Date: 21 April 2022
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Stepniak
Human Rights Act 2019 (Qld) Sections: ss 4, 8, 9, 13, 25, 26, 31, 58
Rights Considered: Right to privacy and reputation; Right to protection of families and children; Right to a fair hearing
Other Legislation: Guardianship and Administration Act 2000 (Qld) ss 5, 7, 11, 11B, 12, 33, 114A, 127, 146; Powers of Attorney Act 1998 (Qld) ss 6C, 6D, 26, 41, 42, 44, 47, 50, 63, 66, 72, 73, 82, 86, 109, 111A, 113, 116; Public Guardian Act 2014 (Qld) ss 10, 19; Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 28, 43, 46, 48, 101, 102
Keywords: Health, Mental Health, Guardianship

This case concerned a review of an application seeking to appoint the Public Advocate as guardian and the Public Trustee as administrator for PC by DB (PC’s carer and long-time friend and partner) and to remove a 2001 enduring power of attorney appointing PC’s daughters. The Tribunal found PC to have impaired capacity, declared a second enduring power of attorney (dated 21 April 2021) invalid and ordered that PC’s attorneys (daughters) were to continue exercising the powers given to them by PC in the enduring power of attorney dated 16 March 2001.

Member Stepniak, in a detailed examination of the application of the Human Rights Act 2019 (Qld), acknowledged that the Tribunal (acting in its administrative capacity as a “public entity”) was required to comply with the Human Rights Act 2019 (Qld) and make decisions compatible with human rights: at [257]-[259].

Member Stepniak made several observations about the interaction between the Human Rights Act 2019 (Qld), the Powers of Attorney Act 1998 (Qld), and other relevant legislation including that:

  • The PA Act requires attorneys to exercise their power in a manner that empowers the Adult to exercise his human rights and fundamental freedoms.
  • Both Acts provide for respect for family and other significant people in the life of the adult.
  • The human right to privacy and the PA Act's general principle 6 both require privacy to be respected and maintained.
  • Participation by the adult in decision making is supported by both Acts.

The Tribunal also considered that the holding of an open hearing with closure available if required (as provided for in the QCAT Act) was compatible with the right to a fair hearing (section 31): at [285].

While acknowledging that section 31(3) of the Human Rights Act 2019 (Qld) requires tribunal decisions to be publicly available, section 114A of the Guardianship and Administration Act 2000 (Qld) prohibited the publication of information ‘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 which the information is published’: at [286]-[287]. Decisions previously published on the case and the current reasons for the decisions were presented in a way that prevented the identification of PC: at [288].

The proceedings were noted to involve a limitation on human rights, but the limitation was found reasonable and justifiable considering the factors listed in section 13(2) of the Human Rights Act 2019 (Qld): at [290]-[291].

Visit the judgment: PC [2022] QCAT 147