Appellant v First respondent Second respondent

Supreme Court of Victoria|2011-07-19|Before: BELL J

ADMINISTRATIVE LAW - appeal from Victorian Civil and Administrative Tribunal -appointment of administrator who would probably sell person's home - whether person unable to make reasonable judgments about their estate when they understood money and were meeting obligations of ownership - whether tribunal erred in law in interpreting appointment provisions - whether appointment power available - interpretation of provisions affecting fundamental common law rights and freedoms and basic human rights - right to choose where to live, against arbitrary interference with home and to own and quietly enjoy property - principle of legality - application to interpretation of general but non-ambiguous provisions - application where legitimate dispute about scope of permitted interference with rights and freedoms - relevance of Convention on the Rights of People with Disabilities - Guardianship and Administration Act 1986 (Vic), ss 4(2), (1)-(4) - (Vic), , (1), (1), (1),(2), (1).

HUMAN RIGHTS - discretionary appointment of administrator by Victorian Civil and Administrative Tribunal - appeal on grounds of error of law - whether tribunal misinterpreted appointment provisions - interpreting legislation consistently with human rights - scope and application of principle of legality - scope of human rights to equality, to choose where to live, against arbitrary interference with privacy and home and deprivation of property not in accordance with law - jurisprudential value of decisions of Human Rights Committee - whether tribunal a public authority - whether appointment of administrator incompatible with human rights and therefore unlawful - challenging discretionary decisions for human rights unlawfulness in error of law appeals - proportionality - nature and standard of review - intensity of review - whether tribunal to be afforded a 'margin of appreciation' or 'deference' - weight and latitude in proportionality analysis - 'arbitrarily' - Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 32(1), (2), 38(1),(2), 39(1).

For the Attorney-General for the State of Victoria (intervening)

For the Victorian Equal Opportunity and Human Rights Commission (intervening)

Solicitor for the Victorian Equal Opportunity and Human Rights Commission

Victorian Equal Opportunity and Human Rights Commission (on Charter)..................................[222]

1 Patrick is aged 58 years, suffers from a mental illness and has been an involuntary patient in a hospital operated by Melbourne Health for over ten years. In a stable condition under his compulsory medication, he has met from the hospital the few practical and financial obligations of owning a modest home in a Melbourne suburb.

2 Patrick wants to return home and live independently in the community. This is quite unrealistic because experience shows he would stop taking his medication, which he wrongly believes he does not need. His mental health would seriously deteriorate, leading to another of his frequent readmissions to hospital and a long, slow recovery. Also, he cannot care for himself properly due to physical disabilities.

3 The hospital wants to move Patrick to supported accommodation in a hostel, which he opposes. Thinking the move would be more likely to succeed if Patrick did not continue to own his home, the hospital took action to address that issue. It applied to the Victorian Civil and Administrative Tribunal for an administrator to be appointed over his estate.

4 Under the Guardianship and Administration Act 1986 (Vic), the tribunal decided Patrick was a person with a disability who was unable to make reasonable judgments about his estate and needed an administrator. Accepting Patrick had a 'very strong connection with his home', it decided nevertheless that judgments about his estate could not be separated from where it was in his best interests to live. It appointed State Trustees Ltd to be an unlimited administrator, knowing it would probably sell Patrick's home, rejecting Patrick's brother, who would not.

5 In this court, Patrick appeals against the tribunal's order on a question of law. He contends he manages his finances and home reasonably well and the administration order unjustifiably interferes with his human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic). He seeks orders setting aside the appointment and remitting the matter to the tribunal for reconsideration according to law.

6 By leave granted by the court, the appeal is brought under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) 'on a question of law'. It has been notified by Melbourne Health and State Trustees that they will not take part in the appeal. No submissions have been received from them on any issues.

7 The notice of appeal specified eight questions of law, out of which arose eight grounds of appeal. The appeal was conducted by reference to those grounds, which I summarise here:

(1) Taking into account considerations which where not relevant to the proper exercise of the power in s 46 of the Guardianship and Administration Act, being to sell the home to prevent Patrick from behaving in certain ways.

(2) Misinterpreting s 46 by concluding that, on the proper application of that section, appointing the administrator could not be separated from where it was in Patrick's best interests to live.

(3) Misinterpreting s 46 by concluding an administration order could and should be made if it was in Patrick's best interests when s 4(2) prevented an order being made unless it was not possible to give effect to his wishes.

(4) Taking into account an irrelevant consideration, being whether Patrick was unwilling or unable to take medication and live independently in the community.

(5) Coming to a conclusion for which there was no evidence, being that a decision needed to be made at the time about whether the house should be sold.

(6) Coming to the conclusion for which there was no evidence that Patrick may or may not be meeting all his financial obligations when the evidence was that he was.

(7) Failing to take into account as a relevant consideration under s 4(2)(c) the wishes of Patrick that his brother should be the administrator if one was to be appointed.

(8) Taking into account a consideration which was not relevant on the proper interpretation of s 46, being that State Trustees would be appointed to be the administrator as Patrick has appointed it to be his executor under his will.

8 After considering the submissions made on Patrick's behalf, I determined that questions of law arose with respect to the application and interpretation of the Charter. At my direction and pursuant to s 35(1), he gave notice of those questions to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission, and also to Melbourne Health and State Trustees.

9 The questions of law which arose with respect to the application and interpretation of the Charter were specified in the notice as follows:

2(a) The questions of law which arise that relates to the application of the Charter of Human Rights and Responsibilities ('the Charter') is:

(i) When exercising its jurisdiction under the Guardianship and Administration Act 1986, and particularly its jurisdiction to appoint an Administrator under s 46(1), is the Tribunal acting as a public authority under the Charter within ss 4(1) and ss 38(1)?

(ii) In an appeal under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 raising human rights issues of this kind, should the Court afford what, if any, margin of appreciation to the decision of the Tribunal and does the decision of the Tribunal in the present case come within or exceed any such margin?

2(b) The questions which arise with respect to the interpretation of a statutory provision in accordance with the Charter:-

(i) Accepting the authority of R v Momcilovic [2010] VSCA 50; (2010) 265 ALR 751, and given the requirement in s 32(1) of the Charter to interpret the provisions of the Guardianship and Administration Act 1986 so far as it is possible to do so, consistently with their purpose, in a manner that is compatible with human rights, what is the proper interpretation of ss 4(2) and ss 46(1) of the Guardianship and Administration Act 1986 and did the Tribunal so interpret those provisions?

(ii) On the proper interpretation of those provisions, was the Tribunal required to exercise its discretion to appoint an Administrator in a manner that was compatible with the human rights of the person in terms of s 7(2) of the Charter?;

10 In response to the notice, the court has received written submissions about the application and interpretation of the Charter from Patrick, the Attorney-General and the commission. The Attorney-General and the commission have confined themselves to the issues of principle which were raised and have not gone into the merits of the appeal. The court has not received submissions on those issues from Melbourne Health or State Trustees.

11 I will begin with the legal framework governing the order which the tribunal made.

12 The purpose of the Guardianship and Administration Act is to enable persons with a disability to have a guardian or administrator appointed if they need one (s 1).[1] The objects of the Act include providing for the appointment of a Public Advocate (s 4(1)(b)) and enabling the making of guardianship and administration orders (s 4(1)(c)). The provisions of the Act show it has the broader purpose of enabling the interests of persons whose faculties are impaired by disability to be protected when they cannot make reasonable judgments themselves by reason of the disability and need someone to do so for them. As the Full Court of the Supreme Court of Western Australia said of analogous legislation in Re Guardianship and Administration Board,[2] the purpose of such legislation is:

to ensure that [the person's] financial affairs and other welfare is not jeopardised by improvident, or ill-considered personal decisions or action, or by unscrupulous or ill-advised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection. [3]

13 Under s 4(2), three core principles - the least restrictive means, the best interests of the person and the wishes of the person - determine decision-making under the Guardianship and Administration Act. As Cavanough J held in XYZ v State Trustee Ltd,[4] the principles apply without qualification to the exercise of all powers and discretions under the Act, including the appointment of administrators in s 46(1). The principal of personal autonomy must be taken into account under other provisions.[5]

14 The least restrictive means principle requires the adoption of means which are the least restrictive of the freedom of decision and action of the person with the disability (s 4(2)(a)). The significance of this principle has been repeatedly emphasised by this court, as by Fullagar, Tadgell and JD Phillips JJA in McDonald v Guardianship and Administration Board:

Consideration must be given to the question whether other and less restrictive means than an administration order might meet the need of the [represented person]. Moreover, if an administration order is made, the order must be that which is in the circumstances the least restrictive of the freedom of decision and action of the [person]. Plainly enough, the [legislation] recognises that administration orders may be designed to vary in their reach and their intrusiveness; and it is expected that any administration order made will be tailored to the circumstances, being privative only the extent actually required. [6]

15 As well as being specified in the general provisions of s 4(2)(a), this principle is specified in particular provisions of the Act. It is a function of the public advocate to promote the provision of services which minimise the restrictions on the rights of persons with a disability (s 15(a)(ii)). An order for the appointment of a guardian (s 22(2)(a) and (5)) or administrator (s 46(2)(a) and (4)) cannot be made without considering, and any order must implement, the least restrictive means principle.

16 The best interests of the person principle requires the best interests of the person with a disability to be promoted (s 4(2)(b)). It is the primary principle in relation to the making and operation of guardianship and administration orders. Thus, orders for the appointment of a guardian (s 22(3)) or administrator (s 46(3)) cannot be made without the tribunal being satisfied that the order is in the best interests of that person. To be eligible for appointment as a guardian (s 23(1)(a)) or an administrator (s 47(1)(c)(i)), the person must satisfy the tribunal that they will act in the best interests of the person. The primary obligation of a guardian (s 28(1)) and administrator (s 49(1)) is to exercise their powers in the best interests of the person.

17 The wishes of the person principle is that the wishes of the person with the disability are to be given effect to wherever possible (s 4(2)(c)). The court has also repeatedly stressed its importance.[7] In making an order by way of guardianship (s 22(2)(a)) or administration (s 46(2)(b)), the wishes of the person with the disability must be considered, where ascertainable.[8] So too in determining who is to be a guardian (s 23(2)(ab)) or an administrator (s 46(2)(b)). Guardians (s 28(2)(e)) and administrators (s 49(2)(b)) must exercise their powers in consultation with the person as far as possible, subject to their primary responsibility to act in their best interests (ss 28(1) and 49(1)).

18 Personal autonomy is inherent in the least restrictive means and the wishes of the person principles. The purpose of requiring the adoption of the least restrictive means is to leave the person with as much personal autonomy as possible over their personal and financial affairs. The same value is inherent in the requirement to give effect to the person's wishes, where ascertainable and wherever possible. Specific provisions of the Act emphasise the importance of promoting, maintaining and enhancing the personal autonomy of persons with a disability. It is a function of the public advocate to facilitate the provision of services which promote the development and ability of persons with a disability to act independently (s 15(a)(i)). Orders for guardianship (s 22(1)(b)) and administration (s 46(1)(a)(ii)) can only be made when the person is unable, by reason of their disability, to make reasonable judgments for themselves. I have already referred to the application of the least restrictive means principle and the wishes of the person principle when making and administering such orders. Further, a guardian (s 28(2)(c)) and administrator (s 49(2)(a)) must exercise their powers in such a way that, as far as possible, encourages and assists the person to make reasonable judgments themselves. However, the best interests of the person is the primary consideration.

19 In McDonald v Guardianship and Administration Board,[9] Fullagar, Tadgell and JD Phillips JJA said:

Guardianship and administration orders are calculated to achieve, at the instance of any person at all, a far-reaching deprivation of the freedom of action not only of represented persons but or near relatives of such persons. This is not to deny that there may be cases where the jurisdiction [to make such orders] may be justifiably invoked. The [legislation], however, prescribes very important safeguards against the making of inappropriate guardianship and administration orders.[10]

It is the core principles that prescribe those safeguards.

20 Section 22(1) permits a guardian to be appointed by order if the tribunal is satisfied that the person has a disability, 'is unable by reason of the disability to make reasonable judgments in respect of all or any of the matters relating to his or her person or circumstances' and is in need of a guardian. The core principles and personal autonomy must be considered.[11] There are provisions governing eligibility to be a guardian which reflect the personal nature of their responsibilities.[12]

21 Under the provisions, a guardian may be appointed with plenary[13] or limited[14] powers. A plenary guardian has all the powers and duties of a parent with respect to a child,[15] including the power to decide where[16] and with whom[17] the person is to live, whether and what work the person is to do[18] and what health care should be provided in their best interests.[19] The administrator can legally substitute their decisions for those of the person in every respect in relation to matters within their authority as guardians,[20] but must always act in their best interests[21] and as far as possible respecting their personal autonomy and wishes.[22] These provisions thus deal with matters concerning the accommodation, care and circumstances of the person rather than matters relating to their property and estate.

22 The unlimited administrator was appointed to Patrick's estate by order under s 46(1)-(4) of the Guardianship and Administration Act. To make such an appointment, s 46(1)(a) requires the tribunal to be satisfied that:

the person in respect of whom an application for an order appointing an administrator is made -

(i) is a person with a disability; and

(ii) is unable to make reasonable judgments in respect of the matters relating to any part of her or his estate by reason of the disability; and

(iii) is in need of an administrator of her or his estate; ...

23 The power in s 46(1) is discretionary. As Cavanough J held in XYZ v State Trustees Ltd,[23] s 46(1)(a) specifies 'three separate and cumulative requirements'. That the tribunal is satisfied of the matters referred to in s 46(1)(a) is a condition precedent to the jurisdiction to exercise that discretion. Only if those requirements are satisfied does the discretion to appoint an administrator arise. In determining whether the person is in need of an administrator, and in making any order, the tribunal must specifically consider and apply the core principles (ss 4(2)(a),(b) and (c) and 46(2)(a) and (b), (3) and (4)).

24 The purpose for appointing an administrator has been considered. In Edwards v Edwards,[24] J Forrest J held an administrator under the Guardianship and Administration Act was 'responsible for preserving and protecting the assets of the represented person'. In Re Guardianship and Administration Board,[25] the court said an administrator under analogous legislation was responsible for:

conserving the property and financial resources of the disabled person to ensure that they are available for his or her own needs, welfare and enjoyment and are not dissipated ... [and] in cases where expenditure or imminent disposition of property are necessary or advantageous, ... scrutinising the transaction to see that it is justifiable or provident having regard to all the circumstances, bearing always in mind the continuing and future needs of the person whose estate is under administration. [26]

25 Under the Guardianship and Administration Act, an administrator may be appointed with limited or unlimited powers.[27] One with unlimited powers 'has the general care and management of the estate of a represented person.'[28] For that purpose, the administrator has the power to take possession of[29] and sell[30] the person's property, to collect their income[31] and execute and sign documents on their behalf.[32] Ownership of the property of the person is not thereby transferred to or vested in the administrator as such, but it becomes totally and exclusively managed and controlled by them and the person loses their capacity to deal with their property in every way.[33] The administrator can legally substitute their decisions for those of the person in every respect in relation to their estate,[34] but must always act in their best interests[35] and as far as possible respecting their personal autonomy and wishes.[36]

26 It is a purpose of the Guardianship and Administration Act to provide for the appointment of a public advocate (s 4(1)(b)). The public advocate is appointed by the Governor in Council for a period of seven years (s 14(1), (2) and cl (1)(a)(b) of Schedule 3) and must take an oath or make an affirmation of office (cl 3 of Schedule 3).

27 The functions of the public advocate are to promote and facilitate the provision of services and facilities for persons with a disability (s 15(a)), to promote public awareness of the legislation and the need to protect these persons from abuse and exploitation, to protect their rights (s 15(c)) and to conduct investigations and report to the responsible minister (s 15(d)).

28 The powers and duties of the public advocate include being appointed as a guardian or administrator (s 16(1)(a)), making applications to the tribunal for the appointment of a guardian or administrator (s 16(1)(b)), submitting reports to the tribunal (s 16(1)(d)), advocating on behalf of persons with a disability (s 16(1)(e)(f)) and investigating complaints or allegations concerning their alleged exploitation or abuse (s 16(1)(h)). The advocate has powers of visitation (s 27(1)), to obtain information from people, governments and service providers for the purposes of investigations concerning persons with a disability (s 16(1)(ha)) and to inspect premises (s 18A(1)(a)) and records (s 18A(1)(d)).

29 These powers and duties are supplemented by the provisions of the Victorian Civil and Administrative Tribunal Act. By cl 33 of Schedule 1 of that Act, the public advocate may intervene and is entitled to be joined as a party to a proceeding under the Guardianship and Administration Act. By cl 35, the tribunal may refer a matter to the public advocate for investigation and report (sub-s (1)), which the public advocate must carry out (sub-s 2)) and the tribunal must consider (sub-s (3)).

30 The tribunal was also operating within a human rights framework, as follows.

31 The main purpose of the Charter of Human Rights and Responsibilities Act is 'to protect and promote human rights'.[37] The Charter is based on the fundamental principle, expressed in the Preamble, that 'all people are born free and equal in dignity and rights' and 'human rights are essential in a democratic and inclusive society that respects the rule of law, human dignity, equality and freedom'.

32 The bedrock value of human rights is that every individual without exception has a unique human dignity which is their birthright. The dignity of the individual and their entitlement to human rights protection 'cannot be separated from universal human nature'[38] and is to be respected whether the person is able or disabled. This principle was stated with pellucid clarity by Brennan J in Marion's Case which, like the present, concerned the human rights of a person with a mental disability:

Human dignity is a value common to our municipal law and to international instruments relating to human rights. The law will protect equally the dignity of the hale and hearty and the dignity of the weak and lame; of the frail baby and of the frail aged; of the intellectually able and of the intellectually disabled. Thus municipal law satisfies the requirement of the first paragraph of the 1971 United Nations Declaration on the Rights of Mentally Retarded Persons which reads:

'The mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings.'

Our law admits of no discrimination against the weak and disadvantaged in their human dignity. Intellectual disability justifies no impairment of human dignity, no invasion of the right to personal integrity. [39]

33 The different treatment of people because of their disability and not their individual needs gives rise to a grievous loss of dignity and personal self-worth, as well as a deep sense of grievance. People who are treated to their disadvantage by reference to their disabled attribute and not as valuable individuals are thereby made to feel reduced and stigmatised. The harm which this causes to the individual was explained by Iacobucci J in Law v Canada:

Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within ... society. [40]

34 The Charter provides a framework for protecting and promoting the human rights of all natural persons,[41] including persons with a disability. It does so by specifying the relevant rights in Part 2 (ss 7-27), requiring legislation to be interpreted compatibly with those rights, if it can be (s 32(1)), establishing a scrutiny mechanism to ensure the human rights compatibility of new legislation (ss 28-30), requiring a public authority to act compatibly with human rights, subject to contrary law (s 38(1) and (2)) and conferring certain additional functions on the Victorian Human Rights and Equal Opportunity Commission (ss 40-43).

35 The engagement of human rights in the Charter brings into operation the principle of interpretation in s 32(1) and the obligation of public authorities in s 38(1) to act compatibly with human rights (subject to contrary law: s 38(2)), which are both issues in the appeal. It is therefore necessary to identify which human rights were engaged and whether the tribunal was a public authority when it made the administration order.

36 Human rights are engaged when the act or decision of a public authority places limitations or restrictions on, or interferes with, the human rights of a person. For the purpose of determining whether there is such a limitation, restriction or interference, rights are interpreted purposively and, in the words of Warren CJ in Re Application under the Major Crime (Investigative Powers) Act 2004,[42] 'in the broadest possible way'. Following that decision, Hargrave J said in Director of Public Prosecutions v Ali (No 2) that the general approach was to interpret the rights in the Charter 'broadly and in a non-technical sense.'[43] Speaking of the New Zealand Bill of Rights Act 1990, Elias CJ said in R v Hansen[44] that the 'meaning of the right is to be ascertained from the "cardinal values" it embodies.' In reference to the Canadian Charter of Rights and Freedoms, Dickson J said in R v Big M Drug Mart Ltd[45] that the 'meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.' Reasonable and demonstrable limitation of the right is not taken into account when identifying its scope.[46]

37 In the present case, the tribunal appointed an unlimited administrator to Patrick's estate, which consisted mainly of his home. The tribunal correctly decided he was a person with a disability by reason of his mental ill-health. It decided he was not capable of making reasonable decisions about his estate by reason of that disability. By force of statute, the appointment of the administrator transferred complete management and control of Patrick's estate exclusively to the administrator.

38 The potentially grave impact of an administration order on an individual cannot be doubted. As was held by Fullagar, Tadgell and JD Phillips JJA in McDonald v Guardianship and Administration Board:[47] 'Guardianship and administration orders are calculated to achieve, at the instance of any person at all, a far-reaching deprivation of the freedom of action ... of represented persons'. Their Honours went on to say:[48] 'The appointment of an administrator under the [legislation] is also obviously capable of being gravely intrusive upon the rights of a represented person'. In XYZ v State Trustees Ltd,[49] Cavanough J said statutory administration affected the 'civil liberties and ... dignity' of the individual. It is now necessary to look more closely at the nature of this impact.

39 The tribunal did not identify which of Patrick's human rights were engaged but it did proceed on the basis that his human rights were affected and that the interference had to be justified.

40 Patrick submitted that the rights engaged were freedom of movement (s 12), privacy and home (s 13) and property (s 20). The commission relied on equality (s 8), freedom of movement and privacy. The Attorney-General submitted the principal right engaged was privacy and home.

41 Section 8(3) of the Charter specifies the human right to 'the equal protection of the law without discrimination' and to 'effective protection against discrimination'. The discrimination to which this right refers is discrimination within the meaning, and on the basis of the attributes listed in s 6, of the Equal Opportunity Act 1995 (Vic).[50] Those attributes include 'impairment', which is itself defined in s 4(1) to include 'a mental or psychological disease or disorder'.

42 I analysed the scope and application of the equality right in Lifestyle Communities Ltd (No 3).[51] It is sufficient to say here that it is a right of fundamental importance which is high in the hierarchy of rights recognised in the Charter.

43 The provisions of the Guardianship and Administration Act allowing for the appointment of an administrator to the estate of a person with a disability are directed at and therefore discriminatory in their application towards persons with a mental illness, like Patrick. As he is suffering from a mental disorder, he is a person with a disability under s 3(1) of that Act. By reason of having the attribute of being disabled in that manner, he is liable to have an administrator appointed in respect of his estate when a person without that attribute would not be so liable.[52] When the administrator was appointed, the equality right in s 8(3) was therefore engaged.

44 The Guardianship and Administration Act is but one of many statutes which are discriminatory in this sense for the very reason that it is directed at this category of person. Being enacted to provide necessary protection for and meet the special needs of people with disabilities, the human rights limitations in the legislation would in general terms be justified under s 7(2) of the Charter. But the engagement of the equality right in s 8(3) has consequences which still must be considered, both in terms of the interpretation of the specific provisions of the Guardianship and Administration Act and the lawfulness of the particular exercise of the powers and discretions which they confer. The values and interests represented andprotected by the human right to equality are at the heart of Patrick's complaints.

45 Section 12 of the Charter provides that '[e]very person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live'.

46 I identified the scope of the right to freedom of movement in Re Kracke and Mental Health Review Board.[53] It protects a person's liberty of movement in Victoria and their freedom to choose where to live.

47 Patrick is not currently free to move freely within Victoria, or to choose where to live, because he lives in detention in a hospital pursuant to an involuntary treatment order made under the Mental Health Ac 1986 (Vic). But the appointment of the administrator over his estate will probably restrict his future choice of where to live because the administrator is likely to sell his home. The tribunal did not find, and the evidence does not establish, that Patrick will never be well enough to return to his home. His strong connection with his home has not been severed, indeed quite the contrary.

48 Section 12 of the Charter reflects the correlative right in art 12 of the International Covenant on Civil and Political Rights.[54] For the reasons I give below, in determining the scope of the former I will here take into account the general comments and findings of the Human Rights Committee in relation to the scope of the latter.

49 Of art 12 of the covenant, General Comment 27 states (among other things) that it protects the right of persons 'to establish themselves in a place of their choice'[55] and 'to reside in a place of one's choice'.[56] For a woman (and therefore for all people), it protects her right 'to choose her residence'.[57]

50 The committee has interpreted art 12 as conferring a right to choose to live in a particular place, not just in a particular area. Thus, in Lovelace v Canada,[58] a statutory restriction on the right of a Canadian Indian to live in a particular reserve was found to interfere with this right (although in a justified way).[59] Accordingly, a leading text describes the freedom of choice of residence as 'a freedom to set up permanent or temporary residence at any location within a State Parties territory.'[60]

51 As with the right to home in s 13(a), whether there has been an interference with the right to freedom of movement in s 12 should be approached in a simple and non-technical manner. Such interference can be caused directly or indirectly by a process of law and seeking or attempting to activate such processes are also encompassed (see below).[61]

52 Where a person resides in their own home and wishes to continue to do so, taking legal steps to transfer complete and exclusive management and control of the home to an administrator, including the power to sell the home against the person's wishes, and actually effecting such a transfer by the appointment of an administrator, represents an interference with their freedom to choose where to live. Where a person is in mental health detention, wishes to return to their home as their choice of residence and their connection with the home has not been severed, taking those steps or effecting such a transfer is likewise an interference with that freedom. The right to freedom of movement in s 12 is therefore engaged in the circumstances of this case.

53 Section 13(a) of the Charter provides: 'A person has the right - (a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with'. Due to their special needs and vulnerability, people with a mental illness are at particular risk of interference with their human rights to privacy and home. An important purpose of the Charter is to afford due protection against that interference, where it is arbitrary or unlawful. As Emerton J said in Castles v Secretary, Department of Justice,[62] the right to privacy is 'of considerable amplitude'.

54 In Re Kracke and Mental Health Review Board, I identified the scope of the right to privacy in s 13(a) of the Charter as follows:

The purpose of the right to privacy is to protect people from unjustified interference with their personal and social individuality and identity. It protects the individual's interest in the freedom of their personal and social sphere in the broad sense. This encompasses their right to individual identity (including sexual identity) and personal development, to establish and develop meaningful social relations and to physical and psychological integrity, including personal security and mental stability.

The fundamental values which the right to privacy expresses are the physical and psychological integrity, the individual and social identity and the autonomy and inherent dignity of the person.[63]

Later, in Director of Housing v Sudi,[64] I described the rights in s 13(a) in full:

The rights to privacy, family, home and correspondence in section 13 (a) are of fundamental importance to the scheme of the Charter. The purpose of the rights is to protect and enhance the liberty of the person - the existence, autonomy, security and wellbeing of every individual in their own private sphere. The rights ensure everybody can develop individually, socially and spiritually in that sphere, which provides the civil foundation for their effective participation in democratic society. The rights protect those attributes which are private to all individuals, that domain which may be called their home, the intimate relations which they have in their family and that capacity for communication (by whatever means) with others which is their correspondence, each of which is indispensable for their personal actuation, freedom of expression and social engagement.[65]

55 The purpose of the human right against arbitrary or unlawful interference with the home is the protection of the security and autonomy of the person in their home. It is in their home that a person is able to be themselves in the private and personal sense. That is fundamentally important for the person's social and family life and the attainment of their full potential as an individual. The great personal significance of the home to the individual is amply demonstrated by the present case. Patrick is much attached to his home. It is where he spent many years being a husband and step-father.

56 Patrick is not presently living in his home. He is living in a psychiatric hospital as an involuntary patient under an order made pursuant to the Mental Health Act 1986. He has been living in the hospital for some years and is not expected to return to the community in the near future. This raises the question whether his house is his home for the purposes of s 13(a) of the Charter.

57 In Director of Housing v Sudi, I identified how a person's home is to be identified for human rights purposes:

In human rights, identifying a person's 'home' is approached in a common-sense and pragmatic way. It depends on the person showing 'sufficient and continuous links with a place in order to establish that it is his home'.[66] Manfred Nowak, speaking of article 17(1) of the ICCPR, says 'the home symbolises a place of refuge where one can develop and enjoy domestic peace, harmony and warmth without fear of disturbance.'[67] If someone's links with the place where they live are 'close enough and continuous enough', that is their home.[68] The general approach is 'to apply a simple, factual and untechnical test, taking full account of the factual circumstances but with very little of legal niceties.'[69] The concept of 'home' in human rights is autonomous[70] and is not based on 'domestic notions of title, legal and equitable rights, and interests'[71] In short, it is a question of fact, not law. [72]

58 Applying these principles here, Patrick's house is his home for the purposes of the human right to home in s 13(a) of the Charter though he is not living there by reason of his involuntary detention in a psychiatric hospital. He owns the house (with the public housing authority), sees it as his home and has continuous links with it. It is not an investment property. It has not been leased, temporarily or at all. Patrick is meeting the financial obligations of an owner. It is where he had many years of married life and was a father to his step-children. As the tribunal found, he has a 'very strong connection with his home'. His domestic occupation of the house has only been disturbed by his mental illness and its consequences.

59 The house being Patrick's home for the purpose of this human right, it is next necessary to determine whether the appointment of the administrator constituted a limitation, restriction or interference with that right.

60 Also in Director of Housing v Sudi, I identified how the question of interference with home is to be determined:[73]

Likewise, the question of what amounts to an 'interference' with the rights in s 13(a) is approached in a 'simple and untechnical' manner.[74] This is Manfred Nowak, again speaking of article 17(1) of the ICCPR: 'Every invasion of that sphere paraphrased by the term "home" that occurs without the consent of the individual affected... represents interference.'[75] Evicting or seeking to evict someone living in social housing is interfering with the human rights relating to their home.[76] Any attempt to do so, directly or indirectly or by process of law, constitutes such interference.[77] Serving a notice to quit and bringing possession proceedings constitute such interference.[78] The latter is especially applicable in the present case. Where a family is living in the premises, such actions also constitute an interference with the human rights relating to their family.[79] Other decisions which deprive a person of, or impair their capacity to live in, their home also constitute an interference, such as denying them planning permission[80] and undertaking enforcement measures,[81] and withdrawing a permission already held, rendering people homeless.[82]

61 The appointment of an unlimited and exclusive administrator to a person's estate removes their capacity to control and manage their own property and financial affairs, including that property which is their home. The administrator can exercise a power of sale of the property even against the wishes of the person. In the present case, the tribunal acknowledged the appointment of the administrator would probably result in the sale of Patrick's home, against his wishes. That was a practical purpose of the appointment. Appointing an administrator over Patrick's estate was therefore an interference with his human right to home in s 13(a) of the Charter.

62 In the circumstances, appointing the administrator engaged Patrick's human rights to privacy and home in s 13(a) of the Charter.

63 An issue arises as the meaning of the term 'arbitrarily' in s 13(a) and, in that context, the relevance and weight to be given to the opinions of the Human Rights Committee in relation to the same term in art 17(1) of the covenant. In WMB v Chief Commissioner of Police,[83] Kaye J doubted the jurisprudential value of findings of the committee and declined to follow its views on the concept of arbitrariness in the covenant as these might assist in the interpretation of 13(a). I will consider those issues here.

64 The weight to be attached to the opinions of the committee is an important question. It influences the interpretation and therefore the scope of the human rights protection which is afforded by s 13(a) and other provisions of the Charter.

65 The committee is established by the covenant, under which it has 18 members[84] who are elected by secret ballot[85] and serve in their personal capacity[86] for four years.[87] Members are eligible for re-election.[88] Only 'persons of high moral character and recognised competence'[89] are eligible for membership of the committee. It has a secretariat which is provided by the United Nations in New York but it is not a formal part of that organisation.

66 The main work of the committee is to receive and consider reports from the state parties to the covenant in relation to giving effect to the rights in the covenant.[90] As one such party, Australia provides these reports, which the committee considers and comments on. Provision of reports is mandatory, which enables the committee 'to monitor states compliance with the rights created in the covenant'.[91] The committee may also provide general comments to state parties on the proper interpretation and application of the covenant.[92] Under the Optional Protocol to the covenant, which Australia has also ratified, the committee can receive and consider complaints from individuals that their rights under the covenant have been violated.[93]

67 In his 'authoritative commentary'[94] on the covenant, Professor Manfred Nowak describes the committee as a 'quasi-judicial organ',[95] being 'a body of experts largely independent of the UN and State parties'.[96] As it is not a court, its decisions do not have internationally binding effect.[97] But as a 'relatively autonomous treaty-based organ',[98] it is not part of the political framework of the United Nations and its opinions on the scope and operation of the covenant are highly influential. In his oft-cited commentary, Professor Nowak draws heavily on the jurisprudence of the committee.

68 In their book on the Charter and the Human Rights Act 2004 (ACT), Caroline Evans and Simon Evans discuss the committee in relation to human rights law in Australia. They point out that recently the committee has been comprised of a majority of people having post-graduate degrees in law from leading international universities, current or former professors of international human rights law and former chief justices of domestic, supreme or constitutional courts.[99] Due to the independence and expert qualifications of the committee members, its work is 'far less tainted by politics that many of the other parts of the United Nations human rights system'.[100] In consequence:

The decisions of the committee are ... the closest thing to United Nations case law for the ICCPR, and are useful as they reflect the authoritative and independent views of a group of experts on international human rights law. [101]

69 A standard international text[102] of cases, materials and commentary on the covenant and the committee contains a description of the composition, work and function of the committee on which I have drawn here. The findings and general comments of the committee are set out and discussed at length as international law jurisprudence. The authors say the work of the committee is 'not overly politicised' and they refer to certain safeguards to ensure its 'political impartiality'.[103] Of the members in 2003, they say 'almost all ... have expert human rights qualifications, and no direct connections with their governments.'[104] Therefore the committee fulfilled 'the requisite criteria of independence and expertise.'[105]

70 When called on to interpret the covenant in a domestic setting, Australian courts have frequently made reference to the findings and general comments of the committee. I would refer, for example, to the judgments of Mason CJ and McHugh J, and Dawson J, in Dietrich v R,[106] McHugh J (a 'body of international jurisprudence') in Woolley; Ex parte Applicants M276/2003[107] and Kirby J in that[108] and other[109] cases. In the states and territories there is McMurdo P ('an expert committee') and Philippides J in Aurukun Shire Council v Chief Executive Officer of Liquor, Gaming and Racing[110] and Refshauge J in Blundell v Sentence Administration Board (ACT).[111] Black CJ, Sundberg and Weinberg JJ considered the jurisprudential value of the views of the committee in Minister for Immigration Multicultural and Indigenous Affairs v Al Masri.[112] Accepting the opinions of the committee did not have precedential authority in Australian courts, their Honours said it was nonetheless 'legitimate to have regard to them as the opinions of an expert body established by the [covenant]'.[113] Referring to the approach adopted in relation to other treaties,[114] their Honours said it was also appropriate to have regard to 'works of scholarship in the field of international law, including opinions based on the jurisprudence developed within international bodies, such as the committee'.[115] They included the commentary of Professor Manfred Nowak in that category.

71 In this court, Vickery J[116] and Emerton J[117] have noted s 32(2) of the Charter and relied on the findings and general comments of the committee, and other international jurisprudence, when interpreting the Charter. With respect, I join with Emerton J in saying '[t]his is a good thing, as it will expose Victorian jurisprudence to relevant jurisprudence from other parts of the world and, indeed, make Victorian jurisprudence more relevant in an international context.'[118] Further, Hollingworth J[119] has noted that the human right in s 25(1) of the Charter is based on art 14(2) of the International Covenant on Civil and Political Rights and had regard to General Comment 30[120] of the Human Rights Committee in relation to the scope of that right.

72 On this analysis, the Human Rights Committee is an independent body of human rights experts established under the International Covenant on Civil and Political Rights. Although it is not a court, it is quasi-judicial in character. Its decisions and general comments are not binding precedents and it our duty to form an independent view on the matters in issue. But the opinions of the committee represent an important body of jurisprudence on the interpretation and application of the covenant. Australian courts of high authority have referred to and relied on the opinions and general comments of the committee when interpreting the provisions of the covenant or domestic legislation to which it is relevant.

73 Section 32(2) of the Charter provides that '[i]nternational law and judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision'. This provision enhances the capacity of the courts to consider such sources in the exercise of their ordinary powers of interpretation.[121] The explanatory memorandum says of s 32(2) that the decisions of 'treaty monitoring bodies including the human rights committee, will be particularly relevant'.[122] That is especially so when identifying the scope of the human rights in the Charter, which reflect to a large extent those specified in the covenant.

74 Turning now to arbitrariness, we have seen the right in s 13(a) of the Charter is to have your privacy, family, home or correspondence not 'unlawfully or arbitrarily interfered with'. The Attorney-General submits that these terms define the scope of the right and, contrary to my decision in Re Kracke and Mental Health Review Board,[123] are not mere examples of when a limitation is reasonable and justified under s 7(2).

75 I made the decision in Kracke before the judgment of the Court of Appeal in R v Momcilovic,[124] which held that s 7(2) was not relevant at the interpretation stage of a human rights analysis. I should therefore re-examine the scope of the right in s 13(a) in terms of the internal content of the right without regard to s 7(2).

76 In WBM v Chief Commissioner of Police[125] Kaye J held that 'arbitrary' in s 13(a) was an ordinary English word whose meaning was to be derived from the dictionary. In his Honour's view, the word arbitrary in s 13(a) meant 'a decision or action, which is not based on any relevant identifiable criterion, but which stems from an act of caprice or whim'.[126] His Honour also referred to the dictionary definition of the word, which is 'to be decided by one's liking' or 'capricious' (OED).[127] This is a view I respect but cannot accept. It reduces the standard of protection in the right to Wednesbury unreasonableness.

77 In my view, in s 13(a) and other provisions of the Charter, 'arbitrarily' is not used as an ordinary English word but as a term having a particular meaning which is embodied in art 17(1) of the covenant. By using this term in s 13(a), the legislature instituted a greater degree of human rights protection for the people of Victoria than would have flowed from using the word in the ordinary sense. To reject this meaning of the term would significantly reduce the protection which Parliament intended to confer.

78 It is very clear from the express terms of the Charter, as well as the report of the consultative committee,[128] the second reading speech of the Attorney-General[129] and the explanatory memorandum[130] that the human rights specified in Part 2 were drawn largely from the International Covenant on Civil and Political Rights. There are exceptions and the wording in some cases is materially different, which should be taken into account where relevant. But in relation to the unlawful and arbitrary aspect, the terms of art 17 of the covenant[131] are not materially different to the terms of s 13 of the Charter.[132] Such textual differences as do exist between the two do not bear on the meaning of these terms.

79 Given that origin and taking s 32(2) into account, I must conclude that Parliament intended to place in s 13(a) the concept of arbitrariness which is embodied in the protection afforded by art 17(1) of the covenant. That makes the views of the committee on the scope of that protection particularly relevant.

80 In General Comment 16, the committee gave this opinion on what is arbitrary for the purpose of art 17(1) of the covenant:

The expression 'arbitrary interference' is also relevant to the protection of the right provided for in article 17. In the Committee's view the expression 'arbitrary interference' can also extend to interference provided for under the law. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the covenant and should be, in any event, reasonable in the particular circumstances. [133]

81 It is well understood that 'reasonable in the particular circumstances' has a particular meaning in this context and does not mean reasonable on the merits. The committee made that clear in Toonen v Australia,[134] where it gave this further explanation:

The committee interprets the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case. [135]

82 Later the committee applied these principles in A v Australia,[136] which concerned detention in custody. Of arbitrariness in art 9(1) of the covenant, the committee said:

the Committee recalls that the notion of 'arbitrariness' must not be equated with 'against the law' but be interpreted more broadly to include such elements as inappropriateness and injustice. Further, remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context. [137]

83 Drawing on the jurisprudence of the committee, Professor Nowak has given an account of the origin and content of the prohibition against arbitrary interference with the rights specified in art 17(1) of the covenant. It too makes clear that the word 'unreasonable' is here used not as meaning unreasonable on the merits but as meaning disproportionate in the legal sense:

with respect to permissible interference with privacy, family, home and correspondence, Art. 17 does not contemplate a mere formal limitation clause results from the prohibition of 'arbitrary interference' ('immixtions arbitraires'). The term 'arbitrary' is based on Art. 12 of the UDHR and can be found in Arts. 6(1), 9(1) and 12(4) of the Covenant. In conformity with the historical background and the corresponding remarks on Art. 6, it is reiterated here that regardless of its lawfulness, arbitrary interference contains elements of injustice, unpredictability and unreasonableness. Moreover, the expression 'arbitrary' suggests a violation by State organs. In evaluating whether interference with privacy by a State enforcement organ represents a violation of Art. 17, it must especially be reviewed whether, in addition to conformity with national law, the specific act of enforcement had a purpose that seems legitimate on the basis of the Covenant in its entirety, whether it was predictable in the sense of rule of law and, in particular, whether it was reasonable (proportional) in relation to the purpose to be achieved. [138]

84 Like the Charter, the covenant contains other provisions which prohibit unlawful or arbitrary interference with a human right. The same broad concept of arbitrariness applies. One example we have seen already is art 9(1), which specifies the right 'to liberty and security of the person' and not to be 'subjected to arbitrary arrest or detention'. The views of the committee and Professor Nowak on the concept of arbitrariness in art 9(1) were carefully examined by Black CJ, Sundberg and Weinberg JJ in Minister for Immigration Multicultural and Indigenous Affairs v Al Masri.[139] On the basis of that examination, their Honours held that arbitrary in that article meant 'unproportional or unjust'.[140] It was arbitrariness in that sense which Refshauge J applied under s 18 of the Human Rights Act in Blundell v Sentencing Administration Board (ACT).[141]

85 I therefore conclude that the human right in s 13(a) not to have your privacy, family, home or correspondence 'arbitrarily' interfered with extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought. Interference can be arbitrary although it is lawful.

86 Further, we will see that the 'principle of legality' in the interpretation of legislation is that provisions will not be interpreted to abrogate or curtail 'fundamental common law rights or freedoms' without that intention being 'clearly manifested by unmistakable and unambiguous language'[142]. As Vickery J held in Nolan v MBF Investments Pty Ltd,[143] the 'protection of a person's home from arbitrary interference is reflected in all of the major international human rights instruments and the Victorian Charter.'[144] That right is therefore 'unequivocally a fundamental human right [which] enlivens the "principle of legality"'.[145]

87 Section 20 specifies the human right that 'a person must not be deprived of his or her property other than in accordance with law.' In applying this right, the three issues are whether the person has 'property', whether the person is 'deprived' of that property and whether the deprivation is not 'in accordance with law'. Neither 'property' nor 'deprived' is defined. On first principles, these terms would be interpreted liberally and beneficially to encompass economic interests and deprivation in a broad sense. 'In accordance with law' has a particular meaning in this context.

88 The right to property in s 20 of the Charter does not come from the International Covenant on Civil and Political Rights, which only goes so far as to prohibit discrimination on grounds of property (art 26). The First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms[146] goes further than both the Charter and the covenant. Article 1 of that protocol specifies a right to the peaceful enjoyment of possessions as well as the non-deprivation principle. There is a significant body of authority in the courts in the United Kingdom[147] and Europe[148] on this right.

89 That jurisprudence assists in relation to what amounts to a deprivation of property in human rights legislation such as the Charter. It is well-established that a formal expropriation is not required (although it does suffice) and a de facto expropriation is sufficient. Citing earlier authorities, in Zwierzynski v Poland the European Court of Human Rights gave this statement of principle:

The Court recalls that in order to establish whether or not there has been a deprivation of possessions it is necessary not only to consider whether there has been a formal taking or expropriation of property, but also to look beyond appearances and investigate the realities of the situation complained of. Since the Convention is intended to guarantee rights that are 'practical and effective', it has to be ascertained whether that situation amounted to a de facto expropriation. [149]

I will apply this approach in determining whether there has been a deprivation of property within s 20 of the Charter in the present case.

90 Again on first principles, 'property' in s 20 would encompass real and personal property, such as land, chattels and money, as well as other economic interests which do not need to be considered here. The main property at issue in the present case is Patrick's home, which is a house on land in a suburb of Melbourne of which he is a joint owner. That home is clearly property for the purposes of s 20.

91 Section 20 requires any deprivation of a person's property to be 'in accordance with law'. That requires but is not confined to bare legal authorisation for the deprivation. The principle of lawfulness in s 20 is of fundamental importance and wider.[150] To be in accordance with law, the law concerned must be publicly accessible, clear and certain and not operate arbitrarily.[151] But the right in s 20 does not extend to compensation for deprivation of property.[152]

92 Turning to the present case, the appointment of the administrator did not deprive Patrick of his property in the sense of transferring ownership of his estate to someone else. Nor did it result in him being deprived of the use or benefit of his property in the direct sense. But it vested complete and exclusive management and control of his property in the administrator, now and for the future, including the power to sell it in Patrick's name. Appointing the administrator took that management and control, and that power of sale, away from Patrick and transferred to the administrator for the duration of the order. In my view, that was a de facto deprivation of property which engaged the right in s 20. However, the provisions of the Guardianship and Administration Act plainly answer the description of a 'law' within that provision, and this judgment will determine whether that deprivation was 'in accordance with' that law. Therefore, the engagement of the right in s 20 does not take matters further in this case.

93 Separately to the Charter, the right to ownership and peaceful enjoyment of property is an ancient feature of the common law, established by the time of Magna Carta 1297,[153] which is still in force in Victoria.[154] According to Blackstone, the right of property is inherent in every person and 'consists in the free use, enjoyment and disposal of all his acquisitions, without any control of diminution, save only by the laws of the land'.[155] In Grey v Harrison,[156] Callaway JA (Tadgell and Charles JJA agreeing) said 'it is one of the freedoms which shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit'. Protecting the right to property is a purpose of the civil and criminal law, as is protecting the personal integrity of the individual.

94 Protecting the right to own and peacefully enjoy property is encompassed by the principle of legality in the interpretation of legislation, which I will later apply. Bennion says the principle is that 'by the exercise of state power the property and other economic interests of a person should not be taken away, impaired or endangered, except under clear authority of law.'[157] Early in the life of the Australian federation, Griffith CJ held in Clissold v Perry[158] that statutes 'are not to be construed as interfering with vested [property] interests unless that intention is manifest'. Referring to that authority, French CJ recently said in R & R Fazzolari Pty Ltd v Parramatta City Council:[159]

[the] application to property rights of this long-standing interpretive principle is consistent with international developments in the recognition of human rights since World War II ...the right to property was recognised in the Universal Declaration of Human Rights an in various other international instruments.[160]

95 Accordingly, Patrick's property right of ownership of his home is a fundamental common law right for the purpose of the application of the principle of legality.

96 That brings me to the application of the Charter to the tribunal.

97 We have seen that s 38(1) of the Charter requires public authorities to act compatibly with human rights (subject to contrary law: s 38(2)). The issue arises whether the tribunal is a public authority within s 4(1) and is therefore bound by this obligation when it makes administration orders under s 46(1) of the Guardianship and Administration Act (question 2(a)(i) of the Charter notice)).

98 Patrick and the commission submitted that, when exercising this power, the tribunal is acting in an administrative capacity and therefore is a public authority within s 4(1)(j) of the Charter. Question 2(a)(i) in the Charter notice should therefore be answered yes.

99 The Attorney-General submitted the tribunal was not a public authority under s 4(1), and hence was not bound by s 38(1) of the Charter when exercising its jurisdiction to make an administration order. The tribunal was a 'court or tribunal' within s 4(1)(j), but it was not, when exercising that jurisdiction, acting in an 'administrative capacity'. That expression was intended to exclude courts or tribunals exercising judicial or 'quasi-judicial' functions, as the parliamentary materials indicated.[161] The identification in the explanatory memorandum of 'quasi-judicial' powers indicated that parliament had in mind a third category beyond the usual binary division of non-judicial powers. The third category of power is hybrid and exercisable by bodies required to exercise a mix of judicial-like and administrative functions. On account of their 'court-like' or 'judicial-like' complexion, bodies exercising quasi-judicial powers must also be given protections which ensure their independence and impartiality. For that reason, they have been excluded from the obligations which bind public authorities under s 38(1). This interpretation was supported by the separate treatment of 'courts and tribunals', parliament and public authorities in s 6 and the inclusion of tribunals in addition to courts in s 4(1)(j).

100 The Attorney-General further submitted that the original jurisdiction of the tribunal in respect of guardianship orders can be distinguished from its review jurisdiction. When exercising the same powers as an administrative decision maker, it is understandable that the Charter should apply to the tribunal, as it did to that decision maker. But the power to make guardianship and administrative orders has been variously given to courts and tribunals in Australia, including the Family Court of Australia. When exercised by that court in relation to children, such a power is judicial and corresponds to the parens patriae jurisdiction of the state courts.[162] In exercising those powers under the Guardianship and Administration Act, the tribunal is therefore not acting administratively, but judicially or quasi-judicially. Therefore, it is acting in a manner intended to be excluded from the obligations of s 38(1) of the Charter.

101 I will commence addressing these submissions by identifying the source and nature of the jurisdiction of the tribunal to make administration orders and the means by which that jurisdiction is exercised. This will also be relevant later on the issue of the weight to be afforded to the decisions of the tribunal.

102 Under the Victorian Civil and Administrative Tribunal Act, the tribunal has two types of jurisdiction - '(a) original jurisdiction; and (b) review jurisdiction' (s 40). Original jurisdiction is the jurisdiction of the tribunal other than its review jurisdiction (s 41(1)). Review jurisdiction is jurisdiction conferred on the tribunal by or under an enabling enactment to review a decision of a decision-maker (s 42).

103 The predecessor of the tribunal was the Administrative Appeals Tribunal which was established by the Administrative Appeals Tribunal Act 1984 (Vic). Under s 67 of the Guardianship and Administration Board Act 1986 (Vic), it had jurisdiction to review decisions of the board. The guardianship and administration jurisdiction of that tribunal was review jurisdiction.[163]

104 The Guardianship and Administration Act (as it is now named) no longer confers review jurisdiction on the tribunal. The Guardianship and Administration Board has been abolished and its functions are performed by the Victorian Civil and Administrative Tribunal.[164] The nature of these functions has not changed. The review decision-making tier has simply been removed from the system. The Guardianship and Administration Act now confers jurisdiction directly on the tribunal to make decisions, such as to appoint guardians (s 22(1)) or administrators (s 46(1)). Hence, the jurisdiction of the tribunal under the Guardianship and Administration Act is original jurisdiction for the purposes of s 40(a) of the Victorian Civil and Administrative Tribunal Act.[165]

105 Subject to variation for certain types of proceedings (s 58(2)), if the tribunal is to be constituted in a proceeding by one member only, that member must be a legal practitioner (s 64(2)(a)). Clause 31(1) of schedule 1 contains such a variation. It provides that, except in specific cases, the requirement for a member sitting alone to be a legal practitioner does not apply to a proceeding under the Guardianship and Administration Act. One such exception is that a rehearing application under Division 1 of part 6 of that Act must be determined by a senior member or presidential member and always by a member who is senior to the member who heard the case at first instance (s 31(3)). In the present case, the tribunal heard and determined Patrick's rehearing application and was constituted by an acting deputy president sitting the guardianship list of the human rights division where the decision at first instance was made by a senior member sitting in that list.

106 Under s 157(2) of the Victorian Civil and Administrative Tribunal Act, the rules committee of the tribunal may make rules establishing divisions of the tribunal, and lists within those divisions. By r 2.01(1) of the Victorian Civil and Administrative Tribunal Rules 2008, the tribunal exercises it functions in the administrative division, the civil division and the human rights division. By r 2.03(4)(b), the guardianship list of the human rights division was established.

107 Rule 2.04(1) requires a presidential member nominated by the president to be in charge of a list. A presidential member is the president, a vice president or a deputy president of the tribunal.[166] A person is not eligible to be appointed as a presidential member unless they have been admitted to practice in Victoria for five years.[167] Deputy presidents hold office for five years and on a full-time basis.[168]

108 The tribunal made the administration order concerning Patrick in the guardianship list of the human rights division. It is appropriate here to note, and later to take into account, that the tribunal was constituted by John Billings, who was for many years a deputy president of the tribunal and the presidential member appointed by the president under the rules to be in charge of that list. At the time he made the decision, he was an acting deputy president and in charge of that list. Acting deputy president Billings has very considerable experience and undoubted expertise in relation to guardianship, and has published articles and made presentations to conferences in this area.

109 The proper interpretation of 'public authority' and the other concepts in s 4(1) of the Charter is to be ascertained from the language of the provisions,[169] understood in the first instance in the context of the purpose of the provisions and the scheme of the Charter as a whole.[170] Under s 35(a) of the Interpretation of Legislation Act 1984 (Vic), the Charter is to be interpreted in a manner which promotes its underlying purpose. By s 1(2) of the Charter, that purpose is to 'protect and promote human rights'. Under s 38(1) and other provisions, a critical means of doing so is imposing a legal obligation on public authorities to act compatibly with human rights, subject to contrary law (s 38(2)).

110 The concept of a public authority is thus critical to the achievement of the purposes of the Charter. Like comparable human rights legislation in the Untied Kingdom[171] and New Zealand,[172] the definition of 'public authority' in s 4(1) should be given a beneficial interpretation which is consistent with that purpose.

111 According to the scheme of the definition, s 4(1)(a)-(h) specifies who or what is a public authority, subject to the exclusions in pars (i), (j) and (k). Section 4(1)(b) includes as a public authority 'an entity established by a statutory provision that has functions of a public nature', subject to those exclusions. To complete the scheme, s 4(2)(a)-(e) specifies (non-exclusively) several factors that may be taken into account in determining whether a function is of a public nature. From the statutory scheme, the terms of s 4(1)(b) and the guiding factors in s 4(2), it can be seen that the focus of the definition is on matters of substance, not form or technicalities. This accords with the statement in the second reading speech that the 'intent is that the obligation to act compatibly with human rights should apply broadly to government and to bodies exercising functions of a public nature.'[173] As we will see, the discarded and formalistic category of 'quasi-judicial' functions does not fit into the framework of the definition and would defeat its purpose.

112 As I held in Re Kracke and Mental Health Review Board,[174] the tribunal is an entity established by statutory provision (s 8(1) of the Victorian Civil and Administrative Tribunal Act) having functions of a public nature within s 4(1)(b) of the Charter, being functions connected to or generally identified with functions of government (s 4(2)(b)). Under s 38(1) (subject to s 38(2)), it would be wholly bound to act compatibly with human rights, except for the exclusions in s 4(1)(j).

113 The exclusion in s 4(1)(j) is that the definition of public authority 'does not include - (j) a court or tribunal except when it is acting in an administrative capacity'. There is no definition of 'tribunal', but clearly the Victorian Civil and Administrative Tribunal is a tribunal within s 4(1)(j). By virtue of that exclusion, it is a public authority only when acting in an administrative capacity. Subject to s 6(2)(b),[175] which is not relevant in the present case, the tribunal is not bound to act compatibly with human rights when it is acting in a judicial (or legislative) capacity.

114 In support of the submission that s 4(1)(j) operates to exclude the tribunal from being a public authority when it is acting in a judicial capacity and in a 'quasi-judicial' capacity, the Attorney-General relies on the following comments in the explanatory memorandum to the Charter of Human Rights and Responsibilities Bill 2006 in reference to clause 4(1)(j):

Courts and tribunals and members of Parliamentary Committees are also bound by the Charter, when acting in an administrative capacity (paragraphs (g) and (j)). For example, they are considered to be public authorities when hiring staff. The obligation to comply with the Charter does not, however, extend generally to Parliament or Parliamentary proceedings or to the courts when acting in a judicial or quasi-judicial capacity (paragraphs (i) and (j)).[176]

115 Under s 35(a) of the Interpretation of Legislation Act and the ordinary rules of interpretation, the explanatory memorandum forms part of the context in which s 4(1)(j) is to be interpreted. It is not, however, part of the Charter. The proper interpretation of the statutory provision is not governed by extraneous materials, including those to which reference is permitted under the modern approach to statutory interpretation, and the words used in such materials 'must not be substituted for the text of the law'.[177]

116 In Re Kracke v Mental Health Review Board,[178] I pointed to several difficulties which were inherent in the reference in the explanatory memorandum to 'courts when acting in a quasi-judicial capacity'. Nothing which the Attorney-General has submitted in the present case has persuaded me that my analysis was incorrect.

117 The most fundamental difficulty is that 'quasi-judicial' is not a category which fits into the framework of legislative, judicial and administrative capacities on which the definition of public authority in s 4(1) is based (see also s 6(2)). As Hollingworth J held in Sabet v Medical Practitioners Board,[179] the relevant distinction in s 4(1) of the Charter is between acting in an administrative as against a judicial or legislative capacity in the public law sense. Whether a court or tribunal is acting quasi-judicially provides little or no insight into the legal character of their function in that sense and is a distraction. As I held in Re Kracke and Mental Health Review Board[180] by reference to authorities of long standing, a administrative decision made by a decision-maker who is required to act judicially remains administrative in character.

118 In my view, safer assistance in ascertaining the proper interpretation of s 4(1)(j) is provided by the note under that provision, which is:

Note: Committal proceedings and the issuing of warrants by a court or tribunal are examples of when a court or tribunal is acting in an administrative capacity. A court or tribunal also acts in an administrative capacity when, for example, listing cases or adopting practices and procedure.

119 Under s 36(3A) of the Interpretation of Legislation Act, this note is part of the Charter. Unlike the explanatory memorandum, the note is not just part of the context in which the meaning of the provision is ascertained. Being part of the provision which it explains, the note and provision must be read together in the process of interpretation. The note refers to committal proceedings, issuing warrants, listing cases or adopting practices and procedures. These functions, when performed by a court or tribunal (as the case may be), are administrative in nature in the public law sense, reflecting the legal categories on which the definition of public authority in s 4(1) is based.[181]

120 The concept of a 'quasi-judicial' function was employed by the courts as a threshold test for determining (for example) whether a tribunal was obliged to observe the rules of natural justice. As courts acting judicially were obliged to observe those rules, it was then thought necessary by analogy that only 'quasi-judicial' tribunals would also be so obliged. For the rules of natural justice to apply to a tribunal, the courts searched for a 'super-added duty to act judicially'.[182] So, in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation,[183] whether the commissioner was bound to follow the rules of natural justice depended on whether the commissioner was an 'administrative body ... designed to proceed ... in a quasi-judicial manner'[184] or had 'quasi-judicial'[185] functions.

121 The term 'quasi-judicial' has a certain utility in some contexts for designating bodies which are not courts but which have court-like functions. For example, in the international context, we have seen the Human Rights Committee established under the International Covenant on Civil and Political Rights being described as a quasi-judicial organ. But in common law jurisdictions in the administrative law context, this category has been discarded because it was seen to be formalistic,[186] distracting[187] and not directed at the real issues,[188] as its application in the context of the Charter would certainly be, in my view. For the English authorities, it is sufficient to refer to Ridge v Baldwin[189] and Durayappah v Fernando.[190] In Australia, Kioa v West[191] (among other cases) established that the application of the rules of natural justice did not depend on whether the decision-maker was acting in a quasi-judicial manner, for the duty applied generally 'in the making of administrative decisions which affect rights, interests and legitimate expectations', subject to statutory exclusion.[192]

122 There is no support elsewhere in the explanatory memorandum for the reference to 'quasi-judicial' capacities as part of the exclusion in s 4(1)(j). The second reading speech does not refer to the limitation in these terms. The form of s 4(1)(j) (with the note) in the Charter is that which was recommended in the draft legislation proposed by the consultative committee.[193] The report of the committee said it was necessary to exclude courts exercising judicial power from the definition for federal constitutional reasons.[194] As the Victorian Civil and Administrative Tribunal, and potentially other tribunals, can also exercise judicial power,[195] tribunals were probably included in the draft definition for the same reason. None of this supports the proposition that tribunals exercising administrative functions quasi-judicially were intended to be excluded from the definition of a public authority.

123 In my view, when acting in an administrative capacity in its original and review jurisdiction, the tribunal is a public authority under s 4(1)(b) of the Charter and bound by s 38(1) to act compatibly with human rights (subject to contrary law: s 38(2)). The question which now must be determined is whether the tribunal is acting in an administrative capacity when exercising jurisdiction under the Guardianship and Administration Act, particularly when making administration orders.

124 In Re Kracke v Mental Health Review Board,[196] I examined the authorities on the legal character of powers exercised by courts and tribunals. From that analysis, the following general principles may be discerned:

it is necessary to determine the capacity in which the court or tribunal is acting when exercising the particular power[197]
it is a legislative function to create new rules of law having general application while it is an administrative function to apply such rules to particular cases;[198] it is a judicial function to make binding determinations of existing legal right, while it is an administrative function to exercise discretionary authority to make orders creating new rights and obligations, especially on the basis of policy considerations[199]
history, precedent and legal tradition operate to characterise certain powers as plainly judicial, including the determination of criminal guilt and actions in contract and tort[200] and, generally, actions for the enforcement of existing legal rights[201]
making a binding and authoritative determination of legal rights and duties according to existing legal principles is judicial;[202] but, as a necessary incident of acting in an administrative capacity, courts and tribunals can also make final decisions between contending parties in ways that affect their legal rights and duties[203]
certain powers may be administrative or judicial in character, depending on whether it is a court or tribunal which is exercising the power, and its purpose;[204] the mechanism for enforcing the decision, determination or order may be a guide in borderline cases[205]

125 Applying these principles to the present case, we have seen that the jurisdiction of the tribunal under the Guardianship and Administration Act is original jurisdiction for the purposes of the Victorian Civil and Administrative Tribunal Act. It is a jurisdiction to make guardianship and administration orders, which are orders for the appointment of substitute decision-makers for persons with a disability. The power to make such orders is discretionary in nature and involves the application and consideration of protective criteria, being the core principles and the personal autonomy of the person. The powers are subject to rehearing on the merits and also to regular reassessment. The Public Advocate has statutory protective functions and appearance rights in the tribunal. The powers of the tribunal are similar in nature to the powers of the Mental Health Review Board (when exercised in the board's original jurisdiction) and the tribunal (when exercised in the tribunal's review jurisdiction) under the Mental Health Act, which are administrative.[206] In my view, the functions of the tribunal under the Guardianship and Administration Act to appoint guardians and administrators are administrative in the public law sense and the tribunal performs those functions in its original jurisdiction in that capacity.

126 The Attorney-General relies on the judicial nature of the powers of the Federal Court of Australia to make decisions in its welfare jurisdiction with respect to the guardianship of children.[207] These powers correspond to the parens patriae jurisdiction of the state courts in relation to disabled persons.[208] By analogy, submits the Attorney-General, powers of that nature, exercised by the tribunal in its guardianship and administration jurisdiction, are also judicial.

127 The nature of the traditional parens patriae jurisdiction of the courts provides no support for characterising as judicial the powers of the tribunal under the Guardianship and Administration Act. By authorities which I recently analysed in Secretary, Department of Human Services v Sanding,[209] a proceeding in the parens patriae jurisdiction of a court is not 'an ordinary lis between parties'[210] because the paramount consideration is the welfare of the child. Such proceedings are 'essentially non-adversarial, non-party proceedings'.[211] In J v Lieschke,[212] Wilson J said neglect proceedings under the child welfare legislation in New South Wales were 'neither civil nor criminal in nature. They are therefore sui generis'.[213] So too, in Reynolds v Reynolds,[214] Mason J said the jurisdiction of the Family Court of Australia in custody cases was 'very different from ordinary inter partes litigation'.[215]

128 In Scott v Scott,[216] the House of Lords made the point that a judge in this jurisdiction was really acting as an administrator. The leading judgment was delivered by Viscount Haldane LC. Cases concerning wards of court and lunatics, his Lordship said, were not standard cases, for this reason:

The judge who is administering their affairs, in the exercise of what has been called a paternal jurisdiction delegated to him from the Crown through the Lord Chancellor, is not sitting merely to decide a contested question. His position as an administrator as well as judge may require the application of another and overriding principle to relegate his procedure in the interests of those whose affairs are in his charge. [217]

His Lordship went on to describe the jurisdiction of the court in such cases as 'parental and administrative':

In the two cases of wards of Courts and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction. [218]

129 It is clear from these authorities that powers of the kind conferred on the tribunal by the Guardianship and Administration Act are not of their nature plainly judicial. Such powers (or at least some of them) might be capable of being characterised as judicial or administrative, depending on the other indicia, and especially whether the powers are being exercised by a court or a tribunal. In the present case, the other indicia point strongly to the conclusion that the guardianship and administration jurisdiction of the tribunal is administrative in nature, though it be original and not review jurisdiction, and I so conclude. When exercising those powers, the tribunal is therefore a public authority under the Charter under s 4(1)(b) and (j) and bound by s 38(1) of act compatibly with human rights (subject to contrary law: s 38(2)). Question 2(a)(i) in the Charter notice will therefore be answered yes.

Convention on the Rights of Persons with Disabilities

130 Another source of human rights protection should be noted. Following the United Nations Declaration on the Rights of Mentally Retarded Persons, to which Brennan J referred in Marion's Case, the United Nations made the Convention on the Rights of Persons with Disabilities.[219] As Vickery J said in Nicholson v Knaggs,[220] the convention marks a 'paradigm shift' in approach to persons with disabilities. His Honour describes the shift thus:

It reflects a movement from treating persons with disabilities as objects of social protection towards treating them as subjects with rights, who are capable of claiming and exercising that rights and making decisions based on free and informed consent as active members of society.[221]

131 This convention, to which Australia is a party,[222] states general principles which may be of importance to the application of the Guardianship and Administration Act in the contemporary setting, as the tribunal correctly recognised in the present case.

132 The first paragraph of the preamble to the convention, like the Charter, recognises the 'inherent dignity and worth and the equal and inalienable rights of all members of the human family' (paragraph (a)). The preamble (paragraphs (b) and (d)) goes on to refer to the International Covenant on Civil and Political Rights on which the Charter is based, and other relevant instruments and principles. By art 1, the purpose of the Convention is to 'promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.'

133 The first principle of the convention is '[r]espect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons' (art 3).[223]

134 Concerning measures relating to the exercise of legal capacity by persons with a disability, the convention requires the state party to provide for:

appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests. [224]

135 As the ownership of property and the control and management of financial affairs, the convention requires the state party to ensure:

the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property. [225]

136 The convention recognises the rights of persons with a disability to live independently in the community, and specifically 'to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement (art 19(a)). It recognises their right to respect for home and the family (art 23).

137 Such is the legal framework within which the tribunal made its decision to appoint the administrator. Now to the order which was made and the basis for it.

138 On 22 May 2009, the program manager of Melbourne Health applied to the tribunal for guardianship and administration orders under ss 19 and 43 of the Guardianship and Administration Act. The application gave details of Patrick's disabilities as chronic schizophrenia and delusional disorder. It said his income was the disability support pension and his expenditure consisted of a fortnightly housing repayment. His assets were described to be a 70% share in his home, which he owned with the Director of Housing.

139 The application described the issues to be determined in these terms:

Guardian - [Patrick] insists that he doesn't have a mental illness, he wants to be discharged of medication, no area mental health service to be involved. He wants to go home - he is unable to care for himself at home, doesn't cook or attend to domestic tasks, poor personal care - refuses treatment for physical ailments - refuses all treatments which would enable him to not have pain from back etc.

140 It attached a letter to the tribunal from Patrick's treating psychiatrist, which said:

[Patrick] is a 56 year old man with 18 year history of Psychiatric Service involvement, dating from 1991. His diagnosis currently is Delusional Disorder. During his long history he has also had a diagnosis of, Schizoaffective and chronic treatment resistant schizophrenia.

During his 18 years of illness he has had 106 admissions to mental health facilities. This resulted from his almost complete lack of insight and consequent poor compliance with medication. [Patrick] has been unwilling to adhere to any treatment regime, particularly following discharge. He does not consider that he has any form of mental illness, does not see the need for medication and refuses any involvement from the area mental health service. As a result of his delusional ideas he spends much of his day seeking legal avenues to solve his problems; this includes spending large amounts of money on faxing, getting taxis to and from hospital to attend government facilities that he also believes employ him. His condition has deteriorated over recent years, and this deterioration has been associated with impaired ability to adequately care for himself, to meet his own basic needs and to participate meaningfully in the community.

[Patrick] is participating in the Shared Home Ownership arrangement with the Director of Housing, Home Loans Programme. As [Patrick] spends significant periods away from home when hospitalised, his home remains vacant. When at home he has no food in his cupboards, and spends a large portion of his pension on take away foods.

[Patrick's] mental health impacts on his ability to make informed choices regarding his physical and mental health.

141 On 27 August 2009 the tribunal dismissed the application for the guardianship order. It was not pressed because Patrick was the subject of an involuntary treatment order under the Mental Health Act. The tribunal granted the application for the administration order and appointed State Trustees to be the administrator. It was in similar terms to the order which is under appeal.

142 On the same day, Patrick applied under s 60A(1) for a rehearing of the application for the administration order. Under s 60D(2), the tribunal stayed the operation of the order pending the determination of the rehearing application.

143 The tribunal commenced the rehearing application in September 2009. The parties were Patrick, Melbourne Health and State Trustees. The proceeding was adjourned to enable Patrick to obtain independent psychiatric assessment and Melbourne Health to update its existing assessments. The tribunal was not then satisfied that the existing reports addressed the question of Patrick's capacity to manage his financial affairs. The final hearing was held on 19 February 2010.

144 The tribunal received substantial written and oral evidence, of which the following is a summary.

145 The written evidence before the tribunal consisted of a medical report dated 6 October 2009 from a consultant independent psychiatrist (exhibit BS-4), a medical report from a consultant treating psychiatrist dated 28 July 1998 (exhibit BS-5), a neurological assessment dated 29 November 2006 (exhibit BS-6), an occupational therapy assessment dated 8 October 2008 (exhibit BS-7), a memory assessment dated 28 January 2009 (exhibit BS-8), a social worker's assessment report dated 18 November 2009 (exhibit BS-9), an occupational therapy assessment dated 20 November 2009 (exhibit BS-10), a report from Patrick's present consulting treating psychiatrist (co-written with a senior registrar dated 1 December 2009) (exhibit BS-11) and the report of the Office of the Public Advocate dated 24 July 2009 (exhibit BS-12).

146 At the hearing, oral evidence was given by Patrick's consultant treating psychiatrist, the social worker, the program manager of the hospital who was the applicant for the administration order, the consultant independent psychiatrist and Patrick.

147 I have read and considered all of the evidence before the tribunal. For the purposes of these reasons, it is sufficient that I set out the following.

148 In oral evidence, the program manager told the tribunal the treating team obtained extra funding to assist Patrick in the community. There was a trial discharge to a supported residential service ('SRS'). A community treatment order was made with a residential condition to live at this service. Patrick refused to participate. He would not even get into the car taking him there. He became extremely violent and abusive towards staff, including her. He was 'just, yes, just outrageous'. They took all his belongings to the SRS. They told him to make his own way there, then contacted the police. The police found him at home. They took him to the SRS, where he upset some clients and staff and went home again. The SRS contacted the hospital they could no longer accept him. The community treatment order had to be revoked and he was picked up at home and taken back to the hospital. He came voluntarily.

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