"New South Wales Civil and Administrative Tribunal - Appeal Panel"

The Guardianship Division of the Civil and Administrative Tribunal[i] is where people who have had guardianship orders placed upon them can apply to have them revoked or changed.  This is only supposed to  happen when there is either nobody to care for the person.  Unfortunately, locking people up in Aged Care and or Residential facilities is extremely lucrative for all those involved - from the NGO who gets paid to "care" for the client, the solicitors appointed by the government who are supposed to act on behalf of the government and both the Guardianship Tribunals and the Public Guardians also. 

In studying various cases, there seems to be an extraordinary amount of human rights violations, whereby the Guardianship Tribunal, the Trustee and the Administrative Tribunal appear to be in collusion with each other in order to keep a person and their property under their absolute control.

No right to choose your own legal representation.

As a general rule, NCAT refuses to allow persons to have legal representation stating “the general rule in the Guardianship Division is that a party has the carriage of his or her own case and is not entitled to be represented by any other person”. [ii]

However “a party may be represented by another person only if the Tribunal grants leave for the person to represent the party”. [iii]

This means that you do not have any entitlement to legal representation to appeal any Guardianship Tribunal decision, unless the Guardianship Tribunal says you can.  And even then, it will only be if the Tribunal allows that particular legal representative to represent you.

In a recent case “BHM v BHN & ORS”, the Tribunal refused the man his own choice of legal representation altogether, and then stated they would pick the representation they chose to represent him in all subsequent proceedings. The order stated :

(1) The Tribunal refuses leave to the solicitor (BHM) an Australian legal practitioner, to represent the man (BHO) in all proceedings pending at the Tribunal.

(2) That the man (BHO) be separately represented in all proceedings pending before the Tribunal - and not by his choice of solicitor (BHM). [iv]

Violation of the ICCPR by the NSW Civil & Administrative Tribunal

These orders clearly violate the ICCPR[v], in which Section 14 clearly states “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law… It further states “to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing.”[vi]

In the case of “BHM v BHN & Ors”[vii], the appeal panel consisted of N Hennessy LCM, Deputy President, M Schyvens, Deputy President, and J Newman, General Member. And these panel members violated this man’s fundamental right to have his own choice of legal representation.

No surprise to then find that the “public hearing ” requirement also referred to in the ICCPR was then violated when the Tribunal placed a Publication Restriction on 12 June 2014, preventing anybody going public about the matter.

Statements made by the Tribunal were “the NSW Trustee needs to approve any proceedings instigated by or against BHO because of the potential financial implications that such proceedings may have.”

Does this mean the Tribunal colludes with the NSW Trustee, and has given itself permission to decide whether a man can or cannot make an application or appeal a decision that was made about him without his consent?

The icing on the cake for the government is that they created their own laws that prevent him from making an application to have his own choice of lawyer, so as to be able to defend himself in the proceedings, and then prevented the solicitor from lodging an application on his behalf also. 

The panel then referred to the Victorian case of Goddard Elliott (a firm) v Fritsch [2012] [viii], to state that the man cannot chose his legal representation - but the government can - when the case was built entirely around legal misconduct and legal immunity.

Guiding principle to be applied to practice and procedure

“The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.” [ix]

Not necessary to ensure that a persons interests are given paramount consideration.

The Tribunal refused to give the man’s solicitor (BHM) permission to appeal against the Guardianship Division's decision because “it is not necessary to give leave to ensure that (the man) BHO's interests are given paramount consideration”. [x]

Further evidence of both the Guardianship Tribunal and Civil and Administrative Tribunal’s blatant disregard for their clients human rights is also evidenced in another case (BCL v NSW Trustee & Guardian & Ors). [xi]

The panel members in this case cited “To say that the Tribunal must observe various principles does not mean that the Tribunal is bound, for example, to make a decision which restricts a person's freedom of decision and freedom of action as little as possible.”

Basically this means they say they “observed” the general principles of the man’s welfare, it is not important nor are they required to make decisions that reflect these principles.[xii] So out the window they go.

[i] http://www.ncat.nsw.gov.au/ncat/guardianship.html

[ii] NCAT Act, s 45(1)(a)

[iii] NCAT Act s 45(1)(b)

[iv] http://www.austlii.edu.au/au/cases/nsw/NSWCATAP/2014/26.html -

[v] International Covenant of Civil and Political Rights

[vi] http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx

[vii] http://www.austlii.edu.au/au/cases/nsw/NSWCATAP/2014/26.html

[viii] http://www.austlii.edu.au/au/cases/vic/VSC/2012/87.html

[ix] http://www.legislation.nsw.gov.au/maintop/view/inforce/act+2+2013+cd+0+N

[x] http://www.austlii.edu.au/au/cases/nsw/NSWCATAP/2014/26.html - Intro P3

[xi] http://www.austlii.edu.au/au/cases/nsw/NSWCATAP/2014/18.html

[xii] http://www.austlii.edu.au/au/legis/nsw/consol_act/ga1987136/s4.html

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