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

Introduction

1     This is the first of a new series published by the Victorian Law Reform Commission (VLRC): Spotlight papers.

2     This Spotlight examines clause 37 in Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). This law says that a person ‘must not publish or broadcast or cause to be published or broadcast any report of a proceeding under the Guardianship and Administration Act 2019 (Vic) (G&A Act 2019) that identifies, or could reasonably lead to the identification of, a party to the proceeding’ without first getting permission from the Victorian Civil and Administrative Tribunal (VCAT).

3    There is no further guidance in the legislation about the operation of the clause and there is little case law that considers its scope. It is clear from our consultations there is a broad view of the prohibition in clause 37 being taken. We were told that the impact of the law is that it stops people from talking publicly about any of their experiences of being on a guardianship administration order or any of their experiences at VCAT, for this reason clause 37 is sometimes described as a ‘gag law’.

4    Uli Cartwright, a person with disability and a disability advocate, has been a long-standing advocate for reform of this law. His concern about this law began when a documentary he had created about his life was removed from the internet because it was apparently in breach of clause 37 (see paragraph 89 onwards). Mr Cartwright told us:

This law meant I couldn’t speak publicly about my own life. I came up against it when the movie I made about my life called Life is a Battlefield came out. It was the first time in Victoria that someone contested it. It’s time to move away from protectionism and not be afraid of what people under these orders have to share.^[1]

5    Disability advocates believe that people who are the subject of a guardianship or administration order should have the right to identify themselves and give an account of their experiences if they choose.^[2] The counter-argument is that the law is there to protect people’s privacy so careful attention is needed to guard against exposing sensitive personal information to public scrutiny and risking harm when reforming the law.

6    The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Disability Royal Commission) accepted that confidentiality laws impact the rights of people with disability and called for states and territories to repeal provisions prohibiting publication of material identifying a party to the proceedings as the default position.^[3]

7    The origin of this Spotlight was a suggestion from Mr Cartwright and the Victorian Advocacy League for Individuals with Disability (VALiD). We thank Mr Cartwright for the project idea and for his significant contribution to our research.

Our process

8    To complete this paper, we:

•      conducted 13 consultations from July to October 2024 to hear views and experiences of the law^[4]
•      examined literature on the topic
•      examined the approach in other states and territories and overseas
•      identified some of the advantages and risks associated with reforming the law
•      identified some possible options for how the law could be changed.

Limitations of this research paper

9     The VLRC acknowledges the importance of ‘the full and effective participation’^[5] of people with lived experience of any matter we consider, in line with the principle ‘nothing about us, without us’. While we were researching this project, advocates raised concerns that if people with lived experience talked to us about their experiences they might breach the very laws that we are examining.^[6]

10     The focus of this Spotlight is on raising issues with the confidentiality law as it appears to be currently understood. The existence of the prohibition and lack of clarity about its scope increases the risk and difficulty of undertaking law reform in this space. Further consultation with people directly affected by the confidentiality law is a necessary step in any future reform. Importantly, if Government decides to examine reform in this area, it should prioritise enabling people with disability to safely and comfortably participate in discussions about law reform that directly impacts them.

11     Disability advocates agreed that this Spotlight would be a useful starting point to encourage further participation and reflection from people with lived experience.^[7] To assist, we have prepared an accessible summary of this paper in Easy Read format, available on the VLRC website.

Language

12     As we have said in previous reports, the way language is used can help improve inclusivity in our community. People with disability have worked hard to reframe language to support the protection of their human rights.^[8]

13     Recently, the Disability Royal Commission recommended changes to the language used in guardianship and administration legislation around the country to remove paternalistic connotations and reflect a more contemporary and human rights-based approach to disability and decision-making.^[9] For example, the Disability Royal Commission recommended changing:

•      ‘decision-making capacity’ and ‘capacity’ to ‘decision-making ability’. Decision-making ability is ‘the ability of a person to make a particular decision with the provision of relevant and appropriate support at a time when a decision needs to be made’
•      ‘guardian’ and ‘administrator’ to ‘representative’
•      ‘enduring power of attorney’ to ‘enduring representation agreement’^[10]

14     The Commission notes these recommendations. However, to avoid confusion, for the purposes of this Spotlight we will refer to the language used in the G&A Act 2019 when describing its provisions and operation.

1. Consultation 9 (Roundtable organised by Uli Cartwright and hosted by Yooralla). Uli Cartwright organised this roundtable discussion with disability advocacy organisations and supporters – see inside cover for further details about participants.

   ↑

2. For example: ‘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/>; ‘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>.↑

3. See 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) 194–196 <https://disability.royalcommission.gov.au/publications/final-report-volume-6-enabling-autonomy-and-access>.↑

4. The names of people and organisations we met with while preparing this Spotlight paper are noted in the inside cover.

   ↑

5. This principle is laid out in Article 3 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Convention on the Rights of Persons with Disabilities (3 May 2008, Adopted 12 December 2006 No UN Doc A/RES/61/106) <https://www.ohchr.org/sites/default/files/Ch_IV_15.pdf>.↑

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

7. Ibid.↑

8. See the discussion in Victorian Law Reform Commission, Inclusive Juries — Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision (Report, May 2023) Introduction, 5 [1.16] <https://www.lawreform.vic.gov.au/wp-content/uploads/2023/05/VLRC_Inclusive-Juries-Report-Parl-May_23.pdf>.↑

9. 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) 160–161 <https://disability.royalcommission.gov.au/publications/final-report-volume-6-enabling-autonomy-and-access>.↑

10. Ibid 15 [Rec 6.4], 160–61 [6.2.11].↑