YWX[2025] QCAT 14

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   YWX (the adult) is 29 years of age and resides with XTN, his parent, and XTB, the former partner of his parent. The adult is the aggrieved person in a domestic violence protection order made on 27 February 2024 in which the parent of the adult is the respondent. The domestic violence protection order states that the respondent must be of good behaviour and not commit domestic violence against the aggrieved. Unless otherwise ordered, the order is to continue in force until 27 February 2029.
2. [2]
   On 26 March 2024 the Tribunal received an application for an interim order along with applications for the appointment of a guardian and administrator for the adult.  On the same day, the Tribunal received an application for a confidentiality order over documentation and information received in relation to the applications.
3. [3]
   On 28 March 2024 the Tribunal dismissed the application for an interim order and made a pre-hearing confidentiality order under section 110(1) of the Guardianship and Administration Act 2000 (Qld) (‘GAA’) wherein the documents filed in the proceeding were not to be disclosed by the Tribunal’s registry to the adult and that the identity of the applicant was not to be disclosed to XTN and XTB. The Tribunal directed that the applications were to be listed for an oral hearing on a date to be fixed and that the pre-hearing confidentiality order was to be vacated at the start of the hearing under section 110(2) of the GAA. The directions included that at the hearing the Tribunal would decide whether to make any further confidentiality order and that the principal registrar of the Tribunal, or a delegate, must ask an advocacy organisation to offer assistance to the adult in the proceeding. The registry was permitted to provide copies of documents from the file to the advocacy organisation and the organisation was permitted to show the documents to the adult.
4. [4]
   On 4 December 2024, the Tribunal heard and determined the applications for the appointment of a guardian and administrator for YWX and the application for a confidentiality order. At the hearing the Tribunal made the decision to appoint the Public Guardian as guardian for YWX for the personal matters of accommodation and the provision of services (including in relation to the National Disability Insurance Scheme) and the Public Trustee as plenary administrator for the adult. The appointments are to remain current until further order of the Tribunal. The appointments are reviewable and are to be reviewed in three (3) years.
5. [5]
   The reasons for the decision in relation to the application for a confidentiality order follow.

The Legislation

6. [6]
   Confidentiality orders are types of limitation orders.^[1]
7. [7]
   Section 103 of the GAA provides that each active party or person the Tribunal considers has a sufficient interest in a proceeding must be given reasonable opportunity to access and make submissions about a document or other information before the Tribunal that the Tribunal considers is credible, relevant and significant to an issue in the proceeding.
8. [8]
   Section 104 of the GAA provides the basis of the Tribunal’s consideration for a limitation order.
9. [9]
   Under section 109(1) of the GAA, 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 a confidentiality order, withhold from an active party or other person a document, or part of a document, before the Tribunal. Section 109(2) of the GAA states that, to the extent a document or part of a document contains health information for a person, or to the extent other information is health information for a person, serious harm to the person includes significant health detriment to the person.
10. [10]
    Section 110(2) of the GAA provides that a confidentiality order made before a hearing is vacated at the start of the hearing. 
11. [11]
    Section 111 of the GAA states that each active party, and any entity that would be adversely affected by a proposed limitation order, has standing to be heard in relation to the making of the order.

Should the Tribunal make a confidentiality order?

12. [12]
    The application before the Tribunal seeks documentation and specific information to be made inaccessible to certain parties due to the risk of serious physical, emotional and psychological harm, including significant health detriment, to persons should the information be disclosed. 
13. [13]
    Upon the confidentiality order of 28 March 2024 being vacated at the commencement of the hearing YWX declined, when invited, to make oral submissions as to whether documents and information on the Tribunal’s file should be withheld from himself or another party.
14. [14]
    The adult’s representatives from the advocacy organisation submitted that
    the assistance they afforded to the adult in preparation for the proceeding did not include the representatives showing the documents to the adult. They stated that, in their view, the documents, and therefore information, should not be kept secret from YWX and that he should be given a choice as to whether he sees the documentation.
15. [15]
    XTB submitted that the adult should be able to see any documents that were included in the pre-hearing confidentiality order.
16. [16]
    XTN declined to make a submission.
17. [17]
    A service provider of the adult submitted that the adult should access the documentation with the support of his advocates.
18. [18]
    No party to the hearing made oral submissions in relation to information or documentation being withheld from XTN or XTB. The Tribunal, therefore, relied on the written evidence to determine whether information or documentation should be withheld from XTN and XTB.
19. [19]
    Whilst neither serious harm nor injustice are defined in the GAA, case law pertaining to the Tribunal has found that ‘serious harm’ means physical or psychological injury, whether temporary or permanent, that endangers or is likely to endanger human life, or is likely to be significant and longstanding.^[2]
20. [20]
    The Tribunal adopts the same approach taken in the matter concerning JSM^[3] as to the meaning of 'serious harm' for the purposes of section 109 of the GAA. 
21. [21]
    Tribunal files are accessible to active parties and other persons before and during hearings in the interests of procedural fairness,^[4] and are accessible to the public. In addition to being directly relevant and significant, the information contained within the documentation was assessed by the Tribunal as credible, as the information came from sources deemed to be reliable by the Tribunal. Given the nature of the information contained within the documents, it is reasonable to deduce that persons would likely suffer physical or psychological injury, whether temporary or permanent, that endangers or is likely to endanger human life, or is likely to be significant and longstanding should the information contained within certain documents before the Tribunal be accessed by XTN and XTN.
22. [22]
    For these reasons, the Tribunal is satisfied that the non-disclosure of specific documents to XTN and XTB is necessary to avoid serious harm to a person. In this way, the Tribunal withheld documents, but only to the extent necessary, by the making of the confidentiality order.
23. [23]
    The determination of the application included whether withholding certain documents from the adult was necessary to avoid serious harm or injustice to a person.
24. [24]
    The pre-hearing confidentiality order and directions of 28 March 2024 did not prohibit the adult from accessing all information and documentation before the Tribunal if shown to him by his advocates. The evidence establishes that although the representatives of YWX did not afford him access to the documentation identified in the pre-hearing confidentiality order and directions, they supported him to access to information contained within the documentation. The adult’s representatives, service provider and former step-parent were united in their oral submissions for all documentation before the Tribunal to be accessible to YWX.
25. [25]
    The evidence before the Tribunal at the time of the hearing, therefore, does not establish that a person would suffer serious harm as a consequence of the adult accessing, with the support of his representatives, documentation containing information that had previously been provided to him in relation to the proceeding.  For these reasons, the Tribunal decided not to make an ongoing confidentiality order in relation to documentation being withheld from the adult.
26. [26]
    In the Tribunal’s consideration of the application for a confidentiality order, the Tribunal is required to interpret the statutory provisions, to the extent possible that is consistent with their purpose, to be interpreted in a way that is compatible with human rights.^[5] 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.^[6] 
27. [27]
    YWX’s rights to privacy^[7] and recognition as a person before the law entitled to equal protection without discrimination^[8] may be engaged and limited by the making of the confidentiality order. Taking into account these findings in relation to the criteria set out in the GAA, the Tribunal is satisfied the limits imposed by the order are reasonable and justified in accordance with section 13 of the Human Rights Act 2019 (Qld). The orders made are the least restrictive based on the information before the Tribunal.

Conclusion

28. [28]
    Accordingly, the Tribunal orders that pursuant to section 109 of the GAA the following documents are confidential and must not be disclosed to XTN and XTB:

    1. H001 – Application for an interim order filed 27 March 2024;
    2. H002 – Application for miscellaneous matters filed 27 March 2024;
    3. H003 – Application for appointment of a guardian and administrator filed 27 March 2024;
    4. H011 – Notice of hearing dated 20 November 2024; and
    5. MED001 – Clinical report dated 22 March 2024.
29. [29]
    As required under section 113 of the GAA, a copy of these reasons for the Tribunal’s decision to make the limitation order must be given to the adult, each active party and entity heard in relation to the order and the Public Advocate within forty-five (45) days of the decision.