NKG & JQ
[2023] QCAT 190
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
NKG & JQ [2023] QCAT 190
PARTIES:
In an application about matters concerning NKG
In an application about matters concerning JQ
APPLICATION NO/S:
Concerning NKG: GAA12261-22; GAA1025-23
Concerning JQ: GAA12260-22MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
8 May 2023 (delivered ex tempore)
HEARING DATE:
8 May 2023
HEARD AT:
Brisbane
DECISION OF:
Senior Member Browne
ORDERS:
In an application about matters concerning NKG:
1. Pursuant to s 114A(5) of the Guardianship and Administration Act 2000 (Qld), Anne Connolly and the Australian Broadcasting Corporation are authorised to publish information about the following guardianship proceedings in a way that identifies NKG:
GAA6785-10, GAA6786-10, GAA819-19, GAA12261-22, GAA1025-23
2. A transcript of the Tribunal’s reasons be prepared and placed on the file.
In an application about matters concerning JQ:
3. Pursuant to s 114A(5) of the Guardianship and Administration Act 2000 (Qld), Anne Connolly and the Australian Broadcasting Corporation are authorised to publish information about the following guardianship proceedings in a way that identifies JQ:
GAA7245-19; GAA7243-19; GAA7244-19; GAA11421-20; GAA11316-20; GAA14770-20, GAA14771-20 and GAA12260-22.
4. A transcript of the Tribunal’s reasons be prepared and placed on the file.
CATCHWORDS:
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER MATTERS –where order appointing an administrator for a financial matter for an adult was made – where order appointing an administrator for a financial matter was revoked – where s 114A of the Guardianship and Administration Act 2000 (Qld) applies – where applicant seeks to broadcast to the public relevant information about a tribunal proceeding – where authorisation is sought to publish information about guardianship proceedings in a way that identifies the adult concerned – where broadcast will identify the adult’s name and image – whether the adult consents to the application to publish information about guardianship proceedings – whether publication is in the relevant adult’s interest – whether publication is in the public interest – whether the tribunal should make an order authorising publication
Guardianship and Administration Act 2000 (Qld), s 5, s 6, s 81, s 11B, s 12, s 105, s 114A
Human Rights Act 2019 (Qld), s 11, s 13, s 15, s 19, s 21, s 25, s 48
APPEARANCES & REPRESENTATION:
Adult/s:
NKG, in person
JQ, in person
Applicant:
Anne Connolly, represented by Corey Jankie, legal officer for the Australian Broadcasting Authority
Public Advocate:
Yuu Matsuyama, observing only
REASONS FOR DECISION
SENIOR MEMBER BROWNE: Anne Connolly, a journalist for the Australian Broadcasting Corporation, the ABC, applies to this Tribunal under the Guardianship and Administration Act 2000 (Qld) (the ‘Guardianship Act’), for orders pursuant to s 114A(5). There are two applications filed in two separate matters in the Tribunal’s guardianship jurisdiction. The ABC seeks orders authorising the publication of information about all guardianship proceedings in a way that identifies the person to whom the application and orders were about.
The guardianship proceedings are matter number [redacted], concerning JQ, and matter number [redacted], concerning NKG. Ms Connolly and her legal representative Corey Jankie appearing in the hearing today rely on the same submissions and material filed for both JQ and NKG’s respective guardianship proceedings. It is convenient for the Tribunal to now give one set of reasons for both applications.
The applications before me make clear that it is JQ and NKG’s desire to participate in a future broadcast by the ABC known as ‘The 7.30 Report’ about their respective guardianship matters in a way that will identify their name and image. The Public Trustee of Queensland and Public Guardian do not oppose the application and orders sought by Ms Connolly.
The Tribunal has given notice of the applications today to all active parties in the earlier guardianship proceedings concerning JQ and NKG. The Tribunal has previously made orders appointing substituted decision makers for both JQ and NKG respectively under the Guardianship Act. In both JQ and NKG’s respective matters, the Tribunal sometime later revoked its order appointing the substituted decision makers.
Relevantly for NKG, on the 21st of October 2010, the Tribunal appointed the Public Trustee of Queensland as administrator for all financial matters and amongst other things ordered that the appointment remains current until further order of the Tribunal. On the 5th of March 2019, the Tribunal revoked the appointment of the Public Trustee of Queensland.
For JQ, on the 24th of September 2019, the Tribunal dismissed an application for the appointment of a guardian for JQ. The Tribunal appointed the Public Trustee of Queensland as administrator for all financial matters and amongst other things ordered that the appointment remains current until further order of the Tribunal. On the 10th of February 2021, the Tribunal made further orders concerning JQ’s financial matters. The Tribunal declared that JQ has capacity for financial matters, revoked the appointment of the Public Trustee of Queensland and authorised the withdrawal of the application for the appointment of a guardian.
What is the nature of the application seeking the Tribunal’s authorisation to publish information about a relevant guardianship proceeding? Consistent with the rule of law and subject to any legislative intent that a proceeding must be held in private, the administration of justice must take place in open Court. Open justice requires that nothing should be done to discourage the fair and accurate reporting of what takes place in the Court unless there exists a reason that it is reasonably necessary to prohibit publication. Proceedings of every Court are generally fully exposed to the public. As provided under s 105 of the Guardianship Act and subject to the qualifying provisions under s 105(2), a hearing by the Tribunal of a proceeding under the Guardianship Act must be in public. It does not necessarily follow, however, that all information relevant to the guardianship proceeding may be published. Section 114A(1) of the Guardianship Act provides that:
Generally, information about a guardianship proceeding may be published.
However, as provided under s 114A(2) and subject to the exceptions under s 114A(3):
…a person must not, without reasonable excuse, publish information about a guardianship proceeding to the public, or a section of the public, if the publication is 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 whom the information is published.
It is important to note that the prohibition against publication of relevant information contained under s 114A(2) does not apply to publication of information by the public guardian or the public advocate in certain matters as provided under s 114A(3).
The Tribunal may make an order authorising publication of information about a Tribunal proceeding that is otherwise prohibited under s 114A(2). Such an order may be made by the Tribunal as provided under s 114A(6), if:
…satisfied the publication is in the public interest or the relevant adult’s interest.
This, in my view, requires the Tribunal to exercise a broad discretion not confined to any general rule having regard to the relevant matter and the scope and purpose of the Guardianship Act.
Also relevant to the application before me and whether the order should be made under s 114A(5) is the Human Rights Act 2019 (Qld) (‘the Human Rights Act’) and a consideration of the relevant human rights as required by s 48.
The Guardianship Act is protective jurisdiction. The Act confers power on the Tribunal to make orders in a relevant manner only if satisfied certain requirements are met. This includes, for an example, an order under s 12 appointing a guardian for a personal matter or an administrator for a financial matter. The Guardianship Act refers to the person to whom the application relates as the adult. The Act makes clear that the adult’s right to make decisions is fundamental to the adult’s inherent dignity. Further, the right of an adult with impaired capacity to make decisions should be restricted and interfered with to the least possible extent. The Guardianship Act contains many important provisions directed at acknowledging and supporting the adult in their decision making. The Act seeks to strike a balance - an appropriate balance between the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision making and the adult’s right to adequate and appropriate support for decision making.
In conducting a proceeding such as determining an application for the appointment of a guardian or administrator, the Guardianship Act contemplates that the Tribunal will receive information necessary to make relevant findings. This may include, for example, and amongst other things, information from medical health professionals, service providers, family members and the adult’s support network. The information is personal and highly sensitive in nature to the adult to whom the application relates.
As mandated by the Guardianship Act is the presumption of capacity. In other words, the adult is presumed to have capacity for a matter until the contrary is proven. An adult’s right to make decisions is fundamental to the adult’s inherent dignity. This includes the right to make decisions with which others may not agree. Importantly, the general principles contained in s 11B of the Guardianship Act must be applied and include, amongst other things, recognising the adult’s human rights and fundamental freedoms regardless of a particular adult’s capacity, empowering an adult to exercise the adult’s human rights and fundamental freedoms, and recognising and preserving, to the greatest extent practicable, the adult’s right to make the adult’s own decisions, and if possible, support the adult to make a decision. Further, the adult’s views, wishes and preferences expressed or demonstrated by the adult are to be recognised and taken into account.
Relevant to both matters before me is the underlying reason for the application seeking the Tribunal’s permission to publish information about guardianship proceedings in a way that will identify both JQ and NKG’s name and image. This includes the focus of the broadcast and why it is necessary to identify JQ and NKG in a way that will broadcast their name and image.
Further, JQ and NKG’s views and wishes about the applications and why it is in their interest to publish information that will identify JQ and NKG is relevant. The views of any member of each of JQ and NKG’s support network, such as family and/or a friend involved in their daily lives is also relevant, as is the views of the Public Guardian, Public Trustee of Queensland, the Public Advocate, and any active party in the earlier guardianship proceedings that resulted in the orders made by the Tribunal concerning JQ and NKG.
If I am satisfied that it is in JQ’s and NKG’s relevant interest to make the order under s 114A(5) of the Guardianship Act, I do not think it is necessary to also consider whether it is in the public interest to make the order today. I have for completeness, however, also considered whether it is in the public interest to make the order today.
As set out in Ms Connolly’s written submissions filed on the 28th of November 2022, the ABC, which employs Ms Connolly, produces and broadcasts the 7.30 public affairs program. It is preparing a report on the Public Trustee and Public Guardian systems. Two Queensland case studies are to be taken up in the broadcast. JQ and NKG have been interviewed for the program and have provided information about their experiences within the system, and it is both their and the applicant’s desire that on-camera interviews with them be broadcast. Both JQ and NKG will be identified by name and image. It is said that a broadcast of their image and name will give greater effect to the meaning of the broadcast, that is, to convey a person’s experience in the guardianship jurisdiction. Further, it is said that stories where the audience cannot see and hear the person being interviewed detracts from the audience in a way that the audience cannot relate to the person.
Also relevant to the exercise of my broad discretion under s 114A(6) is the relevant adult’s interests. This also includes JQ and NKG’s views and wishes about Ms Connolly’s application and the ABC broadcast. NKG supports the application and is willing to participate in the ABC program in a way that will identify her name and image. NKG gives her consent to the orders being made. NKG says it is important to her to participate in the broadcast. NKG says that she has a story to tell and she would like it to be heard.
CL, NKG’s sister, says, and I accept, that she has discussed Ms Connolly’s application with NKG and she and CL support the orders being sought today. JQ is agreeable to and willing to participate in the ABC program in a way that will identify him by name and image. JQ says that he wants to be involved in the broadcast with Ms Connolly. TP, JQ’s friend of 10 years, supports Ms Connolly’s application today. TP says, and I accept, that he has discussed Ms Connolly’s application with JQ and he and JQ support the orders being sought today.
In the circumstances, taking into account relevant matters, including JQ and NKG’s views and wishes, and the reasons for the broadcast, I am satisfied that the ABC broadcast that will identify JQ and NKG by name and image is in their relevant interests and the order under s 114A(5) should be made. Both JQ and NKG were subject to orders made by the Tribunal appointing substituted decision makers that have now been revoked. JQ and NKG have expressed a desire to participate in the ABC program. The decision as to when and how they participate in the ABC broadcast is a decision JQ and NKG can expressly make, and, if required, can be made by them with the support of their family and friends.
As I have said, the Act mandates that the right of an adult with impaired capacity to make decisions should be restricted and interfered with to the least possible extent. JQ and NKG’s right to make their own choices about whether to disclose their identity and share information about their individual experiences should be recognised and taken into account. There is no evidence before me that the ABC broadcast that is expected to include an interview with JQ and NKG will not be done in a way that is respectful and supportive of their individual experiences having regard to the highly personal and sensitive nature of the earlier guardianship proceedings.
I am also satisfied that the making of the order under s 114A(5) is in the public interest. The meaning of “in the public interest” is not defined under the Guardianship Act. Its meaning should be construed more broadly having regard to the scope and purpose of the Act. Reporting on matters about a person’s experience in the guardianship jurisdiction, including having their finances managed by the Public Trustee of Queensland, are matters of public interest. I accept that a television broadcast that de-identifies the subjects may be less compelling as the interviewees are less relatable and the visual impact of the program may detract from the eagerness of the subject to have their stories told. A story that identifies the interviewee by image and voice may be more persuasive to the audience who are watching and listening.
It is important that relevant matters relating to vulnerable Queenslanders are reported to the community. This includes the management of matters by the Public Trustee of Queensland, who may be appointed in a relevant matter as an administrator to manage a person’s financial affairs.
I have also considered the relevant human rights as set out under the Human Rights Act. I must interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights. JQ’s and NKG’s rights to recognition as a person before the law entitled to equality, protection without discrimination, freedom of movement, privacy amongst others, are all engaged and may be limited in the determination of the applications. Taking into account my findings today and the criteria set out under the Guardianship and Administration Act, I am satisfied the orders are reasonable and justified in accordance with the Human Rights Act.
So the orders are for proceedings concerning NKG, I order that pursuant to s 114A(5) of the Guardianship and Administration Act 2000 (Qld), Anne Connolly and the Australian Broadcasting Corporation are authorised to publish information about the following guardianship proceedings in a way that identifies NKG: GAA6785-10, GAA6786-10, GAA819-19, GAA12261-22, GAA1025-23. I also order that a transcript of the Tribunal’s reasons be prepared and placed on the file.
For proceedings concerning JQ, pursuant to s 114A(5) of the Guardianship and Administration Act 2000 (Qld), Anne Connolly and the Australian Broadcasting Corporation are authorised to publish information about the following guardianship proceedings in a way that identifies JQ: GAA7245-19, GAA7243-19, GAA7244-19, GAA11421-20, GAA11316-20, GAA14770-20, GAA14771-20, and GAA12260-22. I also order that a transcript of the Tribunal’s reasons be prepared and placed on the file.
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