SL[2022] QCAT 233

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   SL applied to the Tribunal for an application about a declaration of capacity seeking the removal of the Public Trustee of Queensland (“PTQ”) as her administrator. The relevant legislation is the Guardianship and Administration Act 2000 (Qld) (“GAA”) and the Human Rights Act 2019 (Qld) (“HRA”).^[1]
2. [2]
   The hearing was commenced and resumed over a period of time. A review of the appointment of an administrator was initiated by the Tribunal on the first day of hearing. These are the reasons for the orders I made on 8 October 2020.

Background

3. [3]
   The Tribunal (differently constituted) first appointed the Public Trustee of Queensland on 29 April 2016 as administrator for SL for all financial matters until further order of the Tribunal. At the time of that decision the Tribunal had before it a report of Dr Sudusinghe who had known SL for four months.
4. [4]
   Dr Sudusinghe reported that SL had an intellectual impairment and did not have a high level of decision-making capacity. Further, that she was “unable to make accommodation choices by herself” but understood “time and basic money”.^[2]
5. [5]
   In response to the question whether SL could make decisions freely and voluntarily, Dr Sudusinghe responded “No” and stated that “she relies heavily on friends in making choices”. Dr Sudusinghe reported that as a result of her impairment, SL engaged in “simple communication only” and was “unable to read”. Dr Sudusinghe expressed the opinion that SL could not understand and make complex decisions.
6. [6]
   The application, which led to the appointment of the Public Trustee of Queensland, was made by a social worker of Endeavour Foundation who expressed in the application a concern that SL’s finances had been taken advantage of by those “alleging assistance/support”. A more detailed social work report provided to the Tribunal referred to a history of reported assault and financial abuse by others as well as SL self-reporting her practice of withdrawing all of her funds from her account after each deposit of income and giving money to her then boyfriend and other friends without being able to explain why her friends required the money. That report also states that SL has “difficulty in accounting for her money” and had little comprehension of “the value of money (i.e. rent, bond, deposits)”.^[3]
7. [7]
   Subsequently, it is clear that SL became unhappy with PTQ making financial decisions for her. An application for a declaration about capacity was dismissed by the Tribunal (again differently constituted) on 27 April 2018.
8. [8]
   The health report that accompanied the application for a declaration about capacity completed by Dr Bohra who reported knowing SL for three months stated, in relation to SL’s ability to understand and act on information relevant to decision making about lifestyle and accommodation choices and financial affairs:

Lives in a rented accommodation lives with a flat mate and partner pays 100 dollar/week each

Says that public trustee pays the bill. Patient mentions that she manages her finances and bank account.

9. [9]
   In answer to the question “In your opinion is the adult influenced either positively or negatively by any specific person/persons” Dr Bohra wrote:

I have not known patient for long hence hard for me to comment.

10. [10]
    In response to a question about whether SL’s impairment affected her receptive or expressive communication Dr Bohra states:

No but patient has mild mental retardation but can read and write to some extent.

11. [11]
    Dr Bohra expressed the opinion that SL could understand and make her own decisions about all matters.
12. [12]
    On 5 November 2019, DG, SL’s friend and neighbour, lodged an application for review of an appointment proposing SL make financial decisions for herself. This application was accepted by the Principal Registrar as an application for a declaration about capacity. The application stated:

[SL] is seeking the responsibilities to stand on her own two feet if given the chance with her friend [GM]

13. [13]
    The application was supported by a report by Dr Fearon. In that report Dr Fearon expressed the opinion that SL could not understand the matters required to be understood for making an enduring power of attorney, but SL could make complex financial decisions.
14. [14]
    On 19 February 2020, I commenced the hearing in that application. SL was accompanied by DI and MT, both friends and neighbours of SL. DI, MT and SL all resided in the same apartment block. GM did not attend the hearing and did not attend any resumed hearing. The Tribunal was informed he was working. MT attended each of the hearing dates.
15. [15]
    During the course of the hearing, SL indicated that she would like her ‘sister’ RB to be her ‘attorney’. RB was not present at the hearing. Based on the information provided at the hearing, I initiated a review of the appointment of an administrator. I adjourned the hearing with directions, including a request to Dr Fearon under s 130 of the GAA seeking clarification of aspects of his report. I also instructed the registry to make contact with BR for the resumed hearing and to connect SL with an advocate from Age and Disability Advocacy Australia (“ADA”) (as they were then known) to assist SL at the resumed hearing.
16. [16]
    On 10 March 2020, I resumed the hearing and appointed Ms Anderson of ADA as representative for SL under s 125 of the GAA to represent her views, wishes and interests. I also made further directions for the provision of submissions from the active parties.
17. [17]
    Dr Fearon provided an updated report on 13 March 2020. In his report he stated:

I have only been seeing [SL] since January of last year. At the time I completed the questions related to her abilities I believed she was reasonably competent to make decisions related to her finances. Since then she has attended on several occasions and I believe she has deteriorated and is less capable than I previously thought. To my knowledge she has not had any formal cognitive assessments. I am unsure as to her full capabilities in managing her finances and if an agency is able to help her to protect her interests I believe that would be beneficial.

18. [18]
    SL and her representative told me that BR should be appointed as her decision-maker in the event that the Tribunal found the presumption of capacity to be rebutted for SL’s decision-making for financial matters. While BR attended the resumed hearing and indicated a willingness to be appointed as SL’s decision-maker, she had not completed any of the paperwork usually provided to the Tribunal including the appropriate statement as to appropriateness and competence, despite opportunity to do so. While I took evidence from BR around those relevant matters at the hearing, I did not make a final decision on the applications on that occasion. I was concerned about BR’s manner in speaking to both the Tribunal and to SL. Due to those concerns and BR’s failure to take some clear proactive steps to establish to the Tribunal her willingness to carry out the duties and responsibilities of an administrator, I again adjourned the hearing.
19. [19]
    BR failed to lodge any form as she indicated she would. I resumed the hearing on 22 September 2020. BR was not present but SL’s sister, DR, was present. DR had reconnected with SL. DR explained that SL and DR had had a falling out after PTQ’s appointment in 2016 as SL had considered DR was responsible for raising concerns around SL’s vulnerability, prompting the application. DR also explained to the Tribunal that BR had, in the past, taken advantage of SL’s good nature for her own benefit. SL now expressed the view that she wished DR to help her with her decision-making.
20. [20]
    By this time, the Tribunal had also received a statement from SL’s brother, LL, who expressed his concern that SL was being coerced to seek financial independence where she would again be taken advantage of and, as her family lived interstate, it was difficult for them to identify any issues and act protectively.^[4]
21. [21]
    DR informed the Tribunal that she was content for the PTQ to remain in place but if her sister was unhappy with this arrangement, she would be prepared to be her administrator. DR had only discovered the hearing was on that day. While I asked DR the relevant questions regarding eligibility for appointment, I was mindful of the previous issues that had arisen involving BR and SL expressing different views about who should assist her, so I provided DR an opportunity to complete the relevant appropriateness and competence statement, financial management plan, the duties and obligations document and consider the administrator’s pack so that she could make an informed decision about whether or not she was willing to act as administrator. I directed that the hearing be adjourned and to be resumed on 8 October 2020.^[5]
22. [22]
    On 7 October 2020, DR lodged an application proposing herself for appointment as SL’s administrator.^[6] The hearing resumed on 8 October 2020 and the orders followed.

Relevant Legislative provisions

23. [23]
    A review of the appointment of an administrator must be conducted pursuant to s 31 of the GAA^[7]. Section 31 of the GAA provides that the Tribunal may conduct a review of an appointment of an administrator for an adult in the way it considers appropriate.  Section 31(2) provides that at the end of the review, the Tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made. In this case, as it is a review of an appointment, if the Tribunal is satisfied that there are appropriate grounds for an appointment to continue it can make an order removing an appointee only if the Tribunal considers the appointee is no longer competent or another person is more appropriate for appointment.^[8] In considering any person’s appropriateness for appointment, I must consider the appropriateness considerations in s 15 of the GAA which include:

    1. (a)
       the general principles and whether the person is likely to apply them;
    2. (b)
       the extent to which the adult’s and person’s interests are likely to conflict;
    3. (c)
       whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult;
    4. (d)
       whether the person would be available and accessible to the adult;
    5. (e)
       the person’s appropriateness and competence to perform functions and exercise powers under an appointment order.
24. [24]
    Section 5 of the GAA acknowledges the following:

    1. (a)
       an adult’s right to make decisions is fundamental to the adult’s inherent dignity;
    2. (b)
       the right to make decisions includes the right to make decisions with which others may not agree;
    3. (c)
       the capacity of an adult with impaired capacity to make decisions may differ according to –

       1. the nature and extent of the impairment; and
       2. the type of decision to be made, including, for example, the complexity of the decision to be made; and
       3. the support available from members of the adult’s existing support network;
    4. (d)
       the right of an adult with impaired capacity to make decisions should be restricted, and interfered with, to the least possible extent;
    5. (e)
       an adult with impaired capacity has a right to adequate and appropriate support for decision-making.
25. [25]
    Section 6 of the GAA provides that the Act “seeks to strike an appropriate balance between the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making; and the adult’s right to adequate and appropriate support for decision-making”.
26. [26]
    Section 7 of the GAA provides that the way the purpose is achieved is that the Act provides, amongst other things, that

    1. (a)
       an adult is presumed to have capacity for a matter; and
    2. (b)
       together with the Powers of Attorney Act 1998, provides a comprehensive scheme to facilitate the exercise of power for financial matters by or for an adult who needs, or may need, another person to exercise power for the adult; and
    3. (c)
       states principles to be observed by anyone performing a function or exercising a power under the scheme; and
    4. (d)
       encourages involvement in decision-making of the members of the adult’s existing support network; and
    5. (e)
       confers jurisdiction on the tribunal to administer particular aspects of the scheme.
27. [27]
    In this case, the type of matter to be considered is a “financial matter” which is defined in schedule 2 s 1 of the GAA. “A financial matter, for an adult, is a matter relating to the adult’s financial or property matters, including, for example, a matter relating to”, amongst other things, but most relevant here:

    1. (a)
       receiving and recovering money payable to the adult;
    2. (b)
       otherwise preserving or improving the adult’s estate;
    3. (c)
       investing for the adult in authorised investments;
    4. (d)
       withdrawing money from, or depositing money into, the adult’s account with a financial institution.
28. [28]
    Section 11 provides that a person who performs a function or exercises a power under the Act for a matter in relation to an adult with impaired capacity must apply the principles stated in Schedule 1. The general principles in Schedule 1 include the presumption of capacity, the encouragement of self-reliance and an adult’s right to participate to the greatest extent practicable in decisions affecting the adult’s life.
29. [29]
    Section 12 provides that the Tribunal may appoint an administrator for a financial matter for an adult if the Tribunal is satisfied:

    1. (a)
       the adult has impaired capacity for the matter; and
    2. (b)
       there is a need for a decision in relation to a financial matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and
    3. (c)
       without an appointment-

       1. the adult’s needs will not be adequately met; or
       2. the adult’s interests will not be adequately protected.
30. [30]
    The power for the Tribunal to make a declaration about capacity is in s 146 of the GAA.
31. [31]
    Capacity, as defined in schedule 4 of the GAA, means the person is capable of-

    1. (a)
       understanding the nature and effect of decisions about the matter; and
    2. (b)
       freely and voluntarily making decisions about the matter; and
    3. (c)
       communicating the decisions in some way.

Does SL have impaired capacity for decisions about her financial matters?

32. [32]
    The starting point for me is that SL is presumed to have capacity for her decision-making.
33. [33]
    I had a number of opportunities to speak to SL. She expressed a strong view and wish to make her own financial decisions. I have taken that view and wish into account. The friends who attended the hearings with her offered their support to help her make decisions.
34. [34]
    I considered the Tribunal Briefing Report prepared by PTQ.^[9] The information provided to the Tribunal by the representative of PTQ at each day of hearing was consistent with that report. While regular living expenses were paid to SL’s bank account on a weekly basis and rent and chemist accounts were paid by PTQ, SL made frequent calls each week to request extra funds each week and enquire if her regular payments had been processed. SL had total assets valued at $29,481.58 with amounts held in PTQ’s cash account, term investment account and reserve account. Her day-to-day bank accounts effectively had a zero balance. It was clear from the statement of transactions supplied by PTQ that amounts for ‘extra living expenses’ were regularly made every few days on top of the regular weekly living expenses of $120 per week, which did not include groceries of $100 per week. The report also indicated that SL was in regular contact with the PTQ.
35. [35]
    Despite SL telling me that Dr Fearon was aware the PTQ was her appointed administrator, I do not accept that Dr Fearon, at the time of his initial report, was informed by SL that PTQ was appointed to make her financial decisions, nor the value and nature of SL’s financial assets. Dr Fearon therefore expressed his initial opinion without any understanding of what financial decisions SL was in fact making for herself nor any understanding of the extent of the financial assets she would be required to manage. In any event Dr Fearon’s later report expressed a different opinion.
36. [36]
    SL was unable to estimate the time that had passed since particular events in her past, such as the last time she spoke to BR or even if she spoke to BR between resumed hearing dates. SL could not say how much money she had indicating maybe $1,000 when the amount was significantly more than that as outlined in the PTQ’s Tribunal briefing report. SL told me she had been with her partner for 10 years but she was not with him at the time the initial appointment of the PTQ was made in 2015/2016.SL was then unable to indicate how long she had been in a relationship with her partner. When asked about how she would manage her money if the PTQ was not doing so she said that she would save money in her bank account, pay bills and maybe buy a stereo. Her friends said that they could help SL choose the right stereo. From her evidence it was clear to me that she was reliant on other people for help with decision making. SL did not know how much she received by way of disability support pension. While I accept that the PTQ is currently managing her financial arrangement, SL has not taken any active interest in identifying and keeping track of her fortnightly income and what other amounts the PTQ is managing for her. I do not accept her evidence which was inconsistent with that of the PTQ that she rings the PTQ ‘everyday but they will not tell her’ how much money she has.
37. [37]
    SL had entered into a tenancy agreement for her accommodation without recourse to PTQ and, despite PTQ’s contact with the landlord, the tenancy agreement had not been provided to PTQ by the landlord. Concerns were raised about the manner in which the landlord managed the tenancy agreements with others in the apartment building, including SL’s friends in attendance at the hearing. SL could not recall signing any tenancy agreement. Ms Anderson informed the Tribunal that SL’s bathroom had no door and MT told the Tribunal that the manager owned 14 of the units and freely moved tenants around these various units effectively as he chose. The tenancy agreement had no fixed term.
38. [38]
    Ms Anderson also informed the Tribunal that SL had no current NDIS plan, but Ms Anderson was prepared to continue advocacy for SL to assist her with this.
39. [39]
    SL’s responses to questions during the hearing were consistent with the report of Dr Sunasinghe, the Endeavour social work report and the second report of Dr Fearon. There is no dispute that SL cannot read or write and I find accordingly.
40. [40]
    Based on the medical reports and the evidence of SL, I find that SL has an intellectual impairment. Due to her intellectual impairment, she is unable to obtain, receive, understand and retain all the relevant information to make a decision nor to weigh the information received and identify a range of options and choose from those options free of the influence of others.
41. [41]
    I find that SL cannot make all of her financial decisions freely and voluntarily. She has a generous nature. She has in the past and will, in my view, willingly accommodate the requests of those whose friendship and support she desires without appropriate regard for her own needs.
42. [42]
    I considered whether SL could make decisions with the support of her friends and neighbours. However, for the reasons set out above and without finding that her friends and neighbours have any malicious intent, I am not satisfied that they can offer her the level of objective support she requires to make financial decisions. Those who attended the hearing did not give me any information that satisfied me that they could perform the role of support for decision making on an ongoing, regular day-to-day basis and at the level required to ensure SL’s interests were adequately protected and her needs met. Her family members have a desire to assist her, but they live interstate and cannot provide the level of day-to-day support that is required.
43. [43]
    Based on the weight of the medical evidence and the information provided by SL at the hearings, the information provided by her brother LL, DR and BR, which was all consistent with the weight of the medical evidence, I find the presumption of capacity rebutted for SL for decisions about financial matters.
44. [44]
    As a result of this finding and for the reasons that I have provided for the need for the appointment of an administrator for SL in the review, I dismissed the application for a declaration about capacity. Further, I concluded that s 12(1)(a) of the GAA would be satisfied if this was a new application.

Is there a need for a decision about the financial matters or is SL likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to her health, welfare or property?

45. [45]
    I have already set out in some detail the nature and value of SL’s financial assets. She receives disability support pension. Certainly, there was an ongoing need for decisions to be made about investment of her financial assets, the management of her income support payments, paying bills and issues regarding the current tenancy agreement for her less than desirable accommodation.
46. [46]
    Section 12(1)(b) of the GAA would be satisfied if this was a new application.

Is it the case that without an appointment SL’s needs will not be adequately met or her interests not adequately protected?

47. [47]
    I have already considered whether SL could make decisions with support. Those findings are also relevant here. In my view, a formal appointment of an administrator who has the legal authority to make financial decisions for SL is required. This affords the necessary protection of SL’s interests. The tenancy agreement is an obvious example. SL signed the tenancy agreement without legal authority to do so.^[10] Further, I am satisfied that she signed it without any clear understanding as to how to ensure that the agreement protected her rights or whether the terms of the agreement were appropriate to her circumstances. Any appointed administrator can take steps to ensure SL is not bound by this agreement. Section 12(1)(c) of the GAA would be satisfied if this was a new application.
48. [48]
    I am therefore satisfied under s 31(2) of the GAA that I would make an appointment if a new application for an appointment were to be made.  I am also satisfied under s 31(3) of the GAA that there are appropriate grounds for the appointment of an administrator to continue.
49. [49]
    I considered the particular terms of the appointment. The Public Trustee of Queensland was appointed administrator for all financial matters. However, they had taken steps to enable SL to manage day to day expenses. Despite this, SL regularly asked for additional funds. I consider that is likely because she has been financially supporting or assisting others so that there is a need then to draw on her other resources. In reaching this conclusion, I am conscious that an administrator appointed by the Tribunal must adhere to the General Principles which include maximum participation, minimal limitations and substituted judgment, in particular, that an adult’s right to participate to the greatest extent practicable in decisions affecting their life must be recognised and taken into account as well as the importance of preserving to the greatest extent practicable an adult’s right to make their own decisions must be taken into account. There will no doubt be simple day-to-day financial decisions that SL can make with support and I am satisfied that the administrator appointed by the Tribunal will, where appropriate, provide a level of autonomy to the adult to manage her day-to-day finances.^[11]
50. [50]
    I do not consider that there are any less restrictive terms of appointment that I could appropriately make in this case. I am satisfied that the terms of any continued appointment of an administrator ought to be that an administrator be appointed for all financial matters.

Should the PTQ continue as SL’s administrator?

51. [51]
    I can remove PTQ as SL’s administrator only if I consider PTQ is no longer competent, or another person is more appropriate for appointment.^[12]
52. [52]
    DR proposes herself for appointment and has completed all the usual documentation for consideration for appointment by the Tribunal. BR had also made an oral application proposing herself for appointment. By the time of the last hearing date, SL had, on two occasions, expressed a clear preference for DR to be her decision-maker if the Tribunal decided the continued appointment of an administrator was necessary. BR did not attend the last two hearing days.
53. [53]
    It was also clear that SL had not been engaging with PTQ about all of her financial decision-making. SL had signed a tenancy agreement without reference to PTQ.
54. [54]
    There was no evidence before me on which I could make a finding that PTQ was no longer competent. However, I was satisfied at the time of the decision that DR was more appropriate for appointment.
55. [55]
    In reaching that conclusion, I took into account that DR had provided written confirmation of her willingness to act, she was eligible for appointment^[13] and had provided the necessary statement as to her appropriateness and competence in line with s 16 of the GAA, which I accept as truthfully given. 
56. [56]
    I also took into account the appropriateness considerations in s 15 of the GAA. SL and DR are compatible with each other. DR has indicated she will travel to Queensland to make sure SL’s accommodation is appropriate. PTQ expressed their willingness to provide a level of support and assistance to DR as she takes over the role of administrator. DR does not have to be present in Queensland to perform the role. She remains accessible to SL through telephone contact and email. There is no evidence before me that would support a finding that DR’s and SL’s interests conflict. Taking into account DR’s evidence to the Tribunal her financial management plan, including her desire to support her sister in developing independent financial management skills, I accept that DR will be likely to apply the General Principles which include the presumption of capacity and maximising the participation of the adult in decision making.^[14]
57. [57]
    For those reasons, I concluded that DR was more appropriate for appointment than the PTQ.
58. [58]
    Therefore, I made the decision to change the order by removing PTQ and appointing DR as SL’s administrator for all financial matters.
59. [59]
    Based on the submission of Ms Anderson and the relatively new reconnection between DR and SL, I decided that the term of the appointment should be for a reviewable period of two years.

Application of the Human Rights Act2019 (Qld).

60. [60]
    I thank Ms Anderson and the Public Trustee of Queensland for their thoughtful submissions on the application of the HRA which, at the time of the decision, had been in force for just 10 months. I deeply regret and apologise for the lateness in delivery of these reasons for my decision.

Is the decision compatible with human rights?

61. [61]
    “It is unlawful for a public entity to act or make a decision in a way that is not compatible with human rights; or in making a decision, to fail to give proper consideration to a human right relevant to the decision.” ^[15] Giving proper consideration to a human right in making a decision includes, but is not limited to, identifying the human right that may be affected by the decision and considering whether the decision would be compatible with human rights.  A decision to appoint an administrator for a person may affect the following human rights:

    1. (a)
       recognition and equality before the law;^[16]
    2. (b)
       property rights;^[17] and
    3. (c)
       fair hearing.^[18]
62. [62]
    I accept that, for the purposes of appointing an administrator for a person, the Tribunal is a ‘public entity’ as defined in s 9 of the HRA such that the Tribunal is acting in an administrative capacity. In reaching that conclusion I am guided by the Victorian Supreme Court decision in Patrick’s case.^[19]
63. [63]
    In Patrick’s case, Bell J said that the concept of ‘public authority’ was critical to the achievement of the purpose of the Victorian Charter so that like comparable legislation in the United Kingdom and New Zealand, the definition of ‘public authority’ should be given a beneficial interpretation which is consistent with that purpose. His Honour did not consider that the term ‘quasi-judicial’ was a category of decision-making that fitted within the Victorian Charter, but rather a court or Tribunal was either acting judicially or administratively.^[20]
64. [64]
    Bell J considered the following general principles as relevant to determining whether or not a court or Tribunal is acting in an administrative capacity:

    1. (a)
       it is necessary to determine the capacity in which the court or Tribunal is acting when exercising the particular power;
    2. (b)
       it is a legislative function to create rules of law having general application while it is an administrative function to apply such rules to particular cases; it is a judicial function to make binding determinations of existing legal right, while it is an administrative function to exercise discretionary authority to make orders creating new rights and obligations, especially on the basis of policy considerations;
    3. (c)
       history, precedent and legal tradition operate to characterise certain powers as plainly judicial, including the determination of criminal guilt and actions in contract and tort and, generally, actions for the enforcement of existing legal rights;
    4. (d)
       making a binding and authoritative determination of legal rights and duties according to existing legal principles is judicial; but, as a necessary incident of acting in an administrative capacity, courts and tribunals can also make final decisions between contending parties in ways that affect their legal rights and duties;
    5. (e)
       certain powers may be administrative or judicial in character, depending on whether it is a court or tribunal which is exercising the power, and its purpose; the mechanism for enforcing the decision, determination or order may be a guide in borderline cases. ^[21]
65. [65]
    His Honour then went on to say:

Applying these principles to the present case, we have seen that the jurisdiction of the tribunal under the Guardianship and Administration Act is original jurisdiction for the purposes of the Victorian Civil and Administrative Tribunal Act. It is a jurisdiction to make guardianship and administration orders, which are orders for the appointment of substitute decision-makers for persons with a disability. The power to make such orders is discretionary in nature and involves the application and consideration of protective criteria, being the core principles and the personal autonomy of the person. The powers are subject to rehearing on the merits and also to regular reassessment. The Public Advocate has statutory protective functions and appearance rights in the tribunal. The powers of the tribunal are similar in nature to the powers of the Mental Health Review Board (when exercised in the board’s original jurisdiction) and the tribunal (when exercised in the tribunal’s review jurisdiction) under the Mental Health Act, which are administrative. In my view, the functions of the tribunal under the Guardianship and Administration Act to appoint guardians and administrators are administrative in the public law sense and the tribunal performs those functions in its original jurisdiction in that capacity. ^[22]

66. [66]
    Bell J further states that it is clear from authorities relating to the traditional parens patriae jurisdiction in the courts that powers of the kind conferred on the Victorian Civil and Administrative Tribunal (“VCAT”) by the relevant guardianship legislation are not of their nature plainly judicial. Such powers (or at least some of them) might be capable of being characterised as judicial or administrative, depending on the other indicia and especially whether the powers are being exercised by a court or a tribunal. Bell J found that the other indicia pointed strongly to the conclusion that the guardianship and administration jurisdiction of VCAT is administrative in nature, though it be original and not review jurisdiction.^[23]
67. [67]
    There are some differences between VCAT and this Tribunal. In particular, in Meringnage v Interstate Enterprises Pty Ltd t/as Tecside Group & Ors,^[24] VCAT was found not to be a court while the Queensland Civil and Administrative Tribunal (“QCAT”) is a court of record.^[25] In Owens v Menzies^[26] the Court of Appeal held that the Tribunal is a ‘court’ for the purposes of ch III of the Constitution. However, s 9(4)(b) of the HRA clearly contemplates that a court may also act in an administrative capacity. I consider the other factors – the particular power being exercised by this Tribunal, its character and the nature of the final decision to be made by the Tribunal – weigh in favour of a finding that in exercising the power under s 31 of the GAA, the Tribunal is acting in an administrative capacity.
68. [68]
    The appointment of a guardian is subject to review and does not finally determine the rights or interests of the particular parties. However, there may be decisions made by this Tribunal in the guardianship list that are more appropriately characterised as judicial decisions. Notably, I observe that the Tribunal has the same jurisdiction as the court in relation to enduring documents.^[27] An order made by the Tribunal to revoke an enduring power of attorney or that an enduring power of attorney is invalid is a final decision which cannot be reviewed. It is, in my view, difficult to see how such a decision might be regarded as administrative.
69. [69]
    I consider the decision I reached is compatible with the human rights affected and already identified above.
70. [70]
    The decision ensures that SL, who I have found has impaired capacity for making decisions about her finances, has a substitute decision-maker to make decisions in accordance with the General Principles and ensure her needs are met and her interests protected. The General Principles include General Principle 2 (same human rights), Principle 3 (individual value), Principle 6 (encouragement of self-reliance) and Principle 7 (maximum participation, minimal limitations and substituted judgement). Principle 7, which sets out how the principle of substituted judgment, must be used and stated that it must be used taking into account the views and wishes of SL and that any person in performing a function or exercising a power under the GAA must do so in a way that is least restrictive of SL’s rights. The decision does not remove property from SL’s ownership but rather ensures, in my view, that she is not deprived of or loses the benefit of those assets to meet her own needs. I have found that without the appointment of an administrator, SL will give away her funds to support and help others and will enter into contracts, the terms and implications of which she does not understand.

Are any limits to NJ’s human rights reasonable and demonstrably justified?

71. [71]
    “A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.”^[28]
72. [72]
    I am satisfied that any limits to the identified human rights of SL are reasonable and justifiable. I considered the factors in s 13(2) of the HRA. I am satisfied that the limitation of appointing another person to make decisions about SL’s financial matters is consistent with a free and democratic society based on human dignity, equality and freedom. In the absence of a substitute decision-maker, others have taken advantage of SL in a way that does not support or enhance her human dignity nor ensure her rights are equally protected. The purpose of the decision and the limitation is to ensure that, in circumstances where SL is unable due to her impaired capacity to make her own decision about financial matters, SL has another person to do so. By formally appointing SL’s sister, DR, I have ensured to the extent I can that such decisions will be made applying the General Principles in the GAA which I have already outlined. The appointment of an administrator who must make any decision applying the General Principles recognises the importance of preserving SL’s human rights as identified. For the reasons I have previously outlined in reaching the decision to appoint DR as SL’s administrator, including the lack of sufficient support for financial decisions to be made without a formal appointment, I consider that we have made the least restrictive order possible in the circumstances of SL’s case.