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

Considerations for possible law reform

Arguments for reforming clause 37

136 The following arguments for reforming the law were raised in VLRC consultations and/or identified by the VLRC in our review of literature on the topic. The arguments challenge the view that the law should always default to protection of the identities of those involved in proceedings. The paragraphs that follow go into each argument in more depth.

•    The VCAT Act should align with modern understandings of human rights.
•    Reform would enable people to tell more positive stories of disability.
•    Reform would assist people to hold service providers to account.
•    Clause 37 acts as a barrier to media reporting.
•    There is uncertainty about how clause 37 operates.
•    Going back to VCAT to seek permission to publish is traumatic for represented persons and their families and friends.
•    Reform would address concerns about overreach of clause 37.
•    Greater certainty and consistency are needed than is currently the case.
•    The benefits of change outweigh any risks.

Aligning the VCAT Act with modern human rights

‘The right to use your own voice to tell your own story is a fundamental human right. “It’s my story and I own it. I can tell it.”
The Victorian Public Advocate.^[146]

137     Based on the literature, contemporary reviews and inquiries and our consultations, the key argument in favour of reforming clause 37 is that it is out of step with human rights and the principles underpinning modern laws.^[147]

138     In calling for reform to clause 37, the Victorian Public Advocate referred to the rights to privacy and freedom of expression contained in the Charter and the purpose of the CRPD:

In light of the Convention, OPA considers that greater weight should be placed on the person’s right to freedom of expression, and as a result, the current legislative restriction on a person’s freedom to speak about their own experiences without VCAT’s prior consent is no longer demonstrably justified or proportionate.^[148]

139     Consultation participants told us that removing a represented person’s right to decide how, where and when to tell their own story can have a negative impact on their freedom of expression, dignity and autonomy. The prohibition in clause 37 ‘perpetuates myths that decisions or processes involving people with disability are best dealt with privately and secretly’.^[149] Consultees told us that this approach is disempowering, outdated, protectionist and paternalistic.^[150] Instead the ‘starting point has to be that the person should be able to tell their own story’.^[151]

140     Another consultation participant explained:

Most of our clients have an intellectual disability: but they have capacity to manage their own circumstances and make decisions for themselves. They have opinions about what they want and how they want to live their lives.

Our clients feel that they should be allowed to talk to the world about what’s happening in their lives, to tell their own stories of their experiences of guardianship and administration. This is critical so the same mistakes don’t keep getting made. Well-meaning people who make guardianship applications don’t generally want things to go public. The reality is that the clients are usually quite prepared to discuss what’s happened to them but they’re being gagged by clause 37.^[152]

141     We were told that the clause 37 can cause trauma and confusion:

a lot of my clients feel like guardianship and administration is being done to them. It feels like a punishment, that they’ve done something wrong … so adding extra restrictions to these people can cause extra trauma and confusion for our clients.^[153]

142     Another consultation participant noted that having a default ban on publication of identifying information means that VCAT is not looking at individual needs, but is instead treating everyone the same way.^[154] It was further observed that some people with disability do not have anyone to make a challenge to the law on their behalf.^[155]

Sharing positive stories about disability

143     During consultations we were told that allowing people to tell their stories would pave the way for positive stories of people with disability to be shared with the public. This could improve community understanding of disability and the guardianship system and reduce discrimination.

144     People might want to talk about coming off an order after successfully completing the State Trustees Financial Independence Program.^[156] We were told about a person on a order who was invited to talk at a disability conference about a decision they had made about medical treatment:

This person was really proud to have made the decision themselves about their medical treatment. Nobody else made that call. They probably would have also liked to discuss their experiences with VCAT but couldn’t. This person went to VCAT many times to argue for the right to make their own decisions instead of family making decisions for them.^[157]

145     The Acting Tasmanian Public Guardian observed that the provision might also be used in a positive way to celebrate the success of guardianship. The Tasmanian Public Guardian has met with protected persons over the years and told their stories in a de-identified way in annual reports and publications with their approval. These stories are ‘often good news stories highlighting the positive impact of guardianship where it has achieved critical outcomes for the protected person’.^[158]

Holding service providers to account

146     Another argument in favour of reform is that the current regime prevents people from speaking out when they receive sub-standard support or care.^[159] This can mean that guardians, administrators and providers of care such as nursing homes and hospitals are shielded from scrutiny.^[160]

147     The Australian Age Discrimination Commissioner noted:

Confidentiality laws should not protect state institutions who provide guardianship and administration services even though these institutions may be wary of scrutiny. There is a long-established culture within state organisations that ‘we know best’. This should be interrogated. There are many examples of bad decision-making with dire consequences particularly in the financial decision-making area.^[161]

148     We were told that there has been an increase in guardianship applications across the country after the introduction of NDIS because many more decisions are being made for people with impaired decision-making ability.^[162] Increasingly, aged care providers and other disability service providers are requiring formal tribunal appointments before they will recognise a substitute decision maker. It was observed that ‘the ability to tell your own story becomes much more important in a context where appointments are being sought more readily’.^[163]

149     Notwithstanding the Victorian Public Advocate^[164], State Trustees^[165] and VCAT^[166] have various internal complaints mechanisms, recent inquiries have suggested that some of these mechanisms could be improved. We heard in consultations that people approach the media as a last resort when they have not been able to resolve their concerns in other ways.

The people I have been speaking to are frustrated with the system. They don’t understand how their money’s being invested or why they have such a small allowance or the fees they are being charged. There are no effective complaints mechanism or if there is one, they say it does not resolve the matter. People feel voiceless, and they are confused. … It doesn’t make sense that people are gagged from talking about their own experiences of the system that they are in when they already have a disability. They can go to the Attorney General’s Department, but they will just get a standard response letter. There’s nowhere for them to go so they’re entirely powerless.^[167]

150     Consultees argued that greater transparency and openness would also enhance public understanding of and confidence in the guardianship and administration system, relevant legislation and the roles of guardians and administrators. In its Position Statement the Victorian Public Advocate noted:

Ensuring people can freely tell their own stories will increase transparency and promote public trust in this essential safeguarding system.^[168]

Clause 37 acts as a barrier to media reporting

151     While it appears possible under the current law to publish de-identified information about guardianship and administration proceedings, we have heard that clause 37 dissuades represented persons, their families and the media from telling those stories.^[169]

152     A journalist told us:

Many people aren’t familiar with the law and it’s very frightening to them. I have to explain it to them. They are so concerned about being fined, jailed or other repercussions for themselves or their loved ones that they do not want to speak out.^[170]

153     Speaking in 2022 (before the recent amendments to Tasmania’s law came into effect), CEO of Advocacy Tasmania Leanne Groombridge told the ABC’s Four Corners program:

We couldn’t get media coverage from mainstream press because everybody is too worried about the fact that they can’t show this, and the people who are on orders are … terrified about speaking out for fear of making things worse.^[171]

154     We also heard that media organisations are reluctant to go to the tribunal to seek an exemption to report in the public interest:

There is too much fear among media organisations. The media is risk averse. … Challenging restrictions on publication in the public interest costs money and takes time. We don’t have the resources to do this. Junior lawyers and journalists don’t necessarily know how to advocate for this, so most stories are not told.^[172]

155     Media outlets have published stories relating to guardianship and administration on a small number of occasions.^[173] Reports have drawn attention to systemic failings in several states and territories. Individuals profiled in the stories have pointed to mismanagement and mistreatment by public administrators and public guardians and alleged that this has caused them serious harm and trauma.^[174]

Uncertainty about how clause 37 operates

156     Our consultations revealed uncertainty about the meaning and impact of clause 37. Some consultation participants suggested that many people do not know what clause 37 means and that some talk about their lives in ignorance of the provision.^[175]

157     One consultation participant queried how the law could ever work in practice:

[It] only relates to talking about this one specific element of a person’s life, nothing else. People aren’t going to remember to exclude that one little piece of their story. Should we expect them to?^[176]

158     Lawyers representing clients in the Guardianship List told us that their clients are currently not informed about the restrictions in clause 37 at hearings.^[177] Another participant told us: ‘There should be a tick box from the outset asking, “Do you want to be able to tell your story in the future?”’^[178]

Going back to VCAT to seek permission to publish is traumatic

159     We heard that having to return to the tribunal to request an exemption from the prohibition in clause 37 causes trauma and anxiety. A disability lawyer spoke about the systemic trauma their clients have experienced:

When a family seeks advice about administration, they often say: ‘I never want to go back to that tribunal ever again.’ They’ve often had a horrific experience even on a good day having their dirty laundry aired in a courtroom and they never want to go through that again. Consideration would need to be given to making it a less traumatic process for people who have already gone through the tribunal process to seek permission to publish.^[179]

160     A stakeholder working in disability law informed us that about 90-95 per cent of their clients, when asked, are in favour of pursuing an exemption at the tribunal. This consultee said: ‘Anxiety around the process is a big issue and if the VCAT member pushes back at all during the hearing then that anxiety can surface and not want to pursue it any longer.’^[180]

Concerns about overreach of clause 37

161     In consultations we heard that clause 37 is being interpreted by some to prohibit people with disability from talking about their experiences even after a guardianship or administration order has ended, or where a person successfully defends an application, such that they were never on an order in the first place.^[181]

The need for certainty and consistency about the application of clause 37

162     We heard from disability advocates and lawyers that inconsistency in how tribunal members respond to requests for exemptions has led to confusion and unfairness.^[182]

163     A consultation participant suggested that it now seeks an exemption from the prohibition in clause 37 for its clients at VCAT hearings. It said that even though a client might not know at that moment if they want to publish a story, they may want to speak at a conference or on social media later on:

One issue that is arising during hearings is that some VCAT members are requesting specifics about why an exemption is being sought. While some members are happy to grant an exemption purely because our client says, ‘I want to be able to talk about my life’, others want to know exactly what project you want the exemption for. This is unfair because we don’t always know for what purpose somebody will want to speak in the future.^[183]

The benefits outweigh the risks

164     Most consultation participants acknowledged that there is a balance to be struck between autonomy and protection of privacy and prevention from harm. But they thought that the benefits outweighed the risks when it came to the represented person being able to tell their own story.

165     The Victorian Public Advocate noted:

OPA recognises that there are valid reasons to limit the disclosure of sensitive and personal information discussed in guardianship and administration proceedings, to protect the privacy of people under these orders. These protections should only apply to other parties’ use of information shared in guardianship or administration hearings and ensure the person’s right to tell their own story is not inadvertently limited.^[184]

166     In calling for reform to the Queensland law, the Queensland Public Advocate said that the risk that a person’s information could be used to jeopardise their wellbeing should be weighed against ‘the self-actualisation benefit of enabling people to tell their own stories without requiring permission to do so’.^[185] In response to questions about whether there is a need for safeguards to address concerns about exploitation or influence by third parties in the Victorian context, the Queensland Public Advocate noted:

We can’t completely mitigate this risk. But we need to understand the impact the current law has on preventing people from telling their own story on the premise that it’s protecting them from harm.

We can think of comparable risks in other areas of life where we don’t, as a default position, stop people from being able to identify themselves and speak about their experiences, eg in-patients at mental health facilities.

Sometimes people won’t tell the truth or might tell conspiracy theories but that’s up to the media to handle. We can’t deal with that by completely prohibiting their right to speak.

There is a slightly greater risk that people might be taken advantage of and that their stories might be used for nefarious reasons. The risk that family members could exploit a story has increased with the advent of social media. But this risk is substantially outweighed by the cost of silencing people.^[186]

167     The Queensland Public Advocate argued that the main responsibility for monitoring this risk should fall to the tribunal that should retain a discretion to supress or limit publication where appropriate. He suggested that risk will often be known at the time of appointment of a guardian and a limit on publication could form part of an initial order. The Queensland Public Advocate noted that these situations are unusual and that confidentiality should not be the default position.^[187]

168     A journalist thought that risk to the represented person was exaggerated:

I disagree with the argument that people on guardianship and administration orders need more protection. People who are happy with how their funds are being administered and the funds they are receiving don’t go to the media. It is only the people who have run out of options and have nowhere else to turn that approach the media. To put more barriers in place would not solve the problem. After the public became aware of this system through our Four Corners, ‘State Control’, they were surprised that in a country like Australia we should prevent people from voicing their concerns, especially when there has been abuse or maladministration.^[188]

Calls for the retention of safeguards

169    While there was general support for reform to clause 37 among those we consulted, many participants also raised concerns about privacy and an elevated risk that information about a represented person could be used by others to harm them.

170    During consultation, VALiD noted:

People do not want to splash their story across the media. They should have the right to do so if they want, but they should also have the right to say no to others telling their story.

…The balance question comes into play again. There needs to be a brake or control to stop others from telling someone’s story but the person themselves should be able to tell their story as a default.^[189]

171    A representative of State Trustees also spoke of the need for balance:

We understand it would be very confronting to be told you can’t speak about your own experiences and that this would impede you from living a normal life in a way that is meaningful to you. Conversely, privacy considerations and risk are also important. These are the issues that need to be balanced here.^[190]

Protecting privacy and protecting from harm

172     We heard that the type of information discussed in guardianship and administration hearings is often highly sensitive and personal. It can include information about the person’s health and decision-making capacity, personal care arrangements, finances, relationships, family dynamics and, potentially, family conflicts or even family violence.^[191]

173     We heard that the publication of information like this could cause harm to a represented person including an increased risk of family violence.^[192] Consultees highlighted that a perpetrator could seek to use information about a represented person that is published as a further tool of abuse.^[193]

174    One stakeholder noted:

In the health area there are many people with reduced decision-making capacity who are at significant risk of harm. Reform should not create a situation where more harm is caused. It may be that there are a lot more people at risk of harm than people who actually want to speak out. A nuanced position is required, rather than just a blanket prohibition or blanket allowance. We need to find a middle ground.^[194]

175    The Victorian Public Advocate noted that when a problem arises in relation to guardianship or administration it is often because of conflict. Splits and differences of opinions amongst family members happen regularly.^[195] Representatives of VCAT noted that drawing on clause 37 can be a way of upholding the right to privacy for the represented person who may have found themselves unwillingly in the middle of a dispute relating to their care or finances.^[196]

176    In broader discussions both State Trustees and the Victorian Public Advocate raised concerns about the potential for undue influence on a person’s expressed will and preference. In consultation, the Victorian Public Advocate noted that ‘will and preference’ can be used to mask the control and influence a family violence perpetrator has over the person with decision-making incapacity. It was observed that the exploitation of ‘will and preference’ tends to happen more in relation to financial abuse.^[197] A representative of State Trustees cautioned:

One of the general challenges with the new guardianship legislation’s move from best interest decision making to will and preference is that we are starting to see that influence and coercion is impacting a represented person’s expressed will and preference. […] We want to protect people’s rights and the right to make their own decisions but there is also a risk. While the law needs to be contemporary and in line with the [G&A Act 2019] so that represented people can tell their stories, we need to be sure it is actually their story and that they have not been unduly influenced.^[198]

177     Some potential harm scenarios were discussed in consultations including:

•     A third party, including an abusive or coercive family member or partner, could use personal information about a protected person for their own ends.
•     A third party could publish, circulate or misuse information to further their abuse, manipulation or control of a protected person.
•     A third party could use social media to reveal personal information about a protected person that impacts their well-being.
•     Other legal cases or matters might be jeopardised by the revelation of sensitive information about a protected person.
•     A person’s job prospects could be affected if it was known they were under a guardianship order.^[199]

Smaller changes to Victorian law

178    A few consultation participants were comfortable with the protective element of clause 37 but thought that smaller changes could help balance protection aims with human rights considerations.^[200]

179    In addition to suggestions that VCAT should proactively ask represented people at their hearings if they wanted to speak publicly, it was suggested that the public interest exception could be replaced so that there is a presumption that the tribunal will grant permission unless there is a risk of serious harm to the represented person.^[201]

180     One participant said: ‘Serious harm would be a more appropriate test than public interest. We have to strike the right balance between protection and being paternalistic.’^[202]

146. Consultation 1 (Public Advocate (Vic)).

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147. For example see: Break the Silence – Advocates Call for Urgent Reform of State’s Gag Law’, VALiD (Web Page, 8 February 2024) <https://valid.org.au/break-the-silence-advocates-call-for-urgent-reform-of-states-gag-law/>; Public Advocate (Vic), ‘Position Statement: Right to Tell One’s Own Story’, Office of the Public Advocate (Web Page, 6 April 2023) <https://www.publicadvocate.vic.gov.au/the-public-advocate/speeches/499-position-statement-right-to-tell-one-s-own-story>; Recommendation [6.12], Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Cth), Final Report – Volume 6, Enabling Autonomy and Access (Report, 29 September 2023) 196 <https://disability.royalcommission.gov.au/publications/final-report-volume-6-enabling-autonomy-and-access>; Victorian Ombudsman, Investigation into State Trustees (Parliamentary Paper No 42, June 2019) 92 <https://www.ombudsman.vic.gov.au/our-impact/investigation-reports/investigation-into-state-trustees/>; and Yooralla discussion paper titled ‘Guardianship and administration orders and confidentiality: Preliminary observations on potential reform options’, provided to the VLRC at the roundtable consultation.

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148. Public Advocate (Vic), ‘Position Statement: Right to Tell One’s Own Story’, Office of the Public Advocate (Web Page, 6 April 2023) <https://www.publicadvocate.vic.gov.au/the-public-advocate/speeches/499-position-statement-right-to-tell-one-s-own-story>.

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149. Yooralla Discussion paper titled ‘Guardianship and administration orders and confidentiality: Preliminary observations on potential reform options’, provided to the VLRC at the roundtable consultation.

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150. Consultations 4 (Public Advocate (Qld)), 9 (Roundtable organised by Uli Cartwright and hosted by Yooralla).

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151. Consultation 5 (LIV Elder, Disability and Health Law Committees).

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152. Consultation 6 (Villamanta).

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153. Ibid.

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154. Consultation 9 (Roundtable organised by Uli Cartwright and hosted by Yooralla).

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155. Consultation 5 (LIV Elder, Disability, Health Law Committees).

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156. State Trustees, Our Financial Independence Program (Web Page, September 2022) <https://www.statetrustees.com.au/wp-content/uploads/PDFs/STL_Financial-Independence-Program_A5_Flyer_Web.pdf>.

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157. Consultation 6 (Villamanta).

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158. Consultation 11 (Acting Tasmanian Public Guardian and Tasmanian Department of Justice representatives).

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159. Consultations 5 (LIV Elder, Disability and Health Law Committees), 6 (Villamanta), and see Anne Connolly and Hannah Meagher, ‘Silenced by the State’, ABC News (Web Page, 19 June 2023) <https://www.abc.net.au/news/2023-06-20/former-public-trustees-clients-speak-out-on-state-control/102488532>.

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160. Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Cth), Final Report – Volume 6, Enabling Autonomy and Access (Report, 29 September 2023) <https://disability.royalcommission.gov.au/publications/final-report-volume-6-enabling-autonomy-and-access>.

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161. Consultation 2 (Robert Fitzgerald AM, Age Discrimination Commissioner, AHRC)

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162. Consultations 2 (Robert Fitzgerald AM, Age Discrimination Commissioner, AHRC), 4 (Public Advocate (Qld)). See also Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Cth), Final Report – Executive Summary, Our Vision for an Inclusive Australia and Recommendations (Report, 29 September 2023) 71 <https://disability.royalcommission.gov.au/publications/final-report-executive-summaryour-vision-inclusive-australia-andrecommendations>; and Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Cth), Final Report – Volume 6, Enabling Autonomy and Access (Report, 29 September 2023) 139 <https://disability.royalcommission.gov.au/publications/final-report-volume-6-enablingautonomy-and-access>.

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163. Consultation 2 (Robert Fitzgerald AM, Age Discrimination Commissioner, AHRC)

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164. ‘Feedback and Complaints’, Office of the Public Advocate (Web Page) <https://www.publicadvocate.vic.gov.au/feedback-and-complaints>; The Victorian Ombudsman can also take complaints about the Public Advocate. See ‘Complaints’, Victorian Ombudsman (Web Page) <https://www.ombudsman.vic.gov.au/complaints/>; A 2024 audit of the Office of the Victorian Public Advocate by the Victorian Auditor General’s Office (VAGO) suggested ways to improve its complaint handling process. See Victorian Auditor-General’s Office, Guardianship and Decision-Making for Vulnerable Adults (Independent Assurance Report to Parliament No 2023– 24: 16, May 2024) <https://www.audit.vic.gov.au/sites/default/files/2024-05/20240529_Guardianship-and-Decision-making-for-Vulnerable-Adults.pdf?>.

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165. See ‘Compliments, Complaints and Suggestions’, State Trustees (Web Page) <https://www.statetrustees.com.au/contact-us/complaints-and-feedback/>; The Victorian Ombudsman can also take complaints about State Trustees. ‘Complaints’, Victorian Ombudsman (Web Page) <https://www.ombudsman.vic.gov.au/complaints/>; A 2019 inquiry into the State Trustees by the Victorian Ombudsman found its complaint handling system was not always effective in practice. See Victorian Ombudsman, Investigation into State Trustees (Parliamentary Paper No 42, June 2019) 9 <https://www.ombudsman.vic.gov.au/our-impact/investigation-reports/investigation-into-state-trustees/>.

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166. ‘Feedback and Complaints’, VCAT (Web Page) <https://www.vcat.vic.gov.au/about-vcat/feedback-and-complaints>; The Judicial Commission handles complaints about the conduct and capacity of VCAT members. See ‘Guiding the Highest Standards of Judicial Behaviour’, Judicial Commission of Victoria (Web Page) <https://www.judicialcommission.vic.gov.au/>.

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167. Consultation 13 (Anne Connolly, reporter, ABC Investigations).

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168. ‘Position Statement: Right to Tell One’s Own Story’, Office of the Public Advocate (Web Page, 6 April 2023) <https://www.publicadvocate.vic.gov.au/the-public-advocate/speeches/499-position-statement-right-to-tell-one-s-own-story>. See also Public Advocate (Qld), Public Accountability, Private Lives: Reconsidering the Queensland Guardianship System’s Confidentiality Requirements (Report, August 2022) 21 <https://www.justice.qld.gov.au/__data/assets/pdf_file/0004/737779/20220811-report-final.pdf>.

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169. Consultations 9 (Roundtable organised by Uli Cartwright and hosted by Yooralla), 13 (Anne Connolly, reporter, ABC Investigations).

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170. Consultation 13 (Anne Connolly, reporter, ABC Investigations).

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171. ‘State Control: Australians Trapped, Stripped of Assets and Silenced’, Four Corners (Australian Broadcasting Corporation, 14 March 2022) <https://www.abc.net.au/news/2022-03-14/state-control:-australians-trapped,-stripped-of/13795520>.

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172. Consultation 13 (Anne Connolly, reporter, ABC Investigations).

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173. Anne Connolly, Ali Russell and Stephanie Zillman, ‘Trapped, Stripped of Assets, and Silenced. And It’s All Perfectly Legal’, ABC News (Web Page, 14 March 2022) <https://www.abc.net.au/news/2022-03-14/public-trustee-four-corners-investigation/100883884>; Caitlin Fitzsimmons, ‘Penny-Pinching, Raking in Huge Fees: Public Trustees under Scrutiny’, The Sydney Morning Herald (online, 3 February 2019) <https://www.smh.com.au/business/consumer-affairs/penny-pinching-raking-in-huge-fees-public-trustees-under-scrutiny-20190131-p50uwc.html>; Anne Connolly and Hannah Meagher, ‘Silenced by the State’, ABC News (Web Page, 19 June 2023) <https://www.abc.net.au/news/2023-06-20/former-public-trustees-clients-speak-out-on-state-control/102488532>; ‘Prisoner of the State’, Background Briefing (Australian Broadcasting Corporation, 15 December 2023) <https://www.abc.net.au/listen/programs/backgroundbriefing/prisoner-of-the-state-guardian-dementia-mental-illness-nursing/103220352>; ‘State Control: Australians Trapped, Stripped of Assets and Silenced’, Four Corners (Australian Broadcasting Corporation, 14 March 2022) <https://www.abc.net.au/news/2022-03-14/state-control:-australians-trapped,-stripped-of/13795520>; Angus Thompson, ‘“$25,000 Fee Unconscionable”: NSW Trustee Client Dies in Squalor’, The Sydney Morning Herald (online, 28 January 2019) <https://www.smh.com.au/national/nsw/25-000-fee-unconscionable-nsw-trustee-client-dies-in-squalor-20190128-p50u4b.html>.

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174. ‘State Control: Australians Trapped, Stripped of Assets and Silenced’, Four Corners (Australian Broadcasting Corporation, 14 March 2022) <https://www.abc.net.au/news/2022-03-14/state-control:-australians-trapped,-stripped-of/13795520>. The ABC website promoting this program noted, ‘Some 50,000 Australians are currently under the control of Public Guardian and Trustee agencies around the country. By law, these ‘clients’ are banned from speaking out about what happens to them, and journalists can be fined or jailed for reporting on them. Four Corners went to court to fight for the right to have their voices heard’.

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175. Consultations 5 (LIV Elder, Disability and Health Law Committees), 6 (Villamanta), 9 (Roundtable organised by Uli Cartwright and hosted by Yooralla).

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176. Consultation 6 (Villamanta).

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177. VCAT advised us that information about clause 37 is provided in the ‘Application for Order – Appointment of an Administrator and/or Guardian’ form and provided to people when they seek to access a file in the Guardianship List, Consultation 14 (Representatives of VCAT). See also ‘Access to Documents – Guardians and Administrators Cases’, VCAT – Victorian Civil and Administrative Tribunal (Web Page) <https://www.vcat.vic.gov.au/case-types/guardians-and-administrators/access-to-documents-guardians-administrators>.

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178. Consultation 6 (Villamanta).

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179. Consultation 5 (LIV Elder, Disability, Health Law Committees).

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180. Consultation 6 (Villamanta).

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181. Consultation 5 (LIV Elder, Disability, Health Law Committees).

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182. Consultations 5 (LIV Elder, Disability and Health Law Committees), 6 (Villamanta).

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183. Consultation 6 (Villamanta).

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184. ‘Position Statement: Right to Tell One’s Own Story’, Office of the Public Advocate (Web Page, 6 April 2023) <https://www.publicadvocate.vic.gov.au/the-public-advocate/speeches/499-position-statement-right-to-tell-one-s-own-story>.

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185. Public Advocate (Qld), Public Accountability, Private Lives: Reconsidering the Queensland Guardianship System’s Confidentiality Requirements (Report, August 2022) 20 <https://www.justice.qld.gov.au/__data/assets/pdf_file/0004/737779/20220811-report-final.pdf>.

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186. Consultation 4 (Public Advocate (Qld)).

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187. Ibid.

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188. Consultation 13 (Anne Connolly, reporter, ABC Investigations).

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189. Consultation 12 (VALiD).

190. Consultation 7 (representatives of State Trustees).

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191. Consultation 14 (representatives of VCAT) and see the discussion in Kaplan (Guardianship) [2022] VCAT 6, [14].

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192. Consultation 5 (LIV Elder, Disability, Health Law Committees). Research suggests that people with disability are at significantly higher risk than others of experiencing violence, including family violence, across all age groups. See Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Executive Summary, Our Vision for an Inclusive Australia and Recommendations (Report, September 2023) 43 <https://disability.royalcommission.gov.au/publications/final-report-executive-summary-our-vision-inclusive-australia-and-recommendationspdf>. The Disability Royal Commission highlighted that rates of violence are particularly high for First Peoples women with disability, young women with disability, and women with intellectual disability. Evidence heard by the Royal Commission pointed out that, ‘the nature of violence and abuse towards women with disability suggests they are targeted by a wider range of perpetrators than people without disability, and also in a wider range of settings’ at 137.

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193. Consultations 1 (Public Advocate (Vic)), 5 (LIV Elder, Disability, Health Law Committees), 7 (representatives of State Trustees).

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194. Consultation 5 (LIV Elder, Disability, Health Law Committees).

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195. Consultation 1 (Public Advocate (Vic)).

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196. Consultation 14 (representatives of VCAT).

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197. Consultation 1 (Public Advocate (Vic)).

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198. Consultation 7 (representatives of State Trustees). These concerns were also raised in AFB (Guardianship) [2023] VCAT 1081.

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199. This last point was raised by Queensland Law Reform Commission, Public Justice, Private Lives: A New Approach to Confidentiality in the Guardianship System – Vol 1 (No 62, June 2007) 296 <https://www.qlrc.qld.gov.au/__data/assets/pdf_file/0005/372533/R62Vol1.pdf>.

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200. Consultation 5 (LIV Elder, Disability, Health Law Committees).

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201. Ibid.

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202. Ibid.

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