speakers.