BILL: Public Trustee and Guardian

Today Mark outlined the Greens' opposition to this Bill which merges the Office of the Public Advocate and the Public Trustee, amalgamating their functions and services and replacing them with one statutory Office of the Public Trustee and Guardian. He shared the concerns of a number of stakeholders, concerns shared by the Greens. Mark also noted that this feedback was sought directly from most of these organisations as the Attorney-General's office was unwilling to provide it. The Bill did not pass. 

Public Trustee (Public Trustee and Guardian) Amendment Bill 2020

The bill merges the Office of the Public Advocate and the Public Trustee, amalgamating the functions and services they each provide and replacing them with one statutory Office of the Public Trustee and Guardian. The Attorney-General in her second reading speech said:

The focus of the reform is to achieve a better delivery of services to some of the state's most vulnerable people.

That is a worthy aspiration but the Greens are not convinced that this is what this proposed merger will achieve. I understand that the Attorney-General consulted with a number of stakeholders and that some of them provided feedback. These include the Public Advocate, the Acting Chief Psychiatrist, the Legal Services Commission, the Aged Rights Advocacy Service, JFA Purple Orange, SAPOL, the Crown Solicitor and the Public Service Association.

As the Attorney-General's office was unwilling to provide us with copies of the feedback, we sought feedback directly from most of these organisations, and I would like to put some of their feedback on the record today. Before I do, I would just like to say that, whilst I am not a naturally suspicious person, when Ministers refuse to provide copies of feedback or submissions, especially from statutory office holders or other key stakeholder groups, it does arouse suspicion that one or more of them must have been pretty unhappy.

For what it is worth—even though Ministers rarely ask my advice, I would offer it anyway—I think if Ministers were to disclose all the submissions and representations, they would then have a golden opportunity to tell us why they thought those stakeholders had got it wrong. Simply denying access to submissions arouses suspicion, and those suspicions were found to be well-grounded when we did eventually get the feedback.

I will start with the Public Service Association. Correspondence received from the PSA states that their view arises from the concerns that were raised by their members in the Office of the Public Advocate. I quote:

In summary, those concerns are as follows:

The proposed merger would result in:

Vulnerable community members being disadvantaged by losing an independent, accountable, disinterested, advocate, and reduction in advocacy generally.

Reduction in public accountability and independence of the Advocate.

Conflicts of interest from the Public Trustee receiving income from the sale of properties (i.e. there is a profit motive), which may or may not be in the best interests of the person.

Loss of trust and credibility in the Public Advocate arising from an actual or perceived conflict of interest or at the very least a loss of independence.

Consequential from the above is a potential reduction in credibility of both organisations.

There is currently no duplication as suggested by the Attorney General. Both organisations perform different, if complementary, roles.

Financial management (Public Trustee) requires different approaches and skill sets from advocacy and support about rights and needs.

There are a number of operational, including Work Health and Safety, issues arising from the nature of the respective clients.

We believe the views of our members have substance, that their concerns are well-founded, and that the interests of their respective clients are their highest priority.

The Legal Services Commission provided feedback and they identified both advantages and disadvantages with the bill. In relation to the disadvantages they said, quote:

The obvious disadvantage in this merger is the concentration of authority in one organisation which will be making all the decisions with regard to the protected person. Checks and balances are lost by combining the roles. This position is effectively a return to structures of the past, before the Public Advocate was established. There is a risk that some families will feel shut out from their loved one's care with few avenues for redress. Under the proposed merger, the only right of appeal against decisions of the new statutory authority would be in a limited capacity to the Ombudsman.

The Commission considers that future problems could be avoided if the amendment bill contained provisions for some easier form of review of the new Public Trustee and Guardian's decisions.

JFA Purple Orange's feedback was, quote:

Purple Orange recognises that the draft Bill would predominantly give rise to structural changes that might deliver certain efficiencies. However, it appears that the role of the proposed Public Trustee and Guardian would differ from that of the Public Advocate in several ways, and this raises some concerns.

At present, under the Guardianship and Administration Act 1993, the Public Advocate is not subject to the control or direction of the Minister in performing any of his or her functions. Purple Orange is concerned the proposed amendment of section 6 of the Public Trustee Act (see s10 of the Bill) has now limited this. If the two offices are merged, we believe it is important to maintain the independence of the Public Trustee and Guardian with respect to his or her functions as Guardian.

Purple Orange is also concerned by the removal of the Public Advocate's functions with respect to giving advice on powers that may be exercised in relation to mentally-incapacitated persons. We view this as an important safeguard for individuals, and it should not be lost.

We also note that while the Public Advocate currently has a role in giving advice on the operation of the Guardianship and Administration Act 1993, suggesting appropriate alternatives to taking action under the Act, monitoring administration of the Act and recommending legislative change if required, the proposed Public Trustee and Guardian would not have any equivalent powers. We believe relevant Ministers would benefit from receiving advice from the Public Trustee and Guardian on such matters, and that this would help to protect the interests of individuals affected.

In closing, Purple Orange urges all Parliamentarians to be satisfied that there has been an extensive and authentic consultation with individuals who are under the mandate of the Public Advocate and Public Trustee, as well as their family members and supporters, prior to making legislative changes to the role of the Public Advocate. It is vital that their voices are heard and taken into account when making decisions that affect their lives.

I will now provide some feedback from the Aged Rights Advocacy Service (ARAS). In their feedback to the Attorney-General, ARAS made the following comments:

ARAS notes the community concern raised in other jurisdictions when combining the roles of Public Trustee and Guardian. ARAS notes that there is significant power by one statutory authority over a vulnerable person. Another community concern is that potentially crucial life decisions could be made on the basis of costs and ARAS welcomes further information as to how potential conflict of interest would be managed.

The other key issue is the skills and knowledge of the two current organisations are currently different and the need to ensure that resourcing of a combined organisation, including appropriate skills and knowledge, delivers the outcome sought by the Bill.

I know that was a lot of material to put on the record but, as I said, we had to find that information for ourselves because it was not forthcoming from the Attorney. So the question of how potential conflicts of interest or competing interests would be managed was also an issue that was raised by the current staff in the Office of the Public Advocate. The Greens share their concerns.

An example of this conflict that was raised with us is where the Public Trustee and Guardian makes a decision to relocate a person into an aged-care facility where this also requires the sale of that person's home. While the decision about the place of residence is required to be made in the best interests of the person, the Public Trustee and Guardian receives income for selling that person's property which means they have a financial interest in the decision. As it was put to my staff, they have competing interests but the same boss. When this was put to the Attorney-General's office, the response received was that:

…the Public Trustee and Guardian will have an overarching duty to act in the best interests of their client.

However, the conflict of interest—real or perceived—is still there.

Another important issue and a problem we have with this proposed merger is that the public advocacy and advice role of the current Office of the Public Advocate, which is independent of the government and the minister of the day, is being rolled into the Public Trustee and Guardian role. The Attorney-General tells us that these proposed reforms substantially mirror reform undertaken by the ACT in 2016. However, I have since learnt that there is a fundamental difference between what the ACT did and what is being proposed here.

The ACT recognised the importance of the independence of the advocacy role of the public advocate and they did not merge this into the Public Trustee and Guardian role. Instead, they kept the public advocate function as a separate role, putting this into the role of the Children and Young Person Commissioner, which is an independent statutory position within their Human Rights Commission. To me, that makes much more sense than what is being proposed in this bill for South Australia.

In conclusion, based on all the feedback we have received from key stakeholders, the Greens will not be supporting this bill at this stage. I would urge the government to go back to the stakeholders, to go back to the protected persons and their families, as suggested in the submissions, and to negotiate with these stakeholders amendments which deal with the issues which have been raised, only some of which I have touched on here today. To put it quite bluntly, if this bill is put to a second reading vote today, without further consultation or a commitment to further inquiry such as through a parliamentary committee, then the Greens will have no choice but to vote against it at the second reading.