HFI[2020] QCAT 481

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 19 October 2020, I considered the review of the appointment of an administrator for HFI, and an application for a confidentiality order. The review was finalised on that date, and oral reasons have been provided for my decision. 
2. [2]
   These written reasons relate to my decision to exercise my discretion to issue a confidentiality order in relation to documents and information held by the Tribunal which relate to HFI. 
3. [3]
   The background to this application is:

   1. (a)
      A member of HFI’s family has been charged with serious criminal offences.
   2. (b)
      Allegations against the family member and details of their alleged criminal behaviour have been reported in the media, and the media has previously sought to access the Tribunal’s file.
   3. (c)
      The criminal trial has not yet begun.
   4. (d)
      Some of the information contained on the Tribunal’s file makes reference to the circumstances in which the criminal charges have arisen, and other information refers to HFI’s personal circumstances and health status.
4. [4]
   On 16 August 2018, the Tribunal considered previous applications in this matter, and made the following decision:

   1. Until further order of the Tribunal and subject to the other orders made by the Tribunal, all information held on the Tribunal’s file in relation to guardianship proceedings concerning HFI other than that information listed herein is confidential and must be withheld from all persons except HFI, any legal representative or advocate for HFI, the Public Guardian, the Public Trustee of Queensland, the Public Advocate, the Tribunal and any court or tribunal conducting an appeal against this decision:

1. (a)
   Orders and decisions of the Tribunal;
2. (b)
   Application for miscellaneous matters filed 25 January 2018;
3. (c)
   Notices of hearing;
4. (d)
   Application for miscellaneous matters filed 16 October 2017;
5. (e)
   Application for miscellaneous matters filed 16 October 2017 other than the information set out in response to question 2 on page 5 of 18 of the application form; and
6. (f)
   Application for leave to be represented filed 12 October 2017.

   2. Until further order of the Tribunal, all submissions and material and information, both written and oral provided to the Tribunal in relation to the applications the subject of these proceedings are confidential save to the extent referred to in these reasons for decision.
   3. Until further order of the Tribunal, the disclosure other than to the Tribunal and any court or Tribunal conducting an appeal against this decision, the Public Guardian, the Public Trustee of Queensland, the Public Advocate, HFI and any advocate or legal representative for HFI, of the following information and documents on the record of proceedings in APL256-17 is prohibited:

1. (a)
   The two page handwritten document filed with the application for leave to appeal and appeal; and
2. (b)
   The submission of the Public Guardian dated 15 September 2017.

   4. Publication of any information about the Appeal Tribunal proceeding that is likely to lead to the identification of HFI by a member of the public or by a member of the section of the public to whom the information is published, is prohibited.
   5. The Tribunal directs that the Tribunal’s orders be provided to HFI, the Public Guardian, Public Trustee of Queensland, the Public Advocate, and News Corp.
   6. The Tribunal directs that the unedited version of these reasons be provided to HFI, the Public Guardian, the Public Trustee of Queensland, the Public Advocate, News Corp and any tribunal or court that conducts an appeal against this decision but to any other person, only the redacted version of these reasons be published.

5. [5]
   The reasons for the Tribunal’s decision have been published^[1] and it is not necessary to repeat them at length in this decision. Relevantly, the Tribunal noted that:

   1. (a)
      Section 230 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) provides that the Principal Registrar must keep a record containing all documents filed in the registry for the proceeding. It has been the practice of the registry to allow inspection of the documents by parties to the proceedings, and also by others;
   2. (b)
      Limitation orders (including confidentiality orders) made under the Guardianship and Administration Act 2000 (Qld) (‘the GAA’) can be made in relation to documents before the Tribunal;^[2]
   3. (c)
      The GAA prescribes that the Tribunal must, in considering whether to make a limitation order, consider that “it is desirable that tribunal hearings be held in public and be able to be publicly reported”;^[3]
   4. (d)
      The GAA offers some privacy protection – while information about a guardianship proceeding may be published, 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.^[4]
   5. (e)
      The GAA permits the Tribunal to prohibit the publication of information about a Tribunal proceeding, other than as provided for above,^[5] and to withhold documents and information from active parties and other persons^[6] if satisfied that it is necessary to avoid serious harm or injustice to a person.
   6. (f)
      “Serious harm” is defined to include significant health detriment.^[7]
6. [6]
   The Tribunal was satisfied that:^[8]

…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… HFI would recognise these reports and there is, in our view, sufficient evidence that that would lead to serious harm to HFI’s health…

7. [7]
   The Tribunal stated further:^[9]

…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.

…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.

8. [8]
   The Tribunal concluded:^[10]

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…

9. [9]
   At the hearing on 19 October 2020, HFI provided oral evidence that she continues to be contacted by reporters. Given the previous media interest in this story, and the upcoming trial of the family member, I was satisfied that it was highly likely that the media will continue to seek to access information regarding HFI and her family.
10. [10]
    The circumstances of this matter remain essentially the same as they were when the Tribunal made a confidentiality order in 2018. HFI’s family member awaits trial, and the charges have raised great interest in the media. The Tribunal holds information which parties may seek to use in the criminal proceedings. Further, the Tribunal holds personal and private information about HFI which, if published would cause serious harm to HFI, even if published in a way that did not identify her. HFI herself would be aware that the reports were about her, and that itself would cause serious harm to her. HFI does not have contact with the family member referred to above, and release of any of her personal information which could make its way to that person would cause HFI serious harm.
11. [11]
    I was satisfied that it was necessary to make a confidentiality order to avoid serious harm or injustice to a person.
12. [12]
    In making this decision, I have taken into account the provisions of the Human Rights Act 2019 (Qld). To the extent that HFI’s human rights are limited by the making of this decision, I am satisfied that such limits are reasonably justified due to the importance of protecting HFI from serious harm. I am satisfied that there is no less restrictive and reasonably available way to achieve that purpose.^[11]