Public Advocate Act 2005 (ACT)

Public Advocate Act 2005 (repealed)   

A2005-47

Republication No 9

Effective:  2 April 2016

Republication date: 2 April 2016

As repealed by A2016‑1 pt 4

Unauthorised version prepared by ACT Parliamentary Counsel’s Office

About this republication

The republished law

This is a republication of the Public Advocate Act 2005 (repealed) (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)). It also includes any commencement, amendment, repeal or expiry affecting this republished law to 2 April 2016.

The legislation history and amendment history of the republished law are set out in endnotes 3 and 4.

Kinds of republications

The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at type="disc">

authorised republications to which the Legislation Act 2001 applies

unauthorised republications.

The status of this republication appears on the bottom of each page.

Editorial changes

The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice.

This republication does not include amendments made under part 11.3 (see endnote 1).

Uncommenced provisions and amendments

If a provision of the republished law has not commenced, the symbol  U  appears immediately before the provision heading.  Any uncommenced amendments that affect this republished law are accessible on the ACT legislation register ( For more information, see the home page for this law on the register.

Modifications

If a provision of the republished law is affected by a current modification, the symbol  M  appears immediately before the provision heading.  The text of the modifying provision appears in the endnotes.  For the legal status of modifications, see the Legislation Act 2001, section 95.

Penalties

At the republication date, the value of a penalty unit for an offence against this law is $150 for an individual and $750 for a corporation (see Legislation Act 2001, s 133).

Public Advocate Act 2005 (repealed)

Contents

Page

Part 1      Preliminary

1            Name of Act  2

3            Dictionary  2

4            Notes  2

5Offences against Act—application of Criminal Code etc 2

Part 2      Office of public advocate

6            Public advocate—appointment  3

7           Ending appointment  3

8            Staff of public advocate  4

9            Delegation by public advocate  4

Part 3      Functions of public advocate

10          Functions of public advocate  5

11          Investigations etc  6

12          Guardian etc of last resort  7

13          Engagement of lawyer  7

Part 4      Miscellaneous

14          Protection of officials from liability  8

15          Giving of information protected  8

16          Secrecy  9

17          Disclosure of information about investigations  10

18          Regulation-making power  11

Dictionary12

Endnotes

1            About the endnotes  14

2            Abbreviation key  14

3            Legislation history  15

4            Amendment history  17

5            Earlier republications  19

Public Advocate Act 2005 (repealed)

An Act to provide for the appointment of a public advocate, and for related matters

Part 1Preliminary

1. Name of Act

   This Act is the Public Advocate Act 2005.

2. Dictionary

   The dictionary at the end of this Act is part of this Act.

   Note 1The dictionary at the end of this Act defines certain terms used in this Act.

   Note 2A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

3. Notes

   A note included in this Act is explanatory and is not part of this Act.

   NoteSee the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

4. Offences against Act—application of Criminal Code etc

   Other legislation applies in relation to offences against this Act.

   Note 1Criminal Code

   The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

   The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

   Note 2Penalty units

   The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

Part 2Office of public advocate

1. Public advocate—appointment

   (1)The Executive must appoint a person to be the Public Advocate.

   NoteFor the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

   (2)The public advocate must not be appointed for a term of longer than 5 years.

   Note A person may be reappointed to a position if the person is eligible to be appointed to the position (see Legislation Act, s 208 and dict, pt 1, def appoint).

   (3)The conditions of appointment of the public advocate are the conditions agreed between the Executive and the public advocate, subject to any determination under the Remuneration Tribunal Act 1995.

2. Ending appointment

   (1)The Executive may end the appointment of a person as the public advocate—

   (a)if the person contravenes a territory law; or

   (b)for misbehaviour; or

   (c)if the person becomes bankrupt or personally insolvent; or

   NoteBankrupt or personally insolvent—see the Legislation Act, dictionary, pt 1.

   (d)if the person is convicted, in the ACT, of an offence punishable by imprisonment for at least 1 year; or

   (e)if the person is convicted outside the ACT, in Australia or elsewhere, of an offence that, if it had been committed in the ACT, would be punishable by imprisonment for at least 1 year.

   (2)The Executive must end the person’s appointment—

   (a)if the person is absent, other than on approved leave, for 14 consecutive days or for 28 days in any 12-month period; or

   (b)for physical or mental incapacity, if the incapacity substantially affects the exercise of the person’s functions.

   NoteA person’s appointment also ends if the person resigns (see Legislation Act, s 210).

3. Staff of public advocate

   The public advocate’s staff must be employed under the Public Sector Management Act 1994.

4. Delegation by public advocate

   (1)The public advocate may delegate to a member of the public advocate’s staff any function under this Act or another territory law.

   (2)However, the public advocate may only delegate a function under the following provisions to a person exercising the duties of deputy public advocate in the public service:

   (a)section 10 (h) (which is the public advocate’s function of acting as guardian or manager when appointed by the ACAT);

   (b)section 12 (b) (which is about applying to the ACAT for an appointment of a person as guardian or manager).

   NoteFor the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

Part 3Functions of public advocate

1. Functions of public advocate

   The public advocate has the following functions:

   (a)acting as advocate for the rights of people with a disability and, as part of acting as advocate for those rights, doing the following:

   (i)fostering the provision of services and facilities for people with a disability;

   (ii)supporting the establishment of organisations that support people with a disability;

   (iii)encouraging the development of programs that benefit people with a disability (including advocacy programs, educational programs and programs to encourage people to act as guardians and managers);

   (iv)promoting the protection of people with a disability from abuse and exploitation;

   (b)representing people with a disability at hearings before the ACAT in relation to guardianship applications;

   (c)representing forensic patients before the ACAT or a court;

   (d)acting as advocate for the rights of children and young people and, as part of acting as advocate for those rights, doing the following:

   (i)fostering the provision of services and facilities for children and young people;

   (ii)supporting the establishment of organisations that support children and young people;

   (iii)promoting the protection of children and young people from abuse and exploitation;

   (e)monitoring the provision of services for the protection of children and young people;

   (f)dealing, on behalf of people with a disability and children and young people, with entities providing services;

   (g)investigating, reporting and making recommendations to the Minister on anything relating to the operation of this Act referred to the public advocate by the Minister;

   (h)acting as a guardian or manager when appointed by the ACAT;

   (i)promoting community discussion, and providing community education and information, about—

   (i)the functions of the public advocate; and

   (ii)the operation of this Act; and

   (iii)the functions of the ACAT under the Guardianship and Management of Property Act 1991;

   (j)exercising the functions given to the public advocate under the Children and Young People Act 2008, the Guardianship and Management of Property Act 1991 and the Mental Health Act 2015;

   (k)exercising any other function given to the public advocate under this Act or another territory law.

   NoteA provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def entity).

2. Investigations etc

   (1)The public advocate may—

   (a)listen to concerns from children and young people about the provision of services for the protection of children and young people; or

   (b)investigate concerns raised under paragraph (a); or

   (c)investigate complaints and allegations about—

   (i)matters in relation to which the public advocate has a function; or

   (ii)the actions of a guardian or manager or a person acting or purporting to act under an enduring power of attorney.

   (2)The public advocate must refer systemic matters relating to people with a disability and children and young people to the human rights commission for consideration.

   (3)The public advocate must report to the ACAT about a matter before the ACAT if asked by the ACAT.

3. Guardian etc of last resort

   If the public advocate is appointed as a guardian or manager under the Guardianship and Management of Property Act 1991, the public advocate must—

   (a)endeavour to find a suitable person to be appointed as the guardian or manager; and

   (b)if a suitable person is found—apply to the ACAT for the appointment of the person as guardian or manager.

4. Engagement of lawyer

   The public advocate may engage a lawyer to appear before a court or tribunal in relation to the exercise of the public advocate’s functions under this Act.

Part 4Miscellaneous

1. Protection of officials from liability

   (1)In this section:

   official means—

   (a)the public advocate; or

   (b)a member of the staff of the public advocate; or

   (c)a person who exercises a function under this Act.

   (2)An official, or anyone engaging in conduct under the direction of an official, is not personally liable for anything done or omitted to be done honestly and without recklessness—

   (a)in the exercise of a function under this Act; or

   (b)in the reasonable belief that the conduct was in the exercise of a function under this Act.

   (3)Any civil liability that would, apart from subsection (2), attach to an official attaches instead to the Territory.

2. Giving of information protected

   (1)This section applies if any information is given honestly and without recklessness to the public advocate.

   (2)The giving of the information is not—

   (a)a breach of confidence; or

   (b)a breach of professional etiquette or ethics; or

   (c)a breach of a rule of professional conduct.

   (3)Civil or criminal liability is not incurred only because of the giving of the information.

3. Secrecy

   (1)In this section:

   court includes a tribunal, authority or person having power to require the production of documents or the answering of questions.

   divulge includes communicate.

   person to whom this section applies means a person who—

   (a)is or has been—

   (i)the public advocate; or

   (ii)a member of the staff of the public advocate; or

   (b)exercises, or has exercised, a function under this Act.

   produce includes allow access to.

   protected information means information about a person that is disclosed to, or obtained by, a person to whom this section applies because of the exercise of a function under this Act by the person or someone else.

   (2)A person to whom this section applies commits an offence if—

   (a)the person—

   (i)makes a record of protected information about someone else; and

   (ii)is reckless about whether the information is protected information about someone else; or

   (b)the person—

   (i)does something that divulges protected information about someone else; and

   (ii)is reckless about whether—

   (A)the information is protected information about someone else; and

   (B)doing the thing would result in the information being divulged to someone else.

   Maximum penalty:  50 penalty units, imprisonment for 6 months or both.

   (3)Subsection (2) does not apply if the record is made, or the information is divulged—

   (a)under this Act or another territory law; or

   (b)in relation to the exercise of a function, as a person to whom this section applies, under this Act or another territory law.

   (4)Subsection (2) does not apply to the divulging of protected information about someone with the person’s consent.

   (5)A person to whom this section applies need not divulge protected information to a court, or produce a document containing protected information to a court, unless it is necessary to do so for this Act or another territory law.

4. Disclosure of information about investigations

   (1)Section 16 does not prevent the public advocate from disclosing information to a person (including members of the public) about an investigation by the public advocate if the public advocate is satisfied that the disclosure is necessary and reasonable in the public interest.

   (2)The public advocate must not make a disclosure mentioned in subsection (1) that is likely to prejudice the investigation.

   (3)In a disclosure mentioned in subsection (1), the public advocate must not—

   (a)express an opinion that is (expressly or impliedly) critical of a person or body unless the public advocate has given the person, or the principal officer of the body, an opportunity to answer the criticism; or

   (b)identify the complainant (directly or indirectly) unless it is necessary and reasonable to do so.

5. Regulation-making power

   The Executive may make regulations for this Act.

   NoteA regulation must be notified, and presented to the Legislative Assembly, under the Legislation Act.

Dictionary

(see s 3)

Note 1The Legislation Act contains definitions and other provisions relevant to this Act.

Note 2For example, the Legislation Act, dict, pt 1, defines the following term:

·     ACAT

·     bankrupt or personally insolvent

·     body

·     entity

·     function

·     lawyer.

child means a person who is under 12 years old.

disability means—

(a)either of the following conditions:

(i)a physical, mental, psychological or intellectual condition;

(ii)a condition that would make a person a forensic patient; if

(b)the condition gives rise to a need for protection from abuse, exploitation or neglect, or a combination of those things.

forensic patient includes a person who has been—

(a)apprehended by a police officer because the person’s behaviour or statements indicate to the officer that the person may have a mental disorder or mental illness; or

(b)found by a court or the ACAT to be unfit to plead; or

(c)acquitted of a criminal charge because of mental impairment; or

(d)found guilty of a criminal offence and is, or while serving a sentence of imprisonment has become, a person with a mental disorder or mental illness.

mental disorder—see the Mental Health Act 2015, section 9.

mental illness—see the Mental Health Act 2015, section 10.

public advocate means the Public Advocate under section 6.

staff, in relation to the public advocate, means the staff mentioned in section 8.

young person means a person who is 12 years old or older, but not yet an adult.

Endnotes

1. About the endnotes

   Amending and modifying laws are annotated in the legislation history and the amendment history.  Current modifications are not included in the republished law but are set out in the endnotes.

   Not all editorial amendments made under the Legislation Act 2001, part 11.3 are annotated in the amendment history. Full details of any amendments can be obtained from the Parliamentary Counsel’s Office.

   Uncommenced amending laws are not included in the republished law.  The details of these laws are underlined in the legislation history.  Uncommenced expiries are underlined in the legislation history and amendment history.

   If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering. 

   The endnotes also include a table of earlier republications.

2. Abbreviation key

A = Act	NI = Notifiable instrument
AF = Approved form	o = order
am = amended	om = omitted/repealed
amdt = amendment	ord = ordinance
AR = Assembly resolution	orig = original
ch = chapter	par = paragraph/subparagraph
CN = Commencement notice	pres = present
def = definition	prev = previous
DI = Disallowable instrument	(prev...) = previously
dict = dictionary	pt = part
disallowed = disallowed by the Legislative	r = rule/subrule
Assembly	reloc = relocated
div = division	renum = renumbered
exp = expires/expired	R[X] = Republication No
Gaz = gazette	RI = reissue
hdg = heading	s = section/subsection
IA = Interpretation Act 1967	sch = schedule
ins = inserted/added	sdiv = subdivision
LA = Legislation Act 2001	SL = Subordinate law
LR = legislation register	sub = substituted
LRA = Legislation (Republication) Act 1996	underlining = whole or part not commenced
mod = modified/modification	or to be expired

1. Legislation history

   Public Advocate Act 2005 A2005-47

   notified LR 2 September 2005
   s 1, s 2 commenced 2 September 2005 (LA s 75 (1))

   
   

   s 11 (2) commenced 1 November 2006 (s 2 (2) (as am by A2006‑3 amdt 1.8) and see Human Rights Commission Act 2005 A2005-40, s 2 (as am by A2006‑3 s 4) and CN2006-21)
   remainder commenced 1 March 2006 (s 2 (1) as am by A2006‑3 amdt 1.8)

   as amended by

   Human Rights Commission Legislation Amendment Act 2006 A2006‑3 sch 1 pt 1.4

   notified LR 22 February 2006
   s 1, s 2 commenced 22 February 2006 (LA s 75 (1))
   sch 1 pt 1.4 commenced 23 February 2006 (s 2)

   
   
   

   Children and Young People (Consequential Amendments) Act 2008 A2008‑20 sch 2 pt 2.13, sch 4 pt 4.20

   notified LR 17 July 2008
   s 1, s 2 commenced 17 July 2008 (LA s 75 (1))
   s 3 commenced 18 July 2008 (s 2 (1))
   sch 2 pt 2.13 commenced 9 September 2008 (s 2 (3) and see Children and Young People Act 2008 A2008-19, s 2 and CN2008-13)

   sch 4 pt 4.20 commenced 27 February 2009 (s 2 (5) and see Children and Young People Act 2008 A2008-19, s 2 and CN2008-17 (and see CN2008-13))

   ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (No 2) A2008-37 sch 1 pt 1.83

   notified LR 4 September 2008
   s 1, s 2 commenced 4 September 2008 (LA s 75 (1))

   sch 1 pt 1.83 commenced 2 February 2009 (s 2 (1) and see ACT Civil and Administrative Tribunal Act 2008 A2008-35, s 2 (1) and CN2009-2)

   Justice and Community Safety Legislation Amendment Act 2010 (No 2) A2010-30 sch 1 pt 1.19

   notified LR 31 August 2010
   s 1, s 2 commenced 31 August 2010 (LA s 75 (1))
   s 3 commenced 1 September 2010 (s 2 (1))

   sch 1 pt 1.19 commenced 28 September 2010 (s 2 (2))

   Mental Health (Treatment and Care) Amendment Act 2014 A2014-51 sch 1 pt 1.10 (as am by A2015-38 amdt 2.54)

   notified LR 12 November 2014
   s 1, s 2 commenced 12 November 2014 (LA s 75 (1))
   sch 1 pt 1.10 commenced 1 March 2016 (s 2 (as am by A2015-38 amdt 2.54))

   Mental Health Act 2015 A2015‑38 sch 2 pt 2.2, sch 2 pt 2.4 div 2.4.15

   notified LR 7 October 2015
   s 1, s 2 commenced 7 October 2015 (LA s 75 (1))
   sch 2 pt 2.2 (amdt 2.54) commenced 8 October 2015 (s 2 (2))
   sch 2 pt 2.4 div 2.4.15 commenced 1 March 2016 (s 2 (1) and see Mental Health (Treatment and Care) Amendment Act 2014 A2014-51, s 2 (as am by A2015-38 amdt 2.54))

   NoteSch 2 pt 2.2 (amdt 2.54) only amends the Mental Health (Treatment and Care) Amendment Act 2014 A2014-51

   as repealed by

   Protection of Rights (Services) Legislation Amendment Act 2016 A2016‑1 pt 4

   notified LR 23 February 2016
   s 1, s 2 commenced 23 February 2016 (LA s 75 (1))

   pt 4 commenced 1 April 2016 (s 2)

1. Amendment history

   Commencement

   s 2sub A2006‑3 amdt 1.8

   om LA s 89 (4)

   Ending appointment

   s 7am A2010‑30 amdt 1.57

   Delegation by public advocate

   s 9am A2008‑37 amdt 1.356

   Functions of public advocate

   s 10am A2008‑20 amdt 2.24; amdt 4.51; A2008‑37 amdts 1.357‑1.359; A2015‑38 amdt 2.87

   Investigations etc

   s 11am A2008‑37 amdt 1.360

   Guardian etc of last resort

   s 12am A2008‑37 amdt 1.361

   Transitional

   pt 5 hdgexp 1 March 2007 (s 28)

   Definitions for pt 5

   s 19exp 1 March 2007 (s 28)

   Conduct engaged in by community advocate

   s 20exp 1 March 2007 (s 28)

   Application of Act to pre-existing appointments

   s 21exp 1 March 2007 (s 28)

   Application of s 16 (1) to previous people

   s 22exp 1 March 2007 (s 28)

   References to community advocate

   s 23exp 1 March 2007 (s 28)

   Community advocate is public advocate

   s 24exp 1 March 2007 (s 28)

   Transitional regulations

   s 25exp 1 March 2007 (s 28)

   Legislation amended—sch 1

   s 26om LA s 89 (3)

   Legislation repealed

   s 27om LA s 89 (3)

   Expiry of pt 5

   s 28exp 1 March 2007 (s 28)

   Consequential amendments

   sch 1om LA s 89 (3)

   Dictionary

   dictam A2008‑37 amdt 1.362, amdt 1.363; A2010‑30 amdt 1.58

   def forensic patient am A2008‑37 amdt 1.364; A2015‑38 amdt 2.88, amdt 2.89

   def mental disorder ins A2014‑51 amdt 1.70

   am A2015‑38 amdt 2.90

   def mental dysfunction om A2014‑51 amdt 1.71

   def mental illness sub A2014‑51 amdt 1.72

   am A2015‑38 amdt 2.90

2. Earlier republications

   Some earlier republications were not numbered. The number in column 1 refers to the publication order. 

   Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register.  A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1.  Electronic and printed versions of an authorised republication are identical.

Republication No and date	Effective	Last amendment made by	Republication for
R1 1 Mar 2006	1 Mar 2006– 31 Oct 2006	A2006‑3	new Act and amendments by A2006‑3
R2 1 Nov 2006	1 Nov 2006– 1 Mar 2007	A2006‑3	commenced provisions
R3 2 Mar 2007	2 Mar 2007– 8 Sept 2008	A2006‑3	commenced expiry
R4 9 Sept 2008	9 Sept 2008– 1 Feb 2009	A2008‑37	amendments by A2008‑20
R5 2 Feb 2009	2 Feb 2009– 26 Feb 2009	A2008‑37	amendments by A2008‑37
R6 27 Feb 2009	27 Feb 2009– 27 Sept 2010	A2008‑37	amendments by A2008‑20
R7 28 Sept 2010	28 Sept 2010– 29 Feb 2016	A2010‑30	amendments by A2010‑30
R8 1 Mar 2016	1 Mar 2016– 1 Apr 2016	A2015‑38	amendments by A2014‑51 and A2015‑38