respondent. Internal review allowed to the extent of setting aside the original (procedurally erroneous) decision; substituted decision dismisses VVE's application to vary or revoke the guardianship order;...
Key principles
A decision-maker in SACAT becomes functus officio once the decision and accompanying reasons (oral or written) have been delivered; the decision-maker has no power to change the...
A person who is the subject of a guardianship order does not need to establish a change in circumstances to apply for variation or revocation; the requirement to show changed...
Where medical and other evidence establishes that a person has a mental incapacity and lacks insight into their condition, the appointment of a guardian may be necessary for the...
Although the Tribunal has power to vary a special powers order to mandate a specific place of residence, it is inappropriate to do so where the protected person cannot...
Issues before the court
Whether the Senior Member could issue a further statement of reasons altering the basis of the decision after issuing orders and brief reasons on 20...
Plain English Summary
VVE, an 85-year-old man with vascular dementia, sought to revoke a South Australian guardianship order so he could move to Queensland to live on land he owns. A SACAT Senior Member initially dismissed his application on the mistaken view that he needed to show a change of circumstances to proceed. The Senior Member later attempted to supply fuller reasons changing the basis of the decision, but the Tribunal found that once the initial decision and reasons were given the decision-maker was functus officio and could not change the basis; the correct route was internal review. On internal review the Tribunal accepted that the earlier reasoning was legally erroneous, but after hearing evidence (medical, guardian, family) concluded VVE lacked capacity, could not realistically establish a Queensland residence or control finances, and that guardianship remained necessary and was the least restrictive option. The Tribunal therefore set aside the original decision, substituted dismissal of the revocation/variation application, affirmed the guardianship order, and scheduled automatic reviews of the orders.
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Deep Dive
2,167 words · generated 22/06/2026
Whether the applicant (the protected person) needed to demonstrate a change of circumstances to have the guardianship order varied or revoked.
Whether the Tribunal should revoke the guardianship order or otherwise direct the Public Advocate to permit the applicant to reside in Queensland.
Cited legislation
2 cited instruments linked from this judgment.
What happened
VVE, an 85-year-old man with vascular dementia and subject to a South Australian guardianship and administration regime, applied to SACAT to vary or revoke the guardianship order that had the Public Advocate appointed as his guardian. His primary objective was to be released from the guardianship (or have it varied) so he could travel to Queensland and live on land he controlled through a trust. The Senior Member originally dismissed the application on 20 April 2020. The stated ground for dismissal was procedural: she concluded that VVE lacked standing to bring a revocation or variation application because he had not shown a change in circumstances since the earlier order(s). Brief orders and reasons were issued on that date.
Following requests for reasons, the Senior Member provided a more detailed statement of reasons dated 9 June 2020 that purported to rely on a different legal basis, in effect dismissing the application on its merits rather than for lack of standing. On internal review, President Hughes found that the 20 April 2020 document constituted written reasons and that the Senior Member was functus officio once those orders and reasons were given; she therefore had no power to alter the basis of the decision by issuing the later statement of reasons. The internal review proceeded. The Tribunal acknowledged the legal error in the original decision, a protected person does not need to show changed circumstances to apply for variation or revocation, but after hearing evidence (including medical evidence from Dr Brunner and submissions from the Public Advocate and family members) concluded that the guardianship order should be affirmed because VVE lacked decision-making capacity, his plan to establish residence in Queensland was unrealistic (he lacked control over finances and trust administration), and guardianship remained the least restrictive means to secure his proper care and protection. The internal review allowed the application to set aside the original decision and substituted dismissal on the merits; the guardianship order was affirmed and automatic reviews scheduled.
Key documentary anchors: the original 20 April 2020 decision, the June 2020 statement of reasons, the internal review hearing on 24 September 2020, medical report of Dr Brunner dated 25 February 2020, and correspondence/letter from the delegated guardian dated 31 July 2020.
Why the court decided this way
Two distinct issues decided the case.
Functus officio and the invalidity of the later statement of reasons
The Tribunal held that once a decision-maker has made orders and provided reasons (orally at hearing or in writing), the decision-maker's power in that matter is exhausted, the doctrine of functus officio. The statutory framework supported this: internal review under s 70 SACAT Act lies from the original decision and is the mechanism to correct or revisit an earlier decision; the statutory duty to give reasons under s 67 of the Guardianship and Administration Act is designed to explain an exercise already taken, not to enable the decision-maker to change the conclusion reached. In the present case the 20 April 2020 orders and the brief reasons delivered that day were held to be the operative reasons; the 9 June 2020 statement was an attempt to alter the basis of the decision after it had been made and was therefore impermissible (Change to the basis, paras 5-8). The President expressed sympathy for the Senior Member's position, she had recognised an error, but emphasised that the correct vehicle for correction was internal review (para 8).
On the merits, necessity of guardianship and least restrictive option
Having set aside the original decision, the Tribunal considered the substantive contention that the guardianship should be revoked or varied to allow relocation. The Tribunal applied the statutory test: does the protected person have decision-making capacity for the matters in issue; is the appointment of a guardian necessary for the person's care and protection; and are the orders the least restrictive necessary?
The evidence, particularly the medical report by Dr Brunner (25 Feb 2020), established severe dementia with deficits in orientation, insight, planning, impulsivity and susceptibility to influence (Consideration, para 2). No medical evidence to the contrary was advanced (para 3). The Tribunal noted additional practical impediments: VVE did not control finances, was under an administration order, could not operate the trust; the land he claimed as a basis for relocation was subject to local government environmental prohibitions and he lacked approvals; he had no realistic plan or helpers to accomplish the relocation project (Consideration paras 5-5). Family and guardian evidence further supported the conclusion that relocation would not serve his proper care and protection (Public Advocate's position and Consideration paras 1-5, 7).
Balancing autonomy against protection, the Tribunal concluded that the guardianship order was necessary and the least restrictive option to achieve proper care and protection and therefore refused to revoke or to mandate residence in Queensland (Consideration paras 6, 9-11). The Tribunal recognised that it had the power to vary special powers orders under s 32 to direct residence in a specific place, but declined to exercise that power in the way the applicant sought because the applicant could not realistically achieve the required independent decision-making and residence (para 9).
Before and after state of the law
Before this decision: The Guardianship and Administration Act framework and SACAT internal review regime applied, with existing principles about capacity, appointment of guardians and the least restrictive option. The doctrine of functus officio is a general administrative law principle and had been applied in tribunal contexts (the judgment cites Re OMQ [2017] SACAT 8).
After this decision: The case reaffirms two propositions for SACAT practice:
A decision accompanied by reasons (even brief reasons appended to orders) constitutes a decision for functus officio purposes; a later attempt by the same member to alter the basis of that decision by issuing additional reasons is not a legitimate mechanism to correct the record, internal review is the proper channel (Change to the basis, paras 5-8). This is a practical clarification for tribunal registry practice when dealing with requests for reasons after decisions have been issued.
Substantively, the decision reiterates that an application by the protected person to vary or revoke a guardianship order does not require a showing of changed circumstances; that criterion applies to third-party applicants (paras 9-10). On merits, the case confirms that robust medical evidence of cognitive deficits, the absence of control over finances, and the impracticality of proposed arrangements will sustain a conclusion that guardianship remains necessary and least restrictive.
The decision therefore settles procedural expectations around reasons and the proper corrective path, and applies existing guardianship tests to a typical fact pattern of an elderly person seeking relocation.
Key passages with plain-English translation
"The Senior Member was functus officio after the issuing of the orders and written reasons on 20 April 2020. She had no power to issue the statement of reasons because she had already decided the matter and provided reasons." (Change to the basis, para 8)
Plain English: Once the tribunal made its decision and gave reasons on 20 April, the member could not change the legal basis for that decision by issuing another explanation later. If the decision was wrong, the proper route was to allow the internal review process to fix it.
"It is evident, therefore, that the original order was erroneous and must be set aside." (Change to the basis, para 10)
Plain English: The Tribunal accepted that the original decision wrongly required the protected person to show a change in circumstances. That legal error meant the original decision could not stand and had to be dealt with on internal review.
"The medical evidence supports the proposition that VVE has a mental incapacity." (Consideration of the evidence, para 4)
Plain English: The expert medical report showed that the applicant lacked the mental capacity to make decisions the guardian had to make on his behalf.
"I am satisfied that the appointment of a guardian is necessary for the care and protection of VVE, subject to consideration of whether it is the least restrictive order that can be made." (Consideration of the evidence, para 6)
Plain English: The Tribunal found that a guardian must remain in place to keep VVE safe and look after him, unless there is a less intrusive way to achieve that which is better for him.
"Whilst it is within the power of the Tribunal to vary the order ... I decline to make such a decision. I consider that the guardianship order is the least restrictive to achieve the care and protection he requires because of his lack of insight into his condition." (Consideration of the evidence, para 9)
Plain English: Even though the Tribunal could have ordered that he live in Queensland, it decided not to because the move would not realistically provide for his safety and needs; keeping the guardian's decision-making in place is less intrusive and more protective.
What fact patterns trigger this precedent
Cases where a SACAT member has issued orders accompanied by written reasons, and later attempts are made by the same member to alter the basis of the decision by issuing additional reasons. This decision instructs that such post-decision changes are impermissible and must be corrected by internal review (Change to the basis paras 5-8).
Applications by protected persons seeking revocation or variation of guardianship where the tribunal must weigh the applicant's autonomy against medical evidence establishing incapacity, control over finances, and the practical feasibility of proposed changes (Consideration paras 2-6).
Requests asking the Tribunal to both appoint or affirm a statutory guardian and at the same time to direct specific accommodation outcomes. The decision clarifies it is unusual for the Tribunal to take over accommodation decisions properly within the guardian's role and that mandating residence is inappropriate where the protected person lacks realistic ability to establish that residence (Grounds of Review para 3; Consideration para 9).
How later courts have treated it
This judgment explicitly cites Re OMQ [2017] SACAT 8 in support of the functus officio principle in the tribunal context (Change to the basis, footnote). The present decision applies that principle to bar a post-decision change of legal basis by the same Member. Subsequent tribunals and practitioners should treat this decision as a practical guide on the proper handling of requests for reasons and the correction of errors: use internal review procedures rather than permitting retrospective alteration of reasons. Practitioners should expect that brief reasons attached to orders will be treated as operative reasons for functus officio purposes.
Because this is a tribunal decision, not a higher court precedent, its persuasive weight will be strongest within SACAT and among practitioners dealing with guardianship and tribunal procedure. Its practical effect is to shape registry practice in providing reasons and to caution tribunal members that issuing supplemental reasons cannot be used to change legal bases after orders are given.
Still-open questions
Degree of specificity required for reasons to render a decision final: The decision treats the brief written reasons accompanying orders as sufficient to render the Member functus officio. There remains a practical question about how much substance must be contained in such brief reasons to trigger functus officio; the present decision treats modest findings as sufficient, but bench-marking across different fact patterns may produce variance.
Interaction between s 67 duties and the functus officio principle: The Tribunal reads s 67 as operating only where reasons have not been given. There may be edge cases where a member's initial reasons are cryptic or incomplete: how should the tribunal balance a party's statutory right to reasons with the need to prevent post-decision alteration? The decision points to internal review as the corrective mechanism but leaves open how to treat genuinely minimal initial reasons.
Transfer of guardianship between State Public Advocates: The Tribunal noted that mutual agreement could allow a transfer of guardianship, but did not direct any process. Practical mechanisms and criteria for transferring a statutory guardianship between States where a protected person wishes to relocate remain a matter of administrative practice rather than settled legal principle in this decision.
When the Tribunal should itself mandate accommodation under s 32 rather than leaving accommodation decisions to a statutory guardian: The decision confirms the Tribunal has power but that its exercise depends on realism and the least restrictive principle. Future cases with different factual matrices (strong family support in the receiving jurisdiction, clear financial capacity, concrete plans) might produce different results and will be needed to build clearer guidance on the boundary between Tribunal-ordered residence and guardian-made accommodation decisions.
Conclusion: Re VVE [2020] SACAT 118 is a careful application of administrative law fundamentals to tribunal procedure, and a robust application of guardianship balancing principles to a sensitive factual situation. It underlines that procedural mistakes in decision-making must be corrected by the internal review route, and that the least restrictive protection for vulnerable persons requires a realistic assessment of capacity, resources and support networks before ordering major life changes such as interstate relocation.
The applicant sought an internal review of a decision of the Tribunal to dismiss his application to revoke a guardianship order. The Tribunal at the original proceedings had dismissed the proceedings because the applicant had failed to demonstrate a change in circumstances and therefore lacked standing to bring the revocation application.
[3]
In the statement of reasons for the original decision, the Senior Member identified that an error had been made in her assessment of the question of standing. Nevertheless, the Senior Member indicated that she would have dismissed the application upon an assessment of its merits.
[4]
The applicant sought to have his guardianship order revoked so that he may move to Queensland. Alternatively, he sought for the Tribunal to direct the Public Advocate to allow the applicant to reside in Queensland.
[5]
Held, allowing the internal review and substituting the original decision:
[6]
the commentary included in the orders issued by the Tribunal at first instance constituted the reasons for the decision. The Tribunal at first instance was therefore operating functus officio when reasons where provided altering the basis of the decision;
a guardian is necessary for the applicant's care and protection because of his medical and his mental incapacity;
whilst it is within the Tribunal's power to vary a special powers order to allow the Tribunal to direct where the applicant is to reside, such a decision is inappropriate as the applicant would not be able to establish a new residence in Queensland on his own; and
the original guardianship order is affirmed.
[7]
Guardianship and Administration - Guardianship orders - Variation or revocation of guardianship order
[8]
Guardianship and Administration - Guardianship orders - Special powers to place and detain protected persons
[9]
Administrative tribunals - Procedure - Statutory powers - Request for statement of reasons - Where reasons already given
For the Office of the Public Advocate: Mr D Micklethwaite, Crown Solicitor's Office
[15]
This is an edited version of the Tribunal's statement of reasons issued pursuant to s 81 of the Guardianship and Administration Act 1993. The protected person has been de-identified and allocated a randomly selected pseudonym for privacy reasons. Other details that may lead to the identification of the protected person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.
On 20 April 2020, a Senior Member of the Tribunal dismissed an application by VVE to vary or revoke a guardianship order that operated in respect of him ('the original decision'). That decision was made without an oral hearing but after material was gathered from a variety of people including VVE, his relatives, the Public Advocate as his guardian, and the Public Trustee as his administrator.
The original decision was set out in a document that contained brief reasons and orders. In those reasons, the Senior Member found that VVE did not have standing to bring an application for variation or revocation of the guardianship order because he had not established that there had been a change in circumstances since the order was made on 13 February 2017 and more recently reviewed on 20 July 2018.
In the decision the Senior Member canvassed the evidence put forward by VVE. Essentially, VVE alleged that his health had improved dramatically since the making of the order and he wished to be released from the order so that he could return to Queensland to live.
The Senior Member also referred to the medical evidence and concluded that it did not support the suggestion by VVE that his circumstances had changed and that there no longer was a need for the order to be in place. The Senior Member dismissed the application on the procedural ground that the applicant did not have standing to bring it, as described in paragraph 2 above.
On 5 May 2020, VVE brought an application for internal review of the original decision. An internal review is brought pursuant to s 70 of the South Australian Civil and Administrative Tribunal Act 2013 ('SACAT Act'). The Tribunal on review must reach the correct or preferable decision having considered the evidence and material before the original decision-maker, and any further evidence the Tribunal admits, and must give appropriate weight to the original decision.
[18]
A preliminary issue that arose in this matter concerned the consequences of a discrepancy between the decision as conveyed to VVE and the other parties and interested persons dated 20 April 2020, and the decision as set out in written reasons issued on 9 June 2020.
The SACAT Act does not require reasons to be given for decisions made by the Tribunal. The Guardianship and Administration Act 1993 (the Act) requires written reasons for decisions under that Act to be provided to parties or persons with a proper interest in the matter on request.[1]
Section 67 must be understood to apply where neither oral nor written reasons have been issued when the decision was originally made. The requirement to provide reasons operates to enable a person who has an interest in the matter to determine whether there is a basis to seek a review, or simply to better understand the Tribunal's reasoning.
Statements of reasons cannot be provided where reasons have already been given with the orders, either orally at the end of a hearing, or in writing. The exception is that in some cases, an oral hearing will be followed by the giving of very brief reasons that go no further than stating the necessary findings that authorise the decision, or written orders that are accompanied by a bare statement of the necessary findings that the orders are conditioned upon.
In my view, although the written reasons given by the Tribunal following the consideration of the matter on the papers in this case were brief, they were clearly such as to amount to a written decision with reasons. The document issued by the Senior Member on the day that the order was made, namely 20 April 2020, represents her reasons. There was no basis upon which a further Statement of Reasons could be provided.
Nevertheless, when the applicant sought to challenge the outcome, the Senior Member was asked by the registry to provide a statement of reasons. She did so. This was a more comprehensive document dated 9 June 2020. In that document, the Senior Member purported to dismiss the application on its merits, having decided since issuing her original order that she had been in error in dismissing the application for the procedural reason that the applicant lacked standing. This was not an elaboration or a correction of a factual matter that did not affect the orders; it was a new basis for the decision.
[19]
The order under review is one that appointed the Public Advocate as VVE's guardian, made under s 29 of the Act.
In the preliminary hearings prior to the internal review, I asked VVE, through his counsel Mr Jones, to express his grounds of review in a manner that would assist the Tribunal to understand how it could, if satisfied of the merits of his review, achieve the outcome he sought. This arises from the fact that the outcome that VVE sought is not described by reference to a legal order. He wants to live in Queensland. Currently, he cannot do so because his guardian has decided that he should live in a residential care facility in South Australia. What was sought on review was identified, initially, as an order of this Tribunal directing the Public Advocate to permit or decide that VVE would travel to and reside in Queensland.
Whereas in the case of a private guardian, it may be appropriate for the Tribunal to direct a person to live in a specified location, it would be an unusual situation in which the Tribunal would appoint the statutory guardian but then make the accommodation decision itself. The delegate is a professional substitute decision-maker, tasked with making decisions in accordance with the legislation.
That issue does not need resolution however, because, at the internal review hearing, the orders sought were that the guardianship order be revoked and, in the alternative, that the order be revoked upon the appointment of a guardian for him in Queensland. The Tribunal's attention was drawn to the fact that an application to the Queensland Civil and Administrative Tribunal has already been initiated, rather unusually, by VVE himself.
[20]
VVE attended the internal review hearing with his counsel, Mr Jones.
The Public Advocate was represented by Mr Micklethwaite of the Crown Solicitor's Office.
VVE's adult children, CDD and HAG, also attended the hearing of the internal review (HAG by telephone from Queensland), and provided written submissions setting out their respective positions.
Mr Jones on behalf of VVE stated that the order sought was a revocation of the South Australian guardianship order, which would enable VVE to travel to Queensland and live there. He sought to draw support for the outcomes VVE wants, from s 117 and s 92 of the Australian Constitution. I understand VVE's position to be that the Tribunal should revoke the guardianship order, informed by VVE's right, as an Australian citizen, to travel to and live in Queensland, which right he submits is contained in ss 92 and 117 of the Constitution. The Tribunal did not find this approach helpful in discharging its functions of considering whether or not to grant this internal review. It has not been suggested that the South Australian laws upon which the guardianship orders were made are invalid, which was the basis upon which these provisions might be called upon (but not in this Tribunal) to assist VVE to be released from the orders made under them.
The Tribunal's task is governed by the provisions of the Act and the SACAT Act. Together, these provide a framework that establish that a person meeting certain criteria may have appointed to them a guardian whose function it is to make certain decisions on their behalf. In VVE's case, the Public Advocate has been appointed as his guardian. As his guardian, the Public Advocate has made a decision on his behalf that he should reside at a residential facility in Woodside. As stated earlier, VVE wants to reside in Queensland.
[21]
The Public Advocate provided evidence by way of a letter from the delegated guardian dated 31 July 2020. In that letter, Mr Burns sets out the reasons that, as the substitute decision-maker for VVE in respect of accommodation, he has declined to agree to VVE's repeated requests over several years to be relocated to Queensland. He says that VVE is required for his health and safety to reside in an aged care facility. This is due to his vascular dementia. He notes that VVE does not wish to move to Queensland in order to reside in an aged care facility but rather, to develop a block of land he owns there. I pause to note that this is somewhat at odds with VVE's statement in his application for review that the internal review is required to be determined urgently as he is 84 (now 85) and "moments from death".
Mr Burns makes the points that the plans VVE has spoken of with respect to his return to Queensland are unrealistic, financially unachievable, and entirely beyond VVE's reasonable expectations as to what he may achieve physically and administratively.
Mr Burns points out that VVE was born in South Australia and although he has lived from time to time in Queensland he returned to South Australia in 2016 to live closer to his family who could provide some assistance in respect of his increased needs. He lived for some time with his daughter and then his wife before moving to an aged care facility and then to his current residence in the Memory Support Unit at the Onkaparinga Valley residential care facility.
Mr Burns observes that VVE is in regular contact with his daughter and less frequent contact with other relatives. It would appear that VVE believes that he is estranged from his daughter.
Mr Burns has sought the views of VVE's son, and two grandsons who reside in Queensland. The family members with whom the guardian has been in contact are not willing to undertake the role of guardian and do not support his move to Queensland.
In summary, the guardian does not consider that VVE's wish is consistent with his proper care and protection.
CDD and HAG have a proper interest in VVE's proper care and attention. They put in written submissions and attended the hearing. They provided the Tribunal with family photographs of various occasions on which they had taken VVE out for trips and gatherings with other relatives, over three years. They gave evidence of VVE's relentless pursuit of various building projects and of previous financial difficulties that had led to bankruptcy. He is now the subject of an administration order that was not the subject of these proceedings. They say that the trust to which he refers is paralysed by the fact that its sole director (VVE) has no legal capacity to operate it. They say that his sole income is the age pension. They say that his current residence is 20 minutes from CDD's house, enabling her to attend to his needs by taking him out for haircuts and to buy him clothes, and to involve him in family celebrations such as birthdays, Christmas and outings. They say that if he were to reside in Brisbane, he would be isolated as his son, HAG, is a 10 hour drive away in Central Queensland and his two grandsons live on the opposite side of Brisbane with no transport to visit him.
[22]
VVE's autonomy has been curtailed by this Tribunal's earlier decision to appoint a guardian to make certain decisions on his behalf. He appealed to "higher" rights but did not establish, in a legal sense, how that appeal operated within the legal framework. The authorities referred to by his counsel related to challenges to the validity of State legislation, but that is not contended here (nor could it be, as the Tribunal does not have the power to determine the validity of laws). Those cases did not assist VVE's arguments.
I have considered the medical evidence, including most recently of Dr Brunner dated 25 February 2020 which discloses severe dementia over years and indicates that VVE experiences deficits in relation to his orientation in person, place or time, insight about his condition and level of impairment, planning and reasoning skills, impulse control and susceptibility to influence. In the doctor's opinion, VVE cannot make reasoned decisions about his personal health, medical care, accommodation, services, lifestyle decisions including access to relatives, non-complex or complex financial decisions.
No medical evidence to the contrary has been advanced.
The medical evidence supports the proposition that VVE has a mental incapacity.
The plan that VVE wishes to carry out has some insurmountable obstacles in relation to which VVE does not appear to have insight. One is that he does not control his own finances. He is subject to an administration order. VVE does not have control over the trust which controls the land in Brisbane because financial decision-making has been removed from him. As a result, he cannot choose to buy a transportable home or develop the land. Secondly, it was obvious from VVE's age, medical conditions and behaviour (including walking assisted with a walking stick) that the prospect of him establishing a new residence - particularly one that is required to be brought to the land, have amenities attached, and then furnished, is not something he could accomplish on his own. Yet he has not identified those who would assist him in this project. It is, sadly for VVE, not a realistic proposal.
I am satisfied that the appointment of a guardian is necessary for the care and protection of VVE, subject to consideration of whether it is the least restrictive order that can be made.
[23]
The existing special powers order and its automatic review
[24]
In addition to the guardianship order currently in place, there is a decision of the Tribunal dated 15 October 2019 that has the effect of maintaining a special powers order that had been granted to the appointed guardian pursuant to s 32(1)(a)(i) and s 32(1)(b) of the Act. The special powers order authorises the appointed guardian to direct that VVE reside in, or be detained at, a particular place.
The special powers order was not the subject of the original decision and as such did not arise on the review. The special powers order attracts an automatic review which was to be conducted by the Tribunal on or before 19 June 2020. That date was after the date that VVE filed this internal review application but prior to the hearing of the application. The review was not undertaken because the guardianship order to which it attaches was, at the time of the required review, under challenge.
The special powers order was indirectly canvassed in the parties' submissions discussed at paragraphs [17]-[19] above of whether it was within the Tribunal's power to direct where a person may reside. The parties made submissions only on the legal construction of whether it was within the Tribunal's power to make such a direction and did not make submissions specifically on the issue of whether the existing special powers order should be revoked or varied.
In the circumstances, the Tribunal will set a new date for the automatic review. This new date will be set four weeks from the date of this order so that VVE has the opportunity to make submissions on that issue if he desires to do so. The Tribunal will issue correspondence to the parties in this regard.
[25]
The Tribunal made the following orders:
In relation to the application for internal review of the decision of the Tribunal decision dated 20 April 2020:
[26]
1.2 The internal review is allowed. The decision is set aside and the following order is substituted:
[27]
1.2.1 The guardianship order dated 20 July 2018 is affirmed for the reasons in this decision.
Australian Civil and Administrative Tribunal Act 2013
AI Analysis
Outcomerespondent
Disposition:
Internal review allowed to the extent of setting aside the original (procedurally erroneous) decision; substituted decision dismisses VVE's application to vary or revoke the guardianship order; the guardianship order dated 20 July 2018 is affirmed and scheduled for review on or before 24 September 2021; the special powers order is to be reviewed on or before 2 December 2020 (Orders paras 1.1, 1.2.1, 1.2.2, 2.1).
I consider that the process miscarried. SACAT is an administrative tribunal to which the principle of functus officio applies. The decision-maker's powers are exhausted when the decision has been made.[2] It is a question of interpreting the legislative scheme to determine when that occurs and considering the circumstances of the matter to ascertain whether it has occurred. In an exercise of power under the Act, there are two particular factors that assist in discerning that point. The first is that an internal review lies from the original decision. That indicates that once the initial decision is made, any correction of it must occur by way of internal review. The second, which may appear to operate in the opposite direction, is that the Member may subsequently be asked to give reasons for their decision, in accordance with s 67 of the Act. However, for two reasons, this does not indicate that the power is not exhausted when the Member makes their decision. Firstly, the provision of reasons is merely the explanation of an exercise already taken. It is not the making of the decision itself, which has already occurred. Secondly, the requirement to give reasons must be understood to operate only where reasons have not already been given. As described above, I consider that in this case, reasons had been given.
The Senior Member was functus officio after the issuing of the orders and written reasons on 20 April 2020. She had no power to issue the statement of reasons because she had already decided the matter and provided reasons. I am sympathetic to the difficult position in which the Senior Member found herself. Upon being asked for reasons, she discovered an error in the original reasons and sought to correct it. However the only way forward was in fact for the parties to have the decision corrected on review.
The second point to be made is that the parties agree (and it is clear that the Senior Member took this view also), that there was a legal error in the original decision. The applicant was not required to establish a change of circumstances in order to have his order varied or revoked. That is a criterion that applies only to a person applying for a revocation or variation who is not the subject of the order: ss 30 and 33 of the Act. VVE is the subject of the order.
It is evident, therefore, that the original order was erroneous and must be set aside.
The Tribunal accepts that it could revoke the appointment of the Public Advocate as guardian, and should do so if the statutory criteria for the appointment of a guardian did not exist when the appointment was made, do not exist now, or if the appointment would not be consistent with the least interference with VVE's autonomy consistent with his proper care and protection. Consideration of the Constitution is not required to proceed along this course.
Although VVE did not give evidence in a formal sense, he was permitted to address me directly about his position. This was helpful and enabled me to appreciate the strength of desire and depth of conviction underlying his application.
VVE is a former property developer. He is 85 years old. He has had successful treatment for cancer. He has dementia. He has lived at the residential care facility for a number of years. He does not feel at home.
As to the medical evidence, he said that it was out-dated and that since then he had had cancer treatment. He does not consider that his minor dementia justifies the orders that have been made. He thinks that his cognitive capacity has improved and he does not need to be "locked up". The Tribunal at first instance relied upon a report provided by Dr Brunner dated 25 February 2020, when the Tribunal made the original decision. It says that he needs assistance to make decisions. VVE rejects this report as it was not conducted on an examination. He accepted that he did not have an up-to-date medical evidence regarding his cognitive capacity but again stated that such evidence could as easily be obtained in Queensland as here.
He said he has two 10 acre lots of land in Brisbane. It is held by a trust of which he is the controller. He explained that he is planning to buy and place on his land a transportable home in which he can live. It was conceded that he does not have approval to place a dwelling on the property but rather that the land is subject to some environmental prohibition by local government in respect of the construction of a dwelling on it.
He considers that the care he requires is minimal and is primarily related to companionship; he can make his own meals and bathe himself. That care, he submits, can be provided in Queensland as easily as it can be in South Australia. Whilst his counsel submitted that he has initiated an application for the appointment of a guardian in Queensland, he was adamant that an accommodation decision on his behalf that he reside in a residential care facility in Queensland would be "unacceptable".
He submitted that he has minimal contact with family here, approximately once per month, and it is superficial as family members "shut down" deeper conversations. He says that he has the financial means to purchase a home and live independently, and should be allowed to do so in his 'home' location, Queensland.
He said he sees his family once per month. CDD gave evidence that in fact he has much more contact than he recalls. He recalled that he visited his daughter for about three hours the weekend prior to the hearing.
I have had regard to VVE's evidence on these issues. I understand him to consider that the appointment was not needed when it was made as he experienced dementia the impact of which was minor. Further, he submits that the medical evidence is outdated and that in any event his cognitive capacity has improved. Finally, in respect of his autonomy, I understand him to exhort me to have regard to his wishes and his rights, both intrinsic human rights and those conferred by the Constitution.
Their evidence was that VVE is loved and supported by his children but he no longer understands this because of his neurological conditions. His daughter CDD said, "He is a workaholic, a machine and a narcissist, but I still love him."
I consider that it is. It is clear that VVE does not accept that he must live in a residential care facility. Whilst he referred to an application on foot in the Queensland Civil and Administrative Tribunal to appoint a substitute decision-maker for him, it is evident that he does not accept that he cannot make an accommodation decision for himself.
The Tribunal is required to ensure that the orders that are in place are the least restrictive to achieve the proper care and protection of the protected person. This issue required careful consideration as it may not be appropriate to maintain orders to ensure that a person does not move to a location that is otherwise suitable and safe but is outside of the control of the guardian.
Whilst it is within the power of the Tribunal to vary the order made under s 32 from one which provides the guardian with the accommodation decision and instead directly mandates that VVE should live in Queensland at a specified place, I decline to make such a decision. I consider that the guardianship order is the least restrictive to achieve the care and protection he requires because of his lack of insight into his condition.
I gave consideration to the question of whether it might be appropriate for the Public Advocate to explore the possibility of the Queensland Public Advocate becoming the guardian and managing VVE's affairs in Queensland. I am satisfied that a decision to that effect could be reached by mutual agreement between the Public Advocate in each state. I am satisfied that there is good reason for the Public Advocate in South Australia not to explore that further. In particular, it would not appear that VVE's desire to move to Queensland is based on matters about which he can make reasoned decisions. He cannot pursue the decision-making that he seeks to pursue in Queensland. Secondly, whilst he has relatives there, there is no reason to believe that he would have greater familial support or comfort by residing in the same state as his son and grandsons as opposed to his daughter and other relatives in South Australia.
It is my decision that the application for internal review be allowed to the extent that it is required to set aside the original decision and substitute a decision that the application for variation or revocation be dismissed for the reasons I have today provided.