COMMONWEALTH ATTORNEY GENERALS DEPARTMENT

NATIONAL HUMAN RIGHTS ACTION PLAN BASELINE STUDY

SUBMISSION

GERARD CREWDSON

31 Aug 2011

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I have read through the National Human Rights Action Plan Baseline Study.

In my opinion it fails to addressthe abyss between government rhetoric on human rights in the abstract and the actual reality for individuals or groups whose human rights have been seriously violated by public officials or agencies. My own experience stems from trying to protect people with intellectual disabilities from staff abuse and mistreatment in a NSW State Government administered group home. The victims because of their cognitive disabilities and limited communication were highly vulnerable to such abuse and could not speak up for themselves. They relied upon the honesty of staff and their readiness to act as witnesses.

When I spoke out on behalf of the residents I found myself the target of personal attack from the management of Department who automatically sided with and protected the abusers.

My career and reputation were rapidly destroyed. I was initially shocked and thought my experience was unique until I learnt about the concept of“whistleblowing” ,and became familiar with other cases. I could see that my story fitted a typical pattern of brutal reprisal.

The human rights of the most marginalised, stigmatised or vulnerable groups in our society when they are under state control or care may depend on staff with direct knowledge of what is going on being ready to act as whistleblowers when abuse occurs and is covered up. The National Human Rights Action Plan does not address this issue though it can be crucial to protecting the human rights of particular groups such as the mentally ill and people with intellectual disabilities or impairments. Furthermore whistleblowers,due to the nature of the victimisation they face,can themselves suffer serious human rights violations. The National Human Rights Plan is silent on this issue as well

I have set out these issues in more detail below using part of the template on your website.

SPECIFIC GROUP

Are there additional specific groups that could be included in this section ?

Yes. People who in the public interest report or expose official misconduct or maladministration including human rights abuses perpetrated by public officials or agencies iewhistleblowers.

As stated above whistleblowers can play a crucial role in bringing to light human rights abuses perpetrated against people in state control or care unable to speak up for themselves.

More generally whistleblowers reporting official misconduct or maladministration in its many forms can face reprisals that in themselves constitute serious human rights violations.

  • Reprisals in the form of workplace bullying, ostracism harassment can lead to health breakdown and disability
  • Reprisals in the form of fabricated allegations of mental instability, paranoia, personality disorder etc can lead to discrimination on that ground.
  • Reprisals in the form of summary dismissal or suspension and blacklisting in employment can lead to financial ruin and homelessness.

17 years again in Aug 1994 the Australian Senate Select Committee on Public Interest Whistleblowing conducted a public inquiry into whistleblowing and published a lengthy report .The Select Committee comprised

Senator Jocelyn Newman (Lib) Chair

Senator Shane Murphy Lab Dep Chair

Senator Paul Calvert (Lib)

Senator ChristabelCharmarette (Greens)

Senator Kay Denman (Lab)

The Committee Report described a common pattern of reprisal experienced by people reporting wrongdoing in an organisation whereby focus is deflected from the wrongdoing and wrongdoersand onto the whistleblower themselves. The whistleblower is targeted with fabricated allegations of poor performance, misconduct or emotional or mental instability.

In particular the Committee addressed the practice of government agencies using psychiatry to punish whistleblowers and discredit their disclosures. The Committee described this practice as “an infringement of human rights” and an “insidious and vile” weapon :

9.75 The Committee recognises the extent to which psychiatry can be used as a means to discredit a whistleblower. There is still a stigma attaching to mental illness and it is that stigma which makes psychiatry such an attractive and powerful means of retaliation to an employer organisation. A referral occurs at a time when an assessment is being made of an individual who is already under stress as a result of having blown the whistle.

9.76The Committee considers the use of psychiatry in this manner to constitute an infringement of human rights, and to be, perhapsone of the most insidious and vile weapons used against whistleblowers.” SenateSelect Committee Report Aug 1994.

In Oct 1997 three years after the above report was issued 1 was directed to submit to psychiatric examination as an employee of the NSW Dept of Community Services after speaking out against staff abuse and mistreatment of disabled residents in my Group Home workplace. This fact was subsequently admitted by then State Labour Minister for Disabilities Carmel Tebbutt in NSW Parliament in April 2004:

Q“ Did Mr Crewdson report any unlawful and improper conduct by officers of the Department including neglect/ mistreatment of disabled clients of the Department or workplace management prior to being directed to HealthQuest:

A Yes NSW Minister of Disabilities CarmelTebbutt NSW Upper House 1.4.04

HealthQuest was a NSW State Govt agency at the centre of this practice. Its role was exposed in the Sydney Morning Herald in Feb 1998:

“One of the things agencies do on occasions is to claim that the whistleblower is mentally unstable and ask HealthQuest to do an assessment.” NSW Deputy Ombudsman 7/2/98

I met other victims of HealthQuest through Whistleblowers Australia (WBA) and we campaigned against this practice. The NSW State Govt responded by conducting a review into the procedures and governance of HealthQuest. This led to a supposed reform in 2001 but in reality the practice continued. Furthermore state government agencies and statutory authorities such as the NSW Ombudsman and ICAC used the review as an excuse not to investigate or remedy any of our individual cases. They falsely claimed the problems had been addressed.

Under the HealthQuest process we were stigmatised with damning verdicts of mental illness or disorder based on false vindictive allegations originating from our workplace secretly made against us. Procedural fairness was thus denied to us. Attendance at the examinations was involuntary and obtained by deceit. Subsequently we also learnt that the whole referral process had not been legally authorised and was therefore beyond power.

We were forced to seek remedies for our unlawful treatment first under the NSW Anti-Discrimination Act 1977 and then in the NSW Industrial Relations Commission.

The NSW Crown Solicitor defended our public sector employers and HealthQuest by arguing that as people alleged to be mentally ill we were not entitled to be treated lawfully or accorded a right to procedural fairness. The NSW Crown Solicitor argued that the verdicts of HealthQuest were final and could not be challenged in a court of law because they were based on expert medical opinion. The NSW Industrial Court accepted these arguments though they are contrary to and undermine completely state and federal discrimination law and dismissed our application upon this basis. See TAFE v Kerrison (2004) NSWIRComm 369, Crewdson v DOCS (2005) NSWIRComm 308, Bourot v DPWS(2006) NSWIRCOmm 299.

The NSW Court of Appeal approved the decisions of the Industrial Court on 25/7/07. See Crewdson v IRC(2007) NSWCA 178

In May 2011 the NSW Judicial Commission Conduct Division issued two reports recommending that Magistrates Jennifer Betts and Brian Maloney face dismissal from judicial office for proven incapacity. There was considerable public criticism of the Judicial Commission including the following statement from Disability Commissioner Mr Innes:

“The NSW Parliament could breach aspects of both federal and state anti-discrimination law it dismissed the magistrate Brian Maloney on the grounds of treated mental illness, the Disability Discrimination Commissioner, Graeme Innes has warned. ..Mr Innes said the recommendations from the Judicial Commission, which asked Parliament to assess whether Mr Maloney’s mental illness affected his capacity to work as a magistrate were flawed and retrograde.” SMH 27/5/11:

The findings of proven incapacity made against Magistrates Betts and Maloney arose out of a

process of examination that scrupulously adhered to the statutory procedures established under the Judicial Officers Act 1986. This process required procedural fairness to be observed throughout. Psychiatric opinion was not treated as the ultimate and final determinant of incapacity. Even after the Commission made its findings Magistrates Maloney and Betts had an opportunity to defend themselves before Parliament. Even so Commissioner Innes considered the recommendations of the Commission breached state and federal discrimination law.

The statutory framework governing dismissal of NSW public servants for incapacity in our cases was the same as the framework governing judicial officers. The major difference is that the Department Head takes the role of the two Houses of Parliament in making the final recommendation to the Governor. In our cases that statutory framework was completely ignored. The fact that this could happen and moreover be retrospectively approved in NSW Courts is testimony to the entrenched power of mental illness stigma. It also demonstrates the degree to which judges can become infected by prejudice and bigotry against the mentally ill.

Psychiatry has been used against whistleblowers in other states and at the federal level.

I believe that what has occurred in the courts of NSW could just as well happen in other states and at the federal level as well. In one case- that of Pascale Bourot- the NSW State Govt has taken the level of reprisal a step further. Not content with denying her fundamental legal protections and rights in Court the NSW Crown Solicitor has been seeking massive court costs. They are singling her out because she has a house that can be seized from her and turned into cash. They are taking this action knowing that she has been psychologically traumatised and will suffer foreseeable further injury to her health. She is now a 64 yr old woman and her case now fits into multiple categories under your Human Rights Action Plan

-disability, treatment of woman, and older people.

In July 2008 the UN Convention on the Rights of People with Disabilities UNCRPD) came into force in Australia. I have cited this Convention and the obligations it imposes on government agencies in relation to Ms Bourot in submissions to both the NSW State Govt and Federal Govt. To date the relevant agencies refuse to acknowledge those responsibilities.

One of the problems undermining the effectiveness of the Convention is that State Governments are not subject to complaints about their breaches in the AHRC. There appears to be no forum in NSW to complain about breaches by the State Govt and yet such breaches can and will occur. The Human Rights Action Plane does not address this problem either.

In summary I believe the Human Rights Action Plan needs to address

  • The experience of whistleblowers and violations of their human rights
  • In particular the misuse of psychiatry against whistleblowers
  • The failure of NSW Courts to protect the human rights of people deemed mentally ill and in particular whistleblowers deemed psychiatrically unfit by state govt psychiatrists and doctors
  • The fact that there is no statutory mechanism under the AHRC Act 1986 to complain against breaches of the UNCRPD by states and territories.

Yours sincerely

Gerard Crewdson

24 Palliser Rd Roseneath

Wellington

New Zealand

31 Aug 2011