Office of the Public Advocate

Office of the Public Advocate Mary Burgess, Public Advocate of Queensland Before I commence, I would like to respectfully acknowledge the Traditional Owners of the land on which this event is taking place and Elders both past, present and future. I want to thank ADA Australia for organising this conference and assembling such a fabulous program of speakers and thought-provoking discussions over the past two days. Role of the Public Advocate I thought it might be best to begin my presentation with some information about my role as the Public Advocate, to provide some context and background for those who aren t familiar with the position. The Public Advocate is a statutory appointment under the Guardianship and Administration Act 2000. Under the Act, the Public Advocate has a very specific role to undertake systemic advocacy to protect the rights and interests of people with impaired decision-making capacity. The issues that I am required to focus my systemic advocacy on include: promoting and protecting the rights of adults with impaired capacity protecting them from neglect, exploitation or abuse encouraging the development of programs to help people with impaired capacity to reach the greatest degree of autonomy promoting the provision of services and facilities for people with impaired capacity monitoring and reviewing the delivery of services and facilities to people with impaired capacity. Systems advocacy focuses on influencing and changing systems such as the legislative, policy and practice aspects of systems. My office cannot act on individual complaints but will advocate on matters that have a systemic element. I also have some impressive powers to support my functions. I can seek to intervene in any proceeding before a court or tribunal or in an official inquiry involving the protection of the rights or interests of people with impaired capacity. I also have a right to all information necessary to monitor and review the delivery of services and facilities to those people. And I can make reports about systemic matters that are tabled in the Parliament. Now to the subject of the conference 24 March 2017 Page 1of 5

Having come to the role of Public Advocate from a legal and criminological background, I have never been a strong advocate for using the law as an instrument of social change. However, in the human rights space, I have to admit that I am a believer in the potential of a Human Rights Act to transform community understanding about and commitment to the protection of, human rights. We have recently had the debate in Queensland about whether we should have a Human Rights Act, and as many of you know the Palaszczuk Government has committed to introducing a Human Rights Act modelled on the Victorian Charter of Human Rights and Responsibilities Act 2006. So, knowing that before too long we are going to have a Human Rights Act, it begs the question: What will a Human Rights Act achieve for us? How will it change things for people whose human rights have been infringed in the past? And more to the point for today s discussion: Will a Human Rights Act shift client control? While I personally strongly support a Human Rights Act I also feel very strongly that it will not achieve significant positive change and protection for vulnerable people in Queensland, unless it also provides for a right of action for people whose rights have been breached and that they also have access to advocacy and legal support to enforce their rights. I have two reasons for this view. First, my experience of the operation of various pieces of Queensland legislation that exist to protect people s rights, but are in my view, failing to do so; and Second, the experience of the operation of the ACT Human Rights Act and the Charter of Rights and Responsibilities in Victoria. I will explain these reasons further. As the Public Advocate, I spend a lot of time examining systems that impact the rights and interests of people with impaired capacity. And while there are some notable examples of systems that are working well, I have observed some disturbing practices, and processes (or lack of them), that are impacting in a significant and negative way on the rights of people with impaired capacity. You might assume that the problem lies with the legislation; that it s not clear or prescriptive enough and all we need to do is make some appropriate amendments and things will be sorted. But this isn t the case with most of the legislation that I have been observing in operation. The problem lies with the fact that the people with power and authority to make decisions under these pieces of legislation doctors, lawyers, tribunal members, public Page 2 of 5

servants and others are not complying with, or properly applying the law when they are making decisions that impact people with impaired capacity. In some cases, it appears that people are just ignoring legislative requirements. In others, there appears to be a level of ignorance or a lack of training. There are also the cases where it seems that compliance isn t operationally convenient or requires too much paperwork. In one jurisdiction, I am at a loss to explain what appears to be some type of preoccupation with efficiency over substance that is resulting in hearings being pushed through at such speed that, in my view, very vulnerable people are being denied natural justice and their supporters are not receiving proper notice of proceedings. And despite these procedural failures, the system rolls on, seemingly unchallenged, and has done so it would seem, for years. The main cause of this dysfunction is that for decades now, there has been no direct funding for legal representation in this jurisdiction. Despite there being 20,000 hearings per year, only a very small proportion of people have the benefit of legal representation, mostly courtesy of a couple of community legal centres who are overstretched and underfunded, the ATSILS and very occasionally when a person has family with the means, private lawyers. So this tribunal has operated as a closed shop for years. On the one occasion that my office sought to intervene in a matter in this jurisdiction which as I pointed out earlier, I have the statutory power to seek to do there was strong resistance by the tribunal legal member, apparently on the basis that my office didn t have enough experience in the jurisdiction. I m not sure how such an issue had any relevance to consideration of my application for leave to intervene. However, it was evident, that despite my role as a human rights defender and statements in this tribunal s Annual Reports that its role is to safeguard the human rights of the people appearing before it, there was little appetite for my presence at the hearing. Of course, many take the view that lawyers slow legal processes down with a lot of unnecessary legal argument. And I acknowledge that can occur. However, having seen what can happen in a jurisdiction from which lawyers and trained advocates are generally absent I am firmly of the view our legal systems and processes operate at their best when all of the stakeholders and players are present and conscientiously doing their part and holding each other to account. These problems with having people s rights recognised and respected are not limited to one jurisdiction. They occur at times across all of the systems that interact with some of the most vulnerable people in our state. The problem is that there are not enough supporters, advocates and accessible legal services available for people, especially for those people whose interests I am charged with protecting to get the assistance they need to argue their case or enforce their rights. When people don t or can t stand up for themselves and don t Page 3 of 5

have anyone else who can do that for them, individuals and systems are not held as accountable as they might be, people s human rights are breached and injustice occurs. My understanding of the ACT and Victorian experiences of having Human Rights Acts also supports my view about the importance of people having the means or support to advocate for and enforce their rights. There is no doubt that having Human Rights Acts in those jurisdictions has helped to build a human rights culture, but as Michael Brett Young, the author of the 2015 report reviewing the Victorian Charter observed: a strong human rights culture is not an end in itself. Success is not measured simply by counting how many people know or care about the Charter. Rather, a human rights culture is a means to better government decision making. The best human rights outcomes will be achieved if people s rights are considered in the everyday business of government and its interactions with the community. 1 While there is great value generally in having a Human Rights Act, it is clear that to be most effective these laws need to offer a cause of action for a breach. In his review report, Michael Brett Young noted that overwhelmingly submissions to the review expressed frustration that the Victorian Charter provisions do not provide a remedy for a person whose human rights have been breached. 2 In its submission to the review, the Victorian Council of Social Services reported that some in the community saw the Charter as a law without any consequences and that the government was not really taking human rights seriously. 3 Ultimately, the Charter review recommended the introduction of an individual cause of action for breaches of the Charter. This recommendation has not been adopted by the Victorian government. But, even with a Human Rights Act, and an individual cause of action, in my view, it is very difficult for many people, especially the vulnerable people whose interests I represent, to advocate or make their case to have their rights upheld without support or assistance from others. I was looking on the website of the Human Rights Commission of Victoria and reading the case studies demonstrating how the Charter has worked to protect people s rights. What struck me was that in nine of the 11 case studies, the person whose rights were breached 1 From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006, at p. 20, Michael Brett Young, 2015, State of Victoria. 2 Ibid, at p. 117. 3 Ibid. at p. 118, referencing the Victorian Council of Social Service submission. Page 4 of 5

received help from an advocacy or legal service or from another person to seek redress. In seven of the cases, the person was supported by a specialist advocate, a CLC or a lawyer. This is no small point I am making here. I don t think the Human Rights Commission is aware of what the case studies show, but they absolutely demonstrate my point. They show how critical it is for there to be accessible, funded advocacy and legal support to assist people to identify, understand and exercise their legal rights, even in a jurisdiction with a Human Rights Act. Advocates and lawyers are the backbone of a strong human rights culture. They, as much as community education campaigns, help to educate people about their rights. And they walk beside them through those processes, supporting and encouraging along the way. Without them, people often don t have the knowledge or confidence to take issues on for themselves. Advocates and lawyers help to turn people s rights into a reality and as they do this they also play an important oversight role in these systems. If we are seriously committed to shifting client control, to giving control back to the clients, we need to give them the means, the tools, to take control. At this time of uncertain funding for advocacy and with community legal centres facing funding cuts, we need to remember the important role that these services play in making our society a better, more inclusive and respectful place how the work they do can change lives in such positive ways. The huge once-in-a-lifetime social and service changes that we are seeing with the NDIS and aged care reforms have the potential to bring hugely beneficial change to people s lives. But, there is also the risk that the commitment to choice and control will be sacrificed as government seeks to manage cost blow outs in these systems. If we want vulnerable people to take and retain control over their lives during this time of great change, we need to value and protect our advocacy services and CLCs. We need to send a message to government that we not only want a Human Rights Act, but we expect them to also adequately fund advocacy services for people with disabilities so that the most vulnerable people in our community can be supported to protect and enforce their human rights. Page 5 of 5