Adult safeguarding agencies

14.41  In this chapter, the ALRC recommends that ‘adult safeguarding agencies’ be given a role in safeguarding at-risk adults. These need not be new agencies. The safeguarding function could be given to existing state and territory agencies, such as public advocates, or government departments.[37] However, the ALRC considers that, as the ACT Human Rights Commission submitted, ‘it would be preferable to allow flexibility for state and territory governments to determine how, and by which agency, those powers and functions should be exercised’.[38]

14.42  In the Discussion Paper, the ALRC proposed that a broader adult safeguarding function, not limited to people with impaired decision-making ability, be given to existing state and territory public advocates. One benefit of giving the new role to public advocates is that most public advocates already have a role in investigating abuse, so their existing powers might simply be clarified and extended to other adults. It would also limit the number of state agencies, which would save costs and be less confusing for the public. Public advocates could also build on their existing working relationships with the police, government departments, helplines and other bodies.

14.43  However, a number of stakeholders noted that giving adult safeguarding work to public advocates would, in the words of one stakeholder,

represent a significant departure from the current business of public guardians, from working with people who do not have mental capacity to make decisions to working with people who have ‘care and support needs’ but may still have mental capacity.[39]

14.44  Some expressed concern that public advocates, given their traditional role, may tend to be too ‘paternalistic’ towards older people. While supporting new safeguarding laws, the Disabled People’s Organisations Australia said that giving investigation powers to public guardians may ‘lead to unnecessary guardianship for individuals who are currently not under guardianship or administrative arrangements, as a strategy for responding to violence’.[40]

14.45  Aged and Disability Advocacy Australia (ADA Australia) submitted that giving this role to public advocates would be a ‘large cultural shift’, and many people will think that if a public advocate or guardian is involved, the ‘person has impaired capacity for decision making’.[41] Some suggested there was a conflict of interest. One stakeholder submitted:

We do not support State Public Advocates having dual roles as Investigators and being able to make recommendations appointing themselves or their Department as Guardians. … People need to have faith in a system that will seriously investigate Elder Abuse without being seen to gain in anyway.[42]

14.46  Seniors Rights Service also submitted that it was ‘not convinced that the public guardian should have an investigatory role’:

We recommend that another constituted independent authority should take that role of investigation. Issues of conflict arise when investigation and implementation are conducted by the same organisation.[43]

14.47  Professor Wendy Bonython and Assistant Professor Bruce Baer Arnold said the proposal ‘creates a conflict of interest which fundamentally distorts the role of the public guardian or advocate’: ‘Any power to be exercised by a public guardian or advocate is to be restricted to matters related to the person’s identified lack of capacity’.[44]

14.48  Many stakeholders noted that public advocates would need a considerable increase in funding and resources to do this work.[45] Some public advocates expressed concern at the prospect of such a considerable expansion of their jurisdiction. The Office of the Public Advocate (Qld) submitted that, giving it powers to investigate elder abuse, would ‘result in a dramatic increase in the workload of guardianship agencies’:

The jurisdiction of guardianship agencies is limited to dealing with children and adults with impaired decision-making capacity (generally as guardians of last resort). Their expertise is in dealing with this cohort. Although their responsibilities often involve them dealing with people with age-related illnesses such as dementia, there is no reasonable basis to assume that public guardians/advocates necessarily have the expertise or the skills to deal with, or investigate, elder abuse generally.[46]

14.49  The authors of the Closing the Gaps report considered whether new safeguarding powers should be given to the Office of the Public Advocate, but concluded that there should be a new body, perhaps within the relevant state department:

Whereas OPA [Office of the Public Advocate (SA)] is a government body, it is a statutorily independent body and performs a very important role in delivering an independent advocacy role. To add to the powers of OPA by conferring upon it the power to coordinate and lead an intervention or multi-agency response, would have a detrimental effect on the ability of OPA to act as an independent advocate for an older person within that process.[47]

14.50  Given these concerns, the ALRC does not suggest that the recommended adult safeguarding function should necessarily be given to public advocates, but rather that the states and territories decide which of their agencies might perform this role, or whether a new agency might need to be created. One option might be to give new coercive powers to public advocates, so that they can better investigate people in their current jurisdiction, while giving another agency the role of investigating the abuse of other at-risk adults.

[37]           Different agencies might even investigate different types of abuse.

[38]           ACT Human Rights Commission, Submission 337.

[39]           Australian Association of Gerontology (AAG) and the National Ageing Research Institute (NARI), Submission 291.

[40]           Disabled People’s Organisations Australia, Submission 360.

[41]           ADA Australia, Submission 283.

[42]           Name Withheld, Submission 290. See also Women’s Electoral Lobby, Submission 261.

[43]           Seniors Rights Service, Submission 296.

[44]           W Bonython and B Arnold, Submission 241.

[45]           ‘This would amount to a considerable increase in the investigation responsibilities of all jurisdictions’ relevant guardianship agencies. ... [It] will require significant legislative reform by state and territory governments and, if adopted, would result in a dramatic increase in the workload of guardianship agencies, with no commensurate funding being proposed’: Office of the Public Advocate (Qld), Submission 361. ‘If the ACT Public Advocate were to be given expanded functions of investigating and responding to elder abuse as proposed, this would require significant additional resourcing’: ACT Human Rights Commission, Submission 337.

[46]           Office of the Public Advocate (Qld), Submission 361.

[47]           Office of the Public Advocate (SA), above n 14, 26.