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?
Showing posts with label NSW Trustee and Guardian. Show all posts
Showing posts with label NSW Trustee and Guardian. Show all posts
Thursday, August 6, 2009
Friday, July 31, 2009
Mr Hatzistergos vs Law Society vs Merger
Michael Pelly's piece in today's The Australian "Island Sojourn: Nice Work if you can get it" is well worth perusing. Pelly's article consists of two parts. One centres on the secondment of Justice Spigelman to head a corruption inquiry in Antigua, while the second half draws attention to the unfolding story about the merger of the Office of Protective Commissioner and Public Trustee.
The article stands as another illustration of the ludicrous political and bureaucratic masquerade that affects the entire Attorney General's Department, the courts, and the smaller agencies that have been absorbed into the department.
Pelly notes there appears to have been a remarkable about-face on the part of the NSW Law Society in its stance on the merger of the Public Trustee and Protective Commissioner. He states:
"The NSW opposition was all fired up last month based on a letter from the Law Society president Joe Catanzariti who described the merger as 'regrettable', while drawiing attention to the different client bases and the negligible cost saving of $100,000 a year ... No sooner had opposition legal affairs spokesman Greg Smith finished flaying the merger - while brandishing the Law Society letter - than some new correspondence landed on Hatz's desk. And wasn't the AG happy to read the new position of the Law Society onto the record. "
Between the lines of Pelly's discussion lies the untold story about the lobbying undertaken by the Attorney General, his Director General Mr Glanfield, and other officials.
One lot of lobbying occurred behind the scenes with the Law Society and which players were involved is something that no-one is willing to talk about. While nobody seems willing to talk speculation is rife that officials at the Law Society were treated brusquely. The impression one can form on the basis of the back-flip is that considerable pressure was probably exerted to extract a pro-merger letter of support from the Law Society. What unpleasant words were exchanged is not known. The uncanny feeling one gets is that the letter of support that Pelly mentions was probably obtained begrudgingly.
The other fascinating aspect concerns the lobbying at Macquarie Street to woo cross-bench support for the merger. From last December a grass roots campaign of opposition to the merger began with advocacy groups in the disability sector and clients of the Public Trustee generating letters of alarm and protest. It is understood that senior bureaucrats in the Attorney General's Department went into a furious mental meltdown with accusations that employees were disloyal and leaking information. The bureaucratic suspicion was part of an apparent culture of secrecy cultivated to keep the merger out of the public eye, and certainly clients of both organisations were not officially advised of the proposed merger.
Sources in the grass roots networks have pooh-poohed the claim that information was leaked to them. These sources point out that all information presented in letters was based on a thorough investigation of publicly available annual reports. The campaign of opposition involved direct lobbying, correspondence, and a neat pile of submissions from concerned citizens one of which was over 70,000 words in length.
The Greens had from the beginning of 2009 expressed reservations and reluctance to support the merger in correspondence to advocates in the disability sector and to clients of the Public Trustee.
Why did The Greens do a somersault from being anti-merger to pro-merger? Speculation is rife that a deal was done. Merger legislation to create the NSW Trustee and Guardian (amalgamating Public Trustee and Protective Commissioner) was due for debate in the Legislative Council before the end of June. The week leading up to the scheduled debate the Shooters Party was trying to galvanize support for its proposed bill concerning shooting of animals in National Parks. Sources in the Labor Government made it known to the press that it was having second thoughts about supporting the Shooters' bill. The Labor Government immediately lost the support of the Shooters Party that it so routinely relies on in the Legislative Council. The only way the merger bill could succeed was by this trade-off: Greens support for merger in exchange for Labor squashing the Shooter's bill.
And so it was that the last piece of Government legislation to pass on Tuesday 23 June 2009 was the NSW Trustee and Guardian Act. The following day the Legislative Council was in uproar as all bets were off for government business and the sale of NSW Lotteries was set aside because the numbers were against the Government. The climax was the staged walk-out of most Labor members in the Council on the evening of 24 June. After midnight proceedings ground to a halt. The Council doors were closed with proceedings left hanging in the air -- so that when Parliament resumes in September the Council will still be technically meeting according to hansard on 24 June.
The collapse of the Council's proceedings appears to be directly related to the lobbying by the Minister and Mr Glanfield to get the merger through at all costs.
The article stands as another illustration of the ludicrous political and bureaucratic masquerade that affects the entire Attorney General's Department, the courts, and the smaller agencies that have been absorbed into the department.
Pelly notes there appears to have been a remarkable about-face on the part of the NSW Law Society in its stance on the merger of the Public Trustee and Protective Commissioner. He states:
"The NSW opposition was all fired up last month based on a letter from the Law Society president Joe Catanzariti who described the merger as 'regrettable', while drawiing attention to the different client bases and the negligible cost saving of $100,000 a year ... No sooner had opposition legal affairs spokesman Greg Smith finished flaying the merger - while brandishing the Law Society letter - than some new correspondence landed on Hatz's desk. And wasn't the AG happy to read the new position of the Law Society onto the record. "
Between the lines of Pelly's discussion lies the untold story about the lobbying undertaken by the Attorney General, his Director General Mr Glanfield, and other officials.
One lot of lobbying occurred behind the scenes with the Law Society and which players were involved is something that no-one is willing to talk about. While nobody seems willing to talk speculation is rife that officials at the Law Society were treated brusquely. The impression one can form on the basis of the back-flip is that considerable pressure was probably exerted to extract a pro-merger letter of support from the Law Society. What unpleasant words were exchanged is not known. The uncanny feeling one gets is that the letter of support that Pelly mentions was probably obtained begrudgingly.
The other fascinating aspect concerns the lobbying at Macquarie Street to woo cross-bench support for the merger. From last December a grass roots campaign of opposition to the merger began with advocacy groups in the disability sector and clients of the Public Trustee generating letters of alarm and protest. It is understood that senior bureaucrats in the Attorney General's Department went into a furious mental meltdown with accusations that employees were disloyal and leaking information. The bureaucratic suspicion was part of an apparent culture of secrecy cultivated to keep the merger out of the public eye, and certainly clients of both organisations were not officially advised of the proposed merger.
Sources in the grass roots networks have pooh-poohed the claim that information was leaked to them. These sources point out that all information presented in letters was based on a thorough investigation of publicly available annual reports. The campaign of opposition involved direct lobbying, correspondence, and a neat pile of submissions from concerned citizens one of which was over 70,000 words in length.
The Greens had from the beginning of 2009 expressed reservations and reluctance to support the merger in correspondence to advocates in the disability sector and to clients of the Public Trustee.
Why did The Greens do a somersault from being anti-merger to pro-merger? Speculation is rife that a deal was done. Merger legislation to create the NSW Trustee and Guardian (amalgamating Public Trustee and Protective Commissioner) was due for debate in the Legislative Council before the end of June. The week leading up to the scheduled debate the Shooters Party was trying to galvanize support for its proposed bill concerning shooting of animals in National Parks. Sources in the Labor Government made it known to the press that it was having second thoughts about supporting the Shooters' bill. The Labor Government immediately lost the support of the Shooters Party that it so routinely relies on in the Legislative Council. The only way the merger bill could succeed was by this trade-off: Greens support for merger in exchange for Labor squashing the Shooter's bill.
And so it was that the last piece of Government legislation to pass on Tuesday 23 June 2009 was the NSW Trustee and Guardian Act. The following day the Legislative Council was in uproar as all bets were off for government business and the sale of NSW Lotteries was set aside because the numbers were against the Government. The climax was the staged walk-out of most Labor members in the Council on the evening of 24 June. After midnight proceedings ground to a halt. The Council doors were closed with proceedings left hanging in the air -- so that when Parliament resumes in September the Council will still be technically meeting according to hansard on 24 June.
The collapse of the Council's proceedings appears to be directly related to the lobbying by the Minister and Mr Glanfield to get the merger through at all costs.
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