Jurisdiction to Make Administration Orders for Interstate Residents and Recognition of Interstate Orders

1. Introduction

This article examines the jurisdictional authority of the State Administrative Tribunal (SAT) to make administration orders for individuals residing outside Western Australia, and the legal effect of administration orders made by tribunals in other Australian states. The decision in JB [2025] WASAT 42 provides significant guidance on these issues, particularly in situations where a represented person has relocated interstate but maintains assets within Western Australia.

2. Facts of JB [2025] WASAT 42

In JB [2025] WASAT 42, the represented person (JB) had moved from Western Australia to South Australia but continued to have assets in Western Australia, specifically funds held by the Public Trustee in its common account. JB suffered from chronic paranoid schizophrenia and had previously been subject to administration orders in Western Australia. After relocating to South Australia, the South Australian Civil and Administrative Tribunal (SACAT) made orders appointing JB's daughter (CB) as her administrator, including powers over the Western Australian assets. The case before the SAT concerned a review of a decision to appoint the Public Trustee as JB's limited administrator in Western Australia, with JB's daughter seeking to be appointed instead, consistent with the SACAT orders.

3. Jurisdiction to Make Administration Orders for Non-Residents

3.1 Statutory Basis

The Guardianship and Administration Act 1990 (WA) (GA Act) explicitly provides for the SAT to make administration orders in respect of individuals who are not resident or domiciled in Western Australia.

Section 67(1) of the GA Act states that an order under s 64(1) may be made in respect of a person who is not resident or domiciled in Western Australia, but such an order is limited to the person's estate in Western Australia (JB [2025] WASAT 42 at [29]).

As explained in JB [2025] WASAT 42 at [29], there was no dispute that JB had an estate in Western Australia, being the amount held by the Public Trustee in its common account, which was physically located in Western Australia.

3.2 Limitations of Jurisdiction

The jurisdiction to make an administration order for a non-resident is strictly limited to the person's assets or estate within Western Australia. This territorial limitation reflects the principle that the SAT's powers cannot extend beyond the geographical boundaries of the state except where specifically provided for by statute.

As noted in SAL and JGL [2016] WASAT 63 and referenced in JB [2025] WASAT 42 at [31]-[32], the SAT's jurisdiction is confined to the person's Western Australian estate. This territorial limitation is an important constraint on the SAT's powers.

4. Recognition of Interstate Administration Orders

4.1 Statutory Recognition Mechanism

The GA Act includes provisions for the recognition of administration orders made in other Australian jurisdictions. Section 83D of the GA Act establishes a framework for the mutual recognition of interstate orders.

Section 83D(3) of the GA Act provides that an order made under the laws of another State has the same force and effect as an administration order made under the GA Act, where an interstate arrangement under s 83D(1) has been entered into between the relevant ministers in Western Australia and that other State for the recognition of such orders (JB [2025] WASAT 42 at [30]).

4.2 Requirement for Physical Presence

Importantly, s 83D(3) provides that the relevant order in force under the laws of the other State has force "while the person to whom it relates is in this State" (JB [2025] WASAT 42 at [31]). This means the represented person must be physically present in Western Australia for the interstate order to have effect under this provision.

As the Tribunal noted in JB [2025] WASAT 42 at [31], this requirement is consistent with the interstate arrangement being in respect of "adult persons who enter Western Australia."

In JB [2025] WASAT 42 at [32], the Tribunal found that since JB had not entered Western Australia since the SACAT orders were made, s 83D(3) did not operate to give the SACAT orders the force of an order made under s 64 of the GA Act. The Tribunal referred to SAL and JGL [2016] WASAT 63 at [13], which had previously established this principle.

5. Constitutional Considerations

5.1 "Full Faith and Credit" Provisions

The Tribunal in JB [2025] WASAT 42 considered whether it was required to give "full faith and credit" to the SACAT orders pursuant to s 118 of the Commonwealth of Australia Constitution Act (Constitution) and s 185 of the Evidence Act 1995 (Cth) (JB [2025] WASAT 42 at [33]).

Section 118 of the Constitution requires that "Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State."

The application of these provisions turns on whether the interstate tribunal proceedings can be classified as "judicial proceedings" (JB [2025] WASAT 42 at [33]).

5.2 Nature of Guardianship and Administration Powers

In determining whether the "full faith and credit" provisions applied, the Tribunal in JB [2025] WASAT 42 at [34] referred to the decision in GS v MS [2019] WASC 255, where Quinlan CJ held that s 40, s 43 and s 64 of the GA Act do not confer judicial power on the Tribunal and that the nature of the powers to appoint guardians and administrators are properly regarded as essentially administrative powers.

The Tribunal in JB [2025] WASAT 42 at [34] noted that this authority is binding on the Tribunal. While it specifically concerned the GA Act and not the South Australian legislation, the Tribunal found that there was nothing in the Chief Justice's reasoning or the South Australian Act that would suggest a different conclusion should be reached in relation to the SACAT proceedings.

Consequently, the Tribunal concluded that neither s 118 of the Constitution nor s 185 of the Evidence Act 1995 (Cth) had any application in this case (JB [2025] WASAT 42 at [34]).

5.3 Alternative Analysis

The Tribunal in JB [2025] WASAT 42 provided an alternative analysis in case its primary conclusion regarding the administrative nature of the powers was incorrect. It observed at [35] that even if those provisions did apply, their effect would be that an order of another State's court is to be treated as having the same effect as that order would be afforded in the State where the order was made.

The Tribunal referred to Re DEF and the Protected Estates Act 1983 [2005] NSWSC 534 at [58], which established this principle (JB [2025] WASAT 42 at [35]).

5.4 Analogous Nature to Child Custody Orders

The Tribunal in JB [2025] WASAT 42 at [36] drew an analogy to child custody orders, referring to G v G (1986) 64 ALR 273; (1985) 10 Fam LR 718, where McLelland J held that the constitutional and statutory provisions required the Supreme Court of New South Wales to treat a Queensland Supreme Court order as "having the same degree of finality and conclusiveness (but not more) as that order would have in Queensland."

The Tribunal noted that administration orders in both South Australia and Western Australia can be revisited on application and are subject to mandatory periodic review (JB [2025] WASAT 42 at [35]).

Specifically, administration orders made by SACAT under the South Australian Act may be revisited under s 37(1)(b) and (d) of the Guardianship and Administration Act 1993 (SA), while orders made by the SAT may be reviewed under s 86(1)(a), s 86(1)(aa) and s 86(1)(b) of the GA Act (JB [2025] WASAT 42 at [35]).

6. Practical Application

6.1 Independent Assessment

The Tribunal in JB [2025] WASAT 42 at [37] concluded that there was no prohibition on it considering whether, on the evidence before it, an administrator for JB's Western Australian estate could or should be appointed, as s 67(1) of the GA Act expressly authorizes.

This affirms that the SAT retains the authority to make its own assessment and determination regarding the appointment of an administrator for Western Australian assets, even where another state's tribunal has made an order covering those same assets.

6.2 Evidentiary Value of Interstate Orders

While not binding, interstate orders may have evidentiary value in the SAT's determination. In JB [2025] WASAT 42 at [82], the Tribunal noted that CB had been appointed administrator of JB's estate by SACAT, and while the SACAT decision did not state its reasons for appointing CB or expressly state that CB was suitable for appointment, the Tribunal observed that the South Australian legislation required SACAT to be satisfied that CB was suitable to act as administrator.

The Tribunal considered that this appointment provided "some support for a finding that CB is a suitable person to be appointed, albeit limited in the absence of reasons" (JB [2025] WASAT 42 at [82]).

7. Procedural Considerations

7.1 Service Requirements

The GA Act contains specific provisions regarding service requirements for persons not resident or domiciled in Western Australia. Section 89(1)(b) of the GA Act provides that the Tribunal's executive officer must cause notice of a review to be given to the represented person (JB [2025] WASAT 42 at [16]).

However, under s 67(2) of the GA Act, the requirement for notice may be dispensed with if the represented person is not resident or domiciled in Western Australia (JB [2025] WASAT 42 at [16]).

In JB [2025] WASAT 42 at [18], the Tribunal dispensed with the requirement for notice of the application pursuant to s 67(2) of the GA Act, noting that it was not possible to be certain that all the requirements of s 89(2) and s 115(2) of the GA Act had been met, and there was no apparent disadvantage to JB given her objection to the order appointing the Public Trustee as administrator.

8. Conclusion

The decision in JB [2025] WASAT 42 provides important guidance on the jurisdictional authority of the SAT to make administration orders for non-residents and the effect of interstate orders. Key principles established include:

  1. The SAT has jurisdiction to make administration orders for non-residents, but strictly limited to their Western Australian assets.

  2. Interstate administration orders are recognized in Western Australia under s 83D of the GA Act, but only when the represented person is physically present in the state.

  3. The powers to appoint guardians and administrators are administrative, not judicial, meaning the "full faith and credit" provisions of the Constitution and Evidence Act 1995 (Cth) do not apply.

  4. Even if those provisions did apply, they would only require giving the interstate order the same effect it would have in its state of origin.

  5. The SAT retains the authority to make its own determination regarding the appointment of an administrator for Western Australian assets, even where another state's tribunal has made an order covering those assets.

These principles balance respect for interstate administrative decisions with the need to ensure appropriate protection for vulnerable individuals with assets in Western Australia, regardless of where they reside.