Essay on South Australia Supreme Court Dismisses Public Advocate Appeal

Introduction

On 24th May 2019, the Supreme Court of South Australia, comprising of judges Hinton, Kelly, and Kourakis, dismissed an appeal by the public advocate against a finding that it had unconstitutionally imprisoned a mentally ill person in a closed ward for failure to obtain the required orders under guardianship legislation. The Court was inconsiderate of the fact that the public advocate was appointed prior as the person's guardian in issues of accommodation. In disbanding the appeal, the Court can be termed to have brought the South Australian law in line with global developments. The court determination's practical implications may be extensive, because as at now, a significant number of people may have been or have been and continue to be deprived of their freedom.

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Summary of Material Facts

The public advocate v C, B is an appeal against the determination of a single Supreme Court judge that the respondent, BC, was illegally held in a closed ward of an aged care facility following an order from the advocate the appellant. The petitioner was appointed as a short term guardian of the respondent for the reason of his accommodation and lifestyle by South Australia civil and administrative tribunal. The respondent is an aged person with mental illness of average intensity, that for the reason of section29 of guardianship and administrative act of 1993. Additionally, the respondent was about 95 years old and had problems with his sight.

Issues

The issues to be determined concerned whether the act in conferring the legal powers outlined in section 32 implicitly breaches the general constitutional authorities of a guardian to imprison and apply other forceful means when taking responsibility for the issues of a protected individual. Also, the question to be determined concern whether the conditional freedom at times granted leads to the conclusion that he was detained illegally during such times that permission to leave the closed wards was not allowed.

Rule

Kaurakis CJ, while dismissing the appeal held that any restrainment on freedom that can be imposed by order of a court under section32 of the act, cannot be legally authorized by a guardian acting under a short time or whole guardianship order made according to section 29. The Court argued that the phrase 'subject to this Act' contained in section 31 is supposed to be granted full effect. Additionally, the order of the tribunal under section 29 of the act placing the respondent under a short time guardianship of the public advocate failed to give it powers to allow the committee of illegalities of false detentions or trespass against an individual. Therefore, the judge rightfully gave habeas corpus and made the determination he made.

The limitations imposed on the respondent made up the torts of the dishonest penalty and trespass and were hence illegal unless otherwise permitted by the legal frameworks. The judge made the right finding that the respondent was restricted from moving since he was locked in a ward against the law. The judge identified that the order of the public advocate that the respondent be enclosed in a ward was not within the legal boundaries of limited guardianship. As such, the judge determined that BC had been illegally detained, and he should be issued with habeas corpus. The judge applied the right legal principle to issue a habeas corpus since it was within the law to order Mr. BC to be brought to Court following his report on detention by the public advocate. Additionally, the judge was right to find out that BC's freedom to move was abrogated by his advocate's orders to restrict him within the treatment facility. BC's restrictions constituted the torts of false detention and were thus illegal unless otherwise stated in the law (Erlings, 2019). The order of the tribunal made under section 29 of the act placing BC under a short term guardianship of the public advocate did not give it powers to authorize the committee of the illegal actions of false imprisonments or trespass against an individual.

Principles to Be Observed

In the case ruling, the judges applied a legal principle where consideration that a public advocate, an organization, or any other person deciding on behalf of another person should be the wishes of the individual under question. Additionally, such wishes should be made as if the person being represented was of sound mind. , the decision to be made must be made after a consultation with the person. The consideration to imprison the respondent in a locked room was done illegally. Additionally, the public advocate perpetrated his wishes without consulting the respondent. As such, the decision was made without considering what best would the respondent desire. Therefore, the courts' application of such principles in its ruling was useful because it was done in consideration of the respondent's constitutional rights. Thus, the Court, by ordering habeas corpus, was done in the interest of protecting the respondent from illegal detention.

In the affidavit sworn on 12th December 2018 by DC, BC's son, the Court was able to set out key findings that helped it to come up with its determination. The Court found out from the affidavit that BC's accommodation was at Barossa Village. The entrance at Barossa village is locked at the DC uses a code to unlock the keypad to enter the door. At the entry of the locked door is another lock with a keypad that requires a code to open. Neither DC nor BC has access to the codes or keypads to unlock the doors. The doors can be assessed only through assistance from a staff member who has to use a card to swipe.

The public advocate sent an email on 2nd October 2018 to ms R giving the guidelines to be followed to access BC. Firstly, BC was allowed a maximum of 3 outings every week. He must leave clear contacts with the staff members when leaving and returning. Additionally, doctors must be consulted regularly and even when planning for his meals. The managers of the Barossa Village tended to call ms R anytime BC wanted to go out. Occasionally, the managers have been prevented from letting him go following the orders from the public advocate. The public advocate had issued guidelines to the managers of the facilities saying that BC was not allowed to speak outside the premises. Also, BC was to see his family members only in the presence of the staff.

The legal implication of the public advocate's guidelines was the restriction of movement on BC.Mr. BC was not allowed to leave the ward premises under the company of his son. The instructions did not have the legal authority to restrict DC because he was not a legally restricted person. However, in practice, the guidelines restricted him from accessing the compound where his father was detained. Based on the presented evidence, the Court determined that BC was illegally detained. Firstly, the evidence showed satisfies the Court that the plaintiff's residence at the care facility was restricting his freedom of movement. Dc was not allowed to leave the facility at liberty and unaccompanied. A locked door exists at the unit and can only be opened by inputting a code on the keypad. As such, the Court ruled out that such gadgets were intended to restrict the free movement of BC.

Habeas Corpus

A writ of habeas corpus is a court directive requiring that a public official such a public advocate present a detained person to the Court and give acceptable reasons for that individual's imprisonment. The procedure offers a way for prisoners, their family members, and other people acting on their behalf to dispute the legal basis of their confinement. During habeas Corpus hearing, the Court offers an opportunity for the public official to provide evidence to justify the reasons why the prisoner under question is under detention (Farrell, 2017). Additionally, the inmates or their representatives are allowed to dispute and defend why the person they are representing should not be imprisoned. The Court can also issue or enforce subpoenas to get further evidence. The Court can determine that the inmate be released from prison, serve a shorter sentence, an order directing the removal of illegal confinement, and can also declare the rights of the prisoner.

Reasons Why Habeas Corpus is Essential in this Case

Habeas Corpus is necessary in this case because the public advocate is giving orders that restrict Mr. BC curtails his freedom of movement. Habeas Corpus provides a prisoner with an opportunity to indicate whether his/her constitutional right is being infringed. In this case, Habeas Corpus is essential since the public advocate was abrogating the legal rights of Mr. BC. Firstly, the public advocate had outlined strict orders that any family member would not be allowed to speak or have an interaction with Mr. BC for a long time. Lack of proper access and communication with friends and family members was a way of infringing the right of association. The constitution gives the explicit right for any individual to associate with others.

Evidence collected from the affidavit indicated that Mr.BC was locked in a room, and two different doors leading to the room were always closed.Additionally, the doors required a security or card swipe to unlock. On most occasions, the staff members were responsible under the instructions of the public advocate as to when the door was to be opened. The facility managers were ordered not to allow Mr.BC to go out without permission from the public advocate. Although there was no written statement supposing that Mr. BC was imprisoned, the facts presented in the affidavit implies that he was detained. Therefore, when the judge applied habeas corpus in the case, it was a relief. Habeas carpus offered an opportunity for Mr.BC to present his case and get a hearing to relieve him from illegal detention.

In the Ruddock vs. Vadarlis case of 2001, the government of Australia exercised its prerogative powers. The case involved a cargo ship from Norway that was denied entry into the Australian territory after it had rescued 438 asylums from their drowning vessel. The Norway cargo vessel was known as MV Tampa. When the vessel's captain declared a state of emergency and penetrated the Australian sealine, MV Tampa was surrounded by Australian commanders that detained all the passengers onboard. Eric Vadarlis and the Victorian council for civil liberties sought a writ of corpus habeas on behalf of the asylums.

Meering v Grahame-White Aviation Co Ltd

Meering V Grahame -White Aviation Co ltd case was decided by Justice Atkin Li of the England court of appeal. The defendant's shopkeeper assisted the plaintiff in obtaining spare parts and necessary tools to build his aircraft. The police suspected the plaintiff and searched his house under warrant. The police notified the plaintiff that he was needed at the defendant's office. When the plaintiff arrived at the office he claimed that he wanted to leave. Unknown to him, the police officers were stationed at the entrance of the defendant's office to gourd him. The plaintiff was not able to make any movement because the police denied him an exit from the promise. The implication of the police action was an abrogation of his freedom of movement. Therefore, the England court determined that the plaintiff was illegally detained without his knowledge.

The court ruling on the case is fully binding to the South Australian Supreme Court. The South Australia Supreme Court held similar decisions on similar cases. For example, the case involving public advocate v C, B.Part 4 of section 32 of Australian laws outline the circumstances under which the police are allowed to remove somebody by force from his/her premises. The law prohibits that a person is detained without his or her knowledge (Landau & Allen, 2019)....