Australian Capital Territory

community advocate act 1991
This consolidation has been prepared by the ACT Parliamentary Counsel’s Office
Updated as at 10 May 2000
TABLE OF PROVISIONS
Section
Part i—preliminary
	1.	Short title
	2.	Commencement
	3.	Interpretation
part ii—office of Community advocate
	4.	Community Advocate
	5.	Term of office
	7.	Leave of absence
	8.	Resignation
	9.	Termination of appointment
	10.	Acting appointments
	11.	Staff
	12.	Delegation
part III—functions and powers of 
the community advocate
	13.	Functions
	14.	Investigations
	15.	Guardian etc. of last resort
	16.	Engagement of legal practitioner

part iv—miscellaneous
	18.	Protection of Community Advocate etc.
	19.	Secrecy
	20.	Disclosure of information concerning investigations
	21.	Regulations

Australian Capital Territory

community advocate act 1991
An Act to provide for the appointment of a Community Advocate and for related matters
Part i—preliminary
1. 	Short title
	This Act may be cited as the Community Advocate Act 1991.1
2. 	Commencement
(1) 	Section 1 and this section commence on the day on which this Act is notified in the Gazette.1
(2) 	The remaining provisions commence on a day, or respective days, fixed by the Minister by notice in the Gazette.
(3) 	If a provision referred to in subsection (2) has not commenced before the end of the period of 6 months commencing on the day on which this Act is notified in the Gazette, that provision, by force of this subsection, commences on the first day after the end of that period.
3. 	Interpretation
	In this Act, unless the contrary intention appears—
“Community Advocate” means the Community Advocate appointed under section 4;
“disability” means any of the following conditions:
	(a)	a legal disability due to age;

	(b)	a physical, mental, psychological or intellectual condition; 
	(c)	a condition which would render a person a forensic patient;
which gives rise to a need for protection from abuse, exploitation or neglect;
“forensic patient” includes a person who has been—
	(a)	apprehended by a police officer where that person’s behaviour or statements indicate to the officer that the person may be suffering from a mental dysfunction;
	(b)	determined by the Mental Health Tribunal to be unfit to plead;
	(c)	acquitted of a criminal charge on the grounds of mental illness; or
	(d)	found guilty of a criminal offence and is mentally dysfunctional, or has become mentally dysfunctional while serving a sentence of imprisonment;
“Guardianship Tribunal” means the Guardianship and Management of Property Tribunal established by the Guardianship and Management of Property Act 1991;
“mental dysfunction” means a disturbance or defect, to a substantially disabling degree, of perceptual interpretation, comprehension, reasoning, learning, judgment, memory, motivation or emotion;
“Mental Health Tribunal” means the Mental Health Tribunal established by the Mental Health (Treatment and Care) Act 1994;
“staff”, in relation to the Community Advocate, means the staff referred to in section 11.
part ii—office of Community advocate
4. 	Community Advocate
(1) 	There shall be a Community Advocate appointed by the Executive.
(2) 	The Community Advocate holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are prescribed.
5. 	Term of office
	Subject to this Act, the Community Advocate holds office for the period (not exceeding 3 years) specified in the instrument of appointment, but is eligible for reappointment.
7. 	Leave of absence
	The Minister may grant leave of absence to the Community Advocate on such terms and conditions as to remuneration or otherwise as the Minister determines.
8. 	Resignation
	The Community Advocate may resign by writing given to the Minister.
9. 	Termination of appointment
(1) 	The Minister may terminate the appointment of the Community Advocate for misbehaviour or physical or mental incapacity.
(2) 	The Minister shall terminate the appointment of the Community Advocate if the Community Advocate—
	(a)	becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit;
	(b)	is absent from duty, except on leave under section 7, for 14 consecutive days or for 28 days in any 12 months; or
	(c)	engages in paid employment without the consent of the Minister outside the duties of office.
(3) 	The Community Advocate shall not be removed from office except in accordance with this section.
10. 	Acting appointments
(1) 	The Executive may appoint a person to act as Community Advocate—
	(a)	during a vacancy in the office of Community Advocate, whether or not an appointment has previously been made to the office; or
	(b)	during any period, or during all periods, when the Community Advocate is or is expected to be absent from duty or from Australia or is, for any reason, unable to perform the duties of office;
but a person appointed to act during a vacancy shall not continue to act for more than 12 months.
(2) 	Anything done by or in relation to a person purporting to act as Community Advocate is not invalid merely because—
	(a)	the occasion for the appointment had not arisen;
	(b)	there was a defect or irregularity in connection with the appointment; 
	(c)	the appointment had ceased to have effect; or
	(d)	the occasion to act had not arisen or had ceased.
11. 	Staff
(1) 	The staff assisting the Community Advocate shall be employed under the Public Sector Management Act 1994.
(2) 	The Public Sector Management Act 1994 applies in relation to the management of the staff assisting the Community Advocate.
12. 	Delegation
	The Community Advocate may, in writing, delegate to a member of his or her staff any power or function under this Act, other than the functions under paragraph 13 (1) (j) or 15 (b).
part III—functions and powers of the community advocate
13.	Functions
(1) 	The Community Advocate has the following functions:
	(a)	to foster the provision of services and facilities for persons who have a disability;
	(b)	to support the establishment of organisations which support such persons;
	(c)	to encourage the development of programs that benefit such persons (including advocacy programs, educational programs and programs to encourage persons to act as guardians and managers);
	(d)	to promote the protection of such persons from abuse and exploitation;
	(e)	to protect the rights of such persons;
	(ea)	to monitor the provision of services for the protection of children;
	(eb)	to act as advocate for the rights of children;
	(f)	to represent such persons at inquiries before the Guardianship Tribunal;
	(g)	to deal, on behalf of such persons, with persons or bodies providing services;
	(h)	to investigate, report and make recommendations to the Minister on any matter relating to the operation of this Act referred to the Community Advocate by the Minister;
	(j)	to act as a guardian or manager when so appointed by the Guardianship Tribunal;
	(k)	to disseminate information concerning—
	(i)	the functions of the Community Advocate;
	(ii)	the operation of this Act; and
	(iii)	the functions of the Guardianship Tribunal;
	(m)	to represent forensic patients before the Guardianship Tribunal or any court;
	(ma)	the functions given to the Community Advocate by the Children and Young People Act 1999, Guardianship and Management of Property Act 1991 and Mental Health (Treatment and Care) Act 1994;
	(n)	any other function assigned to the Community Advocate by a law of the Territory.
(2) 	The Community Advocate has power to do all things necessary or convenient to be done in connection with the performance of his or her functions.
14. 	Investigations
(1) 	The Community Advocate may investigate complaints and allegations concerning—
	(a)	the administration of this Act; 
	(ab)	the provision of services for the protection of children; or
	(b)	the actions of a guardian or manager or a person acting or purporting to act under an enduring power of attorney.
(2) 	If requested to do so by the Guardianship Tribunal, the Community Advocate shall report to the Guardianship Tribunal in relation to a matter the subject of an inquiry before the Guardianship Tribunal.
15. 	Guardian etc. of last resort
	Where the Community Advocate is appointed as a guardian or manager under the Guardianship and Management of Property Act 1991, the Community Advocate shall—
	(a)	endeavour to find a suitable person to be appointed as the guardian or manager; and
	(b)	if such a person is found—apply to the Guardianship Tribunal for the appointment of that person as guardian or manager.
16.	Engagement of legal practitioner
	The Community Advocate may engage a legal practitioner to appear before the Guardianship Tribunal or a court in relation to the performance of the Community Advocate’s functions under this Act.
part iv—miscellaneous
18. 	Protection of Community Advocate etc.
	No action, suit or proceeding lies against a person who is or has been—
	(a)	the Community Advocate;
	(b)	a member of the staff of the Community Advocate; or
	(c)	a person acting under the direction or authority of the Community Advocate;
in relation to an act done or omitted to be done in good faith in the exercise or purported exercise of any power, or the performance of a duty or function, under or in relation to this Act.
19.	Secrecy
(1) 	In this section—
client, in relation to protected information, means a person who had a disability at the time the information was received.
“court” includes any tribunal, authority or person having power to require the production of documents or the answering of questions;
“person to whom this section applies” means a person who is, or has been—
	(a)	the Community Advocate;
	(b)	a member of the staff of the Community Advocate; or
	(c)	a person acting under the direction or authority of the Community Advocate;
“produce” includes permit access to;
protected information means information that identifies, or tends to identify—
	(a)	a client; or
	(b)	a person who provides information about a client to a person to whom this section applies.
 (2) 	Subject to subsection (3), a person to whom this section applies shall not—
	(a)	make a record of protected information; or
	(b)	directly or indirectly, divulge or communicate to a person protected information concerning another person;
unless the record is made or the information divulged or communicated in relation to the exercise of a power, or the performance of a duty or function, as a person to whom this section applies, under or in relation to this Act.
Penalty:  50 penalty units or imprisonment for 6 months, or both.
(3) 	Subsection (2) does not prevent a person to whom this section applies from divulging or communicating protected information to a person about another person with the consent of that other person.
(4) 	A person to whom this section applies is not required—
	(a)	to divulge or communicate protected information to a court; or
	(b)	to produce a document containing protected information to a court;
except where it is necessary to do so for the purposes of this Act or another Act.
20. 	Disclosure of information concerning investigations
(1) 	Section 19 does not prevent the Community Advocate from disclosing information to a person or to members of the public about a matter the subject of an investigation by the Community Advocate if the Community Advocate is satisfied that the disclosure is necessary and reasonable in the public interest.
(2) 	The Community Advocate shall not make a disclosure referred to in subsection (1) that is likely to prejudice the investigation.
(3) 	In a disclosure referred to in subsection (1), the Community Advocate shall not—
	(a)	express an opinion that is (expressly or impliedly) critical of a person or body unless the Community 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.
21. 	Regulations
	The Executive may make regulations not inconsistent with this Act, prescribing all matters that by this Act are required or permitted to be prescribed, or that are necessary or convenient to be prescribed, for carrying out or giving effect to this Act.

NOTES
1.	The Community Advocate Act 1991 as shown in this reprint comprises Act No. 64, 1991 amended as indicated in the Tables below.
2.	The Legislation (Republication) Act 1996 (No. 51, 1996) authorises the Parliamentary Counsel in preparing a law for republication, to make certain editorial and other formal amendments in accordance with current legislative drafting practice.  Those amendments make no change in the law.  Amendments made pursuant to that Act do not appear in the Table of Amendments but details may be obtained on request from the Parliamentary Counsel’s Office.

Table of Acts
Act	Number  
and year	Date of 
notification 
in Gazette	Date of 
commencement	Application, saving or transitional provisions	
Community Advocate Act 1991	64, 1991	31 Oct 1991	Ss. 1 and 2:  31 Oct 1991
Remainder:  7 Jan 1992 (see Gazette 1991, No. S147)		
Community Advocate (Amendment) Act 1994	18, 1994	20 May 1994	20 Nov 1994 (see s. 2 )	—	
Public Sector Management (Consequential and Transitional Provisions) Act 1994	38, 1994	30 June 1994	Ss. 1 and 2:  30 June 1994
Remainder:  1 July 1994 (see Gazette 1994, No. S142, p. 2)	Ss. 3, 5-12, 15 and 19	
Mental Health (Consequential Provisions) Act 1994	45, 1994	7 Sept 1994	Ss. 1 and 2:  7 Sept 1994
Remainder :  6 Feb 1995 (see
s. 2 (2) and Gazette 1995, No. S33, p. 2)	—	
Annual Reports (Government Agencies) (Consequential Provisions) Act 1995	25, 1995	5 Sept 1995	5 Sept 1995	—	
Remuneration Tribunal (Consequential and Transitional Provisions) Act 1995	56, 1995	20 Dec 1995	21 Dec 1995 (see s. 2 and Gazette 1995, No. S315, p. 2)	S. 3	
(Reprinted as at 1 January 1996)	
Statute Law Revision (Penalties) Act 1998	54, 1998	27 Nov 1998	Ss. 1 and 2:  27 Nov 1998
Remainder:  9 Dec 1998 (see Gazette 1998, No. 49, p. 1078)	—	
Children and Young People (Consequential Amendments) Act 1999	1999 No 64	10 Nov 1999	ss 1 and 2:  10 Nov 1999
remainder:  10 May 2000 (see 
s 2 (2))
	—	
Table of Amendments
ad. = added or inserted     am. = amended     rep. = repealed     rs. = repealed and substituted

Provision	How affected

S. 3	am. Nos. 38 and 45, 1994
S. 4	am. No. 18, 1994
S. 6	am. No. 18, 1994
	rep. No. 56, 1995
Ss. 9, 10	am. No. 18, 1994
S. 11	rs. No. 38, 1994
S. 13	am. Nos. 18 and 45, 1994; 1999 No 64 s 4 sch 2
Ss. 14, 15	am. Nos. 18 and 45, 1994
Ss. 13-15	am. Nos. 18 and 45, 1994
S. 16	am. No. 45, 1994
S. 16A	ad. No. 18, 1994
	rep. 1999 No 64 s 4 sch 2
S. 17	am. No. 18, 1994
	rep. No. 25, 1995
S. 18	am. No. 18, 1994
S. 19 	am. No. 18, 1994; No. 54, 1998; 1999 No 64 s 4 sch 2
S. 20	am. No. 18, 1994