FHV [2022] QCAT 312

Date: 23 August 2022
Court/Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Member Hemingway
Human Rights Act 2019 (Qld) Sections: ss 24, 31, 48
Rights Considered: Property Rights; Right to a fair hearing
Other Legislation: Guardianship and Administration Act 2000 (Qld); Extradition
Act 1988 (Cth); National Redress Scheme for Institutionalised Child Sexual Abuse Act 2018 (Cth)
Keywords: Health, Mental Health, Guardianship

This case concerned a review of the appointment of the Public Trustee of Queensland pursuant to s 31 of the Guardianship and Administration Act 2000 (Qld).

FHV made an application pursuant to s 146(2) of the Guardianship and Administration Act 2000 (Qld) for a declaration that he has capacity. The Tribunal was satisfied that the medical evidence indicated that FHV did not have capacity for financial decisions, and, as such, dismissed the application: at [123], [138], [140]. Similarly, the Tribunal was satisfied, based on the finding that FVH has impaired capacity, it would continue the current appointment of the Public Trustee without alteration to the terms of the order or a change of the appointee: at [128], [140].

Member Hemingway recognises that the Tribunal is subject to the Human Rights Act 2019 (Qld): at [136]-[137]. Under s 31 of the Human Rights Act 2019 (Qld) FHV must be given a fair hearing and that, in this case, he has had the opportunity to participate and express his views to the Tribunal: at [136]. Further, under s 24 of the Human Rights Act 2019 (Qld), FHV has a right to manage his own property: at [137]. Member Hemingway resolves consideration of these sections through observing that decisions incompatible with human rights must be reasonable and justifiable and the least restrictive decision (section 48): at [137]-[141].

On these grounds, the Tribunal continues the appointment of the Public Trustee of Queensland and dismissed the application for a declaration of capacity, implicitly acknowledging that this decision was compatible with the Human Rights Act 2019 (Qld): at [140]. The Member did not engage in any further substantive discussion relating to the Human Rights Act 2019 (Qld).

Visit the judgment: FHV [2022] QCAT 312