Law Reform

VLRC Guardianship review

In February 2011, the Victorian Law Reform Commission (Commission) was commissioned by Victorian Government to review and report on Victoria's guardianship laws. The Commission released Guardianship Consultation Paper 10 and called for interested parties to make submissions.

In June 2011, the SRLC coordinated the SRV Submission to the review with assistance from lawyers from PILCH member firm Baker & McKenzie.

The core recommendation of the SRV submission was that the goal of guardianship legislation should be for the represented person to continue to live the life that they would have lived and for decisions to be made as they would have been made by the person but for their incapacity. Key means of achieving this goal include provision for supported decision making by older people, greater participation of older Victorians in guardianship proceedings, increased accountability of substitute decisions makers and improved community education.

The Commission is due to report to the Victorian Government by 23 December 2011.

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VCAT Review

In June 2009 Seniors Rights Victoria (SRV) and the Homeless Persons’ Legal Clinic (HPLC) completed a joint response to the Review (the Review) of the Victorian Civil and Administrative Tribunal (VCAT). Our joint response recognises that even though the ‘lived experiences’ of HPLC and SRV clients are diverse in many ways, both groups are often seriously affected by VCAT decisions.

People with an experience of homelessness and older Victorians are most likely to interact with VCAT processes and decision-making through the Residential Tenancies List and the Guardianship and Administration Lists. In both of these lists, the impact of VCAT orders on the lives of disadvantaged individuals can be far-reaching and lead to, for example, their eviction from stable housing or the removal of day-to-day decision making ability.

SRV and the HPLC are principally concerned to ensure our clients have access to justice at VCAT. We consider the Charter of Human Rights and Responsibilities Act 2006 and the rights to equality before the law and to a fair trial are critical measures of whether older Victorians and people with an experience of homelessness actually have that access. Our submission makes a number of recommendations including the need for measures to track the ways in which disadvantaged clients move through VCAT, the need for a case management system for disadvantaged clients similar to the Magistrates’ Court ‘CISP’ program, the need for measures of the quality of decision making by the Tribunal and a more comprehensive scheme for taking special circumstances into consideration.

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National Human Rights Consultation

On 10 December 2008, the Australian Government launched a National Human Rights Consultation about the protection and promotion of human rights in Australia. The National Consultation examined 3 key questions:

• Which human rights should be protected and promoted in Australia?
• Are these human rights currently sufficiently protected and promoted?
• How could Australia better protect and promote human rights?

In June 2009, SRV made a submission to the National Human Rights Consultation Committee, in which it addressed each of the above questions. SRV argued that current protection of human rights in Australia is inadequate, espcially in relation to the prevention of elder abuse. The core recommendation of the submission is that Australia should enact a Commonwealth Human Rights Act that protects and promotes all human rights enumerated in international covenants and treaties signed by Australia. In addition to a Commonwealth Human Rights Act and to assist with the development of a human rights framework at the Commonwealth level SRV argued that non-legislative measures, particularly education and improved access to legal services, need to be implemented to assist in ensuring the rights of older people in Australia are adequately protected. 

The Consultation Committee is expected to report to the Australian Government by 31 August 2024 on the issues raised during the Consultation and the options identified for the enhanced protection and promotion of human rights.  

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Powers of Attorney

On 12 June 2024 the Victorian Parliament Law Reform Committee called for public input to the Inquiry into Powers of Attorney. The terms of reference for the Inquiry were aimed at streamlining and simplifying power of attorney documents to enable Victorians to better plan for the future.

In August 2009 SRV made a submission to the Inquiry addressing each of the terms of reference in the context of how legislative reform would assist in reducing the prevalence of elder abuse. SRV argued that the current framework for powers of attorney (POAs) in Victoria is confusing often resulting in the misuse of powers granted under POA instruments. Further, the manner in which the current framework addresses the issue of capacity, both with regard to the creation of legal instruments and when enduring instruments are enacted, concerns SRV as there are currently minimal safeguards in place to limit the perpetration of elder abuse. 

SRV made a number of recommendations which we believe would assist in streamlining and simplifying POAs limiting the potential for misuse and abuse. These include the consolidation of POA legislation, definitions of key terms, the harmonisation of the current four instruments into one, compulsory registration of all POAs, and a comprehensive state-wide education campaign to ensure people understand the purpose of POAs and the extent of powers which may be granted under these instruments.

In October 2009 SRV was invited to give evidence before the Parliament of Victoria Law Reform Committee Inquiry into Powers of Attorney. This provided SRV the opportunity to speak in depth with Committee members regarding the experiences of our client group with respect to Powers of Attorney. Based on discussion at this hearing SRV offered to provide the Committee with further information regarding the operation of the penalty provisions in the Queensland Power of Attorney Act. This information is contained in the supplementary submission below.

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