PARTIES: WARNER, Lisa, in her capacity as the PUBLIC GUARDIAN

APPEALED FROM: KKQ (Guardianship Directions) [2010] TASGAB 21

Mental Health - Guardians, committees, administrators, managers and receivers - Other matters - Power to direct a guardian in respect of any matter - Extent of power.

Guardianship and Administration Act 1995 (Tas), s31(4).

Statutes - Acts of Parliament - Statutory powers and duties - Construction - Conferral and extent of power - Guardianship and Administration Board - Power to direct a guardian in respect of any matter - Extent of power.

Guardianship and Administration Act 1995 (Tas), s31(4).

Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245; Gerlach v Clifton Bricks Pty Limited [2002] HCA 22; (2002) 209 CLR 478, referred to.

Judgment Number: [2011] TASSC 31

LISA WARNER in her capacity as the PUBLIC GUARDIAN

1 This is an appeal from a decision of the respondent, the Guardianship and Administration Board ("the Board"), pursuant to the Guardianship and Administration Act 1995 ("the Act"), s76(2)(a). It has been instituted as a result of a most unfortunate conflict between the Public Guardian - the appellant - and the Board. Rightly or wrongly, the Board has formed the view that, in a great many respects, the discharge of the Public Guardian's duties by the appellant and her staff has been highly unsatisfactory. The Board has a power to give advice or directions to guardians, including the Public Guardian, under the Act, s31. Last year the Board decided that it would formulate a series of standard directions, and give those directions to the Public Guardian every time she was appointed as a person's guardian, unless it decided in relation to a particular case that some other course was preferable. On 2 November 2010, after hearing an application relating to an unfortunate individual identified as "KKQ", the Board ordered that the Public Guardian be appointed as that person's guardian, with limited powers, and made other orders, including an order "That the Standard Directions to a Guardian issued 2 November 2010 shall apply with respect to this order". The appellant has appealed from the order giving the standard directions. Apart from Direction 7.1, which requires her to provide the Board with an annual report about KKQ, she contends that all the directions are ultra vires.

2 Under the Act, s76(2)(a), an appeal from a determination of the Board may be brought on a question of law as of right. Under s76(2)(b), an appeal may be brought on any other question with leave of the Court, but no such leave has been sought. I am therefore required to determine only whether, as a matter of law, the various standard directions were, or were not, directions that s31 empowered the Board to give. No question arises as to whether any of the directions were "unreasonable or plainly unjust" in the sense in which those words were used in House v R [1936] HCA 40; (1936) 55 CLR 499 at 505. Nor was it argued that any of the directions were so unreasonable that, in the sense discussed in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, they did not constitute a valid exercise of the Board's statutory power.

3 Section 31, which confers powers to give directions to guardians, reads as follows:

"31 Advice or directions as to guardianship orders

(1) A guardian may apply for advice or direction by the Board on any matter relating to the scope of the guardianship order or the exercise of any power by the guardian under the guardianship order.

(2) The Board may require notice of an application under subsection (1) to be given to any person that the Board directs and may exercise its powers under this section without a hearing.

(3) The Board may -

(a) approve or disapprove of any act proposed to be done by the guardian; and

(b) give such advice or direction as it considers appropriate; and

(c) vary the guardianship order or make any other order that it could have made on the original application.

(4) The Board of its own motion may direct, or offer advice to, a guardian in respect of any matter.

(5) A guardian who contravenes a direction given to him or her under this section is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units."

4 In giving the impugned directions, the Board relied on s31(4). It is common ground that that subsection must not be given a literal interpretation. Parliament plainly did not intend that the Board should have the power to give a guardian a direction in respect of literally "any matter", regardless of the subject-matter of the direction or the nature of the direction. Such an interpretation would be absurd. It is therefore necessary to give s31(4) a restricted meaning. The parties disagree as to how restricted a meaning it should be given.

5 The appellant contends that the subsection should be given a narrow interpretation, particularly since any contravention of a s31(4) direction amounts to an offence under s31(5). If the impugned directions are valid, and the Public Guardian contravenes any one of them, she can be prosecuted in the Magistrates Court and, on conviction, fined up to $2,600. Counsel for the Board submitted that s31(4) should be given a wide interpretation. Counsel for both parties confessed that they were unable to suggest any verbal formula defining the limits of the power to give directions under s31(4).

6 In order to determine the scope of the power to give directions under s31(4), it is necessary to consider the relevant principles of statutory interpretation. It is necessary to consider the purpose and object of the Act as a whole, and of s31 in particular: Acts Interpretation Act 1931, s8A. It is also necessary to consider s31 in the context of the Act, and the history of the relevant legislation. In respect of some of the impugned directions, it will be necessary to consider what provisions Parliament made in the Act in relation to the matters to which individual directions relate.

7 The Board's standard directions are based on a document entitled "National Standards of Public Guardianship" dated 7 October 2009. That document was produced by the Australian Guardianship and Administration Council, which is a voluntary professional body that represents Australian government agencies with responsibilities relating to the guardianship of adults. It is clear from the nature of that document that it was intended to set out policy objectives. There is nothing about it to suggest that it was intended to be used as the basis for the exercise of any regulatory power.

8 The long title to the Act is "An Act to enable persons with a disability to be represented by a guardian or administrator and to provide for medical and dental treatment for persons with a disability". The objects of the Act are stated in s5, as follows:

(a) to establish a Guardianship and Administration Board; and

(b) to enable the making of guardianship orders and administration orders; and

(c) to make better provision for the authorization and approval of medical and dental treatment for persons with a disability who are incapable of giving informed consent to any such treatment; and

(d) to ensure that persons with a disability and their families are informed of, and make use of, the provisions of this Act."

9 The Act makes provision for individuals with disabilities to be represented by guardians and by administrators. The primary role of the administrator is to have "the general care and management of the estate of the represented person": s56(1)(a). The Act provides for guardians either to be "full" guardians, with full guardianship powers, or "limited" guardians, with limited guardianship powers. Under s25(1), a full guardian has all the powers and duties in respect of the represented person that a parent has in respect of his or her child. In particular, by virtue of s25(2), a full guardian has powers to decide where the represented person is to live, and with whom; to decide whether the represented person should be permitted to work, and, if so, in what work, and for whom; to restrict or prohibit visits in certain circumstances; and, within limits, to consent to "health care". Under s26(1), a limited guardian has one or more of the powers and duties which are conferred by the Act on a full guardian. The Board decides which powers and duties a limited guardian will have. Clearly the role of an administrator relates to the represented person's property, but the role of a guardian relates to other aspects of the person's life.

10 The Act provides for guardians to be appointed in two ways:

•

Under s20, the Board may appoint full guardians and limited guardians. Section 21 goes on to provide that it may appoint any person over the age of 18 years as a guardian provided that person consents, and provided it is satisfied that he or she will act in the best interests of the represented person, is not in a position of actual or possible conflict of interests, and is suitable to act as the person's guardian.

•

Under s32, any adult may appoint one or more persons to be his or her "enduring" guardians. Under s32(5), subject to any condition specified in the instrument of appointment, the appointees may exercise the powers of guardians "if the appointor subsequently becomes unable by reason of a disability to make reasonable judgements in respect of matters relating to his or her personal circumstances". Unless and until such a disability eventuates, they have no powers.

11 Section 14 requires persons to be appointed as the Public Guardian and as the Deputy Public Guardian. Although the Act does not expressly say so, one role of the Public Guardian is to act as a guardian of last resort. That is to say, when a person with a disability is in need of a guardian, and there is no relative, friend or acquaintance who appears to be willing and suitable to be appointed, the Public Guardian is likely to be appointed. According to the Board's decision in this case, it appoints the Public Guardian in 84 per cent of applications for the appointment of a guardian.

12 The Public Guardian has a number of functions other than acting as a guardian when so appointed. Most of her functions are listed in s15(1), which reads as follows:

"(1) The Public Guardian has the following functions:

(a) to foster the provision of services and facilities for persons with a disability;

(b) to support the establishment of organizations which support any such persons;

(c) to encourage the development of programmes that support any such persons (including advocacy programmes, educational programmes and programmes to encourage persons to act as guardians and administrators);

(d) to promote, speak for and protect the rights and interests of any such persons;

(e) to deal, on behalf of any such persons, with persons or bodies providing services;

(f) to represent any such persons before the Board;

(g) to investigate, report and make recommendations to the Minister on any matter relating to the operation of this Act;

(h) to act as a guardian or administrator when so appointed by the Board;

(j) to give advice on the powers that may be exercised under this Act relating to persons with a disability as to the operation of this Act generally and on appropriate alternatives to taking action under this Act;

(k) any other function assigned to the Public Guardian by any other Act or law."

13 In addition to those functions, the Public Guardian is given functions by s17. Under s17(1), she may investigate complaints and allegations concerning the actions of a guardian, an administrator, or a person acting or purporting to act under an enduring power of attorney. Under s17(2), if requested to do so by the Board, the Public Guardian must investigate and report to the Board in relation to a matter that is the subject of an enquiry before the Board.

14 Under s15(3), the Deputy Public Guardian has the functions of the Public Guardian during any illness, absence or vacancy in her office. By virtue of s15(6), neither the Public Guardian nor the Deputy Public Guardian is subject to the control or direction of the relevant Minister in the performance of their functions under the Act. Section 18 empowers the Public Guardian to delegate any of her functions or powers to a member of her staff.

15 The Board has a supervisory role in relation to the activities of all guardians. Under s66(1), it must consider a written report on the circumstances of each person who is subject to a guardianship order at least annually, and for that purpose may require details to be provided by the guardian. Under s66(2), it may require a guardian to furnish a written report on the person's circumstances. Under s67, it may hold hearings to review guardianship orders, and may do so of its own motion. On such a review, s68 empowers it to vary or continue the order, to impose conditions or requirements, and to make further orders. These powers are in addition to the powers to give advice and directions to guardians pursuant to s31.

16 Under s9(1), the staff of the Board comprises a registrar and other officers. Under s9(2), they are subject to the general control and direction of the President of the Board. However the Act does not make the Public Guardian, the Deputy Public Guardian or the Public Guardian's staff subject to the general control and direction of either the President or the Board. It follows that the Board has no greater authority over the Public Guardian than it has over any other guardian, and that it has no direct authority over the Public Guardian's staff.

17 In view of the provisions of ss66, 67 and 68, it is clear that the Board has an ongoing role in relation to the supervision of all guardians in relation to their powers and duties. It may act of its own motion by requiring a guardian to furnish a report under s66(2), by holding a hearing to review a guardianship order under s67, or by giving a guardian advice or directions under s31(4). In my view the fact that the Board may act of its own motion in any or all of these ways is of no relevance to the question whether the scope of the power to give directions under s31(4) is broad or narrow. It is simply a consequence of the nature of the Board as a modern statutory authority with a supervisory role. Because of our adversary system of justice, courts are not normally empowered to require reports, reconsider earlier orders, or give directions except when some sort of order or judgment is sought by a litigant. The Board, although it is a quasi-judicial authority, and is at times required to act judicially, stands outside the adversary system of justice. The interests of individuals to whom guardianship and administration orders relate will sometimes be served by the Board having the power to act of its own motion, and Parliament has given it powers accordingly. It does not necessarily follow that any of the legislative provisions conferring those powers should be interpreted widely or narrowly.

18 Under s20(1), when the Board appoints either a full guardian or a limited guardian, its order "may be subject to such conditions or restrictions as the Board considers necessary". By giving the Board the power to impose conditions and restrictions, Parliament provided the Board with a mechanism whereby, at the beginning of a guardian's term of office, and for the duration of that term of office, it can restrict the exercise of a guardian's powers. That suggests that the separate conferral, under s31(4), of a power to give directions or advice, was intended to serve a different purpose, and that the s31(4) powers should be construed as powers to give directions and advice as to matters arising during a guardian's term of office.

19 There does not appear to have been any legislation in Tasmania relating to the guardianship of adults with disabilities prior to 1920. When this Court was established in 1824, the Charter of Justice conferred jurisdiction in respect of "natural fools" and "lunatics" in the following paragraph:

"AND We do hereby authorize the said Supreme Court of Van Diemen's Land to appoint guardians and keepers of infants and their estates according to the order and course observed in that part of our United Kingdom called England and also guardians and keepers of the persons and estates of natural fools and of such as are or shall be deprived of their understanding or reason by the act of God so as to be unable to govern themselves or their estates - which We hereby authorize and empower the said Court to inquire, hear, and determine by inspection of the person or such other ways and means by which the truth may be best discovered and known."

20 In England at that time, the Lord Chancellor had jurisdiction over idiots and lunatics. His authority derived from the Crown as parens patriae. Any order that he made in the exercise of that jurisdiction could be enforced by attachment as an order of the Court of Chancery. See Shelford, Lunatics, Idiots and Persons of Unsound Mind (London, 1847), at 9, 15-19. I have been unable to find any cases about the limits of the power to give directions to the committees or guardians of idiots and lunatics, but it is hardly surprising that there would be no cases reported as to any limits to the Royal Prerogative.

21 The Tasmanian Parliament enacted pioneering legislation in the form of the Mental Deficiency Act 1920. According to the commentary in the 1936 Reprint of Statutes (vol 5, page 427) it was " ... the first legislation in Australia dealing solely with persons who, although mentally deficient or feeble-minded, are not classified as lunatic or insane". Under s24(3) of that Act, if a "judicial authority" was satisfied that a person was a "defective", he could, amongst other things, make an order "appointing a suitable person to be his guardian". Under s28(2), such an order conferred on the guardian "such powers as would have been exercisable if he had been the father of the defective, and the defective had been under the age of fourteen years". That subsection also empowered the guardian "to warn persons against supplying intoxicants" to the defective. Under s49, the powers and duties of the Mental Deficiency Board included the exercise of general supervision, protection and control over defectives, and the visiting of persons under guardianship, either by Board members or officers or persons authorised in that behalf. That Act contained no provision for the giving of directions or advice to guardians.

22 The 1920 Act was repealed and replaced by the Mental Health Act 1963. Section 8 of that Act created a board called the Guardianship Board. Under s22, guardianship applications could be made to that board. Under s22(2), the proposed guardian could be either the board or any other person. Under s23(1), when the board accepted an application for it or another person to be appointed as a guardian, the guardian had "all such powers as would be exercisable ... in relation to the patient if he were the father of the patient and the patient had not attained the age of 14 years." The 1963 Act did not contain any provision as to directions by the board to other persons acting as guardians. However such a provision was to be found in the Mental Health (Hospital and Guardianship) Regulations 1964, reg14(d), which read as follows:

(d) shall, in exercising the powers and duties conferred or imposed on him by the Act or these regulations, comply with such directions as the Board thinks appropriate at any time to give him ...".

23 There was nothing in the 1963 Act or the 1964 regulations that made it an offence for a guardian to contravene a direction given under reg14(d). As far as I know, there were no cases about the extent of the power to give directions under that provision.

24 Section 86(1) of the 1963 Act empowered this Court to "appoint as the committee of the estate of a patient the Public Trustee or some other person specified in the order". Under s85(1), the court had the power to "make orders or give directions or authorities" as to various matters relating to the property of a patient, and various business, partnership, contractual and legal matters concerning patients. Again, as far as I know, there were no cases about the scope of the power to give directions.

25 The 1963 Act was repealed and replaced by the 1995 Act. It contained a number of innovations. It created the offices of Public Guardian and Deputy Public Guardian. The Guardianship Board was replaced by the Guardianship and Administration Board. The new Board, unlike the old one, did not act as the guardian of individuals. The Court ceased to appoint committees. The new Board began appointing administrators instead. The new Board was given powers to give directions to guardians, enduring guardians, and administrators by ss31, 35 and 61 respectively. It was empowered to do so of its own motion: ss31(4), 35(4) and 61(4). For the first time, provisions were included creating offences as to the contravention of directions: ss31(5), 35(5) and 61(5).

Statutory powers to give directions in other contexts

26 Legislative provisions enabling fiduciaries to apply for directions as to the discharge of their duties are fairly common. Most Australian mainland jurisdictions have legislation giving a trustee the right to apply to a court for directions or advice: Jacobs on Trusts, 7th ed, par2134. The Corporations Act 2001 empowers receivers and liquidators to apply to the Court for directions: ss424, 479(3). No doubt there are similar provisions in other statutes. Such provisions exist so that applications can be made, when appropriate, in cases of doubt or difficulty. Where such a provision exists in relation to trustees, a trustee is not obliged to take any risks by making a decision in a doubtful case, and is therefore entitled to approach the Court for the determination of a beneficiary's rights, or for authorisation to perform a necessary act, or for advice: Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 at pars[54] - [75]. That case concerned the Trustee Act 1925 (NSW), s63(1), which permitted a trustee to apply to the Supreme Court of New South Wales "for an opinion advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument." Gummow A-CJ, Kirby, Hayne and Heydon JJ confirmed at par[56] that that subsection conferred on the court a power to give advice which was not subject to any implied limitations. At par[55], their Honours cited with approval the following statement of the High Court in Owners of "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404 at 421:

"It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words."

27 In my view it is not appropriate to apply that statement to the interpretation of s31(4). The express words of that subsection contain no limitations. It would be absurd to interpret them literally. Interpreting them must therefore involve the making of implications and/or the imposition of limitations.

28 In interpreting s31(4), a little assistance may be gained from considering some cases relating to other situations in which statutory powers to give directions have been conferred. In Re Koczorowski [1974] Qd R 177, a beneficiary under a trust sought directions from the Supreme Court of Queensland to the trustees as to the exercise of their discretionary powers. At 183, Dunn J expressed the view that the Court should exercise its powers cautiously. His Honour referred to a line of authority concerning the supervisory jurisdiction over liquidators, receivers and trustees in bankruptcy. The approach taken in those cases was summarised by Street J (as he then was) in Duffy v Super Centre Development Corporation Ltd [1967] 1 NSWR 382 at 383 as follows:

"The Court will not concern itself with minor and ordinary decisions that he [a receiver] may have made: it must be shown that there is a decision of real significance in the affairs of the company and as to which there are real and substantial grounds for questioning its correctness before the Court will embark upon an investigation of what, if any, directions ought to be given."

29 Those cases related to questions as to when a court should, not could, exercise its powers. However they illustrate the proposition that statutory powers to give directions are generally conferred with a view to their being used only in unusual situations, involving real doubt or difficulty. That suggests the statutory provisions empowering the Board to give directions and advice to guardians and administrators, including s31(4), were intended to be invoked when directions or advice were desirable in unusual situations of doubt or difficulty, rather than for the purpose of exercising control in relation to routine guardianship matters.

The scope of s31(4)

30 The words of s31(4) must be read with and accommodated to the rest of the section: Taylor v Public Service Board (NSW) [1976] HCA 36; (1976) 137 CLR 208 at 213. It is significant that s31(1) allows a guardian to apply for direction by the Board "on any matter relating to the scope of the guardianship order or the exercise of any power by the guardian under the guardianship order". There is no reason to think that Parliament intended the power of the Board to give directions to a guardian of its own motion under s31(4) was to apply to a narrower range of subject matter than s31(1). I accept that s31(4) also empowers the Board to give a guardian a direction, of its own motion, relating to any question as to the ongoing appropriateness of the guardianship itself. The Public Guardian made a submission to the Board to that effect in the proceedings concerning KKQ, and her submissions were adopted by her counsel during the hearing of this appeal.

31 Whilst I accept that s31(4) empowers the Board to give directions of its own motion on matters relating to the scope of the guardianship order, the exercise of a guardian's powers pursuant to the order, and the ongoing appropriateness of the order, it does not follow that the power conferred by that subsection is otherwise unlimited. In my view that power may not be exercised in a manner, or for a purpose, that was not intended by Parliament when the Act was passed.

32 There is a line of authority relating to statutes conferring general powers to make regulations to the effect that such a power may not be used inconsistently with the intention of the legislature. In Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 at 250, Dixon CJ, Williams, Webb and Fullagar JJ said:

"... such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorize the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends."

33 That passage was adopted with approval by the Privy Council in Utah Construction & Engineering Pty Ltd v Pataky [1966] AC 629 at 640; by Barwick CJ, Menzies, Windeyer, Owen, Walsh and Gibbs JJ in Willocks v Anderson [1971] HCA 28; (1971) 124 CLR 293 at 298 - 299; and in R v Toohey; ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 by Gibbs CJ at 187 and Wilson J at 276.

34 There seems to be something of a shortage of authority as to whether or not those principles should also be applied in relation to statutory powers other than powers to make regulations. However some comments of a general nature, supporting the view that those principles are to be applied in other contexts, were made by Kirby and Callinan JJ in Gerlach v Clifton Bricks Pty Limited [2002] HCA 22; (2002) 209 CLR 478 at 503 - 504. That case concerned an interlocutory order dispensing with a jury for the trial of an action after the defendant had taken the appropriate steps to require a jury trial. There was a legislative provision that conferred an unfettered discretion on a judge to make such an order. The majority in the High Court, Gaudron, McHugh and Hayne JJ, held that the making of an order dispensing with a jury did not, without more, warrant ordering a new trial, and that a substantial wrong or a miscarriage of justice needed to be demonstrated before a new trial would be ordered. Kirby and Callinan JJ dissented on the basis that the judge who made the interlocutory order had given weight to a personal dislike of trial by jury in civil cases, and thus taken into account a consideration that was incompatible with the scheme of the applicable statute. In a joint judgment, they discussed an earlier case, Pambula District Hospital v Herriman (1988) 14 NSWLR 387, which concerned the factors relevant to the exercise of statutory discretion to order a trial without a jury. Speaking of the majority approach in Pambula, their Honours said at 503 - 504:

"That proposition says no more than that, where a discretion is conferred by statute, it must be exercised in accordance with the language by which it is conferred and to achieve the purposes for which the power has been granted. To talk of 'absolute' judicial discretions, at least where such discretions are conferred by an Australian statute, involves a contradiction in terms. Absolute discretions are a form of tyranny.

All repositories of public power in Australia, certainly those exercising such power under laws made by an Australian legislature, are confined in the performance of their functions to achieving the objects for which they have been afforded such power."

35 Although that passage appears in a dissenting judgment, there is nothing in it that is inconsistent with the majority judgment in that case or contrary to principle. In my view, when a statute confers a power in general terms, without any legislative fetter, the power may only be exercised for a purpose for which it was conferred, and may not be exercised so as to achieve the legislature's purpose by an unintended means. It follows that the power to give directions that was conferred by s31(4) is limited not only by the subject-matter of the legislation, but also by "the plan which the legislature had adopted to attain its ends".

36 In 1995, when Parliament replaced the former Guardianship Board with the present Board and a Public Guardian, it plainly did not intend that the new Board should have the power to determine how the Public Guardian's office should be run, or how the Public Guardian was to perform her functions and exercise her powers in the ordinary run of cases. Otherwise the Public Guardian and her staff could have been made part of the Board's staff.

37 It is clear that the legislature intended the Public Guardian to have considerable autonomy. It is significant that, by virtue of s15(6), she is not subject to the control or direction of the relevant Minister in the performance of her functions under the Act. It is also significant that the staff of the Board are subject to the general control and direction of the President of the Board under s9(2), but that the Public Guardian, her deputy, and her staff are not. Whether the Public Guardian is appointed as a full guardian, with all the powers of a parent under s25(1), or as a limited guardian, with limited powers under s26, there is very little in the Act to fetter her discretion as to how she chooses to exercise her power and perform her functions.

38 Certain principles have to be observed by virtue of s6 - adopting the means that are the least restrictive of a person's freedom, promoting the best interests of the individual concerned, and giving effect to that person's wishes if possible. However it is left to the Public Guardian to decide how best to give effect to those principles when she exercises the powers of a guardian.

39 Under s27(1) every guardian, including the Public Guardian, is required to act at all times in the best interests of the person under guardianship. Section 27(2) goes on to specify what that requires. That subsection reads as follows:

"(2) Without limiting subsection (1), a guardian acts in the best interests of a person under guardianship if the guardian acts as far as possible -

(a) in consultation with that person, taking into account, as far as possible, his or her wishes; and

(c) in such a way as to encourage that person to participate as much as possible in the life of the community; and

(d) in such a way as to encourage and assist that person to become capable of caring for himself or herself and of making reasonable judgements relating to his or her person; and

(e) in such a way as to protect that person from neglect, abuse or exploitation."

Once again, it is left to the individual guardian, in this case the Public Guardian, to decide how best to give effect to the policy objectives.

40 The fact that a contravention of a s31(4) direction amounts to an offence under s31(5), punishable by conviction and fine, is a factor which, in my view, indicates that the power to give such directions should not be regarded as a broad power. There is a rule of statutory construction to the effect that, if the language of a penal statute remains ambiguous or doubtful after the application of the ordinary rules of statutory construction, "the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences": Beckwith v R [1976] HCA 55; (1976) 135 CLR 569 per Gibbs J (as he then was) at 576; Deming No 456 Pty Ltd v Brisbane Unit Development Corp Pty Ltd [1983] HCA 44; (1983) 155 CLR 129 per Mason, Deane and Dawson JJ at 145; Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 per Gibbs CJ, Mason, Wilson and Dawson JJ at 164. Of course there is no ambiguity in the wording of s31(4) but, since Parliament clearly did not mean the subsection to be taken literally, it can be said that there is doubt as to the scope of the power to give directions. To the extent that any doubt remains after applying the other ordinary rules of statutory interpretation, I think the fact that non-compliance with a direction constitutes an offence warrants taking as narrow a view as reasonably possible as to the scope of s31(4).

41 In Gerlach v Clifton Bricks Pty Ltd (above) at par[70], Kirby and Callinan JJ said (omitting footnotes):

"Judges within the integrated judicature of the Commonwealth are answerable to appeal and to judicial review. This does not mean that a discretionary power given to a judge, should be narrowly confined or hemmed about with restrictions and limitations, whether called principles or 'guidelines' or anything else. But it does mean that there are legal controls which it is the duty of courts to uphold when their jurisdiction is invoked for that purpose."

42 In its decision, the Board relied on that passage as authority for the proposition that its power to impose directions was "not narrowly confined or hemmed about with restrictions and limitations". However Kirby and Callinan JJ were talking about the situation when a discretion without any legislative fetter is conferred upon a judge, not a statutory authority. Different considerations apply when a discretionary power is given to a statutory authority, at least when it would be plainly inappropriate to give the words conferring the power a literal meaning. That is the situation that I have to consider. Whether the discretionary power should be interpreted as a broad one or a narrow one, and the extent to which it should be interpreted as hemmed about with restrictions and limitations, are matters that have to be decided by applying the ordinary rules of statutory interpretation. There is not even a rebuttable presumption in favour of a wide interpretation.

43 By virtue of the Acts Interpretation Act, s8A, an interpretation of s31(4) that promotes the purpose or object of the legislation must be preferred to an interpretation that does not do so. However I think there is very little scope for the application of s8A in this case. In my view the principal purpose of the legislation is to provide assistance and protection to individuals with disabilities. It cannot be said that that purpose will be better served if the Board has very wide powers, nor can it be said that that purpose will be better served if the Public Guardian has substantial independence from the Board. However interpreting s31(4) as not empowering the Board to give directions that are inconsistent with the scheme of the Act, or that seek to attain statutory objectives by means other than the means adopted by the Act to attain those objectives, seems to me to be consistent with the requirement imposed by s8A.

44 Having regard to the purpose, structure and background of the Act, to the usual nature and purpose of statutory powers to give directions to fiduciaries, and, to the extent that it may be significant, the presence of s31(5), I conclude that s31(4) should be interpreted as conferring on the Board a power to give directions to guardians that is subject to the following unstated limitations:

•

A direction may be given only in relation to a matter relating to the scope of the guardianship order, or the exercise of a power by the guardian under the guardianship order, or a question as to the ongoing appropriateness of the guardianship order itself.

•

Section 31(4) does not empower the Board to give directions as to administrative matters such as record-keeping, internal reviews, and the manner in which the guardian interacts with the represented person and others.

•

A direction may be given only in relation to a situation where a doubt or difficulty has arisen in relation to the guardianship of a person.

•

A direction may not be given in order to attain some objective by a means other than the means adopted by the Act to attain that objective. That is to say, a direction may not be given if it is inconsistent with the scheme of the Act.

•

A direction may not be given if it requires, or potentially requires, the guardian not to act in the best interests of the person under guardianship as required by s27.

45 Since none of the directions given in relation to KKQ relates to a situation where a doubt or difficulty has arisen in relation to her guardianship, it follows in my view that none of the impugned directions were validly given pursuant to s31(4), and that this appeal must fully succeed. However there are other bases upon which the appeal should succeed, in my view, in respect of the various directions. It is appropriate that I state my other reasons for considering them to be invalid. To do that, it is necessary to descend into detail, and to comment on the individual directions.

Direction 1 - Relationship with the represented person

"1 Relationship between the represented person and the guardian

1.1 The guardian is responsible for the establishment and maintenance of his or her relationship with the represented person.

1.2 As soon as possible after appointment, the guardian shall visit the represented person to explain the making of the order and the relationship between the guardian and the represented person.

(a) Where it is not possible to visit the represented person within 48 hours after appointment, the guardian shall, if the person is able to use a telephone, speak directly to the person by telephone and visit as soon as possible thereafter but not later than 5 calendar days.

(b) The guardian shall not make any decisions on the represented person's behalf until the guardian has visited the represented person unless there are circumstances of urgency that require an immediate decision to preserve the safety and security of the represented person.

(c) The guardian shall keep a record of the initial meeting with the represented person and the views expressed by the represented person.

1.3 As soon as possible after appointment, the guardian shall furnish the represented person with the following written information:

(b) The role of the guardian and the Office of the Public Guardian.

(d) The authority of the guardian in relation to the represented person.

(e) The customer service standards that the represented person may expect from the guardian.

(f) The right of the represented person to an interpreter in discussions with a guardian and how to request an interpreter in those discussions.

(g) How to request written reasons for a guardian's decision.

(h) How to make a complaint about a guardian's decision or to have a guardian's decision reviewed.

(j) Other complaints processes (eg Ombudsman, Health Care Complaints, Anti-Discrimination Commissioner etc).

(k) The ability to request records under the Right to Information Act 2009 and relevant provisions.

The information provided shall be made available in appropriate formats (large print, Braille, audio etc) on request to ensure that it is accessible to the represented person. Where the represented person is illiterate, in addition to providing written information, such information shall be explained to them in terms that he or she may understand.

1.4 In the initial assessment, and all subsequent attendances, the guardian shall consider whether the represented person is safe and whether they have recently experienced abuse, exploitation or neglect. If there is a reasonable suspicion of any of the above, the guardian shall take appropriate action or refer for investigation by appropriate authorities.

1.5 The guardian shall visit the represented person at least once in every year of appointment. The guardian shall keep in regular contact between visits to facilitate consultation with the represented person on significant decisions and giving effect to their wishes where possible.

1.6 If the represented person objects to a proposed decision, the guardian shall make reasonable attempts to ascertain the reasons for the objection and consider ways to achieve their wishes or resolve the dispute if possible.

1.7 As soon as possible after making a decision on the represented person's behalf, the guardian shall communicate decisions to the represented person in a manner that is meaningful to him or her.

1.8 The guardian will provide written reasons for any decision on the request of the represented person.

1.9 The guardian shall keep a record of all discussions or attempted discussions with the represented person.

1.10 The guardian shall consult with the represented person as far as possible to ascertain their views before presenting an annual report to the Board or presenting a report to a review hearing of the Board."

47 This direction relates entirely to administrative matters, particularly record-keeping and interaction with the represented person, in this case KKQ. In my view this is another reason why the Board was not empowered by s31(4) to give this direction.

48 Direction 1.2(b) purports to require the appellant not to make any decisions on KKQ's behalf until she has visited her, unless there are circumstances of urgency related to her safety and security. Circumstances could arise in which such a delay is inconsistent with the obligation under s27(1) to act in the best interests of KKQ. Direction 1.2(b) is therefore invalid as a result of inconsistency with the Act.

49 Under s27(2)(e), it is the duty of a guardian, as far as possible, to act in such a way as to protect the represented person from neglect, abuse or exploitation. Parliament did not impose any specific requirements as to how that objective was to be attained. Direction 1.4 seeks to impose on the appellant a specific obligation to investigate the possibility of abuse, exploitation and neglect every time there is an attendance, and that would seem to include telephone attendances, on KKQ. In my view it would be appropriate, if circumstances warranted it, for the Board to give a direction in a specific case for steps to be taken by a guardian to enquire as to the safety of a represented person, and as to recent abuse, exploitation or neglect. There may even be individual cases in which it is appropriate for such enquiries to be required, by means of a direction, whenever the guardian speaks to the represented person. However, by seeking to impose such a requirement for the duration of the guardianship of KKQ, and not in response to circumstances warranting special concern about safety, the Board has sought to control the manner in which the appellant interacts with KKQ. For the reasons previously stated, I consider that it has no general power to do that by means of a s31(4) direction.

Direction 2 - Advocacy services for the represented person

"2 Advocacy on behalf of the represented person

2.1 The guardian will advocate, within the scope of the guardian's authority, to ensure that the represented person has appropriate accommodation, health care, support services and assistance to participate in the community.

2.2 The guardian will advocate, within the scope of the guardian's authority, for the options that best promote quality of life and opportunity for the represented person.

2.3 The guardian will consider and advocate, within the scope of the guardian's authority, for the least restrictive alternative that meets the needs of the represented person."

51 By its order appointing the Public Guardian as a limited guardian of KKQ, the Board conferred powers and duties as to "decisions concerning ... provision of services including home maintenance". Advocacy services are services within the scope of the order. However Parliament dealt with the question of advocacy services in s27(2)(b), which simply requires a guardian to act "as far as possible" as an advocate for the represented person. By giving a direction imposing additional and more specific obligations, the Board exceeded the power conferred by s31(4).

"3 Relationship between the guardian and key persons in the represented person's life.

3.1 The guardian is responsible for the establishment and maintenance of his or her relationship with key persons in the represented person's life.

3.2 As soon as possible after appointment; the guardian shall furnish key persons in the represented person's life with the following written information:

(b) The role of the guardian and the Office of the Public Guardian.

(d) The scope of the authority of the guardian in relation to the represented person.

(e) The customer service standards that they may expect from the guardian.

(f) The right to an interpreter in discussions with a guardian and how to request an interpreter in those discussions.

(g) How to request written reasons for a guardian's decision.

(h) How to make a complaint about a guardian's decision or to have a guardian's decision reviewed.

(j) other complaints processes (eg Ombudsman, Health Care Complaints, Anti-Discrimination Commissioner etc).

(k) The ability to request records under the Right to Information Act 2009 and relevant provisions.

The information provided shall be made available in appropriate formats (large print, Braille, audio, email, facsimile etc) on request to ensure that it is accessible to the person. Where the person is illiterate, in addition to providing written information such information shall be explained to them in terms that he or she may understand.

3.3 The guardian shall seek and consider the views of key persons in the represented person's life in regard to any proposed significant decisions.

3.4 If a key person in the represented person's life objects to a decision or proposed decision, the guardian shall make reasonable attempts to ascertain, consider and take into account the reasons for the objection.

3.5 As soon as possible after making a decision on the represented person's behalf, the guardian shall communicate the decision to the key persons in the represented person's life in a manner that is meaningful to those persons.

3.6 The guardian will provide written reasons for any decision on the request of the key person in the represented person's life. Such reasons will be consistent with the represented person's right to privacy. Where reasons or parts of reasons are withheld to' protect the privacy of the represented person, the guardian must inform the key persons of that determination'.

3.7 The guardian shall make and keep a record of all discussions or attempted discussions with key persons in the represented person's life.

3.8 The guardian shall consult with key persons in the represented person [sic] to ascertain their views before presenting an annual report to the Board or presenting a report to a review hearing of the Board."

53 This is another direction that relates entirely to administrative matters. It is therefore not a direction that s31(4) empowered the Board to give.

54 This does not mean that the Board does not have the power, when there are circumstances warranting such a direction in a particular case, to give a guardian quite detailed directions as to consultation or interaction with particular individuals associated with a represented person before exercising one or more specific powers.

"4 Relationship between the guardian and service providers

4.1 The guardian is responsible for ensuring that service providers are provided with information about the terms of the guardianship order and the authority vested in the guardian to give substitute consent on behalf of the represented person.

4.2 Information referred to in paragraph 4.1 shall be provided in writing and include:

(b) Information about the circumstances where it is required that the service provider consult with the guardian before acting.

(c) A request to provide information that would be useful to a guardian in making future decisions, and

(d) Information outlining possible consequences of acting without the consent of a guardian or withholding information from a guardian.

4.3 The guardian shall seek and consider the views of relevant service providers as may be relevant to the proposed decision.

4.4 The guardian shall assess whether all reasonable options have been presented by service providers and promote alternative options where they may be preferable.

4.5 The guardian shall consider the strengths and weakness of advice from service providers, and seek alternative opinions, including alternative medical opinions, where appropriate.

4.6 The guardian shall make and keep a record of all discussions and attempted discussions with service providers.

4.7 The guardian shall consult with all relevant service providers to ascertain their views before presenting an annual report to the Board or presenting a report to a review hearing of the Board."

56 This is another direction that relates entirely to administrative matters. It is therefore not a direction that s31(4) empowered the Board to give. However the Board could give a guardian a direction about a service provider if it was warranted by the circumstances of a particular case.

Direction 5 - Consenting to medical and dental treatment

"5 Role of guardian in giving consent to medical or dental treatment

5.1 Before a guardian gives substitute consent for medical or dental treatment on behalf of a represented person, the guardian shall make enquiries of the treating practitioner about:

(a) The consequences to the represented person if the proposed treatment is not carried out,

(b) Any alternative treatment available to the represented person,

(c) The nature and degree of any significant risks associated with the proposed treatment or any alternative treatment, and

(d) Whether the treatment is to be carried out only to promote and maintain the health and wellbeing of the represented person.

The guardian shall keep a record of the answers to those enquiries and, insofar as is possible, communicate them to the represented person.

5.2 Where a guardian gives substitute consent for medical or dental treatment on behalf of a represented person, the guardian shall provide such consent in writing. The consent of the guardian may be given orally if it is not practicable to give it in writing owing to the need to provide the treatment urgently, but the guardian must give written confirmation of the consent as soon as practicable to the registered practitioner concerned."

58 The Board's order making the appellant a limited guardian of KKQ conferred powers and duties as to decisions concerning inter alia "(i) consent to any health care that is in the best interests of the represented person and to refuse or withdraw consent to any such treatment".

59 Under s39(1) consent to the carrying out of medical or dental treatment may be given by a guardian if the represented person is incapable of giving consent, and if the treatment is not "special treatment" as defined in s3. In s43, Parliament legislated as to the matters to be taken into account by a guardian before giving such consent. That section reads as follows:

"(1) A person responsible for a person to whom this Part applies may consent to the carrying out of medical or dental treatment which is not special treatment if he or she is satisfied that -

(a) the relevant person is incapable of giving consent; and

(b) the medical or dental treatment would be in the best interests of that person.

(2) For the purposes of determining whether any medical or dental treatment would be in the best interests of a person to whom this Part applies, matters to be taken into account by the person responsible include -

(a) the wishes of that person, so far as they can be ascertained; and

(b) the consequences to that person if the proposed treatment is not carried out; and

(c) any alternative treatment available to that person; and

(d) the nature and degree of any significant risks associated with the proposed treatment or any alternative treatment; and

(e) that the treatment is to be carried out only to promote and maintain the health and wellbeing of that person; and

(f) any other matters prescribed by the regulations."

60 Direction 5.1 imposes a requirement that is not to be found in s43(2). It requires the guardian to "make enquiries of the treating practitioner" as to the relevant matters. If Direction 5.1 is valid, there is no substitute for the treating practitioner. If it is proposed that a surgeon is to operate in the presence of a registrar, obtaining information from the registrar would not be good enough. If it is proposed that a registrar is to operate in the presence of a supervising surgeon, obtaining information from the surgeon would not be good enough. The statutory objective is to ensure that any medical or dental treatment is in the best interests of the represented person. Direction 5.1 adds a requirement that Parliament did not consider appropriate for the attaining of the statutory objective, namely the making of enquiries of the treating practitioner in every case. However a regulation imposing that requirement, not being inconsistent with the Act, would not be ultra vires.

61 This is another situation in which the Board could give a direction of the type in question if one were warranted by the circumstances of a particular case. There is no reason why, if the circumstances warranted it, the Board could not give a guardian a s31(4) direction requiring him or her to consult the represented person's treating practitioner personally before consenting to medical or dental treatment.

62 The second sentence in Direction 5.1 begins by purporting to impose a requirement as to record-keeping. That is not a valid exercise of the power conferred by s31(4). That sentence otherwise relates to administrative matters. It is therefore not a valid exercise of the power conferred by s31(4). However the only reason the first sentence of Direction 5.1 is invalid is that it does not relate to a situation where a doubt or difficulty has arisen in relation to the guardianship of KKQ.

63 Direction 5.2 covers the same subject-matter as a regulation. The Guardianship and Administration Regulations 2007, reg8, provides as follows:

"(1) For the purposes of section 43 of the Act, the consent of a person responsible for a person to whom Part 6 of the Act applies is, subject to subregulation (2), to be in writing.

(2) The consent of the person responsible may be given orally if it is not practicable to give it in writing owing to the need to provide the treatment urgently, but that person must give written confirmation of the consent as soon as practicable to the registered practitioner concerned."

64 Non-compliance with reg8 does not constitute an offence. Direction 5.2 seeks to impose exactly the same obligations as reg8, but non-compliance with a direction amounts to an offence. However, since Direction 5.2 replicates requirements imposed by a regulation, not the Act, I do not think it can be said that the Board has adopted a means other than that adopted by the Act to attain a statutory objective. The only reason that Direction 5.2 is invalid is that it does not relate to a situation where a doubt or difficulty has arisen in relation to the guardianship of KKQ.

"6 Internal review and support

6.1 The guardian shall present the case of the represented person on a six monthly basis for review in (i) individual supervision by the Public Guardian or (ii) discussion in a professional team meeting.

6.2 The outcomes of six monthly reviews shall be recorded on the represented person's file, noting whether it was reviewed in individual supervision or a professional team meeting, the issues discussed and recommendations arising from the review."

66 This is another direction that relates entirely to administrative matters. It follows that the Board was not empowered by s31(4) to give this direction.

"7.2 Where a guardian believes that the scope of the order appointing the guardian is uncertain, or the guardian requires direction about the exercise of the power, the guardian shall apply to the Board for advice and direction noting:

(i) A history of the actions taken by the guardian under the order,

(ii) What decisions have been proposed to the guardian,

(iii) Why the guardian believes that the order requires additional advice and direction from the Board, and

(iv) A recommendation as to the nature of the advice and direction and the outcomes sought from the Board.

Where an application is made for the addition of powers under section 28 of the Act, a guardian should also include in the application information about why appointment without such powers would not be effective and for what period of time or until what event(s) such powers will be required."

68 A guardian has a statutory right to apply to the Board for advice or direction under s31(1). This direction seeks to compel the appellant to apply if she believes the scope of the relevant order to be uncertain, but nothing in the Act requires a guardian to make an application for directions under any circumstances. In its decision, the Board said that it assumed "that the guardian has a duty, implied by the principles in sections 6 and 27 of the Act, to seek revocation of orders whose necessity has waned." It might often be a very good idea for a guardian to take some sort of action with a view to arranging the revocation of an order that has outlived all usefulness, but there is absolutely nothing in the language or the structure of the Act to warrant the conclusion that a guardian has an implied duty to make any sort of application in that situation.

69 Direction 7.2 also seeks to compel the appellant to provide certain information if she makes such an application, but there is nothing in the Act that empowers the Board to require the provision of particular information at the time of making an application. The procedure of the Board is regulated by s11. Under s11(11), the Board may, for the purposes of any proceedings, require the Public Guardian to provide a report or information on any matter relating to the proceedings of the Board. It is clear from the wording of s11(11) that Parliament intended that power to be exercisable once proceedings had been instituted before the Board, but I do not think that subsection should be interpreted so as to empower the Board to impose in advance a general requirement in respect of all future proceedings in respect of an individual represented person. Further, this direction relates only to administrative matters, and for that reason alone I consider it not to be a direction that s31(4) empowered the Board to give.

Direction 7.3 - Extension, amendment and revocation applications

"7.3 Where a guardian forms the view that the order is not working in the best interests of the represented person or no longer represents the least restrictive alternative for the represented person, the guardian shall make an application for the order be [sic] extended (whether as an emergency or otherwise), amended or revoked.

(a) Except in an emergency, before making such application the guardian shall consult with the represented person, key persons in the represented person's life and all relevant service providers about the suitability of the order or a review of the order.

(i) A history of the actions taken by the guardian under the order,

(ii) What decisions have been proposed to the guardian,

(iii) Why the guardian believes that the order needs to be extended (whether as an emergency or otherwise), amended or revoked,

(iv) The views of the represented person, key persons in the represented person's life and service providers (if available in an emergency), and

(v) A recommendation regarding the continuing need for a guardianship order, a need for extension (whether as an emergency or otherwise), amendment or revocation including the particular terms of a recommended order.

(c) Where an application is made for the addition of powers under section 28 of the Act, a guardian should also include in the application information about why appointment without such powers would not be effective and for what period of time such powers will be required."

71 This direction purports to compel the appellant to make an application if certain circumstances exist. It is inconsistent with the scheme of the Act since s31(1) only ever permits a guardian to apply for advice or direction, and never compels a guardian to make such an application. Further, all that a guardian can apply for under s31(1) is "advice or direction". Similarly, any person may apply to the Board for a review of a guardianship order under s67, but the Act does not compel such an application to be made under any circumstances. Under s68(1), the Board has the power, on a review under s67, to vary, continue or revoke a guardianship order. However there is no statutory power for a guardian to apply for variation, continuation or revocation. A guardian may only apply for a review under s67 or for advice or direction under s31(1). Since this direction purports to require the appellant, in certain circumstances, to make an application that the Act does not permit, it cannot be a direction that s31(4) empowered the Board to give.

72 Since Direction 7.3 relates only to administrative matters, it is not a direction that s31(4) empowered the Board to give.

"7.4 When presenting evidence to a hearing to provide advice and direction or to review the order the guardian shall make available to the Board such records of any discussions as may assist the Board."

74 The Board has a power to compel the production of documents under s11(8). That subsection reads as follows:

"(8) The Board may, of its own motion or on the application of any party to the proceedings before it, direct the registrar to serve on any person a summons to appear before the Board to give evidence and to produce any books, papers or other documents specified in the summons."

75 Under that subsection, the Board is required to decide on a case-by-case basis whether to require the production of any documents and, if so, to specify the documents whose production is required. Direction 7.4 seeks to go further, and to impose on the appellant an obligation to produce documents in every case. In fact it purports to impose an obligation akin to discovery, requiring the appellant to determine what may assist the Board. In ordinary civil litigation, it is an abuse of the process of the court to use a subpoena for the purpose of obtaining discovery, even from a party to a civil action who is obliged to make discovery: Commissioner for Railways v Small (1938) 38 SR(NSW) 564 at 575; National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 382. As those cases make clear, a subpoena amounts to an abuse of process if it describes documents in such terms as to require its recipient to make a judgment as to what is relevant. A summons under s11(8) is a statutory form of subpoena, to which the same principles must apply. Since Direction 7.4 requires the making of a judgment as to relevance, it is inconsistent with the scheme of the Act. Furthermore, it relates entirely to administrative matters. It follows, in my view, that it is not a direction that s31(4) empowered the Board to give.

76 For these reasons, I consider that all of the impugned directions were directions which s31(4) did not empower the Board to give. Since the validity of Direction 7.1 was not challenged, it is appropriate to set aside the order as to the standard directions and substitute an order as to that direction alone. I therefore allow the appeal, and order that Order No 3 made by the Board on 2 November 2010 be set aside and the following order substituted for it:

"That Direction 7.1 of the Standard Directions to a Guardian issued 2 November 2010 shall apply with respect to this order."