‘I Want to Tell my Story’: The Guardianship and Administration Confidentiality Law

Confidentiality laws in other jurisdictions

181     Most states and territories in Australia, except the Australian Capital Territory, prohibit the publication of information about guardianship proceedings in some way. The nature of the prohibition varies state by state. The Australian Capital Territory and Tasmania have appreciably different approaches to the other states.

182     We also examined confidentiality laws in the overseas jurisdictions of New Zealand,^[203] England and Wales,^[204] and the United States.^[205] We found that New Zealand and England and Wales operate under a comparable model to Victoria. In the United States, there is a good deal of variance across the states, with some states adopting a much more open approach than others.^[206] None of the overseas jurisdictions the Commission looked at offered appreciably different models for Victoria to follow.

183     More information about the approaches in other jurisdictions will be published separately by the Commission and made available on our website.

The law in the Australian Capital Territory

184     In the Australian Capital Territory, in the legislation governing the ACT Civil and Administrative Tribunal,^[207] there is no prohibition on the publication of identifying information about guardianship or administration proceedings and hearings are conducted in public.^[208]

185     However, where the tribunal is satisfied that the right to a public hearing is outweighed by competing interests^[209] it can make an order:

•      to close or restrict access to a hearing;^[210] and/or
•      to prohibit/restrict the publication of evidence given at a hearing, whether in public or private, or of matters contained in documents filed with the tribunal or received in evidence by the tribunal for the hearing;^[211] and/or
•      to prohibit or restrict the disclosure of evidence or matters disclosed in documents lodged or received in evidence by the tribunal to some or all of the parties.^[212]

186     ‘Competing interests’ might include:

•      protecting morals, public order or national security
•      maintaining the privacy of the represented person
•      because publicity would otherwise prejudice the interests of justice.^[213]

187     The tribunal can make such an order or orders on its own initiative or on application by a party.^[214]

The law in Tasmania

188     The new law in Tasmania, operational since 1st September 2024, gives the represented person the ability to tell their own story and to consent to the publication of their story by a third party.

189     The Guardianship and Administration Act 1995 (Tas) (Tasmanian G&A Act) prohibits the disclosure of information obtained in relation to a represented person (called ‘protected information’) by the Tasmanian Civil and Administrative Tribunal (TASCAT) or the Tasmanian Public Guardian, except where:

•      the disclosure has been consented to by, and with the full understanding of, the protected person; and
•      the disclosure of the protected information does not involve the disclosure of information relating to another person, unless the other person has also consented to the disclosure of that information.^[215]

190     ’Protected information’ includes information that identifies a represented person or proposed represented person, and information that deals with their personal history or records, that has been obtained by the tribunal or Public Guardian under the Tasmanian G&A Act or the TASCAT Act.^[216]

191     The represented person does not have to return to the tribunal to demonstrate they have consented to publication. The onus is on the publisher to obtain consent with the full understanding of the protected person. Whether this threshold is met would likely only be tested in the event that it was challenged. That may happen if the Tasmanian Public Guardian, or another party named in a story, wanted to dispute that the represented person had given fully informed consent.

192     The explanatory memorandum to the new provision explains that consent differs from capacity to make decisions under the Act:

Crucially, consent of the represented person is different to an assessment of impaired decision-making. The intention is not to require that the person undergo an assessment of decision-making ability in relation to their ability to provide that consent. Consent is an appropriate and necessary safeguard for the represented persons to be able to express their will and preference. Where they wish to provide their consent to the publication of information about them, it would be inappropriate to allow a represented person’s experiences to be shared without their consent. Consent in this context refers to the ordinary meaning of consent–that is, the represented person is freely giving their agreement to make the information public. Matters relevant to the protected person’s understanding of what is being made public may include, for example, matters such as what is being disclosed, who it is being disclosed to and the purpose of the disclosure.^[217]

193     No information is provided about whether the consent required of ‘another person’ extends to state agencies or service providers.

194     The recent Tasmanian reforms also included a change to the former discretion for the tribunal to permit publication where it considered it was in the ‘best interests’ of the represented person. The test in the new section 86(2)(b) is whether ‘in the opinion of the Tribunal or the Public Guardian, the disclosure of the protected information wouldpromote the personal and social well-being of the protected person’.

195     In introducing the Guardianship and Administration Amendment Act Bill 2023, the Tasmanian Deputy Premier stated:

the Government has listened to stakeholder concerns that confidentiality restrictions or so-called ‘gag provisions’ can currently limit people under guardianship and administration in telling their stories. … the bill explicitly amends the Guardianship and Administration Act to allow people under guardianship orders to consent to publication of their information, if they so choose.^[218]

196     Section 123(1) of the TASCAT Act also prohibits publication of any identifying information about a person involved in a guardianship proceeding in Tasmania, unless:

•      the tribunal determines that it is in the public interest to allow publication;^[219] or
•      one of the exceptions listed in section 86(2A) or (2B) of the Guardianship Act 1995 outlined above applies.^[220]

197     Protections in the TASCAT Act also extend to photographs and videos of protected/represented persons.^[221]

198     At the time of writing there were no published decisions examining the new Tasmanian provisions.

The law in New South Wales, the Northern Territory and Queensland

199     In New South Wales, the Northern Territory and Queensland, the publication of information about proceedings that identify a represented person is prohibited, as it is in Victoria.

200     In New South Wales, it is prohibited under the Civil and Administrative Tribunal Act 2013 No 2 (NSW) (NCAT Act) to publish or broadcast the names or any information that could lead to the identification of individuals involved in proceedings in the Guardianship Division of the Tribunal, except with NCAT’s consent.^[222] There is no guidance given as to how the tribunal may exercise its discretion to grant consent. There are no further exceptions provided to the rule.

201     In the Northern Territory the Guardianship of Adults Act 2016 (NT) provides that ‘the publication of information about proceedings that identifies the adult to whom the proceedings relates or enables the identity of the adult to be ascertained is prohibited’.^[223] The tribunal may make an order authorising publication that identifies a represented adult if it is consistent with guardianship principles and it is in the public interest. An application may be made by ‘any person who the Tribunal is satisfied has a proper interest in the proceedings’.^[224]

202     In Queensland, although the Guardianship and Administration Act 2000 (Qld) contains an express presumption that publication about guardianship proceedings is allowed, a person cannot publish any information^[225] that could lead to the identification of the relevant adult by a member of the public, unless they have a reasonable excuse.^[226] Reasonable excuse is not defined in the legislation.^[227] The tribunal may authorise publication where it considers it is in the public interest or the relevant adult’s interest^[228] or where the protected person has died.^[229]

203     In Queensland, the public advocate or guardian has a right to reply to a prohibited publication where it considers it would be in the public interest to do so.^[230]

204     If the Queensland Tribunal is satisfied it is necessary to avoid serious harm or injustice to a person, it may also issue a non-publication order under section 108 of the Guardianship and Administration Act 2000 (Qld) prohibiting the publication of information not already prohibited from publication under section 114A. Non-publication orders under section 108 may prohibit publication of information about a proceeding disclosing health information about a person even after their death.

205     Non-parties cannot access documents until after the hearing is finalised and must demonstrate ‘sufficient interest’ in the proceedings to gain access.^[231]

The law in South Australia

206     In South Australia, a person must not publish a report of any guardianship or administration proceedings. On application by someone with a ‘proper interest in the matter’, the tribunal has the discretion to authorise publication, but only where it does not disclose any identifying information about the protected person.^[232] The South Australian legislation does not specify any parameters for the exercise of the tribunal’s discretion.

The law in Western Australia

207     Western Australia has the strictest regime for non-publication of guardianship proceedings in the country. Under the Guardianship and Administration Act 1990 (WA), a person must not publish or broadcast any report that identifies, or could lead to the identification of, a protected person.^[233]

208     Identifying a person includes the use of name, title, pseudonym or alias of the person, residential or work address, physical description or style of dress of the person, employment, recreational interests, or photographs of the person in the case of a written publication and in a broadcast where voice is sufficient to identify them to a member of the public.^[234]

209     There is no discretion in the Western Australian legislation empowering the tribunal to allow publication under any circumstances.

203. In New Zealand it is prohibited to publish a report of guardianship or administration proceedings that identifies a represented person. The court may grant leave, with or without conditions, to allow publication but the law does not spell out when this discretion can be exercised: Family Court Act 1980 (NZ) ss 5, 11B(3).

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204. In England and Wales, it is prohibited to publish any information about guardianship and administration proceedings where the court is sitting in private, which it generally is. The Court of Protection has jurisdiction over guardianship and administration proceedings in England and Wales and its rules stipulate that hearings are held in private unless the court makes an order otherwise: see Administration of Justice Act 1960 (UK) s 12(1)(b); Court of Protection Rules 2017 (UK) r 4.1. The Court of Protection was established under the Mental Capacity Act 2005 (UK), which came into force in 2007. Under the Court of Protection Rules 2017 (UK), the Court can make an order authorising publication on application by any person or of its own motion (r 4.2) and can set parameters around what can and cannot be published (r 4.3(2)). The Court can also make an order to open a hearing to the public (r 4.3(1)). Even when it does open a hearing, it can still restrict the publication of information that could identify a party to the proceedings (r 4.3(2)). To make an order to open the court or allow publication, the court must believe there is ‘good reason’ to do so (r 4.4). The legislation does not define ‘good reason’, but it has been interpreted in caselaw as involving a two-stage approach: see Independent News Media Ltd & Ors v A [2009] EWHC 2858 (Fam), [25]-[35].

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205. A 2017 review of state laws by the American Bar Association Commission on Law and Aging found that in 13 states, all records of guardianship hearings, including all documents, could be sealed—that is, kept confidential and not open for public inspection. In about half of all states, records were partially protected, typically including medical records and financial records. In nearly all states, hearings can be closed to the public on request. States have a range of regulations to protect personal information, “[h]owever, these rules may not be strictly enforced and usually parties bear the responsibility of ensuring this information is redacted” Erica McCrea, ‘A Survey of Privacy Protections in Guardianship Statutes and Court Rules’ (2017) 38(3) Bifocal 50, 51; It is common for people subject to guardianships or conservatorships in the United States, especially celebrities or persons of note, to have their identities and details of their case published in the media, regardless of their consent. Julia Jacobs, ‘Britney Spears’s Conservatorship: What To Know’, The New York Times (online, 22 September 2021) <https://www.nytimes.com/article/britney-spears-conservatorship.html>; Meryl Gordon, ‘The New Astor Court’, Vanity Fair (online, 26 September 2009) <https://www.vanityfair.com/news/2009/09/astor-trial200909>.

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206. For example, in New York State under the NY Mental Hygiene Law § 81.14 (2014) <https://www.nysenate.gov/legislation/laws/MHY/81.14>; See also Daniel Reiter, ‘Public Access to Adult Guardianship Cases: A World of Inconsistency’, Adult Guardianship Law Blog (Web Page, 28 December 2020) <https://www.adultguardianshiplawblog.com/2020/12/public-access-to-adult-guardianship-cases-a-world-of-inconsistency/>; Matter of Caminite (Amelia G) 57 Misc 3d 720 (2017); Matter of Doe 181 Misc 2d 787 (1999).

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207. ACT Civil and Administrative Tribunal Act 2008 (ACT).

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208. Ibid s 38.

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209. Ibid s 39(1).

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210. Ibid s 39(2)(a).

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211. Ibid s 39(2)(b).

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212. Ibid s 39(2)(c).

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213. Ibid s 39(5).

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214. Ibid s 39(3).

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215. Guardianship and Administration Act 1995 (Tas) s 86(2). The exception for consent was inserted into the Guardianship and Administration Act 1995 (Tas) in September 2024 by section 62 of the Guardianship and Administration Amendment Act 2023 (Tas).

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216. Guardianship and Administration Act 1995 (Tas) s 86(1).

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217. Tasmania, Parliamentary Debates, House of Assembly, 10 August 2023, 85 and 88 (Simon Wood, Parliamentary Secretary for Health, Mental Health and Wellbeing).

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218. Tasmania, Parliamentary Debates, House of Assembly, 10 August 2023, 66 (Mr Ferguson, Deputy Premier).

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219. Tasmanian Civil and Administrative Tribunal Act 2020 (Tas) s 123(2).

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220. Ibid s 123(1A). The exceptions in the Guardianship Act 1995 (Tas) are s 86(2A) for ‘the disclosure of information as required or permitted by any law if, in the case of information relating to another person, that other person has given consent in writing’ and s 86(2B) for the disclosure of protected information where there has been consent with the full understanding of the protected person and with the consent of any third party the protected information relates to.

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221. Ibid s 123(1)(b).

222. Civil and Administrative Tribunal Act 2013 (NSW) s 65(2)(b).

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223. Guardianship of Adults Act 2016 (NT) s 80(2).

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224. Ibid s 80(4).

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225. The Guardianship and Administration Act 2000 (Qld) s 114A defines ‘prohibited publication’ to mean ‘publication of information about a guardianship proceeding to the public, or a section of the public, that is likely to lead to the identification of the relevant adult by a member of the public, or by a member of the section of the public to whom the information is published.’

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226. Ibid.

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227. In its 2007 report looking at confidentiality in the guardianship system, QLRC wrote that the concept of ‘reasonable excuse’ is ‘not capable of being exhaustively judicially defined and is essentially a question of fact’ that should be ‘determined in light of the purpose of the legislation, having regard to what a reasonable person would accept as appropriate’. Some submissions to the QLRC’s inquiry said reasonable excuse should be better defined in the law, but QLRC concluded that this was unnecessary because, ‘the flexibility provided by the defence is useful given the multiplicity of potential publications that could occur in the guardianship context’. Queensland Law Reform Commission, Public Justice, Private Lives: A New Approach to Confidentiality in the Guardianship System – Vol 1 (No 62, June 2007) 179 [4.360], 356 [7.270] <https://www.qlrc.qld.gov.au/__data/assets/pdf_file/0005/372533/R62Vol1.pdf>.

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228. Guardianship and Administration Act 2000 (Qld) s 114A(4)-(6).

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229. Ibid s 114A(3)(b).

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230. Ibid s 114A(3)(a).

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231. Queensland Civil and Administrative Tribunal, Accessing and Obtaining Copies of Documents in Guardianship Proceedings (QCAT Practice Direction No.8 of 2021) <https://www.qcat.qld.gov.au/__data/assets/pdf_file/0011/692372/qcat-practice-direction-no.-8-of-2021-rop-accessing-documents-guardianship.pdf>.

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232. Guardianship and Administration Act 1993 (SA) s 81.

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233. Guardianship and Administration Act 1990 (WA) sch 1 cl 12(1). Note pursuant to Part 3A of the Guardianship and Administration Regulations the Public Advocate and the Public Trustee are permitted to divulge personal information in prescribed circumstances to perform their roles.

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234. Ibid sch 1 cl 12(3).

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