Understanding the Distinction Through Case Law

In July 2019, the Supreme Court of Western Australia delivered an important decision in GS v MS [2019] WASC 255 that dealt with the fundamental nature of guardianship and administration powers.

The case involved MS, who lived in New South Wales, applying to the State Administrative Tribunal (SAT) for guardianship and administration orders over his mother, GS, who lived in Western Australia.

Following the High Court's decision in Burns v Corbett [2018] HCA 15, which ruled that state tribunals cannot exercise jurisdiction in matters "between residents of different States," a constitutional question arose: Did the SAT have jurisdiction to hear these applications?

Chief Justice Quinlan's reasoning provides insights into the distinction between judicial and administrative powers, particularly in the guardianship context.

The Fundamental Distinction: Judicial vs Administrative Decisions

At its core, the distinction between judicial and administrative decisions reflects fundamentally different purposes and processes.

While both involve applying rules to facts, they operate with different objectives and characteristics:

Judicial powers typically:

Resolve existing disputes about legal rights and obligations
Determine what rights and obligations currently are
Apply the law to past events
Create binding determinations that settle controversies between parties
Often involve adversarial proceedings

Administrative powers typically:

Create new rights and obligations for the future
Determine what rights and obligations should be
Are protective or regulatory in nature
Often pursue policy objectives rather than strictly applying existing law
May be more inquisitorial than adversarial

As Chief Justice Quinlan observed in GS v MS, "judicial power is generally concerned with the ascertainment and enforcement of existing rights and obligations; it involves the determination of what the relevant person's rights or obligations are, not what they should be."

What Makes a Decision "Judicial" in Nature?

Identifying judicial power has challenged courts for generations. In GS v MS, Chief Justice Quinlan cited Justice Kitto's useful formulation from R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8:

"A judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons."

Judicial power generally involves determining existing rights and obligations through the application of law to facts. The closer a power is to this core concept, the more likely it is to be classified as judicial.

In contrast, as the High Court noted in Precision Data Holdings Ltd v Wills [1991] HCA 58: "If the object of the adjudication is not to resolve a dispute about the existing rights and obligations of the parties by determining what those rights and obligations are but to determine what legal rights and obligations should be created, then the function stands outside the realm of judicial power."

The Historical Perspective on Guardianship Powers

Guardianship powers have a unique historical origin that helps explain their administrative nature. As described in GS v MS, the jurisdiction of English courts over both infants and "lunatics" originated not from ordinary judicial power but from the delegation of Royal prerogatives.

In Scott v Scott [1913] AC 417, Viscount Haldane LC observed that in cases of "wards of Court and lunatics," the court's jurisdiction was "parental and administrative." The judge was "administering their affairs, in the exercise of what has been called a paternal jurisdiction delegated to him from the Crown through the Lord Chancellor."

This history reveals that guardianship powers were never conceived as strictly judicial in nature but rather as protective and administrative powers that happened to be exercised by courts.

Why Guardianship and Administration Orders Are Administrative in Nature

Chief Justice Quinlan identified several key reasons why guardianship and administration powers are administrative rather than judicial:

Future-oriented: Guardianship orders are not concerned with determining existing rights but with creating new arrangements for future decision-making.
Protective function: The proceedings are fundamentally protective in nature, aimed at safeguarding vulnerable individuals rather than resolving disputes.
Not inter partes: Although proceedings may be contested, they are not essentially about resolving disputes between parties. As Chief Justice Quinlan noted, "The Tribunal, in hearing a guardianship order or an administration order, does not decide a dispute between the parties; it applies its statutory obligation to act in 'the best interests of [the] person in respect of whom an application is made'."
Creation of new rights: The appointment of a guardian creates new legal rights and obligations rather than determining existing ones.
Welfare-oriented: The focus is on the person's welfare and best interests, not on competing legal claims.

In PJB v Melbourne Health [2011] VSC 327 (also known as Patrick's Case), Justice Bell similarly concluded that "the functions of the tribunal under the Guardianship and Administration Act to appoint guardians and administrators are administrative in the public law sense."

Implications for Guardianship Practice

The classification of guardianship powers as administrative rather than judicial has significant practical implications:

It influences which bodies can exercise these powers. The decision in GS v MS means the SAT can make guardianship and administration orders regardless of where the parties reside, as the constitutional limitation in Burns v Corbett only applies to judicial powers.
It shapes the procedures that should be followed. Administrative proceedings can be more flexible, inquisitorial, and welfare-focused than strictly judicial ones.
It reinforces the focus on best interests rather than adversarial dispute resolution. Guardianship proceedings should prioritize the welfare of the person rather than treating them as contests between competing parties.
It highlights the need for specialized expertise in decision-making bodies beyond strict legal knowledge. Administrative tribunals can incorporate diverse expertise relevant to the welfare of vulnerable persons.

Conclusion

The distinction between judicial and administrative powers may seem technical, but it reflects fundamentally different approaches to decision-making. Guardianship and administration powers, given their protective and future-oriented nature, properly fall within the administrative realm.

As Chief Justice Quinlan concluded in GS v MS [2019] WASC 255, these powers "are not at the core of judicial power." Instead, they represent a unique type of protective jurisdiction with origins in the parens patriae power of the Crown - a power concerned not with settling disputes but with protecting those unable to protect themselves.

Understanding this distinction helps everyone approach guardianship matters with the appropriate focus on welfare and best interests, rather than treating them as conventional legal disputes.

It also ensures these protective mechanisms remain accessible and effective for those who need them most.