Queensland Numbered Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

GUARDIANSHIP AND ADMINISTRATION AND OTHER ACTS AMENDMENT ACT 2008 No. 54 - SECT 10

10 Replacement of ss 108 and 109

Sections 108 and 109--

omit, insert--

'(1) The tribunal must observe the rules of procedural fairness.

'(2) Each active party in a proceeding must be given a reasonable opportunity to present the active party's case and, in particular--

(a) to access, before the start of a hearing, a document before the tribunal that the tribunal considers is relevant to an issue in the proceeding; and
(b) to access, during a hearing, a document or other information before the tribunal that the tribunal considers is credible, relevant and significant to an issue in the proceeding; and
(c) to make submissions about a document or other information accessed under this subsection.

'(3) Each active party in a proceeding, or person the tribunal considers has a sufficient interest in the proceeding, must be given a reasonable opportunity to access, within a reasonable time after a hearing, a document before the tribunal that the tribunal considered credible, relevant and significant to an issue in the proceeding.

'(4) For subsections (2) and (3), something is relevant only if it is directly relevant.

'(5) On request, the tribunal must give access to a document or other information in accordance with this section.

'(6) The tribunal may displace the right to access a document or other information only by a confidentiality order.

'(7) To remove any doubt, it is declared that the right to access a document or other information is not affected by an adult evidence order, a closure order or a non-publication order.

'(1) A hearing by the tribunal of a proceeding must be in public.

'(2) However, the tribunal may make an adult evidence order or a closure order.

'(1) In considering whether to make a limitation order, the tribunal must take as the basis of its consideration--

(a) that each active party in the proceeding is entitled to access a document or other information before the tribunal that is credible, relevant and significant to an issue in the proceeding; and
(b) that it is desirable that tribunal hearings be held in public and be able to be publicly reported.

'(2) For subsection (1), something is relevant only if it is directly relevant.

'(1) If the tribunal is satisfied it is necessary to avoid serious harm or injustice to a person or to obtain relevant information the tribunal would not otherwise receive, the tribunal may, by order (an adult evidence order), obtain relevant information from the adult concerned in the matter at a hearing in the absence of anyone else, including, for example--

(a) members of the public; or
(b) a particular person, including an active party.

'(2) To the extent relevant information is health information for a person, serious harm to the person includes significant health detriment to the person.

'(3) For subsection (1), something is relevant only if it is directly relevant.

'(4) The tribunal may make an adult evidence order on its own initiative or on the application of an active party.

'(5) A person must not contravene an adult evidence order, unless the person has a reasonable excuse.

Maximum penalty for subsection (5)--200 penalty units.

'(1) If the tribunal is satisfied it is necessary to avoid serious harm or injustice to a person, the tribunal may, but only to the extent necessary, by order (a closure order), do either or both of the following--

(a) close a hearing or part of a hearing to all or some members of the public;
(b) exclude a particular person, including an active party, from a hearing or part of a hearing.

'(2) To the extent the hearing or the part of the hearing concerns health information for a person, serious harm to the person includes significant health detriment to the person.

'(3) The tribunal may make a closure order on its own initiative or on the application of an active party.

'(4) A person must not contravene a closure order, unless the person has a reasonable excuse.

Maximum penalty for subsection (4)--200 penalty units.

'(1) If the tribunal is satisfied it is necessary to avoid serious harm or injustice to a person, the tribunal may, but only to the extent necessary, by order (a non-publication order), prohibit publication of information about a tribunal proceeding the publication of which is not prohibited under section 112.

'(2) To the extent information about a tribunal proceeding is health information for a person, serious harm to the person includes significant health detriment to the person.

'(3) The tribunal may make a non-publication order on its own initiative or on the application of an active party.

'(4) If information about a tribunal proceeding discloses information prepared or provided by an entity, the tribunal may make a non-publication order on the application of the entity.

'(5) If information about a tribunal proceeding discloses health information for the person--

(a) without limiting subsection (3) or (4), the tribunal may make a non-publication order on the application of--
(i) the person; or
(ii) an interested person for the person; and
(b) an application may be made by an interested person for the person even after the person's death.

'(6) If a non-publication order is made prohibiting publication of information about a tribunal proceeding and the information about the tribunal proceeding discloses health information for the person, the person's death does not affect the non-publication order.

'(7) A person must not contravene a non-publication order, unless the person has a reasonable excuse.

Maximum penalty for subsection (7)--200 penalty units.

'(1) If the tribunal is satisfied it is necessary to avoid serious harm or injustice to a person, the tribunal may, but only to the extent necessary, by order (a confidentiality order)--

(a) withhold from an active party or other person a document, or part of a document, before the tribunal; or
(b) withhold from an active party or other person other information before the tribunal.

'(2) To the extent a document or part of a document contains health information for a person, or to the extent other information is health information for a person, serious harm to the person includes significant health detriment to the person.

'(3) The tribunal may make a confidentiality order on its own initiative or on the application of an active party.

'(4) Also, the tribunal may make a confidentiality order in relation to a document or other information on the application of the entity who prepared or provided the document or other information.

'(5) A person must not contravene a confidentiality order, unless the person has a reasonable excuse.

Maximum penalty for subsection (5)--200 penalty units.

'(1) In a proceeding, a non-publication order or confidentiality order may be made before a hearing of the proceeding starts.

'(2) However, a non-publication order or confidentiality order made before a hearing is vacated at the start of the hearing.

'(3) Sections 109G to 109I do not apply in relation to a non-publication order or confidentiality order made before the hearing of the proceeding starts.

'(1) Each active party, and any entity that would be adversely affected by a proposed limitation order, has standing to be heard in relation to the making of the order.

Example--
A journalist who would be excluded from a hearing by a proposed closure order would be an entity that would be adversely affected by the proposed order.

'(2) Each active party, and any entity adversely affected by a limitation order, may appeal to the court against the tribunal decision to make the order.

'(1) The tribunal must give its decision on the making of a limitation order as soon as practicable after hearing any submissions on the making of the order.

'(2) As soon as practicable after making its decision, the tribunal must notify, and give a copy of its decision to--

(a) the adult concerned in the matter; and
(b) another active party in the proceeding; and
(c) each entity heard in relation to the order; and
(d) the public advocate.

'(3) The tribunal must also give a copy of its decision to anyone else who requests a copy.

'(4) For subsection (3), it is sufficient for the tribunal to give a copy of the decision in a form that does not contravene section 112.

'(5) Also, within 28 days after making its decision, the tribunal must give the public advocate all information before the tribunal in its consideration of making the limitation order, including, for a confidentiality order, the document or other information being considered as the subject of the confidentiality order.

'(1) This section applies if the tribunal decides to make a limitation order.

'(2) The tribunal must give written reasons for its decision to make the limitation order (other than an adult evidence order) and may give reasons for its decision to make an adult evidence order.

'(3) If the tribunal gives written reasons for its decision, it must give a copy of the reasons within 28 days after making the decision to--

(a) the adult concerned in the matter; and
(b) each other active party in the proceeding; and
(c) each entity heard in relation to the order; and
(d) the public advocate.

'(4) The tribunal must also give a copy of its written reasons to anyone else who requests a copy.

'(5) For subsection (4), it is sufficient for the tribunal to give a copy of the written reasons in a form that does not contravene section 112.'.



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback