Habeas Corpus

To have the body

The Latin phrase Habeas Corpus means “to have the body”. When granted by a court, the ancient writ of Habeas Corpus provides the remedy that a person being unlawfully detained be released.

Although the existence of the remedy dates back to English Law and has been used in relation to the criminal law in Australia, it was only considered for the first time in South Australian courts in respect of a civil matter late last year. Proceedings were issued in the Supreme Court of South Australia for the release of a 95 year old man suffering from Dementia, whom is identified in the proceedings as “BC”, from an aged care facility in the Barossa (the Facility).   The Public Advocate were granted a Limited Guardianship Order (the Order) over BC by the South Australian Civil Administrative Tribunal (SACAT) pursuant to s 29 of the Guardianship and Administration Act 1993 (SA) (the Act).

SACAT often make orders pursuant to the powers provided by s 29 of the Act[1] that a person with a mental incapacity be subject to a limited or full guardianship.  Under a limited guardianship, the Tribunal will specify particular aspects of the protected person’s care or welfare upon which the appointed guardian may make decisions.[2]  In the case of BC v The Public Advocate & Ors (2018) SASC 193, the Tribunal made orders that Public Advocate could make decisions on behalf of BC in relation to matters of accommodation and lifestyle.[3]  Pursuant to the order, Public Advocate directed that BC reside in the Facility.[4]  The decision by the guardian to decide where BC resides pursuant to s 29 of the Act[5] is now in contention.

The room where BC resides at the Facility is locked by a keypad which requires a code or swipe card to operate and prevents BC from leaving the unit without permission and supervision.[6]  The issues before the Court were:

  1. is BC being detained?; and
  2. whether that detention is lawful pursuant to the order pursuant to s 29 of the Act.[7]

His Honour Justice Stanley found on 18 December 2018 that BC was being detained. His Honour reasoned that residing in a locked room and only being able to leave with permission and supervision of a staff member was a deprivation of BC’s liberty amounting to detention.[8]  His Honour subsequently determined that s 29 of the Act[9] did not confer power on the guardian to decide where BC was to reside.  His Honour continued to state that the power to detain is exclusively conferred by s 32 of the Act.[10]  As a result, his Honour found that the detention of BC pursuant to s 29 of the Act[11] was unlawful and ordered the writ of Habeas Corpus to have BC released.[12]

Shortly after the decision was made, SACAT granted an urgent application under s 32 of the Act[13] to the Public Advocate and as a result BC remains detained.  Public Advocate instituted an appeal against the decision of his Honour.  A decision on the appeal has not been reached by the Full Court of the Supreme Court of South Australia at this time.

If the appeal is upheld, a significant number of guardianship orders made under s 29 of the Act[14] for the purposes of deciding where a protected person is to reside will be susceptible to challenge.  If upheld, the decision would be the first of its kind in South Australia and may so to speak ‘open the flood gates’ to the challenge of many orders which may now be invalid pending the Full Court’s decision.

[1] Guardianship and Administration Act 1993 (SA) s 29(1).
[2] Guardianship and Administration Act 1993 (SA) s 29(2).
[3] BC v The Public Advocate & Ors (2018) SASC 193 1, 1.
[4] Ibid.
[5] Guardianship and Administration Act 1993 (SA) s 29.
[6] BC v The Public Advocate & Ors (2018) SASC 193 1, 4.
[7] BC v The Public Advocate & Ors (2018) SASC 193 1, 4-5.
[8] BC v The Public Advocate & Ors (2018) SASC 193 1, 4.
[9] Guardianship and Administration Act 1993 (SA) s 29.
[10] BC v The Public Advocate & Ors (2018) SASC 193 1, 13; Guardianship and Administration Act 1993 (SA) s 32.
[11] Guardianship and Administration Act 1993 (SA) s 29.
[12] BC v The Public Advocate & Ors (2018) SASC 193 1, 15.
[13] Guardianship and Administration Act 1993 (SA) s 32.
[14] Guardianship and Administration Act 1993 (SA) s 29.