BC v The Public Advocate & Ors
[2018] SASC 193
•18 December 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
BC v THE PUBLIC ADVOCATE & ORS
[2018] SASC 193
Judgment of The Honourable Justice Stanley
18 December 2018
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - HABEAS CORPUS
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PRESUMPTIONS AS TO LEGISLATIVE INTENTION
This is an application for judicial review of decisions made by the Public Advocate and the South Australian Civil Administrative Tribunal, and for relief in the form of associated writs and orders.
The plaintiff is currently residing in the dementia unit of an aged care facility. In September 2018, SACAT made an order pursuant to s 29 of the Guardianship and Administration Act 1993 (SA) (Act) that the plaintiff be placed under the limited guardianship of the Public Advocate in relation to matters of accommodation and lifestyle. In purported exercise of those powers of appointment, the Public Advocate directed that the plaintiff reside in the facility. The plaintiff, who is supported by the fourth defendant, contends he is being unlawfully detained in the facility.
At issue is whether the detention of the plaintiff in the particular circumstances which exist in this case is authorised by the grant of the limited guardianship order in relation to his accommodation and lifestyle, pursuant to s 29 of the Act, in favour of the Public Advocate, or whether the power to lawfully detain the plaintiff in the circumstances of this case is to be found exclusively in 32(1)(b) of the Act.
Held:
1. Section 29 of the Guardianship and Administration Act 1993 (SA) (Act) does not confer power on the guardian to decide where the protected person is to reside (at [36]).
2. Section 32 of the Act is an exhaustive code conferring power to decide not only where and with whom a protected person resides, but the conditions of that residence, including the nature and degree of any restraint or detention required for the protection of the protected person or others (at [36]).
3. The power to lawfully detain protected persons is found exclusively in s 32(1)(b) of the Act (at [43]).
4. The plaintiff has been detained by reason of the acts of the Public Advocate and the staff of the facility (at [44]).
5. The plaintiff has not been detained pursuant to the exercise of the power conferred by s 32(1)(b) of the Act (at [44]).
6. The plaintiff has been unlawfully detained and is entitled to the remedy provided by the writ of habeas corpus (at [45]).
7. It is appropriate to make an order pursuant to rule 198 of the Supreme Court Civil Rules 2006 (SA) that the plaintiff’s detention be terminated (at [47]).
Guardianship and Administration Act 1993 (SA) s 5, s 29, s 31, s 32; Supreme Court Act 1935 (SA) s 17; Supreme Court Civil Rules 2006 (SA) s 196, s 198, s 199; Guardianship and Administration Act 2000 (Qld) chapter 5B, schedule 2 s 2(a); Guardianship and Administration Act 1995 (Tas) s 25(2)(a), s 28; Guardianship and Administration Act 1986 (Vic) 24(2)(a), s 26; Guardianship and Administration Act 1990 (WA) s 45(2)(a); Guardianship and Management of Property Act 1991 (ACT) 7(3)(a); Guardianship of Adults Act 2016 (NT) s 3, s 11, referred to.
Antunovic v Dawson & Anor [2010] VSC 377; Ruddock v Vadarlis (2001) 110 FCR 491; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; Trobridge v Hardy (1955) 94 CLR 147; Bunning v Cross (1978) 141 CLR 54; Baker v Campbell (1983) 153 CLR 52; Kruger v The Commonwealth (1997) 190 CLR 1; R v Kola (2002) 83 SASR 477; Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309; Lacey v Attorney-General of Queensland (2011) 242 CLR 573; McLaughlin v Fosbery (1904) 1 CLR 546, discussed.
Secretary of State for Home Affairs v O’Brien [1923] AC 603; Ex parte Walsh and Johnson; in Re Yates 1925) 37 CLR 36; Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452; R (Gillan) v Commissioner of Police of the Metropolis [2006] 2 AC 307; Jackson v Lepp Investments Pty Ltd [2016] SASC 62; Weinel v Parsons (1994) 62 SASR 501; Pix v South Australian Housing Trust [2016] SASCFC 57; Varricchio v Wentzel [2016] SASC 86; R v B (No. 1) [2011] NSWSC 1075, considered.
BC v THE PUBLIC ADVOCATE & ORS
[2018] SASC 193Civil
STANLEY J.
Introduction
The plaintiff is a 95-year-old man who is currently residing in the dementia unit (the unit) of [address suppressed] (the Facility).
The South Australian Civil and Administrative Tribunal (SACAT) made an order on 27 September 2018, pursuant to s 29 of the Guardianship and Administration Act 1993 (SA) (the Act), that the plaintiff be placed under the limited guardianship of the Public Advocate in relation to matters of accommodation and lifestyle.
In purported exercise of those powers of appointment, on 5 October 2018 the Public Advocate directed that the plaintiff reside in the Facility.
On 30 September 2018 the fourth defendant brought an application for internal review of the orders made by SACAT on 27 September 2018. That application is listed for hearing next month.
By summons, the plaintiff seeks the following relief:
(i)orders in the nature of certiorari, pursuant to s 17 of the Supreme Court Act 1935 or alternatively pursuant to Rule 199 of the Supreme Court Civil Rules 2006, quashing:
(a) the SACAT order of 27 September 2018 appointing the Public Advocate as limited guardian of the plaintiff in respect of his accommodation and lifestyle;
(b) the SACAT order of 27 September 2018 appointing the second defendant [(BMC)], the plaintiff’s wife, as limited guardian of the plaintiff in respect of his health care; and
(c) the decision of the Public Advocate on or about 5 October 2018 in exercise of the limited guardianship order regarding accommodation and lifestyle of the plaintiff, to place him in the unit.
(ii)a declaration that the decision made by the Public Advocate to place the plaintiff in the unit is ultra vires, invalid or unlawful; and
(iii)a writ of habeas corpus that the plaintiff be released forthwith from the unit into the care of the fourth defendant, his son, [DBC], at [DBC’s] cost.
The plaintiff complains about the omission of the third defendant, SACAT, to order a medical assessment by a consultant geriatrician.
I directed that the plaintiff be assessed by Dr Jeff Faunt, a consultant geriatrician. This occurred on 19 November 2018. Dr Faunt provided a report dated 4 December 2018. Dr Faunt considers it is likely the plaintiff suffers from dementia with frontal features, possibly vascular in origin. Alternatively, he considers the plaintiff suffers from Alzheimer’s disease with frontal dominance. He considers this is of at least moderate severity. In his opinion the plaintiff does not have the capacity to make decisions about his own health, health care, safety and welfare. In addition he is of the opinion that the plaintiff does not have the capacity to make decisions about his own lifestyle, including where he would like to live. I accept the evidence of Dr Faunt set out in his report. I find that the plaintiff is a person who has a mental incapacity for the purposes of s 29 of the Act.
As the hearing before me developed, the plaintiff, who was supported by the fourth defendant, placed primary reliance upon its contention that the plaintiff was and is being illegally detained and, accordingly, he is entitled to the relief granted by the writ of habeas corpus. However, neither the plaintiff nor the fourth defendant abandoned the other grounds.
SCR 196 provides:
196—Powers of Court in cases of suspected unlawful detention
(1)If there are grounds to suspect that a person is being held in unlawful custody or subjected to unlawful restraint, the Court may order the production of the person before the Court so that the Court can inquire into the circumstances of the case.
(2)An application under this rule must be supported by an affidavit—
(a) setting out the grounds for suspecting that the person to whom the application relates is being held in unlawful custody or subjected to unlawful restraint; and
(b) if that person is not the applicant—
(i)stating that the person consents to the application; or
(ii)stating why the application should proceed without the person's consent.
(3)An application for an order under this rule may be made without notice to the person imposing the custody or restraint but the Court may, if it thinks fit, adjourn the application to enable any interested person to be heard.
(4)An order under this rule is to be served on such persons as the Court may direct.
The plaintiff is in the custody and control of the Facility, subject to any direction of the Public Advocate in relation to the plaintiff’s accommodation. On the hearing of this matter the Facility did not produce the plaintiff. The Facility was not joined to the proceedings. On 21 November 2018 the plaintiff served the application for judicial review upon the Facility. The Facility did not seek to be heard. On 17 December 2018, the Facility confirmed that it would abide any order or direction made by the Court. At all times the plaintiff was represented by Senior Counsel. In the circumstances I proceeded to inquire into the circumstances of the case without the physical production of the plaintiff to the Court.
The evidence
The plaintiff sought to rely upon a substantial body of affidavit evidence from:
·Affidavit of BC dated 17 October 2018;
·Affidavit of Brenton John Miegel dated 20 November 2018;
·Affidavit of Brenton John Miegel dated 10 December 2018;
·Affidavit of DC dated 21 November 2018;
·Affidavit of DC dated 10 December 2018;
·Affidavit of DC dated 12 December 2018;
·Affidavit of Julia Ellen McGrath dated 21 November 2018; and
·Affidavit of Julia Ellen McGrath dated 29 November 2018.
The first defendant, the Public Advocate, adduced affidavit evidence from:
·Affidavit of Paula Denise Stirling dated 30 November 2018;
·Affidavit of Matthew Stuart Kowald dated 10 December 2018;
·Affidavit of Barbara Ann Robertson dated 12 December 2018; and
·Affidavit of Clare Frances Byrt dated 12 December 2018.
The second defendant, the plaintiff’s wife, who opposes the orders sought, adduced affidavit evidence from:
·Affidavit of Oliver Portway dated 6 December 2018;
·Affidavit of BMC dated 12 December 2018; and
·Affidavit of BRC dated 12 December 2018.
There were a series of objections taken by the plaintiff and the fourth defendant to some of this affidavit evidence. At the hearing, I admitted some of this evidence over objection on the basis that the objections really went to the weight to be given to the evidence, or I admitted the evidence de bene esse. As it transpires, much of the evidence has proved to be irrelevant to the disposition of the matter.
In the end, the issue of whether the plaintiff has been unlawfully detained substantially turns on a question of statutory construction.
The relevant evidence satisfies me that the conditions under which the plaintiff resides at the Facility involve a restriction on his freedom of movement in relation to leaving the unit and the Facility unaccompanied. There is a locked door to the unit which can only be opened by entering a code on a keypad or swiping a card over an electronic device. These measures are intended to prevent the residents in the unit from leaving without permission and supervision.
I accept that the Public Advocate directed the plaintiff reside at the Facility, knowing that these are the conditions of his residence at the Facility. I accept that the Public Advocate considers that these conditions are necessary for the plaintiff’s care and protection.
Habeas corpus
The purpose of habeas corpus is to provide a “swift and imperative remedy in all cases of illegal restraint or imprisonment”.[1] It is available as of right once cause is shown. There is no discretion to refuse to grant the remedy.[2]
[1] Secretary of State for Home Affairs v O’Brien [1923] AC 603 at 609; Ex parte Walsh and Johnson; in Re Yates [1925] HCA 53, (1925) 37 CLR 36 at 77.
[2] Antunovic v Dawson & Anor [2010] VSC 377 at [131], (2010) 30 VR 355 at 384.
If there are grounds to suspect that a person is being unlawfully detained, SCR 196 to SCR 198 govern the procedures of the Court in conducting an inquiry into whether it should make orders terminating the detention and making any other provision for the care and protection of a person that may be appropriate in the circumstances.
The first issue is whether the plaintiff is being detained. The extent of the restraint necessary for unlawful detention to be established is considered in Antunovic v Dawson & Anor.[3] Unlawful detention exists where someone is in the unlawful custody, power or control of another person. Actual physical custody is not essential. It is established where someone is prevented from being at liberty to go freely at all times to all places. The test has been enunciated as being whether the restraint imposed is one that is not shared by the public generally.[4] In Ruddock v Vadarlis,[5] Black CJ held that it is not necessary to show actual detention and complete loss of freedom. Rather, custody and control are the required elements. He said:[6]
In the end it is necessary to consider whether on the facts of the case there is a restraint on liberty which is not authorised by law. The relevant liberty is freedom of movement.
[3] [2010] VSC 377, (2010) 30 VR 355.
[4] Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs [2001] FCA 1297, (2001) 110 FCR 452 at [86].
[5] [2001] FCA 1329, (2001) 110 FCR 491 at [69].
[6] [2001] FCA 1329, (2001) 110 FCR 491 at [210].
In Antunovic, Bell J said:[7]
[C]lose custody, imprisonment, detention or something analogous is not a necessary element of the right to habeas corpus, although restraints of that kind are clearly covered. The purpose of the writ is to give a remedy against unlawful restraints on personal liberty, which is not to be narrowly defined. The restraint may be imposed directly or indirectly. It may be partial or total. The question is whether the person imposing the restraint has the lawful custody, power or control of the person being restrained. ... For the purposes of habeas corpus, it is a restraint on personal liberty to imprison or detain somebody and also to impose restrictions on their liberty or freedom of movement which are not shared by the public generally.
[7] [2010] VSC 377 at [113], (2010) 30 VR 355 at 380.
There is some issue on the affidavit evidence as to the extent of the restrictions imposed on the plaintiff by being required to reside in the unit. It is unnecessary to make precise findings in relation to these matters. For the purposes of this application, it is sufficient that I am satisfied the placement of the plaintiff in the locked unit constitutes a deprivation of his liberty. That amounts to detention at law. The question is whether it is unlawful. As I have observed earlier, the answer to this question substantially turns on the question of statutory construction of the Act.
The principles of statutory construction are helpfully analysed in the joint judgment of French CJ and Hayne J in Certain Lloyd’s Underwriters v Cross, where they said:[8]
[8] [2012] HCA 56 at [23]-[26], (2012) 248 CLR 378 at 388-389.
It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole”, and “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.
Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative “intention” is to use a metaphor. Use of that metaphor must not mislead. “[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have” (emphasis added). And as the plurality went on to say in Project Blue Sky:
“Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”
To similar effect, the majority in Lacey v Attorney-General (Qld) said:
“Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts.” (Footnote omitted.)
The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.
A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:
“Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case.” (Emphasis added.)
And as the plurality said in Australian Education Union v Department of Education and Children’s Services:
“In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.” (Footnote omitted.)
[Footnotes omitted].
The relevant provisions of the Act are ss 5, 29, 31 and 32. They provide:
5—Principles to be observed
Where a guardian, an administrator, the Public Advocate, the Tribunal or any court or other person, body or authority makes any decision or order in relation to a person or a person's estate pursuant to this Act or pursuant to powers conferred by or under this Act—
(a) consideration (and this will be the paramount consideration) must be given to what would, in the opinion of the decision maker, be the wishes of the person in the matter if he or she were not mentally incapacitated, but only so far as there is reasonably ascertainable evidence on which to base such an opinion; and
(b) the present wishes of the person should, unless it is not possible or reasonably practicable to do so, be sought in respect of the matter and consideration must be given to those wishes; and
(c) consideration must, in the case of the making or affirming of a guardianship or administration order, be given to the adequacy of existing informal arrangements for the care of the person or the management of his or her financial affairs and to the desirability of not disturbing those arrangements; and
(d) the decision or order made must be the one that is the least restrictive of the person's rights and personal autonomy as is consistent with his or her proper care and protection.
29—Guardianship orders
(1) If the Tribunal is satisfied (whether on an application made under this Division or on its own motion after revoking an advance care directive under the Advance Care Directives Act 2013)—
(a) that the person the subject of the application has a mental incapacity; and
(c) that an order under this section should be made in respect of the person, the Tribunal may, by order, place the person under—
(d) the limited guardianship; or
(e) if satisfied that an order under paragraph (d) would not be appropriate, the full guardianship, of such person or persons as the Tribunal considers, in all the circumstances of the case, to be the most suitable for the purpose.
(2) A limited guardianship order is an order by which the Tribunal specifies the particular aspects of the protected person's care or welfare that are to be the responsibility of the appointed guardian or guardians.
(2a) The Tribunal may appoint a person (other than the Public Advocate) to be an alternative guardian who is, in accordance with section 31B, to take over full or limited guardianship, as the case may be, in the event of the death, absence or incapacity of a particular guardian (the original guardian).
(3) A guardian must be a natural person.
(4) The Public Advocate may be appointed as the guardian, or one of the guardians, of the person, but only if the Tribunal considers that no other order under this section would be appropriate.
(5) A person who cares for the protected person on a professional basis cannot be appointed as a guardian of the person.
(6) A guardianship order may be subject to such conditions or limitations (including a limitation as to the duration of the order) as the Tribunal thinks fit and specifies in the order.
(7) A condition or limitation imposed under subsection (6) should, as far as is reasonably practicable, be consistent with the terms of any advance care directive that the protected person has given.
31—Powers of guardian
A person appointed as a guardian under this Part has and may exercise, subject to this Act and the terms of the Tribunal's order, all the powers a guardian has at law or in equity.
31A—Guardian to give effect to advance care directive
(1) A person appointed as a guardian under this Part—
(a) must take reasonable steps to ascertain whether the protected person has given an advance care directive; and
(b) if the protected person has given an advance care directive—must, as far as may be reasonably practicable—
(i) give effect to any provision in the advance care directive; and
(ii) seek to avoid any outcome or intervention that the protected person would wish to be avoided (whether such wish is expressed or implied in the advance care directive).
(2) For the purposes of subsection (1), a reference to an advance care directive includes an advance care directive that was revoked by the Tribunal under the Advance Care Directives Act 2013 in proceedings that gave rise to the making of an order under this Division.
(3) For the purposes of this section, a reference to a provision of an advance care directive includes a reference to a condition, instruction or direction of an advance care directive.
31B—Alternative guardian
(1) If an alternative guardian is appointed under section 29(2a) in relation to a protected person, the following applies on the death, absence or incapacity of the original guardian:
(a) the alternative guardian takes over full or limited guardianship, as the case may be, of the protected person without further proceedings;
(b) the alternative guardian has the same powers and duties with respect to the protected person as the original guardian had immediately before the original guardian's death, absence or incapacity.
(2) A person who takes over guardianship under subsection (1) must, as soon as practicable after becoming aware of the circumstances of the death, absence or incapacity of the original guardian, notify the Tribunal in writing of that fact and include any relevant documentary evidence of the circumstances.
32—Special powers to place and detain etc protected persons
(a1)This section applies to the following persons:
(a) a protected person;
(b) a person who has given an advance care directive under which at least 1 substitute decision-maker has been appointed.
(1) The Tribunal, on application made by an appropriate authority in respect of a person to whom this section applies—
(a) may, by order, direct that the person reside—
(i) with a specified person or in a specified place; or
(ii) with such person or in such place as the appropriate authority from time to time thinks fit,
(whether or not the person or place is a person with whom, or the place in which, the person usually resides) according to the terms of the Tribunal's order; and
(b) may, by order, authorise the detention of the person in the place in which he or she will so reside; and
(c) may, by order, authorise the persons from time to time involved in the care of the person to use such force as may be reasonably necessary for the purpose of ensuring the proper medical or dental treatment, day-to-day care and well-being of the person.
(1a) An application made by a person under this section may be heard at the same time as his or her application for appointment as guardian.
(2) The Tribunal cannot make an order under subsection (1) unless it is satisfied that, if such an order were not to be made and carried out, the health or safety of the person or the safety of others would be seriously at risk.
(3) Nothing in this section empowers the placement or detention of a person in— (a) a correctional institution or any other place in which persons charged with or convicted of offences may be detained; or (b) any part of an approved treatment centre under the Mental Health Act 1993 that is set aside for the treatment of persons with a mental illness.
(3a) For the purposes of subsection (3)(b), a ward (however described) of a hospital or other facility that is an approved treatment centre under the Mental Health Act 2009 will not be taken to be a part of an approved treatment centre unless the whole of the ward is set aside for the treatment of persons with a mental illness.
(4) While an order for the placement or detention of a person is in force under this section—
(a) the appropriate authority or a member of the police force may enter any premises and take the person, or cause him or her to be taken, using only such force as is reasonably necessary for the purpose, to the place in which he or she is to be placed or detained, and any person who assists the appropriate authority or member of the police force in the matter incurs no liability for doing so; and
(b) the person in charge of the premises in which a person is being detained pursuant to the order may take, or cause to be taken, such action as is reasonably necessary for the purpose of preventing the person from leaving the premises or for bringing the person back should he or she leave without lawful authority or excuse; and
(c) any person who takes any such action under paragraph (b) in good faith and with the authority of the person in charge of the premises incurs no liability for doing so.
(5) The Tribunal may, on an application under this Division, vary or revoke an order under this section.
(6) Where a member of the police force has reasonable cause to believe that a person who is being detained in any place pursuant to powers conferred under this section is unlawfully at large, the member may, without warrant, enter any place in which he or she believes on reasonable grounds that the protected person may be and apprehend the person, using only such force as is reasonably necessary for the purpose, and may return the person to the place in which he or she is being so detained.
(7) A person who, without lawful authority or excuse, removes a person who is being detained in any place pursuant to powers conferred under this Act from that place, or aids or abets the person unlawfully to leave that place, is guilty of an offence. Maximum penalty: $10 000.
(7a) For the purposes of this section, a reference to residing in a specified place includes a reference to residing in the place on a temporary basis.
Note— For example, a person may temporarily reside in a hospital or rehabilitation facility.
(8) In this section—
appropriate authority, in respect of a person, means—
(a) if the person is a protected person—the guardian of the person; or
(b) if the person is a person who has given an advance care directive under which a substitute decision-maker has been appointed—each substitute decision-maker appointed under the advance care directive.
At issue is whether the detention of the plaintiff in the particular circumstances which exist in this case is authorised by the grant of the limited guardianship order in relation to his accommodation and lifestyle, pursuant to s 29, in favour of the Public Advocate, or whether the power to lawfully detain the plaintiff in the circumstances of this case is to be found exclusively in 32(1)(b). If the latter is correct, the plaintiff’s detention is unlawful.
On 27 September 2018 SACAT made the following orders:
1.The Public Advocate is appointed limited guardian of BC.
2.The role and duties of the guardian are limited to those concerning: accommodation.
3.The role and duties of the guardian are limited to those concerning: lifestyle.
4.BMC is appointed limited guardian of BC.
5.The role and duties of BMC are limited to those concerning: healthcare.
6.This order continues to have effect until further order of the Tribunal.
7.The Tribunal recommends the order is reviewed on or before Friday, 24 September 2021.
While previously SACAT had made interim orders pursuant to s 32(1)(b) it did not do so on 27 September 2018.
Underpinning the construction of provisions concerned with the lawfulness of restraints on the liberty of the subject is the principle of legality.
Fundamental assumptions deeply embedded in the foundational structure and rules of the common law recognise that certain rights and freedoms are not to be infringed except by clear lawful authority. Some of the most important fundamental rights are the rights to enjoy personal liberty, freedom of movement and privacy (at least in the sense of freedom from invasive searches).
In Trobridge v Hardy,[9] Fullagar J observed that personal liberty is the “most elementary and important of all common law rights”. In Bunning v Cross,[10] Stephen and Aickin JJ recognised a ‘precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life.’ In Baker v Campbell,[11] Wilson J recognised that ‘[t]he adequate protection according to law of the privacy and liberty of the individual is an essential mark of a free society’. In Kruger v The Commonwealth,[12] Gaudron J noted that the right to move in society and to associate with one’s fellow citizens is an aspect of personal liberty jealously guarded by the common law. In R v Kola,[13] Doyle CJ (Perry and Lander JJ agreeing) recognised a common law right of people to go about their lawful business undisturbed.
[9] [1995] HCA 68 at [3], (1955) 94 CLR 147, 152.
[10] [1978] HCA 22 at [29], (1978) 141 CLR 54 at 75.
[11] [1983] HCA 39 at [11], (1983) 153 CLR 52 at 95.
[12] [1997] HCA 27, (1997) 190 CLR 1 at 125.
[13] [2002] SASC 203 at [39], (2002) 83 SASR 477 at 484; R (Gillan) v Commissioner of Police of the Metropolis [2006] 2 AC 307 at 332.
More recently the principle of legality has been approached on the more refined basis that Parliament may now be taken to be well aware that Courts will construe legislation on the basis of the principle of legality and, therefore, the courts are well justified in proceeding on that basis, safe in the knowledge that Parliament would have used appropriate language if it did indeed wish and intend to oust fundamental freedoms. Thus in Electrolux Home Products Pty Ltd v Australian Workers’ Union, Gleeson CJ said:[14]
The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.
[14] [2004] HCA 40 at [21], (2004) 221 CLR 309 at 329.
In the judgment of the High Court in Zheng v Cai their Honours stated:[15]
It has been said that to attribute an intention to the legislature is to apply something of a fiction. However, what is involved here is not the attribution of a collective mental state to legislators. That would be a misleading use of metaphor. Rather, judicial findings as to legislative intention are an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws. As explained in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs, the preferred construction by the court of the statute in question is reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy.
[Footnotes omitted].
[15] [2009] HCA 52 at [28], (2009) 239 CLR 446 at 455-456.
Again recently in Lacey v Attorney-General of Queensland, the plurality of the High Court stated:[16]
The objective of statutory construction was defined in Project Blue Sky Inc v Australian Broadcasting Authority as giving to the words of a statutory provision the meaning which the legislature is taken to have intended them to have. An example of a canon of construction directed to that objective and given in Project Blue Sky is “the presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities”. That is frequently called the principle of legality. The legislative intention there referred to is not an objective collective mental state. Such a state is a fiction which serves no useful purpose. Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts.
[Footnotes omitted].
[16] [2011] HCA 10 at [43], (2011) 242 CLR 573 at 591-592.
The Public Advocate submits that the powers of a guardian at common law are wide and an aspect of guardianship usually includes custody and/or control. The Public Advocate cites the joint reasons in the High Court of Griffith CJ and Barton J in McLaughlin v Fosbery,[17] to support the proposition that, traditionally, the guardians of persons suffering mental illness had some control over their liberty at common law.
[17] [1904] HCA 55, (1903-1904) 1 CLR 546 at 563-564.
The Public Advocate further submits that a guardian appointed pursuant to the Act is subject to a duty to care and protect the person under guardianship. Where a limited guardianship order has been made, inter alia, in respect of the protected person’s accommodation, the appointment implies the conferral upon the guardian of the power to exercise control over the movements and place of residence of the protected person. This is necessary to give the guardianship order efficacy and ensure the duty of care and protection is fulfilled. The Public Advocate contends that this power extends to deciding not only where the protected person is accommodated, but the conditions of that accommodation including, where necessary, for the protected person’s protection, some degree of restraint on the person’s freedom of movement.
At the heart of the question of statutory construction is the content of the power conferred upon a guardian pursuant to the limited guardianship order made for the protected person’s accommodation. Whatever might have been the scope of the powers of a guardian at common law or in equity, those powers are expressly made subject to the provisions of the Act.[18] While the previous position at common law conferred a general power upon a guardian to exercise control over the protected person, that position now is modified by statute. In my view s 29 does not confer power on the guardian to decide where the protected person is to reside. That is because the power to decide where the protected person resides is conferred exclusively by s 32(1)(a). On the application of the guardian, SACAT can decide that matter itself or delegate that decision to the guardian. Critically, I consider s 32 is an exhaustive code conferring power to decide, not only where and with whom a protected person resides, but the conditions of that residence, including the nature and degree of any restraint or detention required for the protection of the protected person or others.
[18] Section 31.
The text of the Act supports a construction that s 32(1)(b) is the sole repository of the power of detention in the Act. Section 32 establishes its own code. The scheme established by s 32 provides that, where a guardian applies to SACAT, it may direct a protected person to reside with a specified person or in a specified place; or with such person or in such place as the guardian thinks fit, and may authorise the detention of a person in that place and the use of force for the purpose of ensuring the proper care and medical treatment of the protected person. The application may be heard at the same time as the application for the appointment of a guardian. In addition to the conferral of the power of detention, that conferral of power is accompanied by the facilitative regime in s 32(4) and (6). These provisions support the conferral of the power to detain in s 32(1)(b) by empowering the use of force to ensure a protected person is taken to the place of detention and kept there, or returned there if they are unlawfully at large; and shields from liability those persons authorised to exercise that power.
Likewise, s 32(7) makes it an offence for a person who, without lawful authority or excuse, removes a person who has been detained pursuant to the powers conferred under the Act from that place, or aids or abets the person unlawfully to leave the place. The reference in s 32(7) to a person being detained pursuant to powers conferred under the Act must be understood as referring to powers expressly conferred under the Act. That can only be a reference to s 32(1)(b). In addition, the terms of s 32(2) condition the exercise of the power to detain in s 32(1)(b). SACAT cannot make an order for the detention of a protected person unless it is satisfied that, if such an order were not made and carried out, the health or safety of the protected person or the safety of others would be seriously at risk. To my mind, the absence of comparable provisions in s 29 indicates that s 29 does not confer a power of detention.
That construction is also supported by considerations of context. Section 32(1)(b) is the only provision in the Act which expressly provides for detention. It modifies rather than codifies the common law and equitable powers of a guardian. It is a specific power. Section 29 is a general power. The enactment of the specific power conditions the scope of the general power. Context includes the principle of legality. The principle of legality presumes that if the legislature intended to abrogate or interfere with fundamental rights and freedoms it would only do so by the use of clear, unmistakable statutory language such as is found in s 32(1)(b), not by the use of general words as found in s 29.
Further, to imply a power in the guardian to authorise the detention of a protected person pursuant to the making of a full or limited guardianship order, would result in incoherence in the Act. It would create two sources of power authorising the detention of protected persons, one exercisable by the guardian, and the other exercisable by SACAT.
A purposive construction supports a conclusion that the power to authorise the detention of a protected person is to be found exclusively in s 32(1)(b). While the guardian in this case is the Public Advocate, in most cases the guardian will be a private person. I consider the legislature recognised there are sound policy considerations dictating that the power to authorise the detention of an individual, especially a vulnerable individual such as a protected person, should only be exercised by an institutional authority such as SACAT, rather than a private person.
In my view, recourse to different statutory provisions in cognate legislation[19] in other jurisdictions is of limited assistance. The Act is readily contrasted with cognate legislation in other States. While those Acts may share the same or a similar purpose, the text and context of that legislation is readily distinguishable from the Act. In particular, that legislation lacks the equivalent of s 32(1)(b).
[19] Guardianship and Administration Act 2000 (Qld) chapter 5B and schedule 2 s 2(a); Guardianship and Administration Act 1995 (Tas) s 25(2)(a) and s 28; Guardianship and Administration Act 1986 (Vic) s 24(2)(a) and s 26; Guardianship and Administration Act 1990 (WA) s 45(2)(a); Guardianship and Management of Property Act 1991 (ACT) s 7(3)(a); Guardianship of Adults Act 2016 (NT) s 3 and s 11.
For these reasons I conclude that under the Act the power to lawfully detain protected persons is found exclusively in s 32(1)(b).
I find that the plaintiff has been detained by reason of the acts of the Public Advocate and the staff of the Facility. I further find that the plaintiff has not been detained pursuant to the exercise of the power conferred by s 32(1)(b).
For these reasons, I find that the plaintiff has been unlawfully detained. Accordingly, the plaintiff is entitled to the remedy provided by the writ of habeas corpus. In the circumstances I decline to consider further the other grounds upon which relief is sought. The statement of grounds complains about three decisions. They are SACAT’s decision of 27 September 2018 by which SACAT made orders for the limited guardianship of the plaintiff; the Public Advocate’s decision of 5 October 2018 to direct that the plaintiff was to reside in the unit; and the omission of SACAT to order a medical assessment by a consultant geriatrician. The first decision complained of by the plaintiff is the subject of an internal review by SACAT. The second decision goes to the application for habeas corpus. The third decision has been overtaken by the order I made that the plaintiff be assessed by Dr Faunt. Accordingly, there is no utility in reviewing the second and third decisions. The application for judicial review seeks to review the first decision. Judicial review is a discretionary remedy. Traditionally, the Court has declined to exercise the jurisdiction to grant judicial review on discretionary grounds where the aggrieved party has available other appeal or review rights which have not been exhausted.[20]
[20] Weinel v Parsons [1994] SASC 5155, (1994) 62 SASR 501 at 504, 505-506.
In this matter, I would refrain from granting judicial review while these matters are before SACAT, which is a specialist tribunal conferred with the jurisdiction and power to decide disputes of this kind.[21] It is undesirable that the jurisdiction of this Court should be invoked by an application for judicial review which would circumvent the exercise of SACAT’s specialist jurisdiction which is better equipped to deal with disputes in relation to guardianship of vulnerable persons in a timely and cost-efficient way. While there are examples of a superior court’s jurisdiction being invoked in different but similar circumstances,[22] I do not consider that should occur in this case. There is no evidence before the Court which would satisfy me that SACAT has been dilatory, or that there has been any unreasonable delay, in the hearing and determination of the internal review.
[21] See Jackson v Lepp Investments Pty Ltd [2016] SASC 62 (subsequently approved by the Full Court in Pix v South Australian Housing Trust [2016] SASCFC 57 at [3]) and Varricchio v Wentzel [2016] SASC 86 in relation to SACAT’s similar jurisdiction to hear and determine tenancy disputes.
[22] See for example R v B (No. 1) [2011] NSWSC 1075.
Disposition of the proceedings
Having found the plaintiff has been unlawfully detained, it is appropriate to make an order pursuant to SCR 198(2)(a) that the plaintiff’s detention be terminated.
SCR 198(2)(b) provides that the Court may make orders for any other provision for the care and protection of the plaintiff that may be appropriate in the circumstances. In this case the Public Advocate continues to exercise a limited power of guardianship over the plaintiff in respect of his accommodation and lifestyle. I will hear the parties as to what, if any, additional orders, including as to costs, the Court should make.
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