Hansard debates

                          POWERS OF ATTORNEY BILL 2014
                           Statement of compatibility
Mr CLARK  (Attorney-General)  tabled  following  statement  in  accordance  with
Charter of Human Rights and Responsibilities Act 2006:
  In  accordance  with  section   28  of  the   Charter  of  Human  Rights   and
  Responsibilities Act 2006,  (the  'charter act'),  I  make this  statement  of
  compatibility with respect to the Powers of Attorney Bill 2014 (the bill).
  In  my  opinion,  the  Powers  of  Attorney  Bill  2014,  as introduced in the
  Legislative Assembly,  is  compatible  with human  rights  as set out  in  the
  charter act. I base my opinion on the reasons outlined in this statement.

  Overview
  The main purpose of the  bill is to simplify and consolidate Victoria's powers
  of  attorney (POAs) legislation.  In  particular, the  bill  provides for  the
  appointment of an  attorney under an enduring POA, which is currently provided
  for in 

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 the Instruments Act 1958. In broad terms, an enduring POA is a legal instrument
by  which  a person  (the  principal) empowers another  (the  attorney) to  make
decisions  and act  on  their  behalf  as  to  the principal's  personal  and/or
financial matters. An enduring POA continues  to  operate  in the event that the
principal loses capacity to make decisions about those matters.
  The bill also  makes provision for a  new appointment, a  supportive attorney,
  whose role is  to support the principal to  make and give effect  to their own
  decisions.  Unlike an attorney under an enduring POA, a supportive attorney is
  not a substitute decision-maker for the principal.
  Human rights issues
  Charter act rights that are relevant to the bill

  The ability for an attorney under an enduring POA to make decisions and act on
  behalf of the principal is  potentially relevant to the  following charter act
  rights:
    recognition and equality before the law (section 8)
    freedom of movement (section 12)
    privacy and reputation (section 13)
    property rights (section 20).
  In my view the bill does not limit these rights.
  Recognition and equality before the law

  Section 8(1) of the charter  act provides  that every  person has the right to
  recognition  as  a  person before the law. Section 8(3)  of  the  charter  act
  provides that every person is equal before the law and has the  right to equal
  and effective protection against discrimination. The bill, in providing for an
  enduring POA and a supportive attorney appointment, promotes these rights.
  Enduring powers of attorney
  A person  may suffer discrimination in practice because they cannot manage all
  of their affairs or protect their  rights  if  they  lose legal capacity. This
  bill reduces the risk of such discrimination by enabling people to voluntarily
  create an instrument to enable a trusted person to help  manage  their affairs
  in that event.

  An  enduring POA is an entirely voluntary instrument that may be entered  into
  by a  person  who has decision-making capacity that can assist the person when
  he or she subsequently loses capacity. The bill provides a legal framework for
  these  instruments  which  includes  giving legal effect  to  the  principal's
  intentions as  expressed in the  instrument appointing the attorney.  The bill
  also sets out principles and duties to be adhered to by the attorney that  are
  designed to ensure that  the wishes  of a  principal who has lost capacity are
  respected. These provisions  promote  a  principal's  right to recognition and
  equality before the law; further, nothing in the  bill discriminates against a
  person on the basis of a relevant attribute.
  Supportive attorneys

  The  provisions  of the  bill  enabling a supportive  attorney appointment are
  designed to support persons with impaired decision-making capacity to make and
  give  effect to their own decisions. The bill recognises  that  a  person  has
  decision-making capacity if  he or she  can  make a decision  with appropriate
  support.
  The appointment is intended to promote  the autonomy and dignity of people who
  have a disability. It will assist people  whose  ability  to make decisions is
  questioned or impaired because of  their disability and allow them to continue
  to exercise  legal capacity. As such,  the appointment promotes  the  right to
  recognition and equality before the law.
  Freedom of movement and property rights

  Section  12 of  the  charter act provides  that  every person lawfully  within
  Victoria has  the right to move freely within Victoria and to enter and  leave
  it and has  the freedom to choose where  to live. Section 20  provides  that a
  person  must not  be deprived of his or her property other than  in accordance
  with law.
  An attorney may be authorised under  an  enduring  POA  to  make  decisions on
  behalf of the principal in relation to the principal's personal affairs, which
  could  include  where  the  principal  lives  and may be authorised to act  in
  relation  to the principal's financial or property matters including disposing
  of the principal's property.

  However,  any limitation on  a  person's ability to  make  their own decisions
  about such matters arises from the person's  decision-making  incapacity,  and
  attorneys  must act  within  the  limits of  the  authority  conferred by  the
  enduring POA.  Accordingly,  these  rights are  not  limited  by the  bill  in
  establishing  a  legal framework for  the appointment of an  attorney under an
  enduring POA.
  Privacy and reputation
  Section 13(a) of the charter act provides that a  person has the right not  to
  have  his  or  her  privacy,  family,  home or  correspondence  unlawfully  or
  arbitrarily interfered with. Section 13(a) is relevant  because under the bill
  an attorney under an enduring POA and a supportive attorney under a supportive
  attorney  appointment are both  able to access personal  information about the
  principal as part of their role.

  The bill provides that a person is authorised to disclose personal information
  about the  principal  to  a  supportive  attorney  acting under  a  supportive
  attorney appointment. Further, access to personal information by attorneys and
  supportive  attorneys is specifically authorised in other acts  that  regulate
  the  disclosure  of  and  access to  personal  information (for  example,  the
  Disability Act 2006,  the Health Records Act 2001 and the  Information Privacy
  Act  2000).  However,   these   powers  to  access  the  principal's  personal
  information  do not limit  the  charter act  right  because  they are  neither
  unlawful nor arbitrary.
  Any information  provided to an attorney or supportive attorney will be lawful
  because  it will be provided under a legal power, namely  the enduring  POA or
  the supportive attorney appointment.

  The powers  are  designed  to serve  the  purpose of  assisting  attorneys  to
  properly carry out their roles in  acting  on  the  principal's behalf (in the
  case of  an enduring POA) or supporting  the principal to make his  or her own
  decisions (in the case of a supportive attorney).
  The  bill also  contains  clear  limits and  safeguards  in relation to  these
  powers. An attorney under an enduring POA is subject to a duty not to disclose
  confidential information  gained as an attorney unless authorised by the power
  or by law.

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  Where a supportive attorney is authorised  to access the  principal's personal
  information  under   the   appointment, the bill provides that the  supportive
  attorney may only access,  collect or obtain information that is relevant to a
  supported decision or that may  be  lawfully obtained by the principal and may
  only disclose  the  information obtained for  a purpose that  is  relevant and
  necessary to the supportive attorney role or for another lawful reason.
  Robert Clark, MP
 Attorney-General