HFI[2018] QCAT 279

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The Tribunal has two files concerning HFI which relate to proceedings under the Guardianship and Administration Act 2000 (Qld) (the GAA) in which HFI was the adult concerned. One file contains documents provided to the Tribunal in its original jurisdiction and the other contains the record of proceedings in respect of a proceeding commenced in the Tribunal’s appeal jurisdiction. Generally speaking, an eligible person may appeal against a decision made by the Tribunal under the GAA as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).^[1] Provisions of the QCAT Act are relevant in relation to the Appeal Tribunal proceedings.^[2] We must determine whether to exercise the discretion to make confidentiality orders and/or non-publication orders in relation to documents and information held by the Tribunal in relation to HFI.

Background

2. [2]
   On 17 January 2018, the Tribunal^[3] decided to appoint, for a reviewable period of one year, the Public Guardian (PG) as guardian for HFI for particular personal matters.^[4] The Public Trustee of Queensland (the PTQ) was appointed as administrator for HFI for the same period.
3. [3]
   The Tribunal further ordered, pursuant to s 109 of the GAA that certain information and documents were confidential and should not be disclosed. The relevant information comprised oral evidence regarding discharge planning for HFI provided at the hearing on 17 January 2018 and a number of medical reports.
4. [4]
   After the hearing on 17 January 2018, one of HFI’s parents was charged with a number of serious criminal offences [redacted].
5. [5]
   On 25 January 2018, the PG applied to the Tribunal for a confidentiality order to prevent inspection of the Tribunal’s record of proceedings principally by any media outlet. Around that same time, publications owned by News Corp Australia Pty Ltd (News Corp) sought to inspect the record of proceedings concerning both HFI and a sibling of HFI.
6. [6]
   Prompted by the PG’s application, the Tribunal initiated an application for a non-publication order in relation to information held on the Tribunal’s files concerning HFI which included documents provided to the Tribunal in its original jurisdiction as well as in the appeal jurisdiction. The Tribunal also initiated applications for confidentiality orders and non-publication orders in relation to documents contained on files held by the Tribunal in relation to proceedings concerning the sibling of HFI who is now deceased. The files of HFI and her sibling include some common documents. We have also determined the applications in relation to documents in proceedings concerning HFI's sibling and given written reasons for our decision. 
7. [7]
   In relation to guardianship proceedings under the GAA, s 108(3)permits the Tribunal to make a non-publication order on its own initiative and s 109(3) permits the Tribunal to make a confidentiality order on its own initiative.^[5] Section 66(3) of the QCAT Act permits the Tribunal to make a non-publication order on its own initiative. This section is relevant in relation to the record of proceedings in relation to the Appeal Tribunal proceedings.
8. [8]
   The Tribunal^[6] made interim confidentiality and non-publication orders pending the final determination of the applications.^[7] The effect of those orders was to prevent inspection of any documents or information concerning HFI until the hearing of the applications. The Tribunal directed the active parties to provide submissions and sought submissions from News Corp which, although not an active party to the applications, as an entity adversely affected by the proposed orders, has standing to be heard in relation to the making of any such order.^[8]
9. [9]
   An oral hearing was conducted on 19 February 2018, at the conclusion of which we made interim orders pending the final determination of the applications. Following the exchange of further written submissions, we have finally determined the applications without the need to resume the oral hearing. 
10. [10]
    During the hearing, we spoke with the representatives of the PG in the absence of the other parties and News Corp and in effect the general public (although no other person was present in the hearing room for any part of the hearing).^[9] Our purpose in closing the hearing was to ascertain from the PG any further information regarding the current circumstances of HFI and to give the PG an opportunity to provide to the Tribunal any other information upon which the PG sought to rely but did not wish disclosed to one or more of the parties or News Corp.  In the end, we are satisfied that in determining these applications we have relied on only the information discussed in the open hearing, the written submissions provided to the Tribunal by the active parties and News Corp and our own consideration of the relevant documents and information. 

Inspection and obtaining copies of a record of proceeding

11. [11]
    Section 230 of the QCAT Act provides that the Principal Registrar must, for each proceeding keep a record containing all documents filed in the registry for the proceeding. The Queensland Civil and Administrative Tribunal Rules 2009 (QCAT Rules) provide that a document is filed when the Principal Registrar records the document and stamps the Tribunal’s seal on it.^[10]
12. [12]
    Section 230 of the QCAT Act also provides that a party to a proceeding may, without charge, inspect the record kept for the proceeding and another person, on payment of the prescribed fee (if any), inspect a record kept under s 230(1) or obtain a copy of a record kept under s 230(1). Section 230(4) does not authorise, entitle or permit a person to access a part of a record containing anything whose publication or disclosure to the person is prohibited under a non-publication order.
13. [13]
    It has been the Tribunal’s practice to allow inspection of its ‘files’ by not only parties to a proceeding but also non-parties. There is a practice direction in the Tribunal relating to searching QCAT proceedings and obtaining copies of QCAT documents including how a non-party may obtain a copy of the record of proceedings. The Practice Direction refers to the inspection of the record of proceedings and in particular the documents ‘filed’ in the Tribunal.^[11]
14. [14]
    In the guardianship jurisdiction, the Tribunal may receive information from people who are not active parties to a guardianship proceedings as defined^[12] but are ‘interested persons’. Active parties and interested persons^[13] commonly provide information to the Tribunal without formal direction by the tribunal. They are invited to provide comments on an application. Documents provided to the Tribunal by active parties and interested persons have effectively been regarded by the Tribunal as filed in the Tribunal and as such form part of the Tribunal’s record of proceedings, whether or not they bear the seal of the Tribunal.^[14]
15. [15]
    The QCAT Rules also set out requirements for applications for a proceeding under the GAA unless otherwise directed by the tribunal. The QCAT Rules in our view make it clear that applications to commence proceedings are ‘filed’ in the tribunal.^[15]The guardianship jurisdiction specific rules make it clear that information relevant to the application from the adult’s health provider is required for particular applications as well as details of family members, appointed attorneys, administrators, guardians and primary carer’s for the adult.
16. [16]
    We consider that the applications and information required to form part of the application as required by the QCAT Rules are filed in the Tribunal.  However, it is arguable that the provision of material by active parties and interested persons which is not formally directed by the Tribunal and does not bear the stamp of the tribunal is not ‘filed’ and therefore does not form part of the record of proceedings.
17. [17]
    Limitation orders under the GAA can be made in relation to documents or parts of documents ‘before the Tribunal’. The term ‘filed’ is not referred to in the relevant provisions. Limitation orders include an adult evidence order, closure order, a non-publication order and a confidentiality order.^[16] The GAA contains provisions relating to access to documents ‘before the tribunal’ by active parties and others who the Tribunal considers has sufficient interest in the proceeding. The GAA provides for when the extent to which such access should be available^[17] and the circumstances in which the various limitation orders may be made. These provisions will be considered in more detail later in these reasons.
18. [18]
    In our view it is arguable that s 230 of the QCAT Act does not operate to require as a starting point that a non-active party or non-interested person may inspect all documents held on the Tribunal’s files in a guardianship proceedings or indeed all documents considered to be ‘before the Tribunal’.
19. [19]
    However, for the purposes of these reasons, we have made no formal findings in that regard. Our starting point for determination of these applications is that the record of proceedings that can be inspected includes all documents held on the Tribunal’s files concerning HFI other than the following:

    1. (a)
       documents related to administrative communications between the registry and the tribunal;
    2. (b)
       documents related to administrative tasks and communications regarding process involving registry staff and the Tribunal;
    3. (c)
       correspondence between the registry and others; and
    4. (d)
       the Tribunal members’ documents.
20. [20]
    The position in respect of the Appeal Tribunal proceedings is clearer. The Appeal Tribunal makes directions in relation to the filing of various documents. Those documents directed to be filed form the record of proceedings and can be inspected with the exception of the transcript from the original proceeding in respect of which Auscript’s copyright must be considered.

Is an application for a confidentiality order or non-publication order a guardianship proceeding?

21. [21]
    Under the GAA, a confidentiality order and a non-publication order are types of limitation orders.^[18] The provisions relating to limitation orders are set out in Chapter 7 which relates to ‘Tribunal Proceedings’. Specifically, the provisions relating to limitation orders are contained in Part 1 of Chapter 7, ‘the general’ part of the GAA which governs Tribunal proceedings. The term ‘proceeding’ is used throughout the part but is not defined in the GAA. The term ‘guardianship proceeding’ is defined in the GAA to include a proceeding under the GAA before the Tribunal and a hearing, conference or interlocutory matter before the Tribunal taken in connection with or incidental to a proceeding before the Tribunal.^[19] Chapter 7 also contains Parts relating to particular proceedings and orders such as declarations about capacity and entry and removal warrants.^[20]
22. [22]
    The Tribunal has the functions given to it by the GAA which includes the functions set out in s 81 such as considering applications for the appointment of guardians and administrators, appointing guardians and administrators if necessary and reviewing the appointments^[21] and making declarations, orders or recommendations, or giving direction or advice in relation to guardians and administrators, attorneys, enduring documents and related matters.^[22]
23. [23]
    The making of any type of limitation order requires an application by particular persons or the Tribunal initiating the order. Limitation orders such as adult evidence orders and closure orders are typically made in the context of an oral hearing.^[23] However, the legislation contemplates that confidentiality orders and non-publication orders can be made before a hearing. Such orders are vacated at the start of the hearing of a proceeding. Further the provisions relating to the making and notifying of a decision in relation to these orders including hearing from parties with standing, the making and notifying of the decision for a limitation order and providing written reasons for such orders do not apply to orders made prior to a hearing of the proceeding.^[24] The Tribunal must give its decision on the making of a limitation order as soon as practicable after hearing any submissions on the making of the order.^[25]
24. [24]
    Section 81 is not, in our view, an exhaustive list of the functions of the Tribunal under the GAA. However, in our view s 81(1)(d)(iv) is arguably the relevant function of the Tribunal for determination of applications for confidentiality and/or non-publication orders. A right to inspect documents held on the Tribunal’s record of proceedings presupposes a guardianship proceeding is either on foot or has occurred. Appointments of substitute decision makers are reviewed by the Tribunal. Requests to access the Tribunal’s record of proceeding can occur at any time. We consider that the making of a confidentiality order and non-publication order are orders which relate to matters that have been or are before the Tribunal concerning a particular adult.^[26] The primary focus of the legislation is adults with impaired capacity.^[27] The alternative view would mean that in cases such as this, where there are changed circumstances for an adult, the limitation order provisions could not be applied to afford any protection. That view is inconsistent with the primary focus of the legislation.
25. [25]
    We consider that an application for a confidentiality order and an application for a non-publication order falls within the definition of a ‘guardianship proceeding’ as it is a proceeding under this Act before the Tribunal in the particular circumstances of this case.^[28] Any pre hearing order is a guardianship proceeding as it is an interlocutory matter before the Tribunal taken in connection with or incidental to a proceeding before the Tribunal.
26. [26]
    We are satisfied that it is open for applications for confidentiality orders and non-publication orders to be made to the Tribunal without the need for another type of application to be on foot. Submissions are required and we consider the reference to ‘the hearing of the proceeding’ in s 110(3) includes a hearing of the proceeding to consider and determine an application for a non-publication order or confidentiality order.
27. [27]
    In relation to the Appeal Tribunal proceedings, s 66 of the QCAT Act is also relevant. Section 66 provides that the tribunal may make an order prohibiting the publication other than in the way and to the persons stated in the order of amongst other things the contents of a document produced to the Tribunal; evidence given before the Tribunal; information that may enable a person who has appeared before the Tribunal or is affected by a proceeding to be identified. The Tribunal may make an order only if the Tribunal considers the order is necessary to, amongst other things, avoid interfering with the proper administration of justice; or to avoid endangering the physical or mental health or safety of a person or to avoid the publication of confidential information or information whose publication would be contrary to the public interest or for any other reason in the interests of justice. The Tribunal may make such an order on the application of a party to a proceeding or on its own initiative. Section 66(4) of the QCAT Act provides that the Tribunal’s power to act under s 66(1) is exercisable only by the Tribunal as constituted for the proceeding; or if the Tribunal has not been constituted for the proceeding a legally qualified member or an adjudicator.
28. [28]
    Nothing in that section appears to prevent us from the making of an order under s 66 of the QCAT Act after the Appeal Tribunal proceedings are concluded. The Tribunal comprises two legal members and is in any event the Tribunal constituted for considering the applications both filed, and Tribunal initiated for confidentiality orders and non-publication orders in relation to all information held by the Tribunal concerning HFI.

Should a confidentiality order and/or non-publication order be made in relation to the record of proceedings in the guardianship proceedings?

29. [29]
    Section 103 and 104 of the GAA reflects the need to accord procedural fairness to active parties in the proceedings before the Tribunal.

103 Access

1. (1)
   Each active party in a proceeding must be given a reasonable opportunity to present the active party’s case and, in particular—

1. (a)
   to access, before the start of a hearing, a document before the tribunal that the tribunal considers is relevant to an issue in the proceeding; and
2. (b)
   to access, during a hearing, a document or other information before the tribunal that the tribunal considers is credible, relevant and significant to an issue in the proceeding; and
3. (c)
   to make submissions about a document or other information accessed under this subsection.

2. (2)
   Each active party in a proceeding, or person the tribunal considers has a sufficient interest in the proceeding, must be given a reasonable opportunity to access, within a reasonable time after a hearing, a document before the tribunal that the tribunal considered credible, relevant and significant to an issue in the proceeding.
3. (3)
   For subsections (1) and (2), something is relevant only if it is directly relevant.
4. (4)
   On request, the tribunal must give access to a document or other information in accordance with this section.
5. (5)
   The tribunal may displace the right to access a document or other information only by a confidentiality order
6. (6)
   To remove any doubt, it is declared that the right to access a document or other information is not affected by an adult evidence order, a closure order or a non-publication order

104 Basis of consideration for limitation order

1. (1)
   In considering whether to make a limitation order, the tribunal must take as the basis of its consideration—

1. (a)
   that each active party in the proceeding is entitled to access a document or other information before the tribunal that is credible, relevant and significant to an issue in the proceeding; and

2. (b)
   that it is desirable that tribunal hearings be held in public and be able to be publicly reported.

(2) For subsection (1), something is relevant only if it is directly relevant.

30. [30]
    In this case, the person seeking to inspect the documents held by the Tribunal is not an active party either to the applications the subject of these reasons or to any proceeding that has been before the Tribunal concerning HFI or HFI’s sibling. The person is not an ‘interested person’ as defined in the GAA as they do not have a sufficient and continuing interest in HFI.^[29] Further, the hearings conducted by the Tribunal concerning HFI were not closed hearings. There was no impediment to the attendance of any member of the public to enable public reporting of the Tribunal hearing subject to compliance with s 114A of the GAA.
31. [31]
    Section 114A of the GAA goes some way to protect the privacy of adults who find themselves before the Tribunal. Generally, information about a guardianship proceeding may be published. However, 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 by a member of the section of the public to whom the information is published.
32. [32]
    Section 108 permits the Tribunal to prohibit the publication of information about a Tribunal proceeding, the publication of which, is not prohibited under s 114A.
33. [33]
    The documents held by the tribunal in relation to HFI can be categorised into the following broad categories: 

    1. (a)
       medical information
    2. (b)
       financial information
    3. (c)
       Tribunal directions and orders
    4. (d)
       material provided to the Tribunal (such as reports, statements, letters, emails and submissions by active parties and interested persons)
    5. (e)
       documents provided in support of applications filed in the Tribunal.
34. [34]
    By the very nature of the guardianship jurisdiction, enlivened only if the Tribunal is satisfied that the weight of the evidence rebuts the presumption of capacity to which all Queensland adults are entitled, the information before the Tribunal in guardianship proceedings is information which the community would regard as of an inherently private nature. Adults who find themselves before the Tribunal are not in a dispute with another party, they are the focus of the Tribunal’s inquisitorial proceeding to determine matters such as whether a formal appointment of a substitute decision maker should be made. The proceedings necessarily require the examination of medical reports, the person’s circumstances, how they make decisions and who forms part of their support network, what resources they have to make decisions about, what decisions need to be made at the relevant time and the like.
35. [35]
    Not surprisingly, there is reference in documents filed in the Appeal Tribunal proceedings to some of the same information as is contained in documents before the Tribunal in the guardianship proceedings.
36. [36]
    In order to enliven the discretion in s 108 to make a non-publication order in this case, we must be satisfied that the order is necessary to avoid serious harm or injustice to a person and then we should only make the order to the extent necessary.^[30] Section 108 permits the Tribunal to prohibit the publication of information about a Tribunal proceeding, the publication of which is not prohibited under s 114A.
37. [37]
    Section 109 permits the Tribunal to withhold documents or information before the tribunal not only from an active party but also from other persons. The Tribunal can make a confidentiality order on the application of an active party, on its own initiative or on the application of the entity who prepared or provided the document or other information. We can exercise the discretion to make such an order only if we are satisfied it is necessary to avoid serious harm or injustice to a person.
38. [38]
    To the extent that information about a Tribunal proceeding is health information for a person, ‘serious harm’ to the person includes significant health detriment to the person.^[31] ‘Significant health detriment’ means significant identifiable detriment to the person’s physical or mental health or wellbeing; the person’s health care or the person’s relationship with a health provider including the person’s willingness to fully disclose relevant information to the health provider.^[32]
39. [39]
    Section 103(6) provides that the right of an active party to access a document or other information is not affected by an adult evidence order, a closure order or a non-publication order. Section 103(5) makes it clear that the Tribunal may displace the right to access a document or other information only by a confidentiality order. Section 103(2) provides that each active party or person the Tribunal considers has a sufficient interest in the proceeding, must be given a reasonable opportunity to access within a reasonable time after a hearing a document before the Tribunal that the Tribunal considered credible, relevant and significant to an issue in the proceeding.
40. [40]
    Even with a non-publication order in place, in the absence of a confidentiality order, a person with a sufficient interest in the proceeding can inspect the documents subject to a non-publication order. In this case, it is open for us to find that a potential witness in the criminal proceedings may inspect the files and obtain information which is submitted may be relied upon in the criminal proceedings.
41. [41]
    HFI does not want any of HFI’s personal information or the personal information about HFI’s family members disclosed to anyone outside of HFI’s family and others who in their respective professional roles have HFI’s confidence.[redacted]. However, in the context of the orders sought in these proceedings, we must consider whether an order that goes further than s 114A should be made. [redacted].
42. [42]
    It has also been submitted that the publication of information held by the Tribunal may adversely affect the ability of future courts to fairly consider the material. It is also asserted that there is material before the Tribunal regarding other persons who may be of interest in the criminal proceedings.
43. [43]
    We are satisfied that the publication of health information concerning HFI will cause serious harm to HFI, irrespective of whether or not HFI’s name is withheld from any publication of that information or any information that might lead to HFI’s identification is not published. We are satisfied that even if the information of this type were published consistently with s 114A, HFI would recognise these reports and there is, in our view, sufficient evidence that that would lead to serious harm to HFI’s health. Further, we are satisfied that certain medical reports contain details of HFI’s future accommodation arrangements and the publication of such information will undermine the success of HFI’s transition.
44. [44]
    News Corp argues, that it is for the courts to make relevant suppression or other orders in respect of material filed therein. Further, News Corp argues, relying on various cases mostly in the courts of New South Wales that when weighing the public interest in open justice with the courts being open and accountable and the disadvantage of the ‘personal and public harm’ that may be caused by unrestricted publicity, the balance has been weighted very clearly in favour of open justice and departures from that principle such as orders to close the court or to allow pseudonyms are only valid in those wholly exceptional circumstances where they are ‘really necessary to secure the proper administration of justice’ in the proceedings.^[33]
45. [45]
    We do not consider that case law to be apposite. Guardianship proceedings are centred on a particular adult. It is an inquisitorial process and not a trial.  The GAA contemplates that the adult should not be able to be identified in any reporting of the guardianship hearing itself. The legislation makes specific provision to prevent personal or public harm by the publication of information concerning a guardianship proceeding. In doing so, it recognises the private nature of information the Tribunal receives and the findings the Tribunal makes about a person’s capacity.  As previously stated, the primary focus of the GAA is the adult with impaired capacity. If satisfied that an order is necessary to avoid serious harm or injustice then the Tribunal can exercise the discretion to make a further order under s 108 where adequate protection is not provided by s 114A.
46. [46]
    The Tribunal has the relevant information because an application under the GAA was made.  It is not the Tribunal’s role to determine whether information it holds would in fact, if published, prejudice a fair trial. That is a matter for the courts. However, we are aware of the proceedings before the courts. We are aware of HFI’s and other persons’ connection to the court proceedings. Submissions have been made by authorities as to the relevance of documents held by the Tribunal to the other proceedings.  Without the benefit of appropriate argument on the matters around the criminal proceedings, we cannot make clear and positive findings about whether any information held by the Tribunal is prejudicial to the fair trial of any person or the fair consideration of evidence in the court proceedings. However, we are aware that some of the information the Tribunal has may be evidence relied upon by the prosecution and, taking into account the reason we have this information, the guardianship proceedings, in our view, publication of much of the information before the Tribunal could undermine the courts processes and the prosecution of the criminal proceedings. Once given to third parties, the Tribunal cannot control the information’s use.
47. [47]
    In the event that the court does not make any suppression orders to protect HFI or any other person then searches can be made of the courts’ files. In our view, searches of those files are the most appropriate avenue to enable reporting of any criminal proceedings.
48. [48]
    In the circumstances of this case, we are satisfied that a confidentiality order under s 109 of the GAA is the appropriate order to be made in this case. We are satisfied for the reasons outlined above that it is necessary to avoid serious harm to HFI or injustice to HFI and potentially others involved in the criminal proceedings that we make an order to withhold and keep confidential from persons other than HFI, the Public Guardian, the Tribunal, any advocate or legal representative for HFI, the Public Trustee of Queensland and the Public Advocate, all information before the Tribunal with the exception of the following information: the Tribunal’s orders, and selected parts of applications filed in the Tribunal at least until the criminal proceedings are finalised. It is appropriate that the order be made until further order as it is not known at this time when the criminal proceedings will be finalised. It is also appropriate that our orders reflect that should an appeal be filed against this decision that any Tribunal or Court hearing the appeal be given the relevant documents for the purposes of determining the appeal.
49. [49]
    In relation to the hearing of the applications the subject of this decision, we considered submissions, both written and oral together with other supporting written and oral information. Some of the information provided to us both orally and in writing was of a character that we have found should be kept confidential. We therefore conclude that the oral and written information provided to the Tribunal for the purposes of determining these applications should be confidential save as is necessary for us to provide our reasons for decision. In order to ensure compliance with our own orders we may redact parts of our reasons for decision prior to publication. We direct that those provided with these orders be given the unedited version of our reasons. Further, any court or Tribunal that might conduct an appeal against our decision should also be given the unedited reasons. Otherwise the redacted version of these reasons will be published.
50. [50]
    The Tribunal will review the appointments it has made in due course. These orders may be reconsidered by the Tribunal at that time, or any other time if new information is provided to the Tribunal that would prompt such a reconsideration.
51. [51]
    Section 114A will operate to protect her HFI from being identified in connection with these proceedings in respect of these reasons and the publication of any information which is not subject to the confidentiality order we have made. To ensure this occurs in relation to the documents that form part of the Appeal Tribunal’s record of proceedings, we have made orders consistent with s 114A.

Should a non-publication order be made in relation to the record of the Appeal Tribunal proceedings?

52. [52]
    In our view, where there is common information on both the guardianship proceedings record and the record of the Appeal Tribunal proceedings and a confidentiality order has been made under s 109 of the GAA that information, wherever it is located, is subject to those orders.
53. [53]
    In the event that we are wrong in reaching that conclusion, we are satisfied that in respect of documents on the Appeal Tribunal record of proceedings that contains information of a similar type to that in respect of which we have made orders under   s 109 of the GAA, disclosure to  any person other than the Public Guardian, the Public Trustee of Queensland, the Public Advocate, HFI and any legal representative or advocate for HFI and the Tribunal should be prohibited, pursuant to s 66 of the QCAT Act, to avoid endangering the physical or mental health and safety of HFI and to avoid interfering with the proper administration of justice given the criminal proceedings that are currently on foot. Further, we consider that any Tribunal or court that hears any appeal against our decision should also be given the relevant documents. We rely on our reasoning in respect of the orders we have made under the GAA. 
54. [54]
    We will also make orders about who should receive our orders.
55. [55]
    We make orders accordingly.