KN
[2015] WASAT 104
•11 SEPTEMBER 2015
KN [2015] WASAT 104
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 104 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:3285/2015 | 3 SEPTEMBER 2015 | |
| Coram: | MS F CHILD (MEMBER) | 11/09/15 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Access refused | ||
| B | |||
| PDF Version |
| Parties: | KN |
Catchwords: | Guardianship and administration Access to transcript for use in other unrelated proceedings Best interests of represented person Integrity of Tribunal's process |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 17, s 84, s 112, s 112(4), s 113, Pt B Sch 1 |
Case References: | AB and Public Trustee [2015] WASAT 68 KWD [2011] WASAT 4 MB [2004] WAGAB 25 Re MM (2001) 28 SR WA 320 |
Summary | A member of the Administrative Appeals Tribunal sought access to transcripts of recordings of hearings of proceedings commenced under the Guardianship and Administration Act 1990 (WA), to assist in the determination of an appeal before the Administrative Appeals Tribunal.,Although the Tribunal found that the Administrative Appeals Tribunal had demonstrated cogent reasons for access to be granted, in the exercise of discretion, refused the application. The Tribunal determined that it was in the best interests of the represented person that the objections of the represented person to the release of the transcripts be upheld to protect the integrity of the Tribunal's process in considering the review of orders presently before it. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : KN [2015] WASAT 104 MEMBER : MS F CHILD (MEMBER) HEARD : 3 SEPTEMBER 2015 DELIVERED : 11 SEPTEMBER 2015 FILE NO/S : GAA 3285 of 2015 MATTER : KN
- Represented Person
Catchwords:
Guardianship and administration Access to transcript for use in other unrelated proceedings Best interests of represented person Integrity of Tribunal's process
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 17, s 84, s 112, s 112(4), s 113, Pt B Sch 1
Result:
Access refused
Summary of Tribunal's decision:
A member of the Administrative Appeals Tribunal sought access to transcripts of recordings of hearings of proceedings commenced under the Guardianship and Administration Act 1990 (WA), to assist in the determination of an appeal before the Administrative Appeals Tribunal.
Although the Tribunal found that the Administrative Appeals Tribunal had demonstrated cogent reasons for access to be granted, in the exercise of discretion, refused the application. The Tribunal determined that it was in the best interests of the represented person that the objections of the represented person to the release of the transcripts be upheld to protect the integrity of the Tribunal's process in considering the review of orders presently before it.
Category: B
Representation:
Counsel:
Represented Person : Ms S Shamaraweera and Ms M Fifield
Solicitors:
Represented Person : Avon Legal
Case(s) referred to in decision(s):
AB and Public Trustee [2015] WASAT 68
KWD [2011] WASAT 4
MB [2004] WAGAB 25
Re MM (2001) 28 SR WA 320
Introduction
1 A request was made on behalf of a member of the Administrative Appeals Tribunal for access to transcripts or audio recordings of hearings of the Tribunal. The recordings requested are of hearings held on 15 July and 18 November 2014 of proceedings commenced under the Guardianship and Administration Act 1990 (WA) (GA Act) in respect of KN (represented person).
2 The request for access was made by emails dated 27 and 28 July 2015 to the Tribunal on behalf of a member of the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT). The Tribunal was advised that the AAT is determining a review in which the represented person is a party and that the transcripts of the hearings relating to the represented person would assist in that determination.
3 The email correspondence was treated as an application pursuant to s 112(4) of the GA Act for access to documents or material held by the Tribunal for the purposes of an application, the application in question being the applications made for the appointment of a guardian and administrator made in respect of the represented person filed with the Tribunal in 2014.
Background
4 The Tribunal appointed the Public Trustee of Western Australia as the plenary administrator of the estate of the represented person following a hearing on 15 July 2014 and a finding that she was unable by reason of a mental disability of making reasonable judgments about her estate, and that she was in need of an administrator of her estate. The guardianship application was adjourned on that date to enable the represented person to obtain legal advice, and following a hearing on 18 November 2014, draft orders were circulated to the parties including the represented person's solicitor. On 4 December 2014, the Tribunal ordered that the Public Advocate be appointed the limited guardian of the represented person with the function to act as next friend, or as guardian adlitem in legal proceedings in which she was or might be involved. Additional functions included in the order authorised the guardian to obtain information and advocate for the represented person regarding a sponsorship application made to the Department of Immigration and Border Protection, and for information in relation to care arrangements for her son.
5 The guardianship and administration orders made are under periodic review pursuant to s 84 of the GA Act, and the represented person sought, and was granted, an adjournment of the hearing listed on 12 August 2015 to enable her to obtain additional medical evidence.
Application for access
6 The represented person is legally represented and submissions have been filed on her behalf opposing access being granted to the AAT to transcript or recordings of the hearings.
7 In the submission filed, it is agreed that the transcripts and recordings of the hearings are 'documents or material lodged with or held by the Tribunal', and as such, fall within the material contemplated under s 112 of the GA Act.
8 The opposition to the grant of access is summarised as follows:
(a) The application by the AAT, purporting to be an application under s 112(4) of the [GA Act] is defective and any order to grant the application would be ultra vires;
(b) The release of the transcript, if not for a purpose of the [GA Act] would amount to a breach of the confidentiality provision contained in s 113 of the [GA Act];
(c) The release of the transcripts is not in [the represented person's] best interests and may have an adverse impact on her;
(d) The AAT is unlikely to have the power to make the application made or review the contents of the transcripts as a relevant consideration under its own enabling legislation;
(e) disclosure of the transcripts is likely to violate [the represented person's] privacy rights (unless she is able to redact any private information); and
(f) [The represented person] has not had access to the 14 November 2014 transcript (only the recording) and should be given the reasonable opportunity to review the transcript and object to it or parts of it, prior to its release, in the event that the Tribunal makes orders to release the transcript.
9 At paragraph 1.2.7 of the submissions, the standing of the AAT to make an application pursuant to s 112 of the GA Act is challenged. It is argued that the application made by the AAT is not for a lawful purpose, and orders of the Tribunal to release the transcripts would be ultra vires and, further, a breach of the confidentiality provision in s 113 of the GA Act.
10 Section 112(4) of the GA Act was recently considered in AB and Public Trustee [2015] WASAT 68 (AB) which referred to KWD [2011] WASAT 4 (KWD) which dealt in some detail with a statutory scheme in s 112 of the GA Act and identified different 'classes' of persons to whom access to material contemplated in s 112 may be granted at the discretion of the Tribunal.
11 The Tribunal in AB commenced the analysis in that decision by reference of s 113 of the GA Act, which deals with confidentiality provisions under the Act. The Tribunal said:
…
12 The Tribunal's powers under the GA Act and the SAT Act are only to be exercised for the purposes of those Acts.
13 Section 113 of the GA Act is the starting point for any consideration of s 112 of the GA Act.
14 Section 113 of the GA Act is plainly intended to ensure that personal information provided to the Tribunal under the GA Act is confidential except in the circumstances set out in s 113(1)(a) - (d). …
15 In KWD [2011] WASAT 4 (KWD) the Tribunal stated:
60 Section 112 establishes three classes of persons to whom access to documents may be given:
1) the person for whom an application is made under the GA Act and a represented person (or their legal representative);
2) any other party to any proceeding; and
3) any other person.
61 The exercise of the discretion in s 112 may be applied differently for the different classes of persons, but all cases require a positive act by the Tribunal to consider a request for access to documents. It is open to the Tribunal to deny access even to a represented person or a person for whom an application is made, because such access is provided subject to the provision that the Tribunal may otherwise order. The Tribunal must decide whether, of all the documents in the possession of the Tribunal, any should be withheld.
…
21 In KWD the Tribunal stated at [88] – [92]:
The final class of persons (the public at large) has no anticipatory entitlement to inspect or otherwise have access to documents held by the Tribunal for matters under the GA Act.
In exercising its discretion to grant access to documents upon an application by any person to use the information in those documents for matters other than a proceeding under the GA Act, the Tribunal should act cautiously.
The Tribunal agrees with the Full Board in ReMM (at [65]) that such a consideration would necessarily incorporate a judgment about the particular need for which the access is sought and how persuasive or cogent are the reasons given in the application.
In the exercise of its discretion, the Tribunal should give attention to the policies that underpin s 112 of the GA Act as identified in Re MM [at 332]; the protection of the privacy of the person for whom the application has been made and the public interest in the integrity of the Tribunal processes which relies on the ability to obtain sensitive information from a variety of sources.
The Tribunal must also observe the principles set out in s 4(2) of the GA Act, with the primary concern in any proceeding being the best interests of any represented person, or of a person in respect of whom an application is made (s 4(2)(a)).
22 In ReMM (2001) 28 SR (WA) 320, the then Full Board of the Guardianship and Administration Board (Full Board), citing Templeman J in De Hass v Murcia and Associates (unreported, Supreme Court, Western Australia, Library No 980633, 14 July 1998) held at [332] that an application under s 112(4) of the GAـAct would need to 'provide very cogent reasons and demonstrate a particular need as to why the inspection should be allowed … It is not sufficient to rely on a general desire to be informed'.
23 The corollary of the wide discretion of the Tribunal to allow inspection under s 112(4) of the GA Act is that a request for access will need to be justified by very cogent reasons (KWD at [42]).
24 In MB [2004] WAGAB 25, the Full Board identified 'persons charged by law with the responsibility to conduct investigations in the public interest' as one class of persons who may be provided access (see KWD at [42]). This is not an exclusive class but it gives some indication of the type of intent which a third party must possess before inspection is permitted under s 112(4) of the GA Act.
…
12 Having considered the cases referred to and the present application for access by the AAT for access to transcripts of the hearings, the Tribunal finds the following:
13 The AAT does have standing to bring the application pursuant to s 112(4) of the GA Act as being in the class of persons referred to in KWD as the 'public at large'.
14 Access to the transcripts is sought to enable the member determining the appeal in the AAT to have information which is considered by the member to be relevant to that matter. The question of what is a relevant consideration in the determination of the matters before it is a matter for the AAT in the first instance. The determination of the review in the AAT has the character of a 'person charged by law with the responsibility to conduct investigation in the public interest' as identified in MB [2004] WAGAB 25 (MB).
15 The AAT has similar provisions to the SAT Act in the statutory provisions which provide for merits review and provide for the ability of the AAT to obtain information from various sources, including to compel witnesses. The public interest served in the discharge of that responsibility is the proper determination of an appeal before the AAT on relevant information and the lawful administration of the relevant Commonwealth legislation. The Tribunal accepts that cogent reasons have been demonstrated by the applicant for the release of the material sought.
16 Despite this, in the exercise of discretion provided in s 112(4) of the GA Act, access is refused to both the transcripts and the recordings of the hearings. Although there is a public interest in the release of the material sought by the AAT, there is a competing and ultimately overriding interest in the integrity of the process before this Tribunal and the best interests of the represented person in these proceedings.
17 As noted in the submissions, as in all proceedings commenced under the GA Act, the primary concern of the Tribunal in this matter is the best interests of the represented person. Also, though not determinative, the Tribunal is directed to ascertain the wishes of the represented person. It is asserted in submissions made on her behalf that the represented person strongly opposes anything she has said in the unrelated proceedings being used in the determination of the application before the AAT, and for this reason, opposes the AAT being provided with the transcripts (or recordings) of the hearings. It is also said that the represented person spoke openly with the Tribunal and provided personal information at the first hearing in July 2014, and that it would be unfair for what she may have said in trust and confidence to the Tribunal being provided to the AAT. It is noted that the represented person was unrepresented at the July 2014 hearing and opposed both the guardianship and administration orders sought, and asked for an adjournment to obtain legal advice. The submission is made that the Tribunal identified that the hearing was being recorded and the represented person felt she could speak openly. Evidence was also taken from the represented person's treating psychiatrist in that hearing. There was no advice to the represented person, or any other person, that the recording might later be made available in another unrelated proceeding.
18 Although legally represented by the time of the second hearing in November 2014 (by different counsel to those presently representing her) and consenting to the orders made for the appointment of a limited guardian, it is the case that at neither the first hearing nor the second hearing, the represented person was on notice that the record of the proceeding might be shared with others against her wishes. In guardianship and administration hearings, the confidentiality of the proceedings is emphasised. There is a prohibition on any publication of the record of the proceeding (see s 17 and Pt B of Sch 1 of the GA Act) although there is an exception in court proceedings.
19 The understanding of the confidentiality or private nature of the proceedings by the represented person goes to the issues raised in ReMM (2001) 28 SR WA 320 at [332] that the policies underpinning s 112 of the GA Act include the protection of the privacy of the represented person, and the public interest in the integrity of the Tribunal's processes 'which relies on the ability to obtain sensitive information from a variety of sources'. One of the sources of information must be the represented person herself. If her willingness to be frank with the Tribunal in hearings is eroded by a lack of confidence in the privacy of her sensitive personal and health information, this would compromise the integrity of the Tribunal's process in the determination of the review or the orders presently before it.
20 In respect of the consideration of the represented person's best interests, it is arguable that it is in the best interests of the represented person that the information made available in the GA Act hearings, from all sources, is made available to the AAT so that a determination can be made which takes account of the circumstances of the represented person presented at the time of those hearings. It is also relevant that the purpose of the limited guardianship order made relates in part to the matters now before the AAT. These considerations need to be weighed against the primacy of the best interests of the represented person in the proceedings before the Tribunal (s 4 of the GA Act) and the integrity of the processes before Tribunal. As noted above, the integrity of the process before the Tribunal in determining the reviews before it prevails over these considerations and therefore access is refused.
Order
1. The application is dismissed.
I certify that this and the preceding [20] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER