Introduction: The GS v MS Case

In 2019, the Supreme Court of Western Australia delivered an important decision on the jurisdiction of the State Administrative Tribunal (SAT) to make guardianship and administration orders. In GS v MS [2019] WASC 255, a son (MS) who resided in New South Wales made an application to the SAT for guardianship and administration orders in relation to his mother (GS) who lived in Western Australia. The case raised an important constitutional question: could the SAT exercise jurisdiction in a matter where the applicant and respondent were residents of different states? This question arose in the context of the High Court's decision in Burns v Corbett [2018] HCA 15 which held that state tribunals cannot exercise jurisdiction in certain "matters" between residents of different states.

Is Guardianship Jurisdiction Judicial Power?

The central question in determining whether the SAT had jurisdiction was whether applications for guardianship and administration orders involve the exercise of judicial power. This is because the limitation identified in Burns v Corbett only applies to matters involving judicial power, not administrative power.

Chief Justice Quinlan held that guardianship and administration orders do not involve the exercise of judicial power, but rather are administrative in nature. This finding is significant because it means that the constitutional limitation in Burns v Corbett does not apply to guardianship applications.

Characteristics of Judicial Power vs. Administrative Power

The judgment provides a helpful analysis of what distinguishes judicial power from administrative power:

Judicial power typically involves settling a question about the existence of a right or obligation, creating a "new charter" by which that question will be decided in the future (R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8).
Administrative power generally involves determining what rights and obligations should be created, rather than what they already are (Precision Data Holdings Ltd v Wills [1991] HCA 58).

The court found that guardianship and administration applications fall clearly on the "administrative" side of this distinction because:

They are not concerned with settling questions about existing rights and obligations
They are concerned with creating new rights and obligations for the future
They are protective in nature rather than adversarial
They are not "inter partes" (between parties) in the ordinary sense

The Protective Nature of Guardianship Jurisdiction

A key aspect of guardianship jurisdiction is its protective nature. As noted in Scott v Scott [1913] AC 417, guardianship jurisdiction has historically been characterized as "parental and administrative." The Supreme Court emphasized that applications for guardianship orders are not primarily about resolving disputes between parties but rather about protecting the proposed represented person.

In the words of Chief Justice Quinlan:

"The Tribunal, in hearing a guardianship order or an administration order, does not decide a dispute between the parties; it applies its statutory obligation (in s 4(2) of the Guardianship Act) to act in 'the best interests of [the] person in respect of whom an application is made'."

Historical Origins of Guardianship Jurisdiction

The court's analysis also delved into the historical origins of guardianship jurisdiction, which supports its administrative character. The jurisdiction of English courts in relation to both infants and "lunatics" originated in the delegation by the Crown of its Royal prerogatives – the parens patriae jurisdiction.

As quoted from Secretary, Department of Health & Community Services v B [1992] HCA 15 (commonly known as Marion's Case):

"[T]he parens patriae jurisdiction springs from the direct responsibility of the Crown for those who cannot look after themselves; it includes infants as well as those of unsound mind."

This historical foundation further supports the conclusion that guardianship jurisdiction is fundamentally administrative rather than judicial in character.

Implications for Interstate Guardianship Applications

The practical implication of this finding is significant: the State Administrative Tribunal can hear guardianship applications even when the applicant and the proposed represented person are residents of different states.

This is because applications for guardianship orders:

Do not involve the exercise of judicial power
Are not "matters" within the meaning of s 75(iv) of the Constitution
Are not "between" residents of different states in the constitutional sense

Conclusion

The decision in GS v MS [2019] WASC 255 provides important clarity on the nature of guardianship jurisdiction. The court's finding that guardianship and administration applications involve the exercise of administrative rather than judicial power ensures that the SAT can continue to perform its vital protective function, regardless of the residence of the applicant.

This characterization of guardianship jurisdiction as administrative aligns with its historically protective character and distinguishes it from adversarial proceedings that determine existing rights and obligations. It reinforces the fundamental purpose of guardianship law: the protection of vulnerable persons rather than the adjudication of disputes.

For practitioners in this area, the case serves as a useful reminder of the unique nature of guardianship jurisdiction, which stands apart from traditional adversarial litigation and maintains its historically protective character.