Saturday, August 8, 2009

NSW FOI 180 Degrees Opposite to QLD & Canberra

The NSW Attorney General Mr John Hatzistergos holds the office of the first law officer of the state. His primary duty is to defend and uphold law and justice over against his secondary commitment to the Labor Party and its policies.

During the Howard era many lawyers quite rightly pointed to the tension between duty and political loyalty in the case of Philip Ruddock as federal Attorney General. Ruddock opted to support Howard's Pacific solution on refugees in direct contradiction to his duty to uphold the national laws (and international covenants signed by Australia) concerning refugees. The problem in his case went even further as he appeared to choose ideology over against even the beliefs of his faith where defending the oppressed/refugees has a long and honourable heritage.

Here in NSW Mr Hatzistergos' loyalty to conservative Labor policies is fairly clear. His personal political philosophy about the supremacy of Parliament trumps all consideration of human rights jurisprudence - a field that he seems to misunderstand judging by the straw-man arguments he routinely draws out of the hat when asked on the subject.

Peter Timmins has summed up the deliberations of a national conference this past week about Freedom of Information in Australia. He points out the direction being taken in Queensland, together with the Federal government view, is a very positive one. He also notes how the direction taken by Queensland is 180 degrees opposite to that of NSW. The stance taken right now in NSW is worrying -- the government seems keen to ensure that it is very difficult to obtain information that might otherwise embarrass it. As chief law officer Mr Hatzistergos is supposed to promote democracy and the laws defending freedom. He is meant to set aside party bias and personal political philosophies. When a government in a democracy chooses to clamp down on the availability of information and uses weasel words to justify it, one begins to wonder what is it that they are afraid of being disclosed/revealed?

If the Ministers of the Crown are worried about circling the wagons to defend themselves from public scrutiny, then the public are quite right in questioning the government's motives. Beyond that, one can also ponder why the Director-General of any government department is likewise unwilling to release information. The public service is about serving the public -- it is not an elite club for wannabe political animals. If a Director General is running a particular programme of administrative changes and holds meetings where no minutes are written down, where committee members are intimidated, and where no paper trail exists: well one can ask if that level of secrecy is a cloak for rather venal motives. Do we have Freedom of Information? Or is it more likely Freedom From Information? Public administration policy and practices in the NSW public sector must be brought out into the open. Ministers should not be worried: what is there to hide? Directors General of departments: what are you hiding and why are you hiding data?

Friday, August 7, 2009

CROWN SOLICITOR'S OFFICE NSW RESTRUCTURED

The NSW Crown Solicitor's Office (CSO) is administratively part of the NSW Attorney General's Department. On 1 July 2009 CSO announced it has undergone a restructure. Its website assures us that these organisational "changes aim to further improve our clients' experience with and access to our services."

The website shows a new organisational chart and it indicates that CSO has a marketing division. Why CSO needs to "market" its services is not entirely clear to me. However one can be sure that the CSO employees are stretched to breaking point in what is demanded of them. There was a tacit admission of this in the 2007-08 Annual Report of the Attorney General's Department:


"The Crown Solicitor’s Office is assessing the recommendations made by
beyondblue, the national depression initiative, in its review of the CSO’s current
practices for managing workplace mental health, with a view to implementing them in
2008–09."(page 67)

While it is important that stress and depression be recognised and treated, the prior question is how does the public administration policy and practices affecting CSO provide the seed-bed out of which such mental illness arises? In other words, why are the employees whose numbers are fewer and fewer expected to do more and more? Why are employees working beyond the standard hours to the point where work is done until late at night and even on weekends (all of which is not remunerated)?

Is there a culture of fear among employees about losing their jobs if they complain? Why does such fear exist in the first place? Does this fear of being abused and bullied and of vendettas come from senior bureaucrats in the upper echelons of the public sector?

It is one thing to treat the symptoms of stress. It is another to go back to the tap-root source of it all and to apply weed-killer. Weed-killer is obviously needed to root out the bad personnel. hideous attitudes, unworkable policies and unrealistic work practices insisted on by those at the top in the public sector. Why does the NSW Attorney General Mr Hatzistergos preside over such a regime and do nothing to clear out the problem among those directly underneath him?

Thursday, August 6, 2009

UN Convention on the 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?

NSW Prison Privatisation

The NSW Labor Government seems obsessed with selling off one of the gaols despite much opposition expressed. Industrial action is being taken by prison officers in protest.

Tuesday, August 4, 2009

Freedom of Information NSW

Matthew Moore at the Sydney Morning Herald has been blogging for some time now about the problems facing journalists and the public in Freedom of Information applications to the NSW State Government.

On 4 May 2008 Moore wrote:

"So how come the review is five years late? The Attorney-General's spokesman said the blame lay with the Attorney-General's Department, headed by one of the state's most experienced public servants, Laurie Glanfield. "The delay arose because the Attorney-General's Department has used the opportunity to propose several reforms of the act," the spokesman said.


If it takes more than five years for the Attorney-General's Department to propose "several reforms" to the tribunal act, what hope is there that the Ombudsman's review of the FoI Act will ever be implemented? Remember, it took the Premier's Department and the Ombudsman's office nine years to rewrite interpretation guidelines for the FoI Act.


The one certainty about the NSW act's reform is that it won't happen in a hurry."



More than a year later on 23 July 2009 Moore wrote an article in the Sydney Morning Herald. He noted that:

"BARELY a month after introducing progressive freedom of information laws, the Premier has downgraded their importance by handing responsibility for their implementation to the Attorney-General.


His move ends two decades in which the premier has had responsibility for freedom of information, and runs counter to moves in Canberra to take responsibility for FOI laws away from attorneys-general and move them closer to the heads of government to increase their status and reduce the role of lawyers in interpreting them."

As Peter Timmins has so rightly characterised the matter: NSW Takes A Backwards Step.

Why be bothered about FOI, the current NSW Attorney General Mr John Hatzistergos and his Director General Mr Laurie Glanfield? In the current state of affairs the public is offered "freedom from information" -- it is not free to apply, and when the Government deems it so we are not allowed to know. Timmins has remarked:

"... the Attorney General has been involved in other instances of ordinary performance in this respect. Take the case of the long lost statutory review of privacy legislation, invisible publicly for years until the NSWLRC referred to it in August last year. Then in January this year the mysterious case of the statutory review of the NSW Administrative Decisions Act, with nothing surfacing publicly for years after it should have been tabled in Parliament. Even when eventually published, locating the reports and government responses is tough going (good luck, even with this link after hard digging) and submissions received as part of the reviews are never published.Then there was the tabling in Parliament by the Attorney General of the Privacy NSW Annual Report last year, about six months after it was completed, and a few days before the end of the next reporting year.The Attorney General was also one of the many NSW ministers who didn't publish media releases on the web until the Premier insisted upon it last year. He doesn't speak publicly often: one of the two speeches now posted on his website outlines his vigorous opposition to a charter of rights for Australia.All pretty good background for the minister responsible for the making of a regulation concerning the planned publication scheme for government agencies, required by the new act."

Timmins notes above in passing about "digging" through Lawlink the website sponsored by Mr Glanfield's Department. Lawlink has to be rated as one of the worst websites operated by a state government department. Its search facility malfunctions and supplies erroneous and misleading "search results". It is badly laid out on various pages so that one has to unnecessarily scroll down long lists of "agencies" to locate whatever agency you are seeking. The website seems to be structured in various pages so as to cause maximum user-frustration in searching for information.

Lawlink is the same website that hosts the site of the Office of the Protective Commissioner (OPC) (one half of the new outfit the NSW Trustee and Guardian). What an atrocious mess awaits the clients of the former Public Trustee NSW once their website vanishes and is amalgamated into the defective Lawlink set-up under the OPC's software. Yes it will save an estimated $10 million that would have been needed had the OPC's primitive system been integrated into that of the Public Trustee.

Of course as Public Trustee clients slowly find out that it has been taken-over by OPC, watch the revocation of Wills and Powers of Attorney sky-rocket. Why will they gradually find out? It is understood on the grapevine and among people who are not part of his department that Mr Glanfield did not want Public Trustee clients to be informed while the legislation was before Parliament lest there be any dissent.

However all will be well because of the new 13 Super-Departments created as a desperate diversionary measure to deflect the public from screaming about lousy service and incompetence. Ah yes, now we come to the much touted "efficiencies" of the Attorney General's Department. We are told that it is efficient. We are told that it is a leader among its interstate counterparts.

We are offered by the Minister and Director General the current faddish jargon about delivering "value" and "better service". No longer are these agencies "business centres". Now they are centres of excellence delivering service to the public. About the only people who "may" believe those words are the bureaucrats who foist these words on over-worked and under-resourced employees and on the public. Well the public have not opened a novel called "Gullible's Travels"!

So in a bureaucratic culture where clients of a small government agency engaged in fiduciary activities were kept in the dark, one should not be surprised then that FOI is a misnomer for in practical terms it really looks like FFI (Freedom From Information).

Monday, August 3, 2009

Vale: Aboriginal Justice Advisory Council

The Attorney General's Department is touted by its senior executives as an efficient organisation. In recent times many "efficiencies" have been "optimised", which is just turgid management speak: we are cutting jobs and trimming the fat to save money.

So there is a Savings Implementation Plan to achieve savings which includes various measures of which just three can be named in passing:

* consolidating various employee functions previously handled in individual agencies (like IT, human resources, payroll, finance, asset management) and handing them over to the Parramatta Justice Precinct where highly stressed, over-worked and under-resourced individuals try to implement "shared corporate services".

* reducing the hiring of agency contractors

* cutting out overtime and squeezing back on Higher Duties Allowances

Another example of trimming the fat (apparently) is the abolition of the Aboriginal Justice Advisory Council (AJAC). It was created in 1993 of members of the Aboriginal community who could advise the NSW Government on law and justice problems.

AJAC received funding from the Attorney General's Department, Department of Juvenile Justice, NSW police and Corrective Services. AJAC fulfilled its charter on various fronts such as highlighting the plight of Aboriginal women in prison (Speak Out Speak Strong report of 2002).

AJAC ceased to be at the end of the 2008 financial year. Adieu to the staff who worked in it.
There you have it instant "savings" because there are now fewer salaries to pay and there is one less body to administer/fund.

Another fine example of pretending the department is efficient by creating on paper the illusion that funds have been saved. Pity the same degree of diligence is lacking when one notes the top-heavy bureaucracy of the Department, the generous allowances paid to give tax-breaks to some SES persons earning in excess of $300,000 p.a., and the extravagant expenditure applied in the services of external consultants to tell the Department the blindingly obvious.

Saturday, August 1, 2009

NSW Probate Registry and Unpaid Bills

Most files for deceased estates in NSW are handled by solicitors, while around 10% are handled by NSW Trustee and Guardian (formerly Public Trustee NSW).

Once an estate has been administered by a private executor, the last duty is to submit to the Probate Registry of the NSW Supreme Court a statement of receipts and disbursements. Basically a statement of account is prepared like an affidavit where the executor reports on how the deceased's assets were collected, all outstanding claims were paid, and the remaining funds distributed to beneficiaries under the terms of the Will.

As this work is done an executor may be entitled to a disbursement for work undertaken.

It is understood that there is one person employed on a part-time basis at the Probate Registry who handles the disbursement to the legal representative of an executor. It is further understood that there is a twelve-month back-log of payments to be made.

How could the Attorney General Mr John Hatzistergos allow such a lamentable state of affairs to develop at the Court? Why is the Probate Registry under-resourced? What decisions have been made by the Director General Mr Laurie Glanfield that has resulted in unfilled jobs, under-staffing, and too much work expected to be undertaken by so few.

This is not exactly a Churchillian situation: "Never in the field of human conflict was so much owed by so many to so few."

Yet it seems that we must say: "Never in the NSW public sector was so much expected of so few by bureaucrats who do not have to work on the coal-face serving the public."