Env. Court Act, 2000

The Environment Court Act, 2000

Act No. 12 of 2000

CONTENTS
1. 2. 3. 4. 5. 5A. 5B. 5C. 6. 7. 7A. 8. 9. 10. 11. 12. 12A. 13. 13A. 14. Short title Definitions Overriding effect of the Act Establishment of Environment Courts Jurisdiction of Environment Court Penalty for violating courts order Trial of certain offences by Special Magistrates Trial procedure in Special Magistrates Court Power of entry, search, etc. Procedure for investigation Assistance from law enforcing agencies and other authorities Procedure and power of Environment Court Conversion of fines to compensation Authority of Environment Court to inspect Appeal Environment Appeal Court Transfer of cases Pending cases Jurisdiction of Environment Court over offences etc. committed earlier Power to make rules

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Un-official English Version

Act No. 11 of 2000

[Bangla text of the Act was published in the Bangladesh Gazette, extra-ordinary issue of 10-4-2000 and amended by Act No. 10 of 2002] An Act to provide for the establishment of environment courts and matters incidental thereto. Where as it is expedient and necessary to provide for the establishment of Environment Courts for the trial of offences relating to environmental pollution and matters incidental thereto; It is hereby enacted as follows:1. Short title.- This Act may be called the Environment Court Act, 2000.
1 2. Definitions.- In this Act, unless there is anything contrary to the subject or context-
Civil Procedure Code means the Code of Civil Procedure, 1908 (Act V of 1908); [Ref. Clause (a)] Criminal Procedure Code means the Code of Criminal Procedure, 1898 (Act V of 1898); [Ref. Clause (e)] Director General means the Director General of the Department of Environment; [Ref. Clause (f)] Environment Appeal Court means an Environment Appeal Court constituted under this Act; [Ref. Clause (d)] Environment Court means an Environment Court constituted under this Act; [Ref. Clause (c)]
environmental law means this Act, the Bangladesh Environment Conservation Act, 1995 (Act No. 1 of 1995), any other law specified by the Government in the official Gazette for the purposes of this Act, and the rules made under these laws; [Ref. Clause (bb)]
The definitions are rearranged in English alphabetical order with reference to relevant clause of the original Bangla text of section 2.
Clause (bb) was inserted by sec. 3 of Act 10/2002.
Inspector means an Inspector of the Department of Environment or any other person 2 authorized by the Director General by a general or special order or a person authorized under any other environmental law to inspect or investigate; [Ref. Clause (b)]
Special Magistrate means a Special Magistrate appointed under section 5B. [Ref. Clause (g)] 3. Overriding effe ct of the Act.- Notwithstanding anything contained to the contrary in any other law for the time being in force, the provisions of this Act shall have effect. 4. Establishment of Environment Courts.- (1) For carrying out the purposes of this Act, the Government shall, by notification in the official Gazette, 4 establish one or more Environment Court in each Division. [(2) An Environment Court shall be constituted with one judge and, in consultation with the Supreme Court, the Government shall(a) appoint an officer of the judicial service of the rank of Joint District Judge, and such Judge shall dispose of cases only under environmental laws; and if it considers necessary, appoint a judge of the rank of Joint District Judge for a Division or a specified part thereof to act as the judge of an Environment Court in addition to his ordinary functions, and the said judge shall, in addition to his ordinary functions, dispose of the cases that fall within the jurisdiction of an Environment Court.]

(3) Each Environment Court shall have its seat at the Divisional Headquarter; however, the Government, if it considers necessary, may, by general or specific order published in the official Gazette, specify places outside the Divisional Headquarter where the court can hold its sittings. (4) If more than one Environment Court are established in any Division, the Government shall, by notification in the official Gazette, specify the territorial jurisdiction of each such Court.
Clause (b) was substituted by sec. 3 of Act 10/2002.
S.I to ASP/Asstt. Commissioner of Police and their equivalent authorized as Inspector by DoE circular No. Paribesh/1006 of 04/05/2002 in relation to ban on Polythene Shopping bag.
Clause (g) was inserted by sec. 3 of Act 10/2002.
One Env. Court each at Dhaka and Chittagong established by MoL Notification No. SRO 45Law/2002, of 06/03/2002.
Sub-section (2) was substituted by sec. 4 of Act 10/2002.
5. Jurisdiction of Environment Court.- (1) Notwithstanding anything contained to the contrary in any other law, a case shall, in accordance with the provisions of this Act, be directly instituted in an Environment Court for trial of an offence or for compensation under an environmental law, and only that court can take cognizance and hold proceedings for trial and disposal of those cases. [(2) An Environment Court shall be competent to impose penalty for offences under section 5A of this Act and under any other environmental law, to confiscate an equipment or part thereof, a transport used in the commission of such offence or an article or other thing involved with the offence, and to pass order or decree for compensation in appropriate cases; and in addition, the said court may in the same judgment make all or any of the following orders keeping in view of the circumstances of the offence or relevant facts:(a) issuing a direction to the offender or other relevant person not to repeat or continue or, as the case may be, not to do the act or to make the omission which constitutes the offence; issuing a direction to the offender or other relevant person to take such preventive or remedial measures in relation to the injury or probable injury to environment as the court considers appropriate keeping in view of the circumstances of the offence or the relevant facts; in case of a direction under clause (b), specifying a timelimit and a further direction to submit within the specified time a report to the Director General or other appropriate authority on the implementation of the direction :

Provided that where a direction under clause (b) or (c) is issued, the person directed may apply to the court within 15 days of the judgment for review of such direction and the court shall, after giving the Director General a reasonable opportunity of being heard, dispose of the application within 30 days after it is made.] [(3) No Environment Court shall take cognizance of an offence or receive any suit for compensation except on the written report of an Inspector or any other person authorized by the Director General: Provided that if the Environment Court is satisfied that a person presented a written request to the said Inspector or authorized person to accept a complaint about an offence or a claim for compensation and no action was taken within 60 (sixty) days after such request, and that such complain or claim deserves to be taken into cognizance for the purpose of trial, then the court may, after giving the Inspector or the authorized person or the Director General a reasonable opportunity of being heard, directly receive the complaint or claim for compensation without
Sub-section (2) was substituted by sec. 5 of Act 10/2002. Sub-section (3) was substituted by sec. 5 of Act 10/2002.
such written report, or may, if it considers appropriate, direct the said Inspector or the authorized person to investigate the offence or claim.]

[(4) [(5)

Omitted.] Omitted.]
Penalty for violating courts order.- If a person (a) violates a direction issued under clause (a) of section 5(2) by repeating or continuing the offence for the commission of which he has been sentenced, he shall be liable to be sentenced with the penalty prescribed for that offence, provided such penalty shall not be less than the one imposed on him at the time of issuance of the direction; (b) violates a direction issued under clause (b) or (c) of section 5(2), the violation shall be an independent offence for which he shall be liable to be sentenced to an imprisonment not exceeding 3 (three) years or to a fine not exceeding 3 (three) lac taka or to both.
Explanation.- The other provisions of this Act shall apply to the investigation and trial of an offence under this section.
5B. Trial of certain offences by Special Magistrates.- Where an environmental law provides for a penalty of an imprisonment not exceeding 2 (two) years or a fine not exceeding 10 (ten) thousand taka or both or confiscation of anything, for the commission of an offence, a Magistrate of the first class or a Metropolitan Magistrate who is 3 appointed to deal only with such cases arising in a specified area or who is assigned to deal with such cases in addition to his ordinary duties, as the Government may specify, shall be competent to try the offences; such Magistrates shall be known as Special Magistrates: Provided that if such offence is combined with another offence under an environmental law and if both the offences require trial in the same proceedings, then the offences shall be triable in the Environment Court.

5C. Trial procedure in Special Magistrates Court.- (1) No Special Magistrate shall take cognizance of an offence except on a written report of an Inspector : Provided that, if authorized by the Director General in relation to the institution of a particular kind of case triable by such Magistrate, an Inspector may present a report on such offence directly to the Magistrate without following the procedure prescribed in section 7.
Sub-sections (4) and (5) were omitted by sec. 5 of Act 10/2002. Sections 5A, 5B & 5C were inserted by sec. 6 of Act 10/2002.
M/O Establishment Notification No.- Sa/Ma/JA-4/45/2002-309 of 29th May, 2002 issued for appointment of Special Magistrates in districts and Metropolitan arears.
(2) A Special Magistrate appointed under this Act shall follow the procedure for summary trial as prescribed in the Criminal Procedure Code. (3) A case triable by the court of a Special Magistrate shall be conducted by an Assistant Public Prosecutor or a police officer specified by the Government or an Inspector of the Department of Environment on behalf of the State.]
[6. Power of entry, search, etc.- (1) For the purposes of conducting an inspection of any matter or investigation of an offence under an environmental law, or when directed by the Director General or the Environment Court for assessing compensation under this Act, an Inspector may, at any reasonable time, enter any place, search into, or seize any thing or collect sample from, or inspect, that place. (2) For the purposes of sub-section (1), an Inspector may, whenever he considers necessary, apply to the Environment Court or to any Magistrate for issuance of a search warrant. (3) An Inspector shall, as far as practicable, follow the Criminal Procedure Code and the relevant provisions of the environmental law in conducting a search, seizure or inspection under this section.]
[7. Procedure for investigation.- (1) An offence under an environmental law shall ordinarily be investigated by an Inspector, but the Director General may, by a general or special order, authorize any other officer subordinate to him to investigate any particular kind of offences or a specified offence. (2) The said Inspector or other officer, hereinafter referred to as the investigating officer, shall on the basis of a written complaint or other information, initiate proceedings under this section after obtaining approval of the officer authorized in this behalf by the Director General. (3) The investigating officer shall, before initiating a formal investigation of an offence, inquire into and collect information about the offence, prepare a preliminary report thereon and present it to a higher 3 officer authorized by the Director General in this behalf, and the officer secondly mentioned shall, upon consideration of the relevant facts and circumstances, give his decision within 7 (seven) days as to whether a formal investigation may be initiated or whether no action at all is necessary, and accordingly next actions shall be taken. (4) If a decision is taken to initiate a formal investigation under subsection (3), the investigating officer shall present the said preliminary report to the concerned police station, and it shall be recorded in the police station as a first

Section 6 was substituted by sec. 7 of Act 10/2002. Section 7 was substituted by sec. 7 of Act 10/2002.
Vide DoE circular No. Paribesh/1642 of 23/02/2002 in this regard. Moreover ASP/Asstt Commissioner of Police and above authorized under sub-sections (3) and (7) by DoE circular No. Paribesh-1006 of 04/05/2002.
information report or ejahar o the offence and thereafter the said investigating f officer or, as the case may be, another officer authorized by the Director General shall conduct the investigation. (5) The investigating officer while investigating an offence shall, in relation to that offence, be competent to exercise the same powers as an officer in charge of a police station and he shall, subject to this Act and the rules, follow the Criminal Procedure Code. (6) Any statement recorded, any article seized, any sample or other information collected at the inquiry stage held before formal investigation may be considered and used for the purpose of investigation. (7) The investigating officer shall, after completion of the investigation, obtain the approval of an officer 1 authorized by the Director General in this behalf and submit one copy of the investigation report and the original or attested copies of the supporting documents directly to the environment court or as the case may be to a Special Magistrate if the case is triable by such Magistrate, and shall also keep one copy at his office and present another copy to the police station; and such report shall be deemed to be a police report under section 173 of Criminal Procedure Code. (8) Notwithstanding the provisions of sub-section (3), where the investigating officer has reasons to believe that any document, article or equipment involved with an offence is likely to be removed or destroyed, he may, even before a decision for formal investigation, seize the document, article or equipment, and if the investigator has reasons to believe that the offender is likely to abscond, he may also arrest the offender.]
[7A. Assistance from law enforcing agencies and other authorities.- For the purposes of sections 6 and 7, the investigating officer may request any law enforcing agency or other authority for assistance and the requested agency or authority shall accordingly render assistance.] 8. Procedure and power of Environment Court.- (1) Unless otherwise provided in this Act, provisions of the Criminal Procedure Code shall be applicable in the case of lodging a compliant about an offence under this Act, trial thereof and the Environment Court shall be deemed to be a criminal court and it shall follow the procedure laid down in the Criminal Procedure Code for trial and disposal of a case triable by the Sessions Court.

Omitted.]

Section 7A was inserted by sec. 7 of Act 10/2002. Sub-section (2) was omitted by sec. 8 of Act 10/2002.
(3) The Environment Court shall be competent to order the investigating officer or other person investigating to hold further investigation of the offence in relation to which a case is pending before it and also to specify the timelimit for submission of the report of such further investigation. (4) The Environment Court shall be competent to exercise any power conferred on it by this Act or any other environmental law. [(5) A case triable by an Environment Court shall be conducted by a Public Prosecutor or an Additional or Assistant Public Prosecutor on behalf of the State: Provided that an Inspector or an officer authorized by the Director General may assist the said prosecutor in conducting the case and if necessary may make his submission before the court.] (6) Subject to provisions of this Act, the Civil Procedure Code shall be applicable to the trial and disposal of a case relating to compensation; and the Environment Court, for the purpose of trial and disposal of a suit for compensation, be deemed to be a civil court and shall be competent to exercise all the powers of a civil court. (7) Hearing of a case at the trial stage shall not be adjourned more than three times and the Environment Court shall conclude the trial within one hundred eighty days: Provided that where the trial is not completed within the above time-limit, the Environment Court shall, within 15 days after expiry of that period, inform the Environment Appeal Court of the delay and the reasons for such delay, and shall complete the trial of the case within ninety days after the expiry of the above mentioned one hundred eighty days. 9. Conversion of fines to compensation.- (1) Notwithstanding anything contained to the contrary in any other law for the time being in force, the Environment Court may, if it considers necessary, convert fines imposed by it as compensation to be paid to persons affected as a result of the commission of an offence under an environmental law; and the fine or compensation shall be realizable from the person who has been sentenced with the fine. (2) If a claim for compensation is related to an offence under an environmental law in such a manner that the trial of the offence and the claim should be held in the same proceedings, then the Environment Court shall try the offence first and, if the compensation to be awarded is not commensurate with the fine imposed as a penalty of the offence, then the application for compensation can be considered separately. 10. Authority of Environment Court to inspect.- (1) If, at any stage of the trial of a case, any question arises relating to any property, object or place of occurrence of an offence the Environment Court can inspect the property, object or

Sub-section (5) was substituted by sec. 8 of Act 10/2002.
the place of occurrence, after serving notice on the parties or their lawyers as to the place and time of inspection. (2) During inspection or immediately thereafter, the Judge shall record the results of the inspection in the form of a memorandum and such memorandum shall be an evidence in the trial of the case and such evidence shall not be called in question by any party. 11. Appeal.- (1) Notwithstanding anything contained to the contrary in the Civil Procedure Code or the Criminal Procedure Code, no question shall, except in accordance with the provisions of this Act, be raised before any court or other authority on the proceedings, order or decision of, or a decree of compensation passed and penalty imposed by, the Environment Court. (2) A party aggrieved by a Judgment or a decree of compensation passed or a penalty imposed by the Environment Court can file an appeal to the Environment Appeal Court established under section 12 within thirty days of the date of passing the judgment, decree of compensation or penalty, or order of dismissal of a civil suit or an order specified in sub-section (3). [(3) An appeal shall lie to the Environment Appeal Court against an order of interim or temporary injunction, an order to maintain status quo, an order granting or refusing bail, an order of framing charge or discharge, and an order of taking cognizance of an offence or refusal thereof passed by an Environment Court; no other interim order shall be appealable nor shall the legality or propriety thereof shall be called in question before the Environment Appeal Court or any other court. (3A) An appeal shall lie to the Environment Appeal Court against an order of conviction and sentence or acquittal, an order granting or refusing bail, an order of framing charge or discharge, and an order of taking cognizance of an offence or refusal thereof, passed by a Special Magistrate Court; no other interim order passed by such Magistrate shall be appealable nor shall the legality or propriety thereof shall be called in question before the Environment Appeal Court or any other court.] (4) Notwithstanding the provisions of sub-section (1), a party aggrieved by a judgment or decree passed by an Environment Court in a suit for compensation shall not be entitled to file an the appeal against the said judgment or decree without depositing half of the decreed amount with the court which passed the decree. 12. Environment Appeal Court.- (1) For carrying out the purposes of this Act, the Government shall, by notification in the Official Gazette, establish 2 one or more than one Environment Appeal Court.

Sub-section (3) was substituted and sub-section (3A) was inserted ibid. by sec. 9 of Act 10/2002.
One Env. Appeal Court for the whole country at Dhaka established by MoL Notification No. SRO 44-Law/2002, of 06-03-2002.
[(2) An Environment Appeal Court shall be constituted with one judge and, in consultation with the Supreme Court, the Government shall(a) appoint an officer of the judicial service of the rank of District Judge and such Judge shall dispose of cases only under environmental law; and if it considers necessary, for a specified area appoint a District and Sessions Judge of a district to act as the judge of an Environment Appeal Court in addition to his ordinary duties, and such a judge shall, in addition to his ordinary duties, dispose of the cases that fall within jurisdiction of an Environmental Appeal Court.]
(3) The seat of the Environment Appeal Court shall be in Dhaka or any other place specified by the Government. (4) For the purpose of disposal of appeals relating to offences, the Environment Appeal Court may exercise all the powers of a Sessions Court as an Appeal Court under the Criminal Procedure Code. (5) For the purpose of disposal of an appeal relating to a suit for compensation, the Environment Appeal Court may exercise all the powers of an appellate court under the Civil Procedure Code.
[12A. Transfer of cases.- An Environment Appeal Court may, on an application or other information(a) (b) transfer a pending case from one Environment Court to another such court subordinate to it or to retransfer a case; transfer a pending case form the court of a Special Magistrate to that of another Special Magistrate or to an Environment Court subordinate to it, or retransfer such a case.]
13. Pending cases.- A case under an environmental law pending in any court immediately before the commencement of this Act, shall be so continued and disposed of in that court as if this Act has not been enacted.
[13A. Jurisdiction of Environment Court over offences etc. committed earlier.- (1) If a case has not been instituted against an offence committed before the commencement of the Environment Court (Amendment) Act, 2002, the offence can be taken cognizance of by an Environment Court or by a Special Magistrate, as the case may be, on the basis of a written complaint or report of an Inspector or any

Sub-section (2) section 12 was substituted by sec. 10 of Act 10/2002. Section 12A was inserted by sec. 11 of Act 10/2002. Section 13A was inserted by sec. 12 of Act 10/2002.
other person authorized in this behalf by the Director General , and the case can be disposed of according to this Act. (2) For the purposes of this section, a case instituted on complaint shall not be dismissed under section 247 of the Criminal Procedure Code only on the ground of absence of the complainant.] 14. Power to make rules.- For carrying out the purposes of this Act, the Government may, by notification in the Official Gazette, make rules.

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Guardianship and Administration Act 2000 Contents Division 151 Division 155 Part Part 164 Part 171 Chapter 8 Part Part Page 8 Entry and removal warrant Application for entry and removal warrant. Issue of entry and removal warrant. Role of occupier if entry and removal warrant. Reporting requirement after removal of adult. Miscellaneous Tribunal authorisation or approval. Records and audit. Ratification or approval of exercise of power by informal decision maker.. Suspension of guardianship order or administration order. Decision Making and notifying decision. Order postponing giving copy of decision. Copy of reasons to be given. Appeal Appellant. Filing notice of appeal in particular circumstances. Recognition of order made under another law Definitions for pt 9. Regulation prescribing recognised provision. Application to register. Registration. Effect of registration. Notice of registration and subsequent action to original maker. Adult guardian Establishment, functions and powers Adult guardian. Functions. Powers. Not under Ministerial control. Delegation. Consultation and employment of professionals. Advice and supervision. Investigative powers Investigate complaints. 134
Guardianship and Administration Act 2000 Contents 193 193A Part Part 3A 198A Part Chapter 9 Part 209 Delegate for investigation. Records and audit. Right to information. Information by statutory declaration. Witnesses. Power of court if noncompliance with attendance notice. Power of court if failure to cooperate under subpoena. Self-incrimination not a reasonable excuse. Cost of investigations and audits. False or misleading statements. False or misleading documents. Obstructing investigation or audit. Report after investigation or audit. Prohibited use of report after investigation or audit. Protective powers Proceedings for protection of property. Suspension of attorneys power. Exercise of power during suspension. Power to apply for entry and removal warrant. Health providers may advise adult guardian. Power to consent to forensic examination Consent to forensic examination. Administrative provisions Appointment. Selection. Duration of appointment. Terms of appointment. Leave of absence. Acting adult guardian. Staff. Annual report. Not a statutory body for particular Acts. Public advocate Establishment, functions and powers Public advocate. Functionssystemic advocacy. Page 156 157

the adult guardian may exercise power for the health matter.
Page 46 Reprint 5F effective 18 March 2011
Guardianship and Administration Act 2000 Chapter 4 Functions and powers of guardians and administrators Part 1 General functions and powers of guardian or administrator [s 44]
If the adult guardian exercises power under this section, the adult guardian must advise the tribunal in writing of the following details (a) (b) (c) (d) the name of the adult; the name of the guardian or attorney; a statement as to why the refusal or decision is contrary to the health care principle; the decision made by the adult guardian.
In this section attorney means an attorney under an enduring document or a statutory health attorney.
Right of guardian or administrator to information
A guardian or administrator who has power for a matter for an adult has a right to all the information the adult would have been entitled to if the adult had capacity and which is necessary to make an informed exercise of the power. At the guardians or administrators request, a person who has custody or control of the information must give the information to the guardian or administrator, unless the person has a reasonable excuse. If a person who has custody or control of the information does not comply with a request by a guardian or administrator to give information, the tribunal may, on application by the guardian or administrator, order the person to give the information to the guardian or administrator. If the tribunal orders a person to give information to the guardian or administrator, the person must comply with the order, unless the person has a reasonable excuse. It is a reasonable excuse for a person to fail to give information because giving the information might tend to incriminate the person. Subject to subsection (5), this section overrides

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Guardianship and Administration Act 2000 Chapter 4 Functions and powers of guardians and administrators Part 1 General functions and powers of guardian or administrator [s 45]

(a) (b)

any restriction, in an Act or the common law, about the disclosure or confidentiality of information; and any claim of confidentiality or privilege, including a claim based on legal professional privilege.

However, the measure may not be withheld or withdrawn without consent if the health provider knows the adult objects to the withholding or withdrawal.
Editors note Object is defined in schedule 4 (Dictionary).
The health provider must certify in the adults clinical records as to the various things enabling the measure to be withheld or withdrawn because of this section. For this section, artificial nutrition and hydration is not a life-sustaining measure.
Minor, uncontroversial health care
Health care, other than special health care, of an adult may be carried out without consent if the adults health provider (a) reasonably considers the adult has impaired capacity for the health matter concerned; and

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Guardianship and Administration Act 2000 Chapter 5 Health matters and special health matters Part 2 Scheme for health care and special health care [s 64]
reasonably considers the health care is (i) necessary to promote the adults health and wellbeing; and
(ii) of the type that will best promote the adults health and wellbeing; and (iii) minor and uncontroversial; and (c) does not know, and can not reasonably be expected to know, of (i) a decision about the health care made by a person who is able to make the decision under this Act or the Powers of Attorney Act 1998; or
(ii) any dispute among persons the health provider reasonably considers have a sufficient and continuing interest in the adult about (A) (B) the carrying out of the health care; or the capacity of the adult for the health matter.
Examples of minor and uncontroversial health care mentioned in paragraph (b)(iii) the administration of an antibiotic requiring a prescription the administration of a tetanus injection
However, the health care may not be carried out without consent if the health provider knows, or could reasonably be expected to know, the adult objects to the health care. The health provider must certify in the adults clinical records as to the various things enabling the health care to be carried out because of this section.

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Guardianship and Administration Act 2000 Chapter 5 Health matters and special health matters Part 2 Scheme for health care and special health care [s 65]
Health care and special health careconsent
Adult with impaired capacityorder of priority in dealing with special health matter
If an adult has impaired capacity for a special health matter, the matter may only be dealt with under the first of the following subsections to apply. If the adult has made an advance health directive giving a direction about the matter, the matter may only be dealt with under the direction. If subsection (2) does not apply and an entity other than the tribunal is authorised to deal with the matter, the matter may only be dealt with by the entity. If subsections (2) and (3) do not apply and the tribunal has made an order about the matter, the matter may only be dealt with under the order.

Note For the application of the general principles and the health care principle to the tribunal and to an entity authorised by an Act to make a decision for an adult about prescribed special health care, see section 11 (Principles for adults with impaired capacity).

Donation of tissue

The tribunal may consent, for an adult with impaired capacity for the special health matter concerned, to removal of tissue from the adult for donation to another person only if the tribunal is satisfied (a) (b) the risk to the adult is small; and the risk of failure of the donated tissue is low; and

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Guardianship and Administration Act 2000 Chapter 5 Health matters and special health matters Part 3 Consent to special health care [s 70]

(c) (d) (e) (2)

the life of the proposed recipient would be in danger without the donation; and no other compatible donor is reasonably available; and there is, or has been, a close personal relationship between the adult and proposed recipient.
The tribunal may not consent if the adult objects to the removal of tissue for donation.
Note Section 67, which effectively enables an adults objection to be overridden in some cases, does not apply.
If the tribunal consents to removal of tissue for donation, the tribunals order must specify the proposed recipient.

Sterilisation

The tribunal may consent, for an adult with impaired capacity for the special health matter concerned, to sterilisation of the adult only if the tribunal is satisfied (a) one of the following applies (i) the sterilisation is medically necessary; (ii) the adult is, or is likely to be, sexually active and there is no method of contraception that could reasonably be expected to be successfully applied; (iii) if the adult is femalethe adult has problems with menstruation and cessation of menstruation by sterilisation is the only practicable way of overcoming the problems; and (b) (c) the sterilisation can not reasonably be postponed; and the adult is unlikely, in the foreseeable future, to have capacity for decisions about sterilisation. for eugenic reasons; or

The tribunal may consent, for an adult with impaired capacity for the matter, to the adults participation in special medical research or experimental health care intended to gain knowledge that can be used in the diagnosis, maintenance or treatment of a condition the adult has or has had only if the tribunal is satisfied about the following matters (a) (b) (c) the special medical research or experimental health care is approved by an ethics committee; the risk and inconvenience to the adult and the adults quality of life is small; the special medical research or experimental health care may result in significant benefit to the adult or other persons with the condition; the special medical research or experimental health care can not reasonably be carried out without a person who has or has had the condition taking part; the special medical research or experimental health care will not unduly interfere with the adults privacy.

(e) (3)

The tribunal may not consent to the adults participation in special medical research or experimental health care if (a) the adult objects to the special medical research or experimental health care; or

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Guardianship and Administration Act 2000 Chapter 5 Health matters and special health matters Part 3 Consent to special health care [s 73]
the adult, in an enduring document, indicated unwillingness to participate in the special medical research or experimental health care.
Prescribed special health care
Subject to section 68(2), the tribunal may consent, for an adult with impaired capacity for the special health matter concerned, to the adult having prescribed special health care. The tribunal may consent only if it is satisfied of the matters prescribed under a regulation.
Subsequent special health care for adult
If the tribunal consents to special health care for an adult, the tribunal may appoint 1 or more persons who are eligible for appointment as a guardian or guardians for the adult and give the guardian or guardians power to consent for the adult to (a) (b) continuation of the special health care; or the carrying out on the adult of similar special health care.

restrictive practice matter means (a) (b)
restrictive practice (respite) matter, for an adult, means a matter relating to the use of a restrictive practice in relation to the adult by a relevant service provider in the course of providing respite services or community access services to the adult. seclude see the DSA, section 123E. short term plan see the DSA, section 123E.
Containment or seclusion approvals
Giving containment or seclusion approvals
When tribunal may approve use of containment or seclusion
The tribunal may, by order, give approval for a relevant service provider to contain or seclude an adult, subject to the conditions stated in the order.

Page 86

The tribunal may give the approval only if the tribunal is satisfied (a) the adult has impaired capacity for making decisions about the use of restrictive practices in relation to the adult; and there is a need for the relevant service provider to contain or seclude the adult because (i) the adults behaviour has previously resulted in harm to the adult or others; and
(ii) there is a reasonable likelihood that, if the approval is not given, the adults behaviour will cause harm to the adult or others; and (c) a positive behaviour support plan has been developed for the adult that provides for the containment or seclusion; and containing or secluding the adult in compliance with the approval is the least restrictive way of ensuring the safety of the adult or others; and the adult has been adequately assessed by appropriately qualified persons, within the meaning of the DSA, section 123E, in the development of the positive behaviour support plan for the adult; and if the positive behaviour support plan for the adult is implemented (i) the risk of the adults behaviour causing harm will be reduced or eliminated; and
(ii) the adults quality of life will be improved in the long term; and (g) the observations and monitoring provided for under the positive behaviour support plan for the adult are appropriate.
The tribunal may make the order on its own initiative or on an application under section 80ZO.

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Guardianship and Administration Act 2000 Chapter 5B Restrictive practices Part 2 Containment or seclusion approvals [s 80W]
Matters tribunal must consider
In deciding whether to give a containment or seclusion approval, the tribunal must consider each of the following (a) (b) the suitability of the environment in which the adult will be contained or secluded; if the tribunal is aware the adult is subject to a forensic order or involuntary treatment order under the Mental Health Act 2000 (i) the terms of the order; and (ii) the views of the authorised psychiatrist responsible for treatment of the adult under that Act about the containment or seclusion of the adult; (c) any strategies, including restrictive practices, previously used to manage or reduce the behaviour of the adult that causes harm to the adult or others, and the effectiveness of those strategies; the type of disability services provided to the adult.

80ZL Right of adult guardian to information for making decision
This section applies to the adult guardian for deciding whether to give approval under this part for a relevant service provider to use a restrictive practice in relation to an adult. The adult guardian has a right to all the information that (a) (b) the adult would have been entitled to if the adult had capacity; and is necessary for the adult guardian to make an informed decision.
At the adult guardians request, a person who has custody or control of the information must give the information to the adult guardian, unless the person has a reasonable excuse. If a person who has custody or control of the information does not comply with a request by the adult guardian to give information, the tribunal may, on application by the adult guardian, order the person to give the information to the adult guardian. If the tribunal orders a person to give information to the adult guardian, the person must comply with the order, unless the person has a reasonable excuse. It is a reasonable excuse for a person to fail to give information because giving the information might tend to incriminate the person.

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Guardianship and Administration Act 2000 Chapter 5B Restrictive practices Part 4 Short term approval of adult guardian for use of particular restrictive practices [s 80ZM]
Subject to subsection (6), this section overrides (a) (b) any restriction, in an Act or the common law, about the disclosure or confidentiality of information; and any claim of confidentiality or privilege, including a claim based on legal professional privilege.
80ZM Requirement for adult guardian to give notice of decision
As soon as practicable after the adult guardian decides to give, or refuse to give, an approval under this part, the adult guardian must give written notice of the decision to the following (a) (b) (c) (d) (e) (f) the relevant service provider; the adult; the tribunal; the chief executive (disability services); a guardian for a restrictive practice (general) matter for the adult; any other person consulted by the adult guardian under section 80ZH(2). the name of the adult; the name of the relevant service provider; the adult guardians decision, including, if the decision is to give the approval, the terms of the approval; the reasons for the adult guardians decision.
The notice must state the following (a) (b) (c) (d)

Page 100

Guardianship and Administration Act 2000 Chapter 5B Restrictive practices Part 5 Tribunal proceedings [s 80ZN]

Part 5

80ZN Relationship with ch 7
The following provisions of chapter 7 apply for a proceeding under this chapter part 1 part 2 (other than section 119) part 3 part 4 (other than section 129) sections 154 and 155 parts 6 and 8.

Once an application about a matter has been made to the tribunal, the tribunal may (a) (b) give advice or directions about the matter it considers appropriate; or make recommendations it considers appropriate about action an active party should take.
Note For disobeying a direction of the tribunal, see the QCAT Act, section 213(1).

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Guardianship and Administration Act 2000 Chapter 7 Tribunal proceedings Part 4 Proceeding [s 138AA]
If the tribunal gives advice or a direction or makes a recommendation, it may also (a) (b) continue with the application; or adjourn the application.
The tribunal may also give leave for an active party to apply to the tribunal for directions about implementing the recommendation. A guardian, administrator or attorney who acts under the tribunals advice, directions or recommendations is taken to have complied with this Act or the Powers of Attorney Act 1998 unless the person knowingly gave the tribunal false or misleading information relevant to the tribunals advice, directions or recommendations. In this section attorney means (a) (b) (c) (a) (b) (c) an attorney under a power of attorney; or an attorney under an advance health directive; or a statutory health attorney. a general power of attorney made under the Powers of Attorney Act 1998; or an enduring power of attorney; or a power of attorney made otherwise than under the Powers of Attorney Act 1998, whether before or after its commencement.

power of attorney means

138AA Directions to former attorney
At any hearing of a proceeding relating to an adult, the tribunal may give directions to a person who was formerly an attorney for a matter for the adult.

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Guardianship and Administration Act 2000 Chapter 7 Tribunal proceedings Part 4 Proceeding [s 138A]
However (a) the directions may only be directions the tribunal considers necessary because of the ending of the persons appointment as attorney for the matter; and the directions may relate only to a matter for which the person was appointed as attorney immediately before the appointment ended.
In this section attorney means (a) (b) an attorney under a power of attorney; or an attorney under an advance health directive.
138A Repeated applications for orders
This section applies if the tribunal dismisses an application because it considers the application is frivolous, vexatious, misconceived or lacking in substance. The QCAT Act, section 49(2) does not apply to another application of the same kind in relation to the same matter.

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Guardianship and Administration Act 2000 Chapter 7 Tribunal proceedings Part 5 Particular proceedings or orders [s 146]

(viii) a person given leave to appeal by the appeal tribunal, or the Court of Appeal, under the QCAT Act; and (b) for a tribunal decision to make a limitation order, other than a non-appellable decision, also means an active party, or an entity adversely affected by the limitation order.
non-appellable decision means a tribunal decision to make a limitation order under section 110.
164 Filing notice of appeal in particular circumstances
If the tribunal makes 1 or more orders under section 157 postponing notifying, and giving a copy of, its decision for a specified period, the notice of appeal may be filed within 28 days after the later of the following days (a) (b) the last day of the specified period or periods; the date of the written reasons for the tribunals decision.

Part 9

Recognition of order made under another law

Definitions for pt 9

In this part recognised provision means a provision, Act or law prescribed under a regulation for section 167. registrable order means an order made under a recognised provision.

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Guardianship and Administration Act 2000 Chapter 7 Tribunal proceedings Part 9 Recognition of order made under another law [s 167]
Regulation prescribing recognised provision
If an Act, or provision of an Act, of the Commonwealth or another State, or a law, or provision of a law, of a foreign jurisdiction, allows an order to be made that is similar to an order that may be made under this Act or the Powers of Attorney Act 1998, the provision, Act or law may be prescribed under a regulation for this section.
168 Application to register
A person may apply to the tribunal to register a registrable order.

169 Registration

The tribunal may register a registrable order only if the original order or a certified copy of the order has been filed with the tribunal.
170 Effect of registration
The effect of registration of a registrable order is the order is treated, other than for an appeal, as if it were an order made by the tribunal.
171 Notice of registration and subsequent action to original maker
As soon as reasonably practicable after registering a registrable order, the tribunal must advise the entity that originally made the order of the registration. As soon as reasonably practicable after the tribunal takes any subsequent action about the order, including, for example, making a further order, the tribunal must advise the entity that originally made the order of the action.

promoting the provision of services and facilities for the adults; monitoring and reviewing the delivery of services and facilities to the adults.
The public advocate may do all things necessary or convenient to be done to perform the public advocates functions. The public advocate may intervene in a proceeding before a court or tribunal, or in an official inquiry, involving protection of the rights or interests of adults with impaired capacity for a matter. However, intervention requires the leave of the court, tribunal or person in charge of the inquiry and is subject to the terms imposed by the court, tribunal or person in charge of the inquiry.
In performing the public advocates functions and exercising the public advocates powers, the public advocate is not under the control or direction of the Minister.

212 Delegation

The public advocate may delegate the public advocates powers to an appropriately qualified member of the public advocates staff. In this section appropriately qualified, for a person to whom a power under an Act may be delegated, includes having the qualifications, experience or standing appropriate to exercise the power.

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Guardianship and Administration Act 2000 Chapter 9 Public advocate Part 2 Administrative provisions [s 213]
Example of standing a persons level of authority

213 Appointment

The Governor in Council must appoint the public advocate. The appointment must be on a full-time basis. A person is eligible for appointment as public advocate only if the person has demonstrated commitment to advocacy for people with impaired capacity for a matter. A person may not hold office as public advocate while the person holds office as adult guardian or public trustee.

Selection

For selecting a person for recommendation for appointment as public advocate, the Minister must advertise for applications from appropriately qualified persons to be considered for selection. The Minister may recommend to the Governor in Council a person for appointment as public advocate only if subsection (1) has been complied with for the appointment. Subsections (1) and (2) do not apply to the reappointment of a person as the public advocate.

relevant tribunal person means (a) (b)

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Guardianship and Administration Act 2000 Chapter 11 Miscellaneous provisions Part 4 Protection from liability and dealing with information [s 247]
an adjudicator or assessor appointed under the QCAT Act.
substituted decision-making review means the review of particular matters under this Act and the Powers of Attorney Act 1998 referred to the commission by the Minister on 14 October 2005. tribunal expert means (a) (b) a person engaged under a procedural direction to help the tribunal in a proceeding; or a person required under a procedural direction to prepare and produce a report or document to be given to the tribunal.
use, confidential information, includes disclose or publish.
247 Whistleblowers protection
A person is not liable, civilly, criminally or under an administrative process, for disclosing to an official information about a persons conduct that breaches this Act or the Powers of Attorney Act 1998. Without limiting subsection (1) (a) in a proceeding for defamation the discloser has a defence of absolute privilege for publishing the disclosed information; and if the discloser would otherwise be required to maintain confidentiality about the disclosed information under an Act, oath, rule of law or practice, the discloser (i) does not contravene the Act, oath, rule of law or practice for disclosing the information; and
(ii) is not liable to disciplinary action for disclosing the information. (3) A persons liability for the persons own conduct is not affected only because the person discloses it to an official.

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Guardianship and Administration Act 2000 Chapter 11 Miscellaneous provisions Part 4 Protection from liability and dealing with information [s 248]
In this section official means (a) the principal registrar or a registrar under the QCAT Act or another member of the administrative staff of the registry under that Act; or the adult guardian, a member of the adult guardians staff or an adult guardians delegate for an investigation; or the public advocate or a member of the public advocates staff; or a community visitor.
Protection from liability if honest and not negligent

Page 191

Guardianship and Administration Act 2000 Chapter 12 Transitional provisions and repeal Part 2 Transitional provisions for committee [s 256]
Transitional provisions for committee
Power to apply to court for compensation for loss of benefit in estate because of committee
If a persons benefit in an adults estate under the adults will, on intestacy, or by another disposition taking effect on the adults death, is lost because of a sale or other dealing with the adults property by a committee of the adult, section 60 applies as if references in the section to an administrator were references to the committee. Subsection (1) applies whether the sale or other dealing happens before or after the commencement of this section.
Tribunals power if committee
If a committee for a person continues after the commencement of this section, the tribunal may make an order setting aside the committee and may make any other appropriate order.
Transitional provisions for, and repeal of, Intellectually Disabled Citizens Act 1985

Definitions for pt 3

In this part repealed Act means the Intellectually Disabled Citizens Act 1985.

Page 192

Guardianship and Administration Act 2000 Chapter 12 Transitional provisions and repeal Part 3 Transitional provisions for, and repeal of, Intellectually Disabled Citizens Act 1985 [s 259]
Adult guardian assumes legal friend responsibilities
If, immediately before the repeal of the repealed Act, the legal friend is authorised to act, or is acting, under section 26 of the repealed Act for a person (a) (b) the adult guardian is taken to have been authorised to act for the person under section 26 of the repealed Act; and the repealed Act applies to the adult guardian as if references to the legal friend were references to the adult guardian and the repealed Act had not been repealed.
The adult guardians authority under subsection (1) ends if the adult guardian receives a written request from the persons administrator that the adult guardian no longer act under the authority.
Management by public trustee
If, immediately before the repeal of the repealed Act, the public trustee manages a persons estate under section 32(1) and (2) of the repealed Act, then, on the repeal of the repealed Act the public trustee is taken to be appointed by the tribunal as the persons administrator for all financial matters. If, immediately before the repeal of the repealed Act, the public trustee manages a persons estate under section 32(1A) and (2) of the repealed Act, then, on the repeal of the repealed Act, the public trustee is taken to be appointed by the tribunal as the persons administrator for all financial matters.

Page 247

def special life-sustaining measures om 2001 No. 95 s 21(1) def sterilisation sub 2003 No. 87 s 45(1)(2) def tribunal sub 2009 No. 24 s 1471 def tribunal rules om 2009 No. 24 s 1471(1)

State of Queensland 2011

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