Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Re LER

 

[2019] QCAT 406

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

LER [2019] QCAT 406

PARTIES:

In applications about matters concerning LER

APPLICATION NO/S:

GAA2644-19 Application for non-publication order

GAA2738-19 Application for confidentiality order

GAA2739-19 Application for non-publication order

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

15 October 2019

HEARING DATES:

8 March 2019 and 30 May 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Guthrie

ORDERS:

  1. The application for a confidentiality order is dismissed.
  2. The applications for non-publication orders are both dismissed.

THE TRIBUNAL DIRECTS THAT:

  1. The Principal Registrar refer these reasons to the Commissioner of Police to consider the prosecution of those persons and entities who may have breached s 114A of the Guardianship and Administration Act 2000 (Qld).
  1. For the purposes of direction 1, the Tribunal authorises the disclosure to the Commissioner of Police, of the identity of the adult about whom these proceedings concern and the other persons referred to in these reasons pursuant to s 114A(5) of the Guardianship and Administration Act 2000 (Qld).
  2. The Tribunal directs that a copy of these reasons for decision be provided in an unredacted form to the persons and entities to whom notice of the hearings was given.
  3. The Tribunal directs that only the redacted version of these reasons, in compliance with s 114A(2) of the Guardianship and Administration Act 2000 (Qld) be otherwise published.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER MATTERS – where an online article was published in relation to the adults affairs – where an applicant applied for a non-publication order – where the Tribunal initiated a non-publication order and a confidentiality order – where it was found that the article referred to a guardianship proceeding – whether s 114A of the Guardianship and Administration Act 2000 (Qld) had have been breached by publication of the article – whether the matter should be referred to the Commissioner of Police to consider prosecution

Acts Interpretation Act 1954 (Qld) s 14A, s 14B

Criminal Code Act 1899 (Qld) s 7(1)(c), s 7(1)(d), s 8, s 24, Schedule 1

Guardianship and Administration Act 2000 (Qld) s 7, s 11, s 11A, s 31, s 31(4), s 33, s 100, s 108, s 108(3), s 109, s 109(3), s 111, s 112, s 113, s 114A, s 114A(2), s 114A(5), s 114A(6), s 114A(8), s 119, s 125, s 209(1)(a), s 209(1)(b), s 210, s 249 Schedule 1, Schedule 4

Justices Act 1886 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 6(2), s 9

United Nations Convention on the Rights of Persons with Disabilities, UN Doc A/RES/61/106 (adopted 13 December 2006) art 22

Bergmann v DAW [2010] QCA 143

Bucknall v Guardianship and Administration Tribunal (No 1) [2009] 2 Qd R 402

LER (No 2) [2018] QCAT 431

LSS v LN, LG & Public Guardian [2016] QCATA 133

Oates & Q (2010) FLC 93-451

Re Edelsten; Ex parte Donnelly (1988) 80 ALR 704

Re HFI [2018] QCAT 279

Re JT [2014] QSC 163

Tom & Bill Waterhouse Pty Ltd v Racing New South Wales (2008) 72 NSWLR 577

Winters v Winters [2015] FAMCA 195

APPEARANCES & REPRESENTATION:

(8 March 2019)

Applicant/s:

P Sheehy

Public Guardian:

M Montey

T Sweet

Public Trustee of Queensland:

K Winmill, solicitor

C Miles

Interested Person/s:

LSS

APPEARANCES & REPRESENTATION:

(30 May 2019)

 

Applicant/s:

P Sheehy

Public Advocate:

Y Matsuyama, solicitor

Public Guardian:

M Baquero

Public Trustee of Queensland:

K Winmill

Interested Person/s:

LN

REASONS FOR DECISION

Background

  1. [1]
    On 27 September 2013, the Tribunal (differently constituted) declared that LER did not have capacity for all personal and financial matters. At that time, the Tribunal appointed the Adult Guardian (as the statutory guardian was then known),[1] guardian for LER for a range of personal matters and appointed the Public Trustee of Queensland (‘the PTQ’) as administrator for LER for all financial matters. Since that time, the Tribunal has conducted a number of reviews of those appointments.
  2. [2]
    At the last review of the appointments, the Tribunal decided on 17 December 2018, to continue the appointment of the PTQ as administrator for LER for all financial matters.[2] The appointment was made for a reviewable period of three years. The Tribunal also directed the PTQ to advance particular amounts of money for particular purchases for LER. Further, the Tribunal changed the appointment of the Public Guardian (‘the PG’) as guardian for LER so that the PG was appointed, for a reviewable period of three years, to make decisions about the following personal matters:
  1. (a)
      with whom LER has contact and/or visits;
  1. (b)
      health care; and
  1. (c)
      legal matters not relating to the adult’s financial or property matters.
  1. [3]
    In those proceedings, Mr Sheehy had been appointed LER’s representative, pursuant to s 125 of the Guardianship and Administration Act 2000 (Qld) (‘the GAA’), to represent LER’s views, wishes and interests.
  2. [4]
    On 1 March 2019, Mr Sheehy filed an application for a non-publication order in relation to documents and information concerning LER. Pursuant to s 108(3) and s 109(3) of the GAA respectively, the Tribunal may make a non-publication order and a confidentiality order on its own initiative. The Tribunal initiated an application for a non-publication order and an application for a confidentiality order.
  3. [5]
    Mr Sheehy’s application asked the Tribunal to consider making a non-publication order as a matter of urgency, arguing it was necessary to prevent Channel 9 airing a program in the coming days, the content of which it was claimed would be similar to the content of an article which had been recently published by a particular newspaper (‘the article’) and which Mr Sheehy claimed breached s 114A of the GAA. The article included a photograph of LER and LER’s partner, LSS, mentioned the suburb of the city in which LER lives, as well as specific details about LER’s financial assets. The article also included the statement that LER is ‘under financial administration of the Public Trustee of Queensland’.
  4. [6]
    I issued directions for the provision of submissions and notice of the hearing was given to those considered to be either active parties or persons who had standing to be heard in relation to the applications pursuant to s 111 of the GAA, which provides:

Each active party, and any entity that would be adversely affected by a proposed limitation order,[3] has standing to be heard in relation to the making of the order.

  1. [7]
    Those persons were LER, LSS, the children of LER who had participated in the proceedings which led to the orders made on 17 December 2018, the PG, the PTQ and Channel 9. By the time the oral hearing took place, Channel 9 had indicated, through its counsel, that it no longer proposed to air any story about LER and as a result would not be attending the hearing. Channel 9, through its legal counsel, did however provide the Tribunal with a brief written submission stating that the making of a nonpublication order was unnecessary and denied that the publication of the article breached s 114A of the GAA.
  2. [8]
    On 8 March 2019, I commenced an oral hearing to determine the applications for a non-publication order and the application for a confidentiality order. Mr Sheehy, a representative of the PG, a representative of the PTQ, as well as a solicitor from the PTQ’s official solicitor’s office attended the hearing in person and LSS attended the hearing by telephone. LER did not attend the hearing. LSS objected to Mr Sheehy playing any part in the proceeding or being appointed to represent LER. LSS confirmed on affirmation that she had informed LER of the hearing and that he did not wish to participate. LER’s daughters did not attend the hearing on 8 March 2019 but provided a written submission to the effect that they supported orders being made that would protect their father’s privacy.
  3. [9]
    After hearing submissions from those in attendance at the hearing, I granted leave for the PTQ to be legally represented by their official solicitor and provided some short oral reasons for that decision. Following the hearing of submissions, I formed the view that Mr Sheehy did not have standing to bring the application for a non-publication order. I formed the view that Mr Sheehy no longer had a sufficient and continuing interest in LER as the guardianship proceedings in respect of which he had been appointed were at an end.
  4. [10]
    Further, I did not appoint him to represent LER in the application for a confidentiality order and the application for a non-publication order initiated by the Tribunal. Mr Sheehy stated he was unable to speak to LER. The PG and the PTQ were both appointed substitute decision makers for LER and they too have been unable to speak directly with LER.
  5. [11]
    I heard oral submissions from those who attended the hearing. LSS read aloud her prepared written submission. The hearing was adjourned to allow LSS time to provide the written submission to the Tribunal and for the Tribunal to then make the submission available to the other parties. The Tribunal did not receive the written submission by the time the hearing resumed. Upon resumption of the hearing, the Tribunal was unable to contact LSS. In LSS’s absence, I made the following directions:
  1. LSS must file in the Tribunal a copy of the written submission that she relied upon during the hearing of the applications by 3:00 pm on 8 March 2019.
  2. The Tribunal will provide the written submission filed in compliance with Direction 1 to the Public Trustee of Queensland, the Office of the Public Guardian, LER and Channel Nine.
  3. Unless the Tribunal otherwise directs, the Tribunal will determine the applications without resuming the oral hearing.
  1. [12]
    The Tribunal did not receive LSS’s submission in compliance with direction 1. Ultimately, I decided to make an interim order in the following terms pending a resumed hearing to finalise the applications:
  1. Until the final determination of the applications which shall be no longer than three (3) months, the publication by any means and by any person or entity, of the following information in a way that identifies or is likely to lead to the identification of LER by a member of the public or a section of a member of the public to whom the information is published is prohibited:
  1. (a)
     The contents of a document that forms part of the Tribunal’s record of proceedings for all guardianship proceedings concerning LER;
  1. (b)
     Any information provided at any hearing before the Tribunal under the Guardianship and Administration Act 2000 (Qld) concerning LER; and
  1. (c)
     Any information about any guardianship proceeding in the guardianship jurisdiction concerning LER.
  1. [13]
    During the period between 8 March 2019 and the resumed hearing on 30 May 2019, I notified the following people that in finally determining the applications for a nonpublication order and the application for a confidentiality order, I may make findings about whether s 114A of the GAA had been breached by the publication of the article: LER, LSS, LER’s daughters, the PG, the PTQ, the Public Advocate, Channel 9, the publisher of the article and the journalist who wrote the article. Those persons and entities were also notified that a breach of s 114A of the GAA may result in prosecution and the imposition of a penalty,[4] and that it was open for the Tribunal to refer any potential breach to the Commissioner of Police to consider prosecution. The persons and entities notified were also invited to provide any submissions they wished the Tribunal to consider and to indicate whether they wished to attend the resumed hearing. Notice of the date, time and place of the resumed hearing was also given to those persons and entities.
  2. [14]
    The Public Advocate was notified for a number of reasons. The Public Advocate’s functions include promoting and protecting the rights of adults with impaired capacity for a matter and promoting the protection of the adults from neglect, exploitation or abuse.[5] Further, s 113 of the GAA provides that the Public Advocate must be given a copy of the Tribunal’s reasons for any final limitation order (other than an adult evidence order). Further, the application and breadth of s 114A had not been previously considered by this Tribunal.
  3. [15]
    In attendance at the resumed hearing were the legal representative of the Public Advocate, representatives of the PG and the PTQ together with the PTQ’s legal representative, and LER’s daughter, LN. Mr Sheehy attended the hearing for a short period until he was excused for the reasons previously given regarding his attendance on the first day of the hearing.
  4. [16]
    At the commencement of the resumed hearing and upon hearing from those present at the hearing, I gave leave for the Public Advocate to intervene in the proceedings, pursuant to s 210 of the GAA and for the Public Advocate to be legally represented.

Legislative framework

  1. [17]
    Section 108 of the GAA provides that if the tribunal is satisfied it is necessary to avoid serious harm or injustice to a person, the tribunal may, but only to the extent necessary by order, prohibit publication of information about a tribunal proceeding the publication of which is not prohibited under section 114A.
  2. [18]
    Section 114A(1) provides that generally information about a guardianship proceeding may be published. Section 114A(2) provides, that a person must not, without reasonable excuse, publish information about a guardianship proceeding to the public or a section of the public if the publication is likely to lead to the identification of the relevant adult by a member of the public or a section of the public to whom information is published.
  3. [19]
    ‘Guardianship proceeding’ is defined in schedule 4 of the GAA, which relevantly provides:
    1. (a)
       Means-
    1. (i)
       a proceeding under this Act before the tribunal; or
    1. (ii)
       a hearing, conference or interlocutory matter before the tribunal taken in connection with or incidental to a proceeding before the tribunal;…
  4. [20]
    ‘Relevant adult’ means the adult concerned in the matter, whether or not the court or tribunal decides the adult is an adult with impaired capacity.[6]
  5. [21]
    Section 114A(3) provides limited circumstances in which s 114A(2) does not apply:

Subsection (2) does not apply—

  1. (a)
     to publication of information by the public guardian, or the public advocate, if the public guardian, or the public advocate, considers it is necessary in the public interest to publish the information in response to a prohibited publication by another entity; or
  1. (b)
     to publication of information after the relevant adult has died; or
  1. (c)
     to publication of information authorised by an order made under this section.

Note — A non-publication order may prohibit publication of information about a tribunal proceeding disclosing health information about a person even after the person’s death

  1. [22]
    Section 114A(5) of the GAA provides the tribunal with a discretion to make an order authorising the publication of information about a tribunal proceeding that is otherwise prohibited under s 114A(2). Section 114(4) gives the court a similar power to authorise publication of information about a guardianship proceeding that is otherwise prohibited under s 114A(2). The court or tribunal may make an order authorising publication only if the court or tribunal is satisfied the publication is in the public interest or the relevant adult’s interest.[7]
  2. [23]
    “Prohibited publication” is defined in s 114A(8):

Prohibited publication means publication of information about a guardianship proceeding to the public, or a section of the public, that is likely to lead to the identification of the relevant adult by a member of the public, or by a member of a section of the public to whom the information is published.

  1. [24]
    In finally determining the applications for non-publication orders before me, I must therefore consider the ambit of s 114A in relation to guardianship proceedings concerning LER. The focus of s 114A(2) is the prevention of the identification of the adult in connection with a ‘guardianship proceeding’ as defined. A number of parties were concerned that the article had been published in contravention of s 114A and that, in the absence of a non-publication order, publication of like information would occur in the future.
  2. [25]
    Section 109 of the GAA provides that if the tribunal is satisfied it is necessary to avoid serious harm or injustice to a person, the tribunal may, but only to the extent necessary, by order withhold from an active party or other person a document or part of a document before the tribunal or withhold from an active party or other person other information before the tribunal. Section 103 of the GAA provides that the right to access a document or other information is displaced only by the making of a confidentiality order. It is the current practice of the tribunal to permit inspection and copying of documents that comprise the tribunal’s record of proceedings subject only to the terms of a confidentiality order.
  3. [26]
    Section 114A had not prevented the publication of the article. Further, the making of the interim order did not result in the article being removed from online sites. At the time of delivering this decision, the article remains online.

The evidence and submissions of the participants

  1. [27]
    I have considered all of the information provided at the oral hearings as well as the written submissions provided to the tribunal by the various parties and person/entities with standing to be heard. Given my decision not to appoint Mr Sheehy as representative for LER, my decision that Mr Sheehy did not have standing to bring the application for a confidentiality order, the fact that Mr Sheehy did not take any active role in the hearing, there is no need for me to address allegations made by LSS regarding Mr Sheehy. 
  2. [28]
    Channel 9 indicated that it did not intend to provide any submissions or attend at the hearing. Fairfax Media on behalf of the publisher or the article and the journalist advised the tribunal similarly.

Does the tribunal have power to determine the applications?

  1. [29]
    LSS submitted that the Tribunal could not make any orders as the Tribunal was not a ‘Chapter 3 court’. LSS said that the Tribunal can make administrative decisions but not orders. LSS argued that only a court can interpret the law. LSS also submitted that ‘estoppel is common law’ and the applications should be dismissed on an estoppel argument.
  2. [30]
    I understood LSS’s estoppel argument to be that I could not make the orders sought as the PG, the PTQ, as well as Mr Sheehy and other parties were aware of the article prior to and after its publication and were now estopped from arguing that a nonpublication order should be made. As I understand it, LSS argues that they were aware of the story and let it go ahead so estoppel applies.
  3. [31]
    Further, LSS said that the applications should be dismissed for lack of jurisdiction and that the Tribunal cannot make ‘judicial’ decisions.
  4. [32]
    Pursuant to s 9 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’), the Tribunal has jurisdiction to deal with matters it is empowered to deal with under the QCAT Act or an enabling Act. An enabling Act is an Act that confers jurisdiction on the Tribunal.[8] The GAA is an enabling Act as it confers jurisdiction on the Tribunal.[9]
  5. [33]
    Section 108 of the GAA gives the Tribunal power to make a non-publication order. Section 109 of the GAA gives the Tribunal power to make a confidentiality order. In Re HFI,[10] I decided that an application for a non-publication order and an application for a confidentiality order could be determined in the absence of another application under the GAA. The same reasoning applies in this case.
  6. [34]
    I conclude that I have jurisdiction and the power to hear and determine the applications before me.
  7. [35]
    LSS claimed the PTQ had no standing in the applications. I do not accept that submission. The PTQ as appointed administrator for LER is an active party in these proceedings under s 119 of the GAA. Further, and in any event, as a person or entity that might be adversely affected by any order I might make in these applications has standing to be heard pursuant to s 111 of the GAA.

Has there been a publication of information likely to lead to the identification of LER by a member of the public or a section of the public?

  1. [36]
    There are competing arguments about whether the publication of the article contravened s 114A(2).
  2. [37]
    In considering the applications before me, I am mindful of the primary focus of the GAA, which is adults with impaired capacity.[11]
  3. [38]
    There is no doubt and I formally find that the article clearly identifies LER to the public or a section of the public. The article identifies LER by name and photograph. The article contains a reference to the suburb in which LER resides. I further find that the information contained in the article has been published to the public as the article was and remains available to be read online.

Has there been publication of ‘information about a guardianship proceeding’?

  1. [39]
    LSS argues that as the article makes no mention of words like ‘guardianship’, ‘hearing’ or ‘QCAT’, s 114A does not apply and it is unlikely that any future story would contain such terms or references. In LSS’s submission the article does not contain information about a guardianship proceeding so there has been no breach of s 114A.
  2. [40]
    The PTQ submits that as the phrase ‘information about a guardianship proceeding’ is not defined in the legislation and is not otherwise qualified the words should be given a broad construction. Further, the PTQ submits it is sufficiently clear that the article imparts information about LER’s involvement in a guardianship proceeding as defined in the GAA by stating that LER is under financial administration.[12]
  3. [41]
    The PG argues that as the article states LER is under financial administration by the PTQ and is very specific about his financial situation that the article is information about a guardianship proceeding.[13]
  4. [42]
    The Public Advocate submits that the proceeding in which the PTQ was appointed administrator for LER would fall within the definition of a ‘guardianship proceeding’.[14] Further the Public Advocate submits that the term ‘information’ in relation to a guardianship proceeding appears to be able to be interpreted broadly. The Public Advocate submits, consistently with the former s 112, that information about a guardianship proceeding would include the tribunal’s decision and this would include that an administrator was appointed. The Public Advocate similarly to both the PTQ and the PG submits that as the article refers to the PTQ being appointed as LER’s administrator the article contains information about a guardianship proceeding. The Public Advocate submitted in the alternative that if the former definition in s 112 did not apply then the ordinary meaning of the word ‘information’ is broad and therefore the information contained in the articles that the PTQ is LER’s appointed administrator would seem to satisfy the definition of the phrase ‘information about a guardianship proceeding’.[15]
  5. [43]
    The written submission from LER’s daughters refers to the Supreme Court decision of Re JT,[16] where Lyons J said:[17]

[39]…Section 114A of that Act prohibits the publication of information about a guardianship proceeding to the public if that publication is likely to lead to the identification of the relevant adult by a member of the public or a member of the section of the public to whom the information is published. Whilst I acknowledge that the section does allow the court to make an order authorising publication of this information I am not satisfied that this would be in JT’s interest or the public interest.

[40]Further, that Act stipulates a number of underlying principles in relation to adults with impaired capacity. In particular the requirement in Principle 3 that “An adult’s right to respect for his or her human worth and dignity as an individual must be recognised and taken into account” and the requirement in Principle 11 that “An adult’s right to confidentiality of information about the adult must be recognised and taken into account.” In my view those general principles should be taken into account in applications for this nature. I am cognisant of the importance of the principles of open justice as discussed by Fraser JA in the decision of Dovedeen Pty Ltd & Anor v GK and significantly this application was heard in open court. Whilst the publication of the factual background and the legal issues in this case accord with principles of open justice I do not consider those principles require publication of the identity of JT in the circumstances of this case. I consider that JT’s dignity, privacy and vulnerability should be recognised and respected by referring to her by de-identifying any reference to her. In this regard, I note the confidentiality provisions in s 525 of the Mental Health Act 2000 (Qld) which require that decisions involving the Mental Health Review Tribunal and appeals to the Mental Health Court from the Tribunal be de identified if a report of those proceedings is to be published. I also note the routine practice of de-identifying decisions from the Family Court of Australia.

[41]In this regard I agree with the approach taken by Henry J in SPM v LWA where a non-publication order was sought in relation to the actions of an attorney appointed pursuant an enduring power of attorney. His Honour stated:

“The order is more so sought for the protection of the individual’s dignity and privacy and it is premised on the very nature of the jurisdiction being exercised. As Lord Shaw observed, the parens patriae jurisdiction involves something of an exception to the general principle favouring publication because it is concerned with truly private affairs. The reference to the breadth of that principle as applying to lunatics in Scott v Scott I am persuaded in modern parlance embraces a reference to those with a want of mental capacity – see, for example, Fenwick, Re: Application of JR Fenwick & Re Charles [2009] NSWSC 530.

In this case the strong public interest in knowledge of proceedings which occur in respect of powers of attorney is self-evident. It is an interest likely to increase with the increasing practice of the use of powers of attorney with our aging population. However, the dignity and privacy of those who seek protection in respect of their consideration against the public’s interest in knowledge of the players in the proceedings.

The proper balance between these competing considerations can be struck by a non-publication order going only to protection of the identification of the individual rather than preventing the public’s knowledge of the general nature and circumstances of the proceeding.

  1. [44]
    LN further submits that s 11 of the GAA provides that the ‘General Principles’ must be applied in exercising the functions under the Act and so taking into account the General Principles in considering s 114A, the tribunal must adopt a position that is consistent with ensuring that the dignity of the individual is preserved and confidentiality respected in relation to their affairs.[18]
  2. [45]
    LN relies on Article 22 of the United Nations Convention on the Rights of Persons with Disabilities,[19] which LN submits underlines the importance of the protection of privacy being afforded to individuals who suffer a disability:[20]
  1. No person with disabilities regardless of place of residence or living arrangements shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home, or correspondence or other types of communication or to unlawful attacks on his or her honour and reputation. Persons with disabilities have the right to the protection of the law against such interference or attacks.
  2. State Parties shall protect the privacy of personal, health and rehabilitation information of persons with disabilities on an equal basis with others.
  1. [46]
    The definition of ‘guardianship proceeding’ is broad. It is not confined to a hearing but relates to a proceeding under the GAA before the Tribunal. Section 114A(2) seeks to prevent publication of ‘information about a guardianship proceeding’ which might lead to the identification of the relevant adult. I do not consider the absence or inclusion of such words as ‘guardianship’, ‘tribunal’, ‘QCAT’ or ‘hearing’ in a publication to be determinative of whether or not the article contains ‘information about a guardianship proceeding’. In my view, I must consider the words of the article as a whole and consider whether the article as a whole or any part of it can be characterised as information about a guardianship proceeding. Section 114A is concerned with protecting the identity of adults who find themselves at the centre of a guardianship proceeding. Section 114A(2), in my view, by protecting the identity of the relevant adult, seeks to strike a balance between open justice including information considered by the tribunal in a proceeding and the protection of the relevant adult’s privacy.
  2. [47]
    In guardianship proceedings, the Tribunal will consider medical as well as other personal information including, where relevant, details of a relevant adult’s financial assets, debts and liabilities, income and expenses. Very little of this type of information about any person is publicly available information. Such information which forms part of the material before the Tribunal and may be discussed at any Tribunal hearing.
  3. [48]
    While I accept the article is not a description or retelling of what occurred during the course of a particular hearing or proceeding before the Tribunal, the article contains information which I consider can be characterised as ‘information about a guardianship proceeding’. The article refers to the decision of the Tribunal stating that LER’s finances are managed by the PTQ. The article contains specific details about LER’s financial resources and the amount to which he is given access by the PTQ. The article also makes it clear that LER’s finances are being managed by the PTQ and further states this ‘system’ is ‘designed to protect people who lack decision making capacity and don’t have suitable family to protect them’.[21] In my view, a simple reading of the article discloses to the reader that LER lacks capacity for decision making and cannot manage his own finances. The PTQ cannot be appointed to ‘manage’ the finances of an adult with impaired capacity in the absence of a guardianship proceeding as defined. There is information in the article about the Tribunal’s decision to appoint the PTQ as administrator for LER. Further, in the last guardianship proceeding concerning LER, a review of the appointment of the PTQ, the learned member considered whether the PTQ was competent and whether the appointee proposed by LSS was more appropriate than the PTQ for appointment.[22] It is clear from the reasons for decision of the learned member that many of the matters raised in the article were considered at the hearing as they were specifically raised by LSS in the proceeding and were dealt with by the Tribunal.[23]
  4. [49]
    A contravention of s 114A carries a penalty which supports the view that the legislature considered the protection of a relevant adult’s identity in connection with information about a guardianship proceeding was very important. It would be, in my view, incongruous that a person might circumvent s 114A simply by avoiding the use of certain terms or words in a publication.
  5. [50]
    I accept the submissions of the PG, the Public Advocate, and the PTQ that the article contains information about a guardianship proceeding. For all of those reasons, I conclude that the article contains information about a guardianship proceeding.
  6. [51]
    I have already found that there has been publication of the article to the public or a section of the public as the article is available online. Further, I have already found that the article identifies LER in connection with that information. Therefore, there has been a publication of prohibited information. However, I have further considered the extent of the publication.

What is the extent of the publication and by whom has the information been published?

  1. [52]
    I have considered whether the publication of the prohibited information is limited to placing the article online or whether there has been other publication of the article. I have also considered who has published the information. It has been submitted that any other person who may have co-operated with the article has also published prohibited information.
  2. [53]
    The Public Advocate argued that s 7(1)(c) and s 7(1)(d) of Schedule 1 of the Criminal Code Act 1899 (Qld) (‘Criminal Code’), which relates to a person who aids another person in committing an offence may be charged with actually committing the offence and any person who counsels or procures any other person to commit the offence may be charged with the actual offence. The Public Advocate referred me to s 8 which relates to offences committed in prosecution of a common purpose. Both the journalist and the corporation publishing the article it was submitted may have committed an offence.
  3. [54]
    The PTQ submits that as the GAA does not contain a definition of ‘publication’ or the word ‘publish’, the meaning of the words should be taken from the general meaning of the words, in the context of the statute and given a construction that will promote the purpose or object of the statute.[24]
  4. [55]
    The PTQ submits that an ordinary interpretation of ‘publish’ absent a statutory definition will not follow the meaning used in defamation law extending to any relevant communication to any third party. The PTQ relies, in its submission, on Tom & Bill Waterhouse Pty Ltd v Racing New South Wales,[25] where the Supreme Court of New South Wales said:

[22] The word ‘publish’ has two meanings: the ordinary or common meaning which the layman would use, and the technical meaning which a defamation lawyer would use. To a layman, ‘to publish’ ordinarily means to make generally known, declare or report openly, proclaim, bring something to public notice, or make information generally accessible or available: see, for example, New Shorter Oxford English Dictionary. The word derives from publicus and connotes making something known or available to the world at large.[26]

  1. [56]
    The PTQ says that in this case the information has been conveyed in a form accessible by the general public including on the internet and thus would infringe s 114A. The PTQ further submits that s 114A captures publication to a smaller group than the world at large as it uses the phrase ‘the public or a section of the public’. The PTQ submits that the phrase is to be construed according to its context and, relying on a number of authorities, submits that information is not ‘published’ for s 114A of the GAA where it is disseminated in a domestic environment for a private purpose.
  2. [57]
    The PTQ submits that it will frequently be necessary for the adult’s family members, substitute decision makers, representatives and service providers to disclose an adult’s identity and participation in a guardianship proceeding in order to support the adult and protect his or her interests. The PTQ submits this is consistent with the ‘General Principles’ in the GAA,[27] and s 249 of the GAA. However, disclosing relevant information to any person may still constitute publication to a section of the public for the purposes of s 114A of the GAA if the communication is not for a domestic or personal purpose, or made to a law enforcement or investigative body,[28] but ‘widespread communication with the aim of reaching a wider audience’.[29]
  3. [58]
    LN submits that LSS as well as the journalist and publisher have published prohibited information. In relation to LSS, LN submits, aided by s 14B and s 14A of the Acts Interpretation Act and relying on the Macquarie Dictionary definition of ‘publish’, that LSS has published the information by making it ‘publicly generally known’. It is submitted that LSS has provided substantial information to the journalist and newspaper and that that is clear from the article itself.
  4. [59]
    The PG submits that any person who caused the article to be placed on the website could have contravened s 114A.
  5. [60]
    In my view based on the ordinary meaning of the word ‘publish’, any person who caused the article to be placed on the website may have breached s 114A. I consider that may include but would not be limited to the journalist who wrote the article and the publisher of the article, in the first case, Fairfax Media, and I so find. In making that finding, I consider that such an interpretation of ‘publish’ is consistent with the primary focus of the GAA and the General Principles of the GAA. Further, I am conscious that s 114A(2) carries with it a penalty for its contravention. Clearly the legislature considered the protection of a relevant adult’s identity in connection with information about a guardianship proceedings was important. Only limited exceptions are provided for in s 114A(3).
  6. [61]
    Consistently with that reasoning, I consider that LSS, as a source of the information about LER’s financial matters and personal circumstances, in posing for the photograph with LER in the knowledge of the nature of the article may also have published prohibited information. This is not a case where LSS has communicated the information for the purposes of supporting decision making for LER. The information about LER was communicated by LSS to the journalist and publisher for no other purpose than the publication of the article. In doing so she identified LER to the journalist, a member of a section of the public to whom she gave the information and connected him with that information. LSS did so having participated in the hearing in December 2018 and having been provided with a copy of the learned member’s decision and reasons for decision.

Is there a reasonable excuse for the publication?

  1. [62]
    On 27 September 2013, the Tribunal (differently constituted) declared that LER did not have capacity for all personal and financial matters. At that time, the Tribunal appointed the Adult Guardian (as the statutory guardian was then known) guardian for LER for a range of personal matters and appointed the PTQ as administrator for LER for all financial matters. Since that time the Tribunal has conducted reviews of the appointments with the last reviews resulting in the orders made on 17 December 2018. In conducting reviews, the Tribunal is required to consider afresh whether the presumption of capacity is rebutted. Having said that the Tribunal has never made a declaration to the effect that LER has capacity for any particular personal or financial matters simple or complex.
  2. [63]
    LSS alleged that the PTQ wished to stop any story because the PTQ had mismanaged LER’s funds and had inappropriately invested the funds. In addition, LSS claims that extensive legal fees have been charged by the PTQ and that insufficient detail of the expenditure and accounts has been provided to LER. LSS also made various allegations about collusion between the PG and the PTQ, arguing that the publication of the article was in both the public interest and, in exposing alleged injustice to LER personally, in his interests. LSS argues that the Tribunal could not find that disclosure of the information in the article or of that kind would cause LER serious harm or injustice. LSS further argued that under the Australian Constitution criticism of government at all levels is open. I have considered these arguments both in the context of the application of s 114A and in relation to whether a confidentiality or non-publication order ought be made.
  3. [64]
    The PTQ submits that s 114A provides the tribunal or a court with the discretion to authorise publication of information about a guardianship proceeding including prohibited information and that in those circumstances a person’s belief that the publication of the information is in the interests of the adult or the general public will not of itself give rise to a ‘reasonable excuse’ for the breach. Further, the PTQ submits that it was open for the publisher of the article to make the appropriate application to the Tribunal.[30]
  4. [65]
    The PTQ argues that in these circumstances any purported or claimed waiver or consent of LER could not be relied upon to LER’s prejudice and would be unenforceable as the Tribunal has determined that LER lacks capacity and has appointed the PG to make decisions about legal matters.
  5. [66]
    The PG submits that the words ‘without reasonable excuse’ in s 114A is an element of the offence, proof of which would lie with the prosecution.
  6. [67]
    The PG says it is for the prosecution to prove their case, beyond a reasonable doubt that there was no reasonable excuse for not taking into account any potential defence that might be raised.[31]
  7. [68]
    The Public Advocate submits that if LER had the requisite capacity to consent to the publication of the story and identity then he was within his rights to do so and that this would be a reasonable excuse for the publishers of the article.[32] The Public Advocate argued at the hearing that in the reasons for decision dated 17 December 2018, the Tribunal had in effect made a fresh declaration about capacity.[33] The Public Advocate argues that the Tribunal on 17 December 2018 did not state that the presumption of capacity was rebutted for all personal and financial matters but rather found the presumption of capacity rebutted only for the particular personal matters for which the PG was appointed to make decisions and all financial matters.
  8. [69]
    The Public Advocate referred the Tribunal to s 24 of the Criminal Code and submitted that the journalist and publisher of the article may rely on that section and argue that they acted under an honest and reasonable but mistaken belief in the existence of a particular state of things, i.e., that LER had provided his consent to the publishing of the article and that he was capable of providing that consent. Further, the Public Advocate argued that everyday people use articles to express their views and this may be the only way to hear LER’s voice. The Public Advocate argued that LER appears from the article to have posed for the photograph.
  9. [70]
    The Public Advocate pointed me to the following passages of the Tribunal’s reasons for decision:[34]

[9]Although LER was declared not to have capacity in 2013, the presumption must be applied every time the Tribunal is called upon to investigate capacity. This is because a person’s capacity may change over time. It has been held that no “particularly inconvenient consequences would attend a fresh application of the presumption” because the Tribunal is empowered to gather the evidence it needs to make an informed decision and may take into account, if still relevant, evidence adduced in an earlier proceeding when the impaired capacity was declared.[35]

[80]I am satisfied that, had a new application been made, I would appoint a guardian. In particular, I am satisfied that the presumption of capacity for personal matters has been rebutted and that appropriate grounds otherwise exist for the appointment of a guardian to continue. In arriving at that view, I have relied on the evidence for capacity in relation to the review of the appointment which I have discussed above. While capacity is ‘matter specific’ in the sense that a person with impaired capacity for financial decisions may have capacity for personal matters, I am satisfied that LER also has impaired capacity for decisions about certain personal matters.[36]

  1. [71]
    The PG submitted at the hearing that the PG would be cautious in assuming consent.
  2. [72]
    LN submits that in the context of the current proceedings, there is ample evidence to the effect that LER’s capacity to protect his own interests is heavily compromised by his cognitive impairment.[37]
  3. [73]
    Further, it is submitted that it is clear from the article that the newspaper knew or should have known that publication of the article would expose the identity of the relevant adult to the public or a section of the public and none of those people or entities sought the prior consent of the Tribunal before publishing the article.[38]
  4. [74]
    At the hearing LN told the Tribunal that she was in agreement with the submissions of the PTQ. She also relied on the declaration about capacity made by the Tribunal in 2013. LN said that she and her sister had been contacted by the journalist but declined to comment as they wished to respect their father’s privacy. LN said the submissions of others focussed on LER’s voice being heard. LN submitted that the article reflects LSS’s voice and LSS has used it as a way to ventilate her issues.
  5. [75]
    I have carefully considered the reasons of the learned member and the various submissions made to the tribunal both orally and in writing. The learned member was not required to make a declaration about capacity but rather consider whether there was impaired capacity for a matter. While I accept the learned member, in the last sentence of paragraph [80], makes a finding that LER has impaired capacity for decisions about certain personal matters. The ‘certain’ personal matters are not set out. I consider that in line two of paragraph [80], the learned member has reached a conclusion that the presumption of capacity for personal matters has been rebutted.
  6. [76]
    The learned member went on to say at [81]–[84]:

In addition to the matters that have led me to conclude that LER has impaired capacity for financial matters, I have also taken into account the concessions made on behalf of LSS by her counsel, that LER needs a guardian and that the appointment of the public guardian is not contested. A person with capacity does not need a guardian. Further, it is clear that LER does not attend medical appointments independently and that he needs ‘prompting’ by LSS in the form of notes taped to the wall and door reminding him not to talk to his daughters and to contact LSS by telephone if anyone comes to the door.

…I am also struck by the incongruity between the tone and language used in submissions in these proceedings, purportedly made by LER and other evidence about LER in medical records and in the course of the hearing. For example, Mr Spamer, LSS’s solicitor, when being cross-examined as to his views as to what he observed about LER’s capacity to provide instructions on 20 November 2017 said: “LER is a man of few words”.

This is also borne out in the medical records where it is recorded that LER looks at his wife when asked a question, rather than answering it himself or gives “yes”, “no” answers. I agree with the submissions made by Mr Whiteford on behalf of the Public Trustee that LSS conflates her views with that of her husband’s and that the Tribunal in fact, has, in effect, no evidence from LER at all as to what he wants. Mr Spamer conceded in cross-examination that LER had never said to him that he wanted a different administrator. In these respects, namely with whom he has contact, health care and legal matters I am of the view that LER’s will is susceptible to being overborne. For these reasons in addition to the evidence generally regarding capacity, in my view LER has impaired capacity for decisions regarding personal matters.

The Public Guardian submitted that its appointment had so far been fruitless. The last visit to LER’s home was in March 2017 and emails have been sent accusing the Public Guardian of trespassing. The Public Guardian has not been asked to consent to any of the numerous medical appointments LER has had and LER has refused to have contact with his daughters despite numerous requests (although the Public Guardian concedes this may be because he has impaired capacity or is being unduly influenced). Despite the inability of the Public Guardian to engage with LER regarding his health care and in relation to contact with his daughters and grandchildren, this is not a reason to discontinue the appointment. I therefore continue the appointment with respect to legal matters not relating to property or finances. Given the present level of hostility, at least between LSS and LER’s daughters and of the number of applications that have been made to this Tribunal and the Supreme Court in recent years, I am of the view that without an appointment in respect of such decisions there would be an unreasonable risk to LER’s health, welfare or property.

  1. [77]
    In making the finding that LER lacked capacity for financial matters, the learned member considered all of the medical evidence before the Tribunal as well as the non-compliance by LER with any directions to attend the resumed hearing, attend for capacity assessments or attend a meeting in the company of his psychologist with the learned member.[39] The learned member has recorded that LSS conceded at the hearing that LER has short term memory issues due to long term alcohol abuse and that he lacks capacity to make financial decisions.[40] The learned member also referred to seeing photographs of messages/instructions posted by LSS in the house which for example state ‘if door knocks do not open, call LSS’ and notes reminding him not to speak to his daughters.[41]
  2. [78]
    The learned member went on to say:[42]

I also formed the impression at the Hearing that LER was highly dependent on LSS. She had left him in the care of mutual friends while she attended the Hearing but when Mr Sheehy suggested contacting LER by telephone LSS said that he did not have a mobile telephone. It was also clear from a perusal of the medical records and from the Hearing that LSS almost always accompanies him to any medical appointments and that she does the talking. It is also the case that LER goes into the examination room with LSS when she is undergoing a gynaecological exam. This suggests that LER either cannot be left alone or that is under the influence of LSS. In either case, it suggest LER may have impaired capacity in the sense this will may be easily overborne.

Apart from not having his own telephone, any emails are sent from a joint email address. LN refers to an “obvious pattern” since 2012 of LSS writing documents sending texts and emails “in the guise that Dad is doing so”. I have had regard to the transcript from the hearing in 2014 where LER’s accountant gave evidence of instances when emails or texts purportedly sent by LER requesting details of personal financial information were in fact sent by LSS impersonating LER. I accept LN’s evidence that LSSS has a habit of authoring emails and texts purportedly on behalf of LER. I was also persuaded by Mr Whiteford’s cross examination of LSS that it was she who in fact had prepared all the Tribunal applications and submissions, although the documents had been written as thought they had been written by LER.

Further, on 25 January 2018, Dr Stewart records that LER was getting visibly agitated listening to LSS discussing all the financial stress associated with the government being in charge of his money and that when Dr Stewart asked him how stressful it was for him, he stated “the same as…” and pointed to LSS.

I am satisfied that LER, would not, in all the circumstances, be able to freely and voluntarily make decision. I am also satisfied that LER would not understand the nature and effect of financial decisions.

  1. [79]
    In terms of s 114A(2), the journalist and the publisher of the article as people who have potentially contravened s 114A(2), in my view, have the onus of establishing that they had a reasonable excuse for publishing information about a guardianship proceeding in respect of which the adult is readily identifiable. I note that at the bottom of the online article before the comments section the following words are printed: [redacted].
  2. [80]
    This suggests to me that they were aware of the terms of s 114A and that the identification of an adult in respect of whom appointments of an administrator and/or guardianship had been made should not occur. Given the contents of the article as outlined earlier in these reasons and the statement in the preceding paragraph, perhaps the journalist and the publisher of the article considered they had a reasonable excuse for publishing the identifying information about LER as submitted by the Public Advocate, that LER was able to consent to its publication and had done so. The article states:

[LSS] claims her husband has memory lapses but can make decisions in daily life and make his wishes known. [LER] spoke to the [publisher] briefly to confirm he wanted the story reported.

  1. [81]
    While the Tribunal accepts there is a presumption of capacity for all adults in Queensland, the application of s 114A presupposes that a guardianship proceeding has occurred in relation to a person.[43] Further, for the purposes of s 114A(2) whether or not the tribunal in a guardianship proceeding determined that the presumption of capacity was rebutted is irrelevant. The definition of ‘relevant adult’ makes that clear.
  2. [82]
    Whether the publisher/journalist has a reasonable excuse is not for me to finally determine. In my view it is an element of the offence for the prosecution to establish. However, clearly it would not be appropriate for me to take the serious step of referring these reasons and relevant papers to the Commissioner of Police for consideration of a prosecution if it were clear that there was a reasonable excuse for the contravention. Section 114A(3) sets out the limited circumstances in which s 114A(2) does not apply. None of those circumstances have occurred in this case. Prior to the publication of the article, the Tribunal did not receive any application seeking an order authorising publication of the article or, more particularly, the publication of prohibited information. Section 114A(5) provides for a process whereby a proper consideration of the relevant issues can occur including whether the adult has capacity to consent to the publication of the particular information sought to be published and to their identification in connection with that information.
  3. [83]
    In the last guardianship proceeding, which resulted in the orders made on 17 December 2018, the Tribunal did not make a declaration that the adult had capacity for particular decision making. The reasons of the learned member who determined the reviews on 17 December 2018 reflect findings that LER is a person in respect of which the presumption of capacity was rebutted for financial matters and for personal matters.[44]
  4. [84]
    The learned member, in particular, made findings that LER was unable to make decisions freely and voluntarily as he was overborne by LSS. While I accept that LER’s capacity for consenting to the publication of the contents of the article and his identification in connection with the article has not been the specific subject of a capacity assessment, the PG is currently appointed LER’s guardian for legal matters not relating to his financial or property matters. No attempt appears to have been made to obtain the consent of the Public Guardian to authorise the identification of LER in the article. Further the PG is appointed to make contact decisions for LER. There is no evidence before me that the PG was contacted to make a decision about LER’s contact with those connected with the publication of the article.
  5. [85]
    Further, it is clear from the contents of the article that LSS provided information to the journalist about LER and LER’s property and financial circumstances. The article is lengthy and contains specific details of his finances and how they are managed by the PTQ. The article also discloses that the journalist was shown correspondence from the PTQ. It also seems the opinion of a partner from a wealth management firm was sought. It is unclear by whom but for LER to have provided consent to the article presumably he would have also have had to consent to this opinion being sought and published. The PTQ is currently appointed as administrator for LER for all financial matters which includes legal matters relating to the adult’s financial or property matters. The decision of Bergmann v DAW,[45] makes it clear that an adult cannot make decisions for which a substitute decision-maker has been appointed.
  6. [86]
    It is unclear from the article whether s 114A was explained to LER before he apparently stated in what is described as a brief conversation that he wanted ‘the story’ reported.
  7. [87]
    I have considered LSS’s argument that the publication of the article in terms of its criticism of the PTQ was in the public interest. Section 114A is focused on prohibiting the identification of an adult in connection with certain information. For the purposes of the argument, any public interest in the public disclosure of concerns about the work of a public entity can be served without identifying the relevant adult in connection with the information. Further, whether the publication of prohibited information is in the public interest should appropriately be considered in determining any application that might be made under s 114A(5) of the GAA.
  8. [88]
    In all of those circumstances and in the absence of any application to this Tribunal as provided for in s 114A(4) and (5), I am not satisfied that this is a case where it is clear that there is a reasonable excuse for the publishing of prohibited information.

Should I make a non-publication order under s 108 or a confidentiality order under s 109?

  1. [89]
    With the exception of LER’s daughters, none of the participants in the proceedings, whether by written submission or oral submissions advocated for the making of a confidentiality order. LER’s daughters argued for orders to be made to protect their father’s privacy generally.
  2. [90]
    LN and her sister provided a letter to the Tribunal through their lawyer. The letter states that they strongly feel that LER’s privacy should be respected and that LER was not a person who previously would have wanted others to know about his personal affairs. Further the letter states that they can see no benefit to their father by the publication of any of his personal or financial information to members of the public.[46]
  3. [91]
    Indeed, noting that the making of a confidentiality order would prevent inspection of the Tribunal’s record of proceedings, the PTQ argued that it was in LER’s interests that any article that might be published about guardianship proceedings concerning LER accurately reflected the information before the Tribunal and the findings and orders made by the Tribunal. The PTQ was concerned only with the publication of information that identified the adult which, s 114A should operate to prevent.
  4. [92]
    There are competing arguments about whether the Tribunal should make a non-publication order.
  5. [93]
    LN argued for and extension of the interim order into the future to protect LER.
  6. [94]
    The Public Advocate argued that a non-publication order was not necessary to avoid serious harm or injustice to LER. The Public Advocate argued that the PTQ’s appointment provides a safeguard in relation to any potential vulnerability to abuse in relation to his finances. The Public Advocate also submitted that as the making of a limitation order had made no difference there was no utility in making the order which was a relevant consideration in the exercise of the discretion.
  7. [95]
    The PG argues that the risk of harm is that LER is a person who has been found to have impaired capacity. He is a vulnerable person and he has now been publicly identified as a person with impaired capacity. This exposes him to risk from those who might seek to take advantage. Further the PG submitted that there is also a risk of injustice to LER.
  8. [96]
    The PTQ submits that a non-publication order is necessary because not all matters might be captured by s 114A. Section 108 refers to an order being necessary to avoid serious harm or injustice to a person which could mean a person other than the adult.
  9. [97]
    The PTQ argues that the article has resulted in LER, a high wealth individual and his partner now being identifiable by sight, and he is known to be a vulnerable person in that regard. The PTQ also argued that an order was required to ensure that LER’s identity was protected in connection with the proceedings and was protected in the future given the article likely peaked an interest in LER and he might be a focus for other media outlets.
  10. [98]
    Section 114A of the GAA, ought to have operated to protect LER’s identity and privacy. It has not done so. The information is now in the public domain and has been now for some time. I do not consider that there are any terms of an order I could make to protect LER’s privacy or that of others in respect of future publication of similar information under s 108 of the GAA that would not mimic the terms of s 114A of the GAA. While it has been argued that the failure of s 114A to afford LER the protection does not prevent me from making an order under s 108 in essentially the same terms as s 114A, I do not think it appropriate to use s 108 to in effect achieve the result that s 114A ought to have achieved without a formal order from the Tribunal. To do so would undermine s 114A and would be inconsistent with the terms of s 108. Further, even if I was persuaded to exercise the discretion in s 108 to make a non-publication order, how could I ensure compliance with the order? In order to do so any person or entity that might be minded to print or broadcast a story about LER’s guardianship proceedings would have to be made aware of the order. For those reasons I have decided not to make an order under s 108 of the GAA. I will dismiss the applications for a non-publication order.
  11. [99]
    In relation to the application for a confidentiality order, again, I consider that s 114A should have afforded appropriate protection. There have been no attempts to search the documents that were before the tribunal. There is no evidence of any attempt to harm LER due to the publication of the article and the Public Guardian and the PTQ have been appointed guardian and administrator respectively for LER. I am not persuaded that, at the current time, a confidentiality order is necessary to avoid serious harm or injustice to LER. I will dismiss the application for a confidentiality order.
  12. [100]
    I have made the orders sought by LSS so I do not consider it necessary that I formally address LSS’s estoppel argument. However, for completeness, I would reject the argument that by taking no steps to prevent the publication of the article this Tribunal is estopped from making any future non-publication order or confidentiality order. Similarly I would reject the argument that any party such as the PTQ or PG is estopped from either applying for or making submissions in support of any application for a non-publication order or confidentiality order.
  13. [101]
    There is no evidence before me that any party had seen the article in advance of its publication. As I have already found the publisher did not seek authorisation from the Tribunal to publish the article. Further and in any event LSS’s estoppel argument is misconceived.

Should the Tribunal take any other steps given the findings made in relation to s 114A of the GAA?

  1. [102]
    I do not consider however that that is an end to the matter. If no further steps are taken in relation to the publication of the article, in circumstances where I have decided that the article contained prohibited information, there is no deterrent for others who might consider publishing similar articles not only in relation to LER but about relevant adults in other guardianship proceedings before this Tribunal.
  2. [103]
    I consider that this decision and the reasons for it should be provided to the Commissioner of Police for consideration of the prosecution of those who have published prohibited information, namely all of those who provided the information reported in the article to the journalist as well as all who have caused the article to be written and published online. As LER is the relevant adult for the purposes of s 114A and in reliance on the findings this tribunal has made regarding the rebuttal of the presumption of capacity for LER and the tribunal’s decision to appoint substitute decision-makers for LER, I do not consider that LER is a person who is responsible for publishing prohibited information.
  3. [104]
    I agree with the submission of the PG that the offence created by a contravention of s 114A is a simple offence which can be heard and determined by the Magistrate Court in a summary manner. I further accept the PG’s submission that while any legal entity has standing to be a complainant in respect of prosecutions for offences under the GAA, it is desirable that the Queensland Police Service be the complainant by way of referral because of mechanisms in the Justices Act 1886 (Qld).[47]
  4. [105]
    The Tribunal directs that the Principal Registrar refer these reasons to the Commissioner of Police to consider the prosecution of those persons and entities who may have breached s 114A of the GAA.
  5. [106]
    For the purposes of that direction, the Tribunal authorises the disclosure to the Commissioner of Police, of the identity of the adult about whom these proceedings concern as well as the names of the other persons referred to in these reasons pursuant to s 114A(5) of the GAA. Without this information the Commissioner of Police would be unable to properly consider the referral.
  6. [107]
    While I consider it important that the participants in the hearing including those who had standing to be heard and who are the subject of the referral are provided with an unredacted copy of these reasons, it is not appropriate for these reasons to be published otherwise than in a redacted version to ensure compliance with s 114A(2) of the GAA. For example, the reference in these reasons to the details of the article which clearly identifies LER could lead to the identification to the public of LER in connection with these proceedings and the proceedings in December last year. I will, therefore, direct that only a redacted version be otherwise published.

Footnotes

[1]  Now the Public Guardian.

[2]  The constitution of the Tribunal on 17 September 2013 was different to the constitution of the Tribunal for the orders made 17 December 2018. I did not constitute the Tribunal in respect of either of those decisions.

[3]Guardianship and Administration Act 2000 (Qld) (‘GAA’) s 100, states that a limitation order means an order of certain types including (c) a non-publication order and (d) a confidentiality order.

[4]  GAA s 114A(2) prescribes the maximum penalty – 200 penalty units.

[5]  GAA s 209(1)(a)­–(b).

[6]  GAA s 114A(8).

[7]  GAA s 114A(6). Relevant adult is defined in s 114A(8) to mean the adult concerned in the matter, whether or not the court or tribunal decides the adult is an adult with impaired capacity.

[8]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 6(2).

[9]  GAA s 7.

[10]  [2018] QCAT 279, [26].

[11]  GAA s 11A.

[12]  Submission of the Public Trustee dated 5 April 2019, [6]–[7].

[13]  Submission of the Public Guardian dated 4 April 2019, [12].

[14]  Ibid.

[15]  Ibid, [21]–[24].

[16]  [2014] QSC 163.

[17]  Ibid, [39]–[41]; Submission of LN and LG dated 4 April 2019, [1]–[7].

[18]  Submission of LN and LG dated 4 April 2019, [8]–[9].

[19]  UN Doc A/RES/61/106 (adopted 13 December 2006).

[20]  Ibid, [10]–[12].

[21]  Online article provided with submissions.

[22]  GAA s 31. See in particular s 31(4).

[23]LER (No 2) [2018] QCAT 431, [44]–[65]; regarding s 31(4) of the GAA, [66]–[76].

[24]  Ibid, [8].

[25]  (2008) 72 NSWLR 577, 585–6.

[26]  Submission of the Public Trustee dated 5 April 2019, [11].

[27]  GAA Schedule 1.

[28]  Submission of the Public Trustee dated 5 April 2019, [17] and citing Winters v Winters [2015] FAMCA 195, [14] citing Oates & Q (2010) FLC 93-451, [108].

[29]Winters v Winters [2015] FAMCA 195, [14]–[19] citing Re Edelsten; Ex parte Donnelly (1988) 80 ALR 704, 708.

[30]  Submission of the Public Trustee dated 5 April 2019, [29]–[30].

[31]  Ibid, [16].

[32]  Submission of the Public Advocate dated 4 April 2019, [34].

[33]LER (No2) [2018] QCAT 431, [9], [80].

[34]  Footnotes omitted. See LER (No 2) [2018] QCAT 431.

[35]  The Tribunal referred to Bucknall v Guardianship and Administration Tribunal (No 1) [2009] 2 Qd R 402, [29].

[36]  Ibid relying on LSS v LN, LG & Public Guardian [2016] QCATA 133.

[37]  Ibid, [13].

[38]  Ibid, [16]–[26].

[39]  The Tribunal referred to Bucknall v Guardianship and Administration Tribunal (No 1) [2009] 2 Qd R 402, [21]–[29], [31]–[34], [39]–[41].

[40]  Ibid, [30].

[41]  Ibid, [35].

[42]  Ibid, [36]–[37], [41]–[42].

[43]  GAA Schedule 1, s 1.

[44]LER (No 2) [2018] QCAT 431, [27]–[43], [80]–[84].

[45]  [2010] QCA 143, [34]–[43], [46]. See also GAA s 33.

[46]  Letter from CRH Law to the Tribunal dated 7 March 2019.

[47]  Submission of the PG dated 4 April 2019 [5.1], [5.2], [7].

Close

Editorial Notes

  • Published Case Name:

    Re LER

  • Shortened Case Name:

    Re LER

  • MNC:

    [2019] QCAT 406

  • Court:

    QCAT

  • Judge(s):

    Senior Member Guthrie

  • Date:

    15 Oct 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.