Stephen Keim on Rights Charter

John Hirst Hull of East Yorkshire, England blogs as the Jailhouselawyer. Earlier this year he posted a useful item profiling Geoffrey Robertson's rebuttals of anti-human rights arguments put forward by people like former NSW Premier Bob Carr and the current NSW Attorney General John Hatzistergos. Mr Hull was in turn drawing on an article by Brisbane-based SC Mr Stephen Keim who had written an original article about Robertson's views in The Australian. Kudos to Mr Hull in England for his post.

When Governments Fail ... The Public Must Lead

I am cross-posting here my most recent item over on this blog.

The Sydney Morning Herald has taken the bit between the teeth in inviting the public to participate in an inquiry about Sydney's abysmal transport problems. It is, as with many things, a mixed bag of "yes it's time", yes it involves the Herald also seeking to score good points with a diminishing number of subscribers and to trump its competitors.

However, allowing for those foibles, the point is valid: the public must by-pass the ineffectual state Government and the hubris of departmental executives.Yesterday I pointed to the frustration felt over the decade long failure of the State Government and of the NSW Attorney General's Department to act on repeated pleas for legal reforms. The structural changes made by that department in the past five years have not made any smashingly great difference in improving services.

So in like manner the groundswell of public opinion needs to link up from the single-issue of transport, and even the specialised focus of the needs of the disabled, to cover most portfolios in the State Government. There is no public faith left in this Government. There is much entrenched suspicion about the way the Attorney General's Department is being administered.

There are two famous political slogans that could apply here to the public groundswell over this state Labor Government and more narrowly to the Attorney General's Department:
* Gough Whitlam's "It's Time"
* Barack Obama's "Change is coming ... Yes, we can"

Are you listening Mr Rees? Are you listening Mr Hatzistergos?

The Disabled & Australian Government Websites

The problem of accessibility of websites for disabled persons was flagged last month by Lisa Harvey at the Government 2.0 Taskforce blogspot. Check it out.

NSW Central West: Mental Health Services

The central western district of NSW has mental health services in places like Dubbo, Orange and Bathurst. Such services are provided, in part, through the hospitals, while other assistance comes through the Housing and Accommodation Services Initiative (HASI). Some services are provided via the state government, while others involve collaboration between government and non-government organisations. No doubt about it such services are needed!

From 10 August 2005 until 2 April 2007 the NSW Minister for Health was Mr John Hatzistergos. During his time in that portfolio he presided over the redevelopment of both Bathurst and Orange hospitals. It was announced, for example, that from 2006/07 until 2011 that Bloomfield Hospital in Orange would be redeveloped at a cost of $34.3 million. This includes the creation of the Bloomfield Forensic and Tertiary Mental Health Unit. According to a press release from Mr Hatzistergos on 25 January 2006 this hospital will include a medium security facility of "82 specialist mental health beds."

On 23 February 2007 Mr Hatzistergos issued a press release about progress made in redeveloping Bathurst Hospital:

"Mr Hatzistergos said the new multi-storey Bathurst Base Hospital would include 149 beds, a 10 bed mental health unit and a state of the art emergency department."

The news about Bathurst Hospital's redevelopment has been dogged by many difficulties. A sample of stories can be read here, here, here, here, and here.

Not a great track record for Mr Hatzistergos in that portfolio!

So it was of more than routine interest to find on 1 April 2009 (was this an April Fool's Day joke??) that in the portfolio of Attorney General that Mr Hatzistergos issued a press release about the proposed opening of a branch office of the NSW Trustee and Guardian.

What raises the eyebrows are the following points:

1. The Western Advocate reported that the town of Orange had been earmarked for a new branch of the Public Trustee.

2. There is an obvious service need for a branch in the Central West, which is not under any dispute.

3. As the former Minister for Health Mr Hatzistergos is fully aware that Orange is the centre for mental health services in the district (82 mental health beds in Orange vs 10 beds in Bathurst Hospital). So why would he avert his attention from those facts and give the green light to Bathurst?

4. The primary function of the NSW Trustee and Guardian is clearly shifting away from probate over to serving clients of the former Office of the Protective Commissioner. As this encompasses individuals with disabilities and impaired mental health one would expect then that Orange would be chosen as the site for the new branch office.

5. The 1 April 2009 announcement smacks of political expediency trumping community needs because Bathurst is a Labor seat while Orange is held by the Nationals (and Dubbo as an alternative site is held by the independent MP Peter Draper).

The Bathurst office of course will be opened no doubt in 2010 and hopefully it will operate well in the district. The public do not want to undermine NSW Trustee and Guardian serving them in the region. It is the sheer political expediency of the choice of location that is appalling especially when there was clear evidence that Orange was about to have the go-ahead until the convenient and hasty merger was announced last November.

The track record of Mr Hatzistergos as Minister for Health is one that the public could easily judge as utterly unsatisfactory. The NSW hospitals have been in perpetual crisis under Mr Della Bosca's watch and that of the former minister Reba Meagher. However both Della Bosca and Meagher simply inherited a prior mess that had been burgeoning under Mr Hatzistergos' time (and even earlier).

So we should not be surprised to find fiscal crises and serious public administration problems in the NSW Attorney General's Department. It reflects on the whole-of-government policies of NSW Labor, on the Cabinet, and on the executive bureaucracies in the NSW Public Sector. The trouble is that these leaders never accept responsibility for their poor judgements and decisions. Instead the workers in the back office and frontline services are made to suffer for the incompetency of their leaders. In turn, the rights of citizens and the services to the public deteriorate under this crumbling regime. Simultaneously and ironically the PR from NSW Labor is all about reassuring us of better value, efficiency, and the delivery of better services!

People With Disability July Newsletter

Read People With Disability Australia's July 2009 newsletter concerning the Substitute Decision Making Inquiry at NSW Parliament:

"PWD will be making a submission to this inquiry. If you have views on these issues that you would like PWD to take into account in developing its submission, please contact Dean Price, Advocacy Projects Manager, on the numbers below or at email deanp@pwd.org.au"

Do it quick because 21 August is the last day for public submissions!

UN Convention on Rights of Persons With Disabilities

In July 2008 the Australian Federal Government ratified the UN Convention on the Rights of Persons With Disabilities. The legal effect of the Federal Government ratifying the convention is that all Commonwealth and State and Territorial legislation must be amended (where necessary) to enshrine the rights conferred by this UN instrument.

It is interesting to note that the Federal Government has decided to go one step further concerning the UN Convention. The UN Convention contains an Optional Protocol that nation-states may choose to ratify, and on 30 July 2009 the Federal Attorney General Robert McClelland announced that Australia will ratify the Optional Protocol. This provides a pathway for complaints about violations of the rights in the UN Convention to be heard before the Australian Human Rights Commission. It also allows slightly more formal monitoring by the relevant UN Committee as to how the rights of the disabled are being treated in Australia.

So, the ratification of both the Convention and the Optional Protocol places the burden of responsibility on the NSW Labor Government to amend the Guardianship Act 1989, the NSW Trustee and Guardian Act 2009, and the Mental Health Act 2007. Each piece of legislation should be amended to, at the bare minimum, make some formal reference to the UN Convention and Optional Protocol. Far better is if these various Acts go further with specific clauses that acknowledges the Convention and Optional Protocol but also specifically refers to Article 12.

This concern about legislative reform and the importance of Article 12 of the UN Convention is basically what was stated last December by People With Disability Australia. In their Position Statement concerning the then proposed merger of the Public Trustee NSW and Office of the Protective Commissioner:

"The Protected Estates Act 1983, in particular, is in urgent need of modernisation. Key provisions of the Act are in explicit violation of Article 12 Equal recognition before the law of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which has recently been ratified by the Australian Government."

Needless to say this request was reiterated by People with Disability Australia, Mental Health Co-Ordinating Council and Disability Council of NSW in their letters to the NSW Attorney General Mr John Hatzistergos, the Director General Mr Laurie Glanfield, and other government officials (see here, here, here, and here). Why Mr Hatzistergos and Mr Glanfield failed to include some reference to the UN Convention in the draft bill of the NSW Trustee and Guardian Act staggers the mind of any reasoning intelligent person.

What is needed in legislative reform is for the UN Convention to be referred to so that the statutory officers, organisations, and employees named in the various NSW acts will be made legally accountable in their duties and responsibilities to observe and not violate the UN Convention.

Once again this issue is being raised in submissions to the Parliamentary Inquiry into Substitute Decision Making. Submissions can be made until 21 August 2009. The Inquiry must report to the NSW Parliament by February 2010. Then the NSW Government has six months (i.e. until August 2010) to make a formal reply to the findings and recommendations of the Inquiry.

By the time I grow my third set of teeth, we might eventually see the Acts reformed. The current NSW Attorney General is antipathetic towards "rights" legislation and failed to ensure that the NSW Trustee and Guardian Act included the UN Convention. That bill was drafted sometime in the period January-May 2009 in full cognizance of the Federal Government's ratification of the Convention and in light of the Disability sector's repeated public statements. So why did Mr Hatzistergos not insist on including the UN Convention in that draft bill?

Is the NSW Attorney General's Department lacking in qualified legal minds in its legislative and policy division? Could the matter have been considered by the parliamentary draftsman? Could the Crown Solicitors Office (which is part of the department) been instructed to research the matter? Was there any fiscal impediment to briefing a barrister or senior counsel? Highly unlikely given the extravagant spending by the Attorney General's Department each year on corporate consultants!

Finally, let the record be clear about the Director General of the Attorney General's Department Mr Laurie Glanfield on the question of reforming the Protected Estates Act 1983. In 2004 Mr Ken Gabb stated in the Annual Report of the Office of the Protective Commissioner:

"During 2003-2004 OPC reviewed the Protected Estates Act in consultation with a wide cross section of stakeholders. Recommendations for reform were forwarded to the Attorney General's Department in June 2004 for its consideration. I am hopeful our efforts and the efforts of those who helped us will bear fruit in 2004-2005 with an improved legislative framework within which to provide our services." (OPC Annual Report 2004, p. 5).

Nothing eventuated until the scheme was hatched last October to merge the Public Trustee and Protective Commissioner. The merger required a new Act, and at the most opportune time Mr Glanfield and Mr Hatzistergos did not do the very simple thing of including the UN Convention in the draft legislation. So, why should we have confidence in the current state government doing anything concrete on this matter before the next state election in March 2011?

Parliamentary Inquiry: NSW Trustee & Guardian Act 2009

Last year when the catastrophic mini-budget was announced one of the cost-saving proposals concerned the merger of the Public Trustee NSW and Office of the Protective Commissioner.

Within a short space of time People With Disability issued a position statement setting out concerns about the merger. Further concerns were expressed in correspondence and copies of such correspondence appeared on the web (see here, here, here and here).

The plea for a public inquiry into the merger before the legislation passed was sidestepped. However there was a highly oddball maneouvre designed to deflect the force of public criticism. As stakeholders had complained about the need for legislative reform it was announced by Mr Barry Collier in the ministerial speech to the Legislative Assembly that after the new Bill was passed that:

"It is proposed that the Legislative Council Standing Committee on Social Issues inquire into these additional matters as part of a general reference and report on whether the New South Wales legislation requires amendment to make better provision for the management of estates of people incapable of managing their affairs, and the guardianship of people who have disabilities, and report back by 1 February 2010."

The first obvious point is: why pass a new Bill while publicly admitting that it (along with other pieces) will need reforms? Very sloppy work. Very poor legislative work. A waste of the public purse. The inquiry should have come first, then followed by the new legislation. This manoeuvre indicates that there was really a different agenda to the merger other than what was publicly stated. The real agenda was to cover the backsides of bureaucrats and the Ministers who had deliberately assented to the underfunding of the Office of the Protective Commissioner.

So, now the Government is attempting to keep its promise about an inquiry. The terms of reference for the inquiry can be read at the NSW Parliament website (see here), together with the letter from the Attorney General Mr John Hatzistergos addressed to the Standing Committee on Social Issues (see here).

Note that the time for written submission from the public and stakeholders terminates on 21 August 2009, and the formal announcement of the inquiry has come about so quietly that hardly anyone seems to even know about it. This is typical of the way in which the merger was treated: the public deliberately kept in the dark, letters of protest dismissed with a "form" letter reply that ignored questions and criticisms, and under-handed lobbying tactics at the eleventh hour (see the story background here).

One major sticking point from the disability sector concerns the need for state legislation to enshrine the rights conferred by the UN Convention on the Rights of Persons with Disabilities. As Australia ratified this in July 2008 our internal laws must be amended to reflect the convention. When the NSW Trustee and Guardian Bill was drafted the UN Convention was deliberately sidestepped. Remember: the Attorney General Mr Hatzistergos is a follower of views akin to those of A. Dicey's political philosophy about Parliamentary supremacy and he is antipathetic towards any charter of rights (see here).

Another concern is that in 2004 the then Protective Commissioner Mr Ken Gabb held forth the promise that legislative reform would occur very soon. From 2004 until June 2009 nothing was done about the Protected Estates Act. The NSW Trustee and Guardian Act succeeds the earlier Act and yet is riddled with problems and all the concerns raised by stakeholders in 2004 (and before/after that time) have largely been unheeded. Why did the Director General of the Attorney General's Department Mr Laurie Glanfield not make legislative reform a top priority when Mr Gabb requested it? What assurance is there that reforms will be introduced in the near future in light of Mr Glanfield's track-record?

This current inquiry must report to Parliament by February 2010, and the Government is permitted a period of six months after that to make its formal response. In other words, we must wait until August 2010 for the Government's response to the Inquiry. Even if the response takes up measures recommended, when will the Acts be amended? Will we have to wait until 2015 before something is done? By that time people like Mr Hatzistergos and Mr Glanfield will most likely not be holding the reins of power. Such a pity these people could not be compelled by the weight of public opinion to budge (or better still to resign).