Part 6 The Guardianship Tribunal
Division 1 Constitution of the Tribunal
49 Constitution of the Tribunal
(1) There shall be a Guardianship Tribunal.(2) The Tribunal shall consist of at least 10 members who shall be appointed by the Governor.(3) Of the members of the Tribunal:(a) at least 3 must be persons who are Australian lawyers of at least 7 years’ standing (legal members), and(b) at least 3 must be persons (such as medical practitioners, psychologists and social workers) who, in the opinion of the Minister, have experience in assessing or treating persons to whom Part 3, 4 or 5 relates (professional members), and(c) at least 4 must be persons (other than those referred to in paragraph (a) or (b)) who, in the opinion of the Minister, have had experience with persons to whom Part 3, 4 or 5 relates (community members).(4) Of the legal members of the Tribunal:(a) one shall (in and by the member’s instrument of appointment or in and by a subsequent instrument executed by the Governor) be appointed as President of the Tribunal, and(b) at least one shall (in and by the member’s instrument of appointment or in and by a subsequent instrument executed by the Governor) be appointed as Deputy President of the Tribunal.(4A) A President or Deputy President of the Tribunal shall, if required to do so by his or her instrument of appointment as President or Deputy President or by a subsequent instrument executed by the Governor, devote the whole of his or her time to the duties of his or her office as President or Deputy President.(5) The Tribunal has the functions conferred or imposed on it by or under this or any other Act.(6) Schedule 1 applies to the Tribunal.
51 Composition of the Tribunal
(1) For the purposes of exercising its functions the Tribunal is to be constituted by no fewer than 3 and no more than 5 of its members of whom:(a) at least 1 is a legal member, and(b) at least 1 is a professional member, and(c) at least 1 is a community member.(2) The President of the Tribunal shall nominate the persons to constitute the Tribunal for the purposes of any particular sitting.(3) (Repealed)
51A Fewer than 3 Tribunal members may deal with certain matters
(1) Despite section 51 (1), the Tribunal may, at the discretion of the President of the Tribunal, be constituted by 1 or 2 members if the Tribunal is exercising its functions referred to in:(a) Division 4 (Assessment and review of guardianship orders) of Part 3, or(b) Division 2 (Review and revocation of financial management orders) of Part 3A, or(c) Division 3 (Review of appointment of manager) of Part 3A, or(d) section 36 (Who may give consent) in respect of giving consent to the carrying out of minor treatment or major treatment (but not special treatment or treatment in the course of a clinical trial), or(e) Part 5A (Reciprocal arrangements), or(f) Division 2 (Proceedings before the Tribunal) of Part 6 (other than functions under section 65), or(g) section 67E (Review of decisions of the Registrar).(2) When the Tribunal is constituted by 2 members, the members must not be in the same member category.(3) When constituted by 1 or 2 members, the Tribunal may exercise functions referred to in subsection (1) (f) even if the substantive proceedings are not currently before that sitting of the Tribunal.(4) For the purpose of exercising the function of reviewing a decision of the Registrar referred to in subsection (1) (g), the Tribunal (when constituted by 1 or 2 members) must be constituted by or include the President, a Deputy President or a legal member.(5) In this section, clinical trial, major treatment, minor treatment and special treatment have the same meanings as in Part 5.
51B Presiding member of Tribunal
The presiding member at any sitting of the Tribunal is to be:(a) in the case of the Tribunal constituted by one member—that member, or(b) if the Tribunal is so constituted as to include the President of the Tribunal—the President of the Tribunal, or(c) if the Tribunal is so constituted as not to include the President of the Tribunal but is so constituted as to include a Deputy President of the Tribunal—that Deputy President of the Tribunal, or(c1) if the Tribunal is so constituted as not to include the President of the Tribunal but is so constituted as to include more than one Deputy President of the Tribunal—the Deputy President of the Tribunal that the President of the Tribunal nominates, or(d) if the Tribunal is so constituted as to include neither the President nor a Deputy President of the Tribunal but is so constituted as to include a legal member—the member of the Tribunal who is a legal member, or, if there is more than one legal member, such one of those members as the President of the Tribunal nominates, or(e) if the Tribunal is so constituted as to include neither the President nor a Deputy President of the Tribunal nor a legal member—the member of the Tribunal that the President of the Tribunal nominates.
More than one sitting of the Tribunal may be held at the same time.
Division 2 Proceedings before the Tribunal
53 Procedure at sittings of Tribunal
(1) The procedure for the arranging of, and for the conduct of business at, any sitting of the Tribunal shall, subject to this Act, the regulations and the rules of the Tribunal, be as determined by the Tribunal.(2), (3) (Repealed)
(1) Questions arising at a sitting of the Tribunal shall be determined by a majority of the votes of the members present and voting.(2) The member presiding at any sitting of the Tribunal shall have a deliberative vote and, in the event of an equality of votes, a second or casting vote.(3) Despite subsection (1), questions of law arising at a sitting of the Tribunal are to be determined:(a) if the presiding member is the President or a Deputy President of the Tribunal or a legal member—by the presiding member of the Tribunal, or(b) if the presiding member is not the President or a Deputy President of the Tribunal or a legal member—by:(i) referring the question of law to the President or a Deputy President of the Tribunal or a legal member nominated by the President for the purposes of this section for decision, and(ii) determining the question of law according to the decision on the reference.
(1) The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit.(2) Proceedings before the Tribunal shall be conducted with as little formality and legal technicality and form as the circumstances of the case permit.
56 Proceedings to be open to the public
Proceedings before the Tribunal shall be open to the public unless the Tribunal, in any particular case, determines that the proceedings shall be conducted wholly or partly in the absence of the public.
(1) A person shall not, except with the consent of the Tribunal, publish or broadcast the name of any prescribed person:(a) who appears as a witness before the Tribunal in any proceedings,(b) to whom any proceedings before the Tribunal relate, or(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,whether before or after the proceedings are disposed of.Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings of the Tribunal that includes the name of any prescribed person the publication or broadcasting of which would otherwise be prohibited by this section.(3) For the purposes of this section, a reference to the name of a prescribed person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.(4) In this section:prescribed person means:
(a) a person under guardianship,(a1) a protected person,(b) a person to whom an application or request under Part 2, 3 or 3A, and a person to whom an application under Part 4 or 5, relates,(c) a child.
(1) The Tribunal may join, as a party to any proceedings before the Tribunal (whether under this or any other Act), any person who, in the opinion of the Tribunal, should be a party to the proceedings (whether because of the person’s concern for the welfare of the person the subject of the proceedings or for any other reason).(2) If the Tribunal joins a person as a party to any proceedings, the Tribunal must, as soon as practicable, notify the applicant (if any) for the proceedings accordingly.
(1) In any proceedings before the Tribunal, the parties to the proceedings may appear in person or, by leave of the Tribunal, be represented by an Australian legal practitioner or an agent.(2) The Tribunal, in proceedings before it with respect to a prescribed person, may appoint a person to act as guardian ad litem for the person.(3) The Tribunal, in proceedings before it relating to a prescribed person, may, if it appears to the Tribunal that the person ought to be separately represented:(a) order that the person be separately represented, and(b) make such other orders as it thinks necessary for the purpose of securing separate representation for the person.(4) A person is not entitled to legal aid under the Legal Aid Commission Act 1979 merely because the Tribunal has made an order under subsection (3) (b).(5) In this section:prescribed person means:
(a) a person under guardianship,(a1) a protected person,(b) a person to whom an application or request under Part 2, 3 or 3A, and a person to whom an application under Part 4 or 5, relates,(c) a child.
A party to proceedings before the Tribunal may:(a) call and examine any witness,(b) cross-examine any witness called by another party,(c) give evidence on oath,(d) produce documents and exhibits to the Tribunal, and(e) otherwise adduce, orally or in writing, to the Tribunal such matters, and address the Tribunal on such matters, as are relevant to the proceedings.
(1) The President or a Deputy President of the Tribunal or the member presiding at a sitting of the Tribunal (if that person is a legal member), or any other legal member nominated in writing by the President for the purposes of this section, may, by instrument in writing, require any person on whom the instrument is served personally or by post:(a) to appear before the Tribunal for the purpose of giving evidence, or(b) to produce to the Tribunal any document that is relevant to the proceedings before the Tribunal,at a time, date and place specified in the instrument.(1A) The President or a Deputy President of the Tribunal or the member presiding at a sitting of the Tribunal, or any legal member nominated in writing by the President for the purposes of this section, may:(a) require a person who appears before the Tribunal to be sworn for the purpose of giving evidence on oath, and(b) administer such an oath.(2) When a document is produced to the Tribunal pursuant to a requirement under this section, the Tribunal may take possession of the document for such period as it considers necessary for the purpose of hearing the proceedings before it.
61 Witnesses to answer questions
(1) A member of the Tribunal may require a person who appears before the Tribunal to answer a question that is reasonably related to the proceedings before the Tribunal.(2) A person is not excused from answering such a question on the ground that the answer might tend to incriminate the person but, where the person claims (before answering the question) that the answer might tend to incriminate the person, neither the question nor the answer is admissible in evidence against the person in criminal proceedings, other than proceedings under section 62 or proceedings in relation to a charge of perjury in respect of the answer.
62 Refusal to attend or to answer questions etc
A person shall not:(a) fail to comply with a requirement made of the person under section 60 or 61 to the extent to which the person is lawfully able to comply with the requirement, or(b) not having been sworn, make a statement that the person knows to be false or misleading in a material particular when the person is appearing before the Tribunal.Maximum penalty: 5 penalty units.
A person (other than an officer) who is required to appear or to give evidence before the Tribunal is entitled to be paid such allowances and expenses as the President of the Tribunal may determine in respect of the person.
(1) The Tribunal may from time to time adjourn its proceedings to such times, dates and places, and for such reasons, as it thinks fit.(2) In the absence from a sitting of the Tribunal of one or more, but not all, of the members nominated to constitute the Tribunal at that sitting, the remaining member or members may exercise the Tribunal’s function of adjourning proceedings.
64A Withdrawal of applications
An application to the Tribunal (whether under this or any other Act) cannot be withdrawn except with the consent of the Tribunal.
65 Dismissal of frivolous proceedings etc
If, before or during proceedings before it, the Tribunal is satisfied that the proceedings are frivolous or vexatious, it may:(a) dismiss the proceedings, and(b) order the person who brought the proceedings to pay the costs of the proceedings.
66 Conciliation to be attempted
(1) The Tribunal shall not make a decision in respect of an application made to it until it has brought, or used its best endeavours to bring, the parties to a settlement.(1A) Subsection (1) does not apply in respect of an application if the Tribunal considers that it is not possible, or appropriate, to attempt to bring the parties to a settlement.(2) Any meetings conducted or proceedings held in the course of attempting to bring or bringing the parties to a settlement shall not be conducted or held in public.(3) Any statement or admission made during the course of a conciliation hearing is not, except with the consent of all the parties, admissible as evidence in proceedings before the Tribunal or in any court.
Division 3 Appeals from decisions of the Tribunal
67 Appeals to the Supreme Court
(1) A party to a proceeding before the Tribunal (whether under this or any other Act) may appeal to the Supreme Court from any decision of the Tribunal in that proceeding:(a) as of right, on a question of law, or(b) by leave of the Supreme Court, on any other question.(1A) A person who has appealed to the ADT under section 67A against a decision of the Guardianship Tribunal may not appeal to the Supreme Court under this section in respect of the same decision. However, the person may appeal to the Supreme Court under this section if the appeal under section 67A is withdrawn with the approval of the ADT for the purpose of enabling the Supreme Court to deal with the matter.(2) An appeal by a person under this section is to be instituted:(a) in the case of a prescribed decision made by the Tribunal in the exercise of a function under section 51A or of a decision made in the exercise of a function under section 64 (2)—within the period ending 28 days after the relevant decision has been made, or(b) in any other case—within the period ending 28 days after the day on which the written instrument setting out the formal reasons for the decision is furnished to the person, or(c) within such further time as the Supreme Court may, in any case, allow.(3) The Supreme Court shall hear and determine the appeal and may make such orders as it thinks appropriate in the light of its decision.(4) Without affecting the generality of subsection (3), the orders that may be made by the Supreme Court on an appeal include:(a) an order affirming or setting aside the decision of the Tribunal, and(b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the Supreme Court.(5) Subject to any interlocutory order made by the Supreme Court, an appeal operates to stay the decision appealed against.(6) The Tribunal is not liable for any costs relating to:(a) an order or decision of the Tribunal in respect of which an appeal is made, or(b) any such appeal.(7) In this section:prescribed decision means a decision made in the exercise of a function under:
(a) section 36 in respect of giving consent to minor treatment, or(b) Part 5A, or(c) Division 2 of Part 6, or(d) section 67E.
(1) An appeal may be made to the ADT against a decision of the Guardianship Tribunal under any of the following provisions:(a) section 6K,(b) section 6MA,(c) section 14,(d) section 25C,(e) section 25E,(f) section 25H,(g) section 25P,(h) section 25U,(i) section 28.(2) An appeal to the ADT under this section may be made by a person who was a party to the proceedings (whether as provided by section 3F or otherwise) in which the decision of the Guardianship Tribunal was made.(3) If any such person has appealed to the Supreme Court under section 67 against a decision of the Guardianship Tribunal, the person may not appeal to the ADT under this section in respect of the same decision. However, the person may appeal to the ADT under this section if the appeal under section 67 is withdrawn with the approval of the Supreme Court for the purpose of enabling the ADT to deal with the matter.(4) An appeal under this section is an external appeal within the meaning of the Administrative Decisions Tribunal Act 1997.
Division 3A Registrar and other staff of Tribunal
67B Registrar and other staff of Tribunal
A Registrar and such other staff as are necessary for the purpose of enabling the Tribunal to exercise its functions are to be employed under Chapter 1A of the Public Sector Employment and Management Act 2002.
67C Functions of the Registrar
(1) The Registrar may, at the discretion of the President of the Tribunal, exercise any function of the Tribunal in respect of:(a) dismissing an application, at any stage of the proceedings, if satisfied on the face of the application that the Tribunal does not have jurisdiction to hear and determine the application, orExample of lack of jurisdiction. The Tribunal does not have jurisdiction to hear and determine an application for a guardianship order in respect of a person who is under the age of 16 years.(b) dismissing an application, at any stage of the proceedings, for want of prosecution including, but not limited to, unreasonable delay by the applicant in providing the Tribunal with requested information, or(c) refusing (under section 25A) a request to review a guardianship order, or(d) refusing (under section 25O) a request to review a financial management order on an application under section 25R, or(e) refusing (under section 25T) a request to review the Tribunal’s appointment of the manager of a protected person’s estate, or(f) recognising (under section 48B) a person’s status as the guardian of another person or as the manager of the estate of another person, or(g) joining (under section 57A) a person as a party to any proceedings before the Tribunal, or(h) granting leave (under section 58 (1)) for a person to be represented by an Australian legal practitioner or an agent, or(i) making orders (under section 58 (3)) requiring and securing separate representation for a person, or(j) giving directions as to the conduct of any proceedings before the Tribunal, or(k) adjourning proceedings before the Tribunal (under section 64 (1)), or(l) consenting to the withdrawal of an application to the Tribunal (under section 64A).(2) The President of the Tribunal may direct the Registrar to refer the exercise of a function in a particular matter to the Tribunal (as constituted under section 51 or 51A). The Registrar must comply with such a direction.(3) The Registrar may refer a particular matter to the Tribunal if the Registrar considers it would be more appropriate for the Tribunal (as constituted under section 51 or 51A) to deal with the matter.(4) The Registrar constitutes the Tribunal for the purposes of exercising any functions of the Tribunal conferred on the Registrar under this section. However, sections 65, 66, 68 (1A), 69 and 71 do not apply when the Registrar constitutes the Tribunal.
(1) A decision of the Registrar made in the exercise of a function of the Tribunal is to be confirmed, as soon as practicable after the order arising out of the decision of the Registrar is made, in a written instrument that is:(a) signed by the Registrar or, if it is not practicable for the Registrar to sign the instrument, by the President or a Deputy President, and(b) furnished to each of the parties unless, in the particular case, the Registrar considers that there is an appropriate reason not to furnish such an instrument to any or all parties.(2) In the case of a decision under section 67C (1) (c)–(e), the Registrar must furnish each party to the proceedings before the Registrar with formal written reasons for the decision as soon as practicable after giving the decision. The reasons for a decision may be included in the instrument confirming the decision or in a separate instrument.(3) No decision of the Registrar is to be vitiated merely because of any informality or want of form.(4) The Registrar must cause a record to be kept of any decision made by the Registrar in the exercise of any function under section 67C and of the reasons for that decision.(5) The regulations may make further provision with respect to the keeping of records of the exercise of any function under section 67C.
67E Review of decisions of the Registrar
(1) The Tribunal may, on its own motion, review any decision of the Registrar made under section 67C (1) (c)–(e).(2) The Tribunal must review any decision of the Registrar made under section 67C (1) (c)–(e) at the request of any person who was a party to the proceedings before the Registrar.(3) A request by a person for a review of a decision of the Registrar must be made:(a) within the period ending 14 days after the day on which the written instrument setting out the formal reasons for the decision is furnished to the person, or(b) within such further time as the Tribunal may, in any case, allow.(4) On reviewing a decision of the Registrar, the Tribunal must conduct a re-hearing of the matter and may take into consideration evidence that was not before the Registrar at the time of the decision under review.(5) On reviewing a decision of the Registrar, the Tribunal may make such orders as it thinks fit and may:(a) confirm the decision, or(b) set aside the decision.(6) Unless the Tribunal otherwise orders, a decision made by the Registrar in a matter to be reviewed remains in force until a decision is made at the review.(7) There is no right of appeal under section 67 from a decision made by the Registrar under section 67C.Note. Nothing prevents a person making a further application to the Tribunal in respect of any matter that has been the subject of a decision by the Registrar.
(1) A decision of the Tribunal with respect to proceedings before it takes effect immediately the order arising out of the decision is made, unless the order specifies otherwise or is stayed under section 67 (5).(1A) A decision is to be confirmed, as soon as practicable after the relevant order is made, in a written instrument that is:(a) signed by the member who presided at the sitting of the Tribunal at which the decision was made (or, if it is not practicable for that member to sign the instrument, by the President or a Deputy President), and(b) furnished to each party to the proceedings.(1B) The Tribunal must also furnish each party to the proceedings with formal written reasons for the decision as soon as practicable after making the decision. The reasons may be included in the instrument confirming the decision or in a separate instrument.(1BA) If the decision concerned is made under a provision referred to in section 67A (1), the Tribunal must also, when providing reasons for the decision in accordance with subsection (1B), advise each party to the proceedings that the decision may be appealed against under section 67A to the ADT.(1C) Despite subsection (1B), the Tribunal is not required to provide formal written reasons for a prescribed decision made in the exercise of a function under section 51A or for a decision made in the exercise of a function under section 64 (2), unless:(a) a party to the proceedings concerned requests the Tribunal, within the period ending 14 days after the relevant decision has been made, to specify its reasons for the decision, or(b) an appeal against the decision is instituted under section 67.(2) No decision of the Tribunal shall be vitiated merely because of any informality or want of form.(3) In this section:prescribed decision means a decision made in the exercise of a function under:
(a) section 36 in respect of giving consent to minor treatment, or(b) Part 5A, or(c) Division 2 of Part 6, or(d) section 67E.
(1) The Tribunal may, if in the particular circumstances of the case it is of the opinion that it is appropriate to do so, make orders with respect to the payment of costs of proceedings before it.(2) Any such costs may be recovered as a debt in any court of competent jurisdiction.(3) A certificate purporting to be signed by the President, a Deputy President or the Registrar of the Tribunal and containing a statement as to any matters relating to the award of costs under this section is admissible in evidence and is prima facie evidence of those matters.
70 Misconduct in proceedings before the Tribunal
(1) A person shall not, in proceedings before the Tribunal:(a) wilfully insult the Tribunal,(b) wilfully misbehave during proceedings before the Tribunal,(c) wilfully and without lawful excuse interrupt proceedings before the Tribunal, or(d) without lawful excuse disobey a direction of the Tribunal during proceedings before the Tribunal.Maximum penalty: 5 penalty units.
(2) The Tribunal may, in proceedings before it, direct a person who does any thing referred to in subsection (1) to leave the place where the proceedings are being conducted.(3) A person to whom such a direction is given shall not fail to comply with the direction.Maximum penalty: 5 penalty units.
(1) The member presiding at a sitting of the Tribunal shall cause a record to be kept of any decision made at the sitting and of the reasons for that decision.(2) The regulations may make further provision with respect to the keeping of records of proceedings before the Tribunal.
72 Authentication of documents etc
(1) Any document requiring authentication by the Tribunal is sufficiently authenticated if it is signed by the President, a Deputy President or the Registrar of the Tribunal.(2) Judicial notice shall be taken of the signature of the President, a Deputy President or the Registrar of the Tribunal when appearing on a document issued by the Tribunal.
73 Certain proceedings prohibited
(1) No proceedings shall lie against the Tribunal or any of its members or members of staff for or on account of any act, matter or thing done or ordered to be done or omitted or suffered to be done by the Tribunal, member or member of staff, and purporting to be done, ordered, omitted or suffered for the purpose of exercising a function under this or any other Act, if the Tribunal, member or member of staff has acted in good faith and with reasonable care.(2) Any member of the Tribunal who is a judicial officer (within the meaning of the Judicial Officers Act 1986) shall, in the execution of his or her functions as a member of the Tribunal, have the same protection and immunity as he or she has as such an officer.
74 Application of Defamation Act 2005 to proceedings of Tribunal
Section 27 of the Defamation Act 2005 makes provision for a defence of absolute privilege in respect of publications of defamatory matter in the course of proceedings of the Tribunal.Note. Section 27 (2) (b) of the Defamation Act 2005 provides that the defence of absolute privilege is available in respect of defamatory matter that is published in the course of proceedings of an Australian court or Australian tribunal, including (but not limited to) the following:(a) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process),(b) the publication of matter while giving evidence before the court or tribunal,(c) the publication of matter in any judgment, order or other determination of the court or tribunal.The term Australian tribunal is defined in section 4 of that Act to mean any tribunal (other than a court) established by or under a law of an Australian jurisdiction that has the power to take evidence from witnesses before it on oath or affirmation (including a Royal Commission or other special commission of inquiry).
The Guardianship Tribunal is an Australian tribunal for the purposes of the Defamation Act 2005 because it is a tribunal that has the power under section 60 (1) of this Act to take evidence from witnesses under oath.
(1) Five members nominated by the President of the Tribunal may together make rules, not inconsistent with this Act or the regulations, for or with respect to the practice and procedure of the Tribunal.(1A) The members so nominated must include:(a) the President, or(b) a Deputy President,but may include both the President and one or more Deputy Presidents.(2) A rule made under this section is a rule of court for the purposes of the Interpretation Act 1987.
(1) The President of the Tribunal shall submit to the Minister, at such times and in respect of such periods as the Minister directs, reports on the work and activities of the Tribunal.(2) A report shall deal with such matters as the Minister directs and with such other matters as the President of the Tribunal considers appropriate to include in the report.
(1) The Tribunal must, as soon as practicable after 30 June and in any case before 1 November in each year, prepare and forward to the Minister (in addition to any report required from the President of the Tribunal under section 76) a report on its work and activities for the 12 months ending on that 30 June.(2) It is not necessary for the report to include any matter that is required to be included in the annual report, under the Annual Reports (Departments) Act 1985, of any Department administered by the Minister.(2A) Despite subsection (2), if the Tribunal, during the period of 12 months covered by the report, approved a clinical trial (within the meaning of Part 5) under section 45AA, the report must include details of the trial (or proposed trial).(3) The Minister is to table the report, or cause it to be tabled, in both Houses of Parliament as soon as practicable after the report is received by the Minister.