Page 600 - Week 02 - Thursday, 18 February 2016
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These are added following the government’s amendments from the floor of the Legislative Assembly to the 2015 bill to omit a clause giving the Disability and Community Services Commissioner a formal complaints handling function in relation to matters in relation to which the Public Advocate has a function. This change allows the Public Advocate to continue to perform advocacy through investigation of services for vulnerable Canberrans who have a disability but does not provide a formal complaints process for the Public Advocate or Disability and Community Services Commissioner.
The power to investigate matters in relation to which the Public Advocate has a function, in new section 27B(l)(cb), provides the Public Advocate with the ability to investigate the services for the protection of people with a disability, which may include the Public Trustee and Guardian.
The ACAT will continue to undertake regular review of guardianship and management orders under section 19 of the Guardianship and Management of Property Act 1991. The current commissioners and Public Trustee have identified that the function of representing forensic patients before the ACAT or a court was more correctly classified as an advocacy function and should remain with the Public Advocate. The bill therefore moves this function to the Public Advocate within the Human Rights Commission.
The bill also updates the definition of “forensic patient” to bring in the concepts of mental disorder or mental illness so that these concepts align with the definitions in the Mental Health Act 2015 and the Mental Health (Treatment and Care) Amendment Act 2014 which commence on 1 March this year. This terminology is also updated in the Public Trustee and Guardian Act. Additional provisions replicating the investigative and other miscellaneous functions under the Public Advocate Act which were not captured in the 2015 bill have been included in this bill.
Minor changes have been made in relation to the legal representation provisions in the Public Trustee and Guardian Act. Because the Public Trustee and Guardian office picks up guardianship functions, the Public Trustee and Guardian Act will be amended to provide that the ACAT, in addition to a court, may require the Public Trustee and Guardian to represent parties to a proceeding. The bill also makes it clear that the Public Trustee and Guardian can engage legal representatives to appear for it.
Changes have also been made to provisions providing protections for disclosure of information to and within the commission. New section 27BB and revised section 100A of the Human Rights Commission Act will expand the existing protections for people who assist the commission in good faith, consistent with existing provisions in the Public Advocate Act by (a), providing when information can be disclosed by the Public Advocate and (b), providing that it is not a breach of confidence, a breach of professional ethics, etiquette or standards to provide information or make a complaint honestly and without recklessness.
These changes are designed to fully cover all elements of the existing Public Advocate Act so that staff performing advocacy functions are able to maintain existing practices, which may include advocating for an individual without their knowledge or consent.
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