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).