BJ[2022] QCAT 326

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Background

1. [1]
   On 2 September 2020, CH filed in the Tribunal applications for the appointment of a guardian and an administrator for BJ. CH was employed by a provider of services and support to BJ. On 11 May 2021, the applications were dismissed by a member of the Tribunal.^[1] No confidentiality or non-publication orders were made by the Tribunal. The hearing was an open hearing.
2. [2]
   BJ has filed an application seeking the Tribunal’s authorisation to share information about the guardianship proceedings concerning BJ with the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (“the Commission”) and a News Media company. The active parties in the guardianship proceedings concerning BJ were invited to provide submissions.^[2] The Tribunal has considered the submissions provided to the Tribunal by BJ in support of his application together with the submissions made by CH.^[3] The other active parties having declined to make submissions.
3. [3]
   CH seeks to have CH’s identity withheld from any authorised publication on the basis that CH made the application as part of CH’s employment and BJ’s submissions indicate that BJ intends to present an unflattering and indeed an reputationally damaging account of the proceedings insofar as CH is concerned, which CH would be unable to defend due to s 114A of the Guardianship and Administration Act 2000 (Qld) (“GAA”) and confidentiality and privacy restrictions to which CH is subject due to the nature of her employment.

Relevant legislative provisions

4. [4]
   The relevant legislative provisions are contained in the GAA, the Human Rights Act 2019 (Qld) (“HRA”) and the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).
5. [5]
   Of particular relevance is s 114A of the GAA which relevantly provides:

(1) Generally, information about a guardianship proceeding may be published.

(2) 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. Maximum penalty—200 penalty units. Notes— • The publication of information about a tribunal proceeding may also be prohibited by a non-publication order—see section 108. • Also see the Child Protection Act 1999, section 189 (Prohibition of publication of information leading to identity of children).

(3) Subsection (2) does not apply— (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 (b) to publication of information after the relevant adult has died; or (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.

(4) The court may make an order authorising publication of information about a guardianship proceeding that is otherwise prohibited under subsection (2).

(5) The tribunal may make an order authorising publication of information about a tribunal proceeding that is otherwise prohibited under subsection (2).

(6) The court or tribunal may make an order under subsection (4) or (5) authorising publication only if the court or tribunal is satisfied the publication is in the public interest or the relevant adult’s interest.

(7) The QCAT Act, section 125 does not apply for the purposes of this section.

(8) In this section— 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 the section of the public to whom the information is published. 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. [6]
   The Tribunal is being asked to authorise the publication of information of a type set out in s 114A(2) of the GAA.

Proceedings in the Guardianship jurisdiction

7. [7]
   However, at the outset I consider it useful to set out some general information about Tribunal proceedings in the Guardianship jurisdiction. Hearings in the Guardianship jurisdiction are open unless the Tribunal makes an adult evidence order under s 106 of the GAA or a closure order under s 107 of the GAA.^[4] Such orders are relatively infrequent when compared with the number of hearings conducted by the Tribunal in the jurisdiction each week around the State. Further, in order for such orders to be made, the presiding member must be satisfied the order is necessary to avoid serious harm or injustice to a person or, in relation to an adult evidence order, obtain relevant information the Tribunal would not otherwise receive. An adult evidence order allows the presiding member to obtain relevant information from the adult concerned in the matter at a hearing in the absence of anyone else including, for example, members of the public or a particular person including an active party to the proceeding.^[5]
8. [8]
   A person has standing to bring an application for the appointment of a guardian and/or an administrator for an adult if they have a sufficient and genuine concern for the rights and interests of the adult. While amendments made to the GAA commencing 30 November 2020 meant the legislation became more rights focussed, it remains protective legislation. The primary focus of the legislation are adults with impaired capacity.^[6]
9. [9]
   Section 119 of the GAA sets out who the active parties to a proceeding are. The applicant is an active party along with the adult about whom the proceedings concern and any person proposed for appointment or reappointment, any current guardian, administrator or attorney for the adult, the Public Guardian, the Public Trustee of Queensland and a person joined as a party to the proceeding by the Tribunal. There is no respondent.
10. [10]
    The conduct of a guardianship proceeding is inquisitorial in nature rather than adversarial. In PL v PT & Ors ^[7] the Appeal Tribunal had this to say about how a hearing ought to be conducted and the inquisitorial nature of the proceedings:

Hearings of applications under the Guardianship Act are inquisitorial in nature. It is appropriate to outline at the commencement the issues required to be determined according to the legislative framework … and then to systematically consider the relevant issues for determination. Because there is no respondents to the applications who in other types of applications outside the guardianship jurisdiction of QCAT, would put forward evidence contrary to the applicant’s evidence, the member hearing the proceeding has the responsibility to ensure, as far as is practicable, that QCAT has all relevant information when hearing and deciding applications. In doing so, it must appropriately raise issues, and test the available evidence.^[8]

11. [11]
    To hear and decide a matter in a proceeding, the Tribunal must ensure, as far as it considers it practicable, it has all the relevant information and material.^[9] The Tribunal may request a person who has custody or control of information or material that the Tribunal considers is necessary to make an informed decision about the matter, to give the information or material to the Tribunal unless the person has a reasonable excuse.^[10] It is a reasonable excuse for a person to fail to give information or material because the giving of the information or material might tend to incriminate the person. Subject to that, the Tribunal’s power to request relevant information overrides any restriction, in an Act or the common law, about the disclosure or confidentiality of information and any claim of confidentiality or privilege, including a claim based on legal professional privilege.^[11]
12. [12]
    As the legislation is protective, even if an applicant lodges a notice of withdrawal of their application prior to the final hearing, leave of the Tribunal is required for the withdrawal.^[12]
13. [13]
    The Tribunal may also initiate applications about a person, including applications for the appointment of a guardian and/or administrator.^[13] The Tribunal may also make procedural directions, including directing a person to undergo examination by a doctor or psychologist in the ordinary course of the doctor’s medical practice or the psychologist’s practice, or direct the person subject to the proceeding to be brought before the Tribunal.
14. [14]
    In conducting a proceeding, the Tribunal must accord procedural fairness to the active parties.^[14]
15. [15]
    Under the QCAT Act, the Tribunal may, in an exercise of discretion, dismiss an application under s 47 if the Tribunal considers a proceeding is frivolous, vexatious or misconceived or lacking in substance or otherwise an abuse of process. That does not appear to have occurred in any proceedings concerning BJ.
16. [16]
    In performing its functions or exercising its powers under the GAA in relation to an adult, the Tribunal must, to the greatest extent practical, seek and take account of the views, wishes and preferences expressed or demonstrated by the adult.^[15]
17. [17]
    Section 48 of the HRA provides that all statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights. If a statutory provision cannot be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.
18. [18]
    Section 13 of the HRA provides that 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.
19. [19]
    The relevant human rights that appear to be potentially affected by this decision are:

    1. (a)
       Recognition and equality before the law (s 15);
    2. (b)
       Freedom of expression (s 21); and
    3. (c)
       Privacy and reputation (s 25).

Is the publication of the information in the public interest or in the relevant adult’s interest?

20. [20]
    The application of s 114A of the GAA has been previously considered by the Tribunal in LER (No.2)^[16]. I said in that case that, ‘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.’^[17]
21. [21]
    As to the interpretation of the term ‘publication’ the Tribunal reasoned as follows:

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).

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. ^[18]

22. [22]
    The Tribunal sees no reason to depart from its reasoning in Re LER.
23. [23]
    BJ wishes to relay to the Commission and a media organisation his experience of the guardianship proceeding. The Tribunal has not appointed any decision-maker for BJ. On 19 January 2006, a financial management order was made under the Guardianship Act 1987 (NSW) by the then Guardianship Tribunal. As far as I am aware, that order remains in place. This means BJ cannot make decisions about his financial matters. However, a guardian has not been appointed to make any decisions about personal matters for BJ. For the purposes of applying s 114A of the GAA, a 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.^[19]
24. [24]
    Section 114A(5) of the GAA gives the Tribunal a discretion to make an order authorising publication of information about a Tribunal proceeding that is otherwise prohibited under s 114A(2), that is, the publication of 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.^[20]
25. [25]
    Section 114A(6) of the GAA provides that the Tribunal may make an order authorising publication only if the Tribunal is satisfied the publication is in the public interest or the relevant adult’s interest. I do not consider that s 114A(6) of the GAA gives me power to authorise publication of any information relating to any proceeding concerning BJ before any other Tribunal.
26. [26]
    The Tribunal is mindful of the General Principles in s 11B of the GAA, in particular, Principle 10 Structured decision-making.
27. [27]
    As it is BJ (the relevant adult) who wishes to publish the information concerning the proceeding, BJ can control the information he feels comfortable in sharing, noting there are a range of reports by health providers on the Tribunal’s record of proceedings. It is BJ’s wish to identify himself with information about the guardianship proceedings that concerned him.
28. [28]
    I have considered the terms of reference of the Commission, in particular that hearing from people with disability and the broader community helps the Commission understand the extent and the impact of violence, neglect, abuse and exploitation against people with disability and that that will assist the Commission to make recommendations to prevent it happening again. I am prepared to find that it is also in the public interest in this case for BJ to be able to share his experience in his own words to the Commission.
29. [29]
    While the Tribunal considers there is a public interest in the administration of justice being open and transparent, that public interest can be achieved without identifying the relevant adult in connection with other information about the proceedings. The Tribunal conducted an open hearing in the guardianship proceedings concerning BJ. No closure or other limitation order was made at any time. The presiding member will have delivered oral reasons for the decision made on 11 May 2021, providing an opportunity for the active parties and any member of the public that might have attended the hearing to hear those reasons.
30. [30]
    Against this I have considered the submissions of CH. As previously stated, the GAA is protective legislation. It would not be in the public interest for adults with impaired capacity not to be afforded protection from risk of abuse, exploitation or neglect or self-neglect, because those who might have standing to bring an application fail to make such applications for fear that they may be publicly humiliated in the press due to unbalanced reporting. Whether or not that would in fact be the effect, the Tribunal may never know. However, an applicant such as CH who applies as part of their employment, is not, in my view, likely to ignore potential risk to an adult receiving services.
31. [31]
    An order authorising BJ to identify himself in connection with information about the guardianship proceeding is consistent with the human right in s 21 of the HRA, freedom of expression, and a number of the General Principles, in particular Principle 1, 2, 3, 8, 9 and 10. Principle 2 provides that an adult’s inherent dignity and worth and equal and inalienable rights must be recognised and taken into account, the rights of all adults to the same human rights and fundamental freedoms regardless of a particular adult’s capacity must be recognised and taken into account, and the principles on which those human rights and fundamental freedoms are based, and that should inform the way those rights and freedoms are taken into account as set out in General Principle 2.^[21] Principle 3 provides for the importance of taking into account an adult’s right to participate to the greatest extent practicable in the development of policies and programs and services for people with impaired capacity for a matter.
32. [32]
    Balanced against this is whether s 25 of the HRA might apply in relation to any consideration of the discretion in s 114A, in particular, CH’s right not to have CH’s reputation unlawfully attacked.
33. [33]
    However, in my view, and relying on my reasoning in Re LER, any order I can make on the application filed by BJ cannot authorise the publication of the information by another person or entity. If a media organisation or the Commission wished to publish information about the guardianship proceedings that would identify BJ in connection with those proceedings, they would need to seek authorisation from the Tribunal. That would provide an opportunity for the Tribunal and any other person considered to have standing to be heard to make submissions about whether any further publication by another entity of BJ’s identity in connection with information about a guardianship proceeding ought to be authorised under s 114A(5) of the GAA. CH and/or her employer may themselves seek authorisation to publish information that would identify BJ in connection with information about a guardianship proceeding, should that be considered necessary at some future time.
34. [34]
    The only way the Tribunal could restrict BJ from identifying CH as the applicant would be by making a non-publication order under s 108 of the GAA. Section 108 of the GAA provides:

(1) 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 (a non-publication order), prohibit publication of information about a tribunal proceeding the publication of which is not prohibited under section 114A.

(2) To the extent information about a tribunal proceeding is health information for a person, serious harm to the person includes significant health detriment to the person.

(3) The tribunal may make a non-publication order on its own initiative or on the application of an active party.

(4) If information about a tribunal proceeding discloses information prepared or provided by an entity, the tribunal may make a non-publication order on the application of the entity.

(5) If information about a tribunal proceeding discloses health information for the person— (a) without limiting subsection (3) or (4), the tribunal may make a non-publication order on the application of— (i) the person; or (ii) an interested person for the person; and (b) an application may be made by an interested person for the person even after the person’s death.

(6) If a non-publication order is made prohibiting publication of information about a tribunal proceeding and the information about the tribunal proceeding discloses health information for the person, the person’s death does not affect the non-publication order.

(7) A person must not contravene a non-publication order, unless the person has a reasonable excuse.

35. [35]
    CH argues that the submissions by BJ’s representative are serious and unsubstantiated assertions which are disputed by CH. The allegations go to CH breaching BJ’s trust, that the applications were frivolous and unmeritorious and that his personal information obtained through another purpose was disclosed to the Tribunal.
36. [36]
    The Tribunal accepts that these are serious allegations. However, CH has the protection of her employer. If indeed unauthorised publication of information which was defamatory occurred, CH would have legal remedies. I am not satisfied that a non-publication order under s 108 is necessary to avoid serious harm or injustice to a person at this point in time.
37. [37]
    I consider that the public interest and BJ’s interests outweigh the potential adverse impact on CH’s private interest or her employer’s interest, or the public interest generally in any person with a sufficient and genuine concern for the rights and interests of the relevant adult bringing an application to the Tribunal for consideration and determination.
38. [38]
    I am satisfied that it is in BJ’s interest to have the freedom to relay to the Royal Commission, and if he chooses, to a media organisation his experience of the guardianship proceeding identifying himself as the relevant adult in connection with information about that proceeding.

Should the discretion in s 114A(5) of the GAA be exercised?

39. [39]
    For the reasons already given, I have decided to exercise the discretion in s 114A(5) of the GAA to authorise BJ to identify himself in connection with information about guardianship proceedings GAA11303-20 and GAA11304-20.
40. [40]
    As previously stated, in the event it is considered necessary, CH and/or CH’s employer and any other entity that might seek to publish information that would identify BJ in connection with guardianship proceedings GAA11303-20 and GAA11304-20 may bring the appropriate application at the relevant time.
41. [41]
    Noting s 25 of the HRA in relation to CH’s concerns, I consider it important to make it clear that publication of information authorised by the Tribunal’s order is lawful. This authorisation cannot be interpreted as the Tribunal’s sanction that any information conveyed to the Commission or a media organisation by BJ will be factually accurate or provide a defence to defamation proceedings. The authorisation relates to the identification of BJ in connection with information about particular guardianship proceedings. It is the identification of BJ that is authorised when connected with other information about the proceedings.