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

Shifts in disability law and policy and calls for reform

100    Clause 37 fits into a broader framework of laws and policies that aim to assist people with disability in our community. There have been significant changes to this framework in the last 50 years. Whereas law and policy previously focussed on protection and best interest decision-making, there has been a shift to supporting people with disability to make their own choices and decisions about their lives and promoting their dignity, equality and autonomy. Key legislation in this modern framework includes the:

•     Disability Discrimination Act 1992 (Cth)^[106]
•     Charter of Human Rights and Responsibilities Act 2006 (Vic)
•     United Nations Convention on the Rights of Persons with Disabilities (CRPD) 2008
•     Equal Opportunity Act 2010 (Vic)^[107]
•     National Disability Insurance Scheme Act 2013 (Cth)^[108]
•     Guardianship and Administration Act 2019 (Vic).

The Charter of Human Rights and Responsibilities Act 2006 (Vic)

101     The Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) is the legislative framework that protects and promotes human rights in Victoria. It came into effect on 1 January 2008.

102    Many human rights are relevant to guardianship. For example, section 13 protects the right to privacy, section 15 contains the right to freedom of expression and section 8 protects the right to recognition and equality before the law:

•     the right to recognition as a person before the law
•     the right to enjoy human rights without discrimination
•     the right to equal protection of the law without discrimination and effective protection against discrimination.^[109]

103     As the VLRC stated in our Guardianship report:

The human rights protections in the Convention and the Charter are of particular importance to people with impaired decision-making ability because of their emphasis upon equality and participation.^[110]

104     Section 7(2) of the Charter provides that rights can only be limited in certain circumstances if it is reasonable, necessary, justified and proportionate. The Charter rights served as a guide and informed the development of new guardianship laws introduced in 2019.^[111]

The United Nations Convention on the Rights of Persons with Disabilities

105     The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is the most comprehensive international human rights statement of the rights of people with disability. Article 1 of the CRPD contains its purpose:

to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.^[112]

106     The CRPD has an inclusive definition of ‘persons with disabilities’ to include people ‘who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’.^[113]

107     Article 3 of the CRPD identifies the general principles that underpin it. One of them is ‘individual autonomy, including the freedom to make one’s own choices’.^[114]

108     Australia was one of the first nations to ratify the CRPD on 17 July 2008.^[115]

109     Article 12(3) of the CRPD provides that ‘State parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity’. The Disability Royal Commission observed that Article 12(3) ‘emphasises that the provision of support is the first response to any compromise in decision-making ability’.^[116] Article 12(3) has been interpreted to include providing support for decision-making on matters that may have legal consequences.^[117]

110     Various law reform bodies around Australia recommended changes to state/territory laws to give effect to Article 12(3) of the CRPD. Victoria is the only state to have enacted supportive decision-making appointments in legislation.^[118]

111     In 2023, the Disability Royal Commission recommended the enactment of a new national Disability Rights Act that would ‘translate and implement rights and obligations recognised in the CRPD in a way that is practical, workable and capable of effective enforcement in the Australian legal context’.^[119]

112     The G&A Act 2019 significantly amended the 1986 Act. It drew on the CRPD and the recommendations of the VLRC in its 2012 report, Guardianship,^[120] to modernise Victoria’s laws and create a new system of guardianship.

113     The VLRC’s 2012 Guardianship report identified that people have different levels of decision-making capacity and therefore need different amounts of support to make decisions. It recommended that a new Act make it possible to receive different kinds and degrees of support. ^[121] In her second reading speech for the 2018 Bill, then Attorney-General, the Hon. Jill Hennessy said:

The Bill … [recognises] the need to support people with disability to make, participate in and implement decisions that affect their lives, and otherwise providing that a person’s will and preferences should direct decisions affecting the person as far as possible.^[122]

114     The purpose of the G&A Act 2019 is to ‘protect and promote the human rights and dignity of persons with a disability’.^[123] The Act departed from what many have described as a paternalistic concept of making decisions in the ‘best interests’ of a person with disability^[124] and replaced it with the represented person’s ‘will and preferences’.

Decision-making under the G&A Act 2019

115     A person making a decision for a represented person must do so in accordance with the decision-making principles in section 9 and the general principles in section 8 of the G&A Act 2019.

Giving effect to will and preferences

116     Guardians and administrators are required by section 9 of the G&A Act 2019 to make decisions that give effect to the represented person’s ‘will and preferences’ as far as they can be known, unless the person is at risk of serious harm.^[125] ‘Will and preferences’ is not defined in the G&A Act 2019 but is derived from the CRPD and has a wide scope.^[126]

117     If the represented person has not directly expressed their will and preferences, the guardian or administrator can infer what they might be by talking with the represented person’s family, close friends and carers.^[127]

Acting in a manner that promotes the represented person’s personal and social well-being

118     If no will and preferences can be determined, then the guardian or administrator should act in a manner which promotes the represented person’s ‘personal and social wellbeing’,^[128] which is defined in the Act.^[129]

General principles in section 8 of the G&A Act 2019

119     VCAT and anyone else exercising a power, carrying out a function or performing a duty under the G&A Act 2019 must have regard to the general principles set out in section 8. This means that VCAT must have regard to these principles when making a decision in relation to its powers under clause 37.

120     The section 8 principles are:

•     a person with a disability who requires support to make decisions should be provided with practicable and appropriate support to enable the person, as far as practicable in the circumstances:
  • •       to make and participate in decisions affecting the person; and
    •       to express the person’s will and preferences; and
    •       to develop the person’s decision-making capacity.
•     the will and preferences of a person with a disability should direct, as far as practicable, decisions made for that person;
•     powers, functions and duties under the G&A Act 2019 should be exercised, carried out and performed in a way which is the least restrictive of the ability of a person with a disability to decide and act as is possible in the circumstances.^[130]

121     While the G&A Act 2019 contained significant reforms the confidentiality law has remained largely unchanged since the 1986 Board Act was released.

Inquiries and calls for reform to confidentiality laws

122     This section briefly covers a few of the most significant recent calls for reform to clause 37.

The Disability Royal Commission 

123     The Commonwealth Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Disability Royal Commission) delivered its final report in September 2023. In the Chair’s foreword to the final report, His Honour, Justice Sackville, stated that the Disability Royal Commission intends the final report to be the means through which Australia could be transformed into:

a more inclusive society that supports the independence of people with disability and their right to live free from violence, abuse, neglect and exploitation.^[131]

124     The Disability Royal Commission identified that (at the time) legislation in all states and territories except the Australian Capital Territory restricted the disclosure of information identifying a person subject to a guardianship or administration order without tribunal permission. It stated that the purpose of the confidentiality laws is protective:

Guardianship and administration, and tribunal proceedings, involve private and personal information. Some people may be vulnerable and at risk of suffering harm if personal information about them, or the fact that they are subject to guardianship and administration applications and orders, is widely known.^[132]

125     The Disability Royal Commission went on to conclude that the confidentiality laws restricted the ability of people with disability to talk about this aspect of their lives. In reaching the decision to make recommendation 6.12 (noted below) the Disability Royal Commission concluded as follows:

We consider the default position under legislation should not be a prohibition on publication of material related to tribunal proceedings. Rather, the legislation should allow publication unless the tribunal makes an order preventing public identification of the person or their circumstances. The effect of this proposal is that the tribunal will need to be persuaded to exercise a discretion to prohibit publication, rather than starting with a presumption that publication should be prohibited. Ordinarily, the tribunal would be expected to give effect to the will and preferences of the party in the proceedings, thereby upholding that person’s right to freedom of expression concerning their own affairs.^[133]

126     The Disability Royal Commission identified that existing confidentiality laws may prevent organisations from being held to account:

The provisions create a risk institutions such as hospitals, disability service providers and public guardians and public trustees will be shielded from transparency and accountability because people cannot recount their experiences of tribunal proceedings.^[134]

127     The Disability Royal Commission recommended:

Recommendation 6.12 Public disclosure and confidentiality restrictions

States and territories should amend their guardianship and administration laws or tribunals acts to:

•    repeal provisions prohibiting publication of material identifying a party to the proceedings as the default position
•    empower the tribunal to make an order prohibiting publication of material identifying the party to the proceedings if the circumstances justify such an order, taking into account the will and preferences of that party.^[135]

Victorian investigation into State Trustees

128     A report by the Victorian Ombudsman into State Trustees in 2019 highlighted a range of problems experienced by clients of State Trustees. The Ombudsman recommended a review of the confidentiality law to improve the transparency and accountability of State Trustees. In the course of making a range of findings about the gaps and concerns about the model and operation of State Trustees, the Ombudsman concluded as follows:

The Victorian Government could further improve State Trustees’ transparency and accountability by reviewing the application of freedom of information laws to State Trustees. This is particularly so in light of the shift towards recognising the rights of people with disabilities to make decisions about their own lives. It is also timely to review the restrictions in the Victorian Civil and Administrative Tribunal Act that restrict State Trustees’ clients choosing to identify themselves in the media. While the Act reflects a concern for the privacy of vulnerable people, it requires people with disabilities to go to the effort of seeking an order from a tribunal to exercise rights others can take for granted. Reviewing these laws in light of the Charter and the UN Convention on the Rights of People with Disabilities may identify options that strike a better balance between the rights and interests of State Trustees’ clients.^[136]

129     As a result of these findings the Ombudsman recommended:

Recommendation 14: Accountability and transparency

Review schedule 1, clause 37 to the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to ensure it does not prevent public debate about State Trustees, including in the media, where people consent to being identified.^[137]

Queensland reports

130     The Guardianship and Administration Act 2000 (Qld) (Qld GAA Act) was amended in 2009 in response to a 2007 report by the Queensland Law Reform Commission.^[138] As part of these reforms, the prohibition against publication of information about guardianship proceedings was repealed and replaced with a general presumption that publication is permitted as long as it does not identify an adult subject to a guardianship or administration order.^[139] We describe the law in Queensland in paragraphs 202-205 below. While similar to the law in Victoria, there are some additional exceptions in the Queensland legislation that allow publication with the permission of the tribunal.

131     In 2022, the Queensland Public Advocate published a report recommending that the confidentiality law in section 114A of the Qld GAA Act be repealed. The Queensland Public Advocate noted: ‘it is time to shift the balance from the default position that people cannot speak about their guardianship experiences (in a personally identifying way) without tribunal authorisation, to the default position that they can’.^[140]

132     The Queensland Public Advocate observed that section 114A ‘disempowers the individual and arguably represents an outdated, paternalistic approach to this issue’.^[141] While applications to the Queensland Civil and Administrative Tribunal (QCAT) to have identities published are uncommon, the Queensland Public Advocate stated that this should not be taken as an indicator that those under guardianship orders do not want to speak out. Rather, the law could be having a stifling effect. The report stated: ‘it is understandable that individuals do not wish to undergo another hearing before QCAT simply in order to be able to speak about their guardianship experiences’.^[142]

133     The Queensland Public Advocate argued that there are other safeguards in the Qld GAA Act that are sufficient to guard against harm.^[143] At the time of writing the Queensland Government has not acted on these recommendations and section 114A remains in place.

Reforms in Tasmania

134     Changes to the Tasmanian legislation were catalysed by a long-running public campaign for reform to the confidentiality law by disability advocates. The Commission understands that there was bipartisan support for reform. Additionally, we heard in consultations that a 2018 review of the state’s guardianship and administration legislation by the Tasmanian Law Reform Institute contributed to the government’s decision to reform the confidentiality law.^[144] The current Tasmanian model is discussed further in paragraphs 188-198.

135     We were told that Tasmania’s new provision, ‘provides a sense of choice that is aligned with the broader changes to the legislation about empowering people to have control over their destiny and decisions in their lives’.^[145]

106. Under the Disability Discrimination Act 1992 (Cth), it is unlawful to directly or indirectly discriminate against a person based on their disability in certain settings, including employment, education, the provision of goods and services, and accommodation. In 2023, the Disability Royal Commission recommended that Government implement a range of amendments to the Disability Discrimination Act to make it more effective. See Recommendations [4.23]-[4.34] Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Cth), Final Report -Volume 4, Realising the Human Rights of People with Disability (Report, 29 September 2023) 29–34 <https://disability.royalcommission.gov.au/publications/final-report-volume-4-realising-human-rights-people-disability>.

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107. The Equal Opportunity Act 2010 (Vic) pt 4. protects against discrimination, sexual harassment and victimisation in certain areas of public life, including employment, education, sports, local government, clubs, accommodation, healthcare, aged care, shops, restaurants and nightclubs and more. For more information, see ‘Discrimination’, Victorian Equal Opportunity and Human Rights Commission (Web Page) <https://www.humanrights.vic.gov.au/for-individuals/discrimination/>.The Act creates a positive duty on some employers to take steps to prevent and eliminate discrimination, sexual harassment and victimisation from occurring in their workspaces (s 15), and for some employers to make reasonable adjustments for people with disabilities (ss 20 ,40, 45).

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108. See the ‘Objects of the Act’ in section 1 which include giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities (CRPD) and enabling people with disability to exercise choice and control in pursuit of their goals and the planning and delivery of their supports: National Disability Insurance Scheme Act 2013 (Cth) s 1.

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109. Many other human rights relevant to guardianship are addressed in the Charter, including protection from cruel, inhuman, degrading treatment or punishment and not being subjected to medical or scientific experimentation or treatment without consent (s 10); freedom of movement and a person’s right to choose where they live (s 12); the right to privacy and reputation (s 13); protection against the removal of a person’s property without lawful reason (s 20); the right to liberty and security, including freedom from detention without lawful reason (s 21); the right to have a proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing (s 24). Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 10, 12, 13, 20, 21, 24.

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110. Victorian Law Reform Commission, Guardianship: Final Report (No 24, 2012) 90 [6.79] <https://www.lawreform.vic.gov.au/wp-content/uploads/2021/07/Guardianship_FinalReport_Full-text.pdf>.

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111. Ibid 45.

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112. Convention on the Rights of Persons with Disabilities (3 May 2008, Adopted 12 December 2006 No UN Doc A/RES/61/106) art 1. <https://www.ohchr.org/sites/default/files/Ch_IV_15.pdf>.

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113. Ibid.

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114. Ibid art 3(a).

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115. In 2009, Australia also ratified the Optional Protocol to the 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/en/instruments-mechanisms/instruments/optional-protocol-convention-rights-persons-disabilities> enabling people with disability to bring complaints to the United Nations Committee on the Rights of Persons with Disabilities.

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116. 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) 121 <https://disability.royalcommission.gov.au/publications/final-report-volume-6-enabling-autonomy-and-access> citing Gerard Quinn & Abigail Rekas-Rosalbo, ‘Civil death: Rethinking the foundations of legal personhood for persons with a disability’ (2016) 56 Irish Jurist 301.

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117. Bernadette McSherry and Andrew Butler, ‘Support for the Exercise of Legal Capacity : The Role of the Law’ (2015) 22(4) Journal of Law and Medicine 739.

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118. See Guardianship and Administration Act 2019 (Vic) pt 4.

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119. Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Cth), Final Report -Volume 4, Realising the Human Rights of People with Disability (Report, 29 September 2023) 10, Recommendations [4.1]-[4.22] <https://disability.royalcommission.gov.au/publications/final-report-volume-4-realising-human-rights-people-disability>.

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120. Victorian Law Reform Commission, Guardianship: Final Report (No 24, 2012) <https://www.lawreform.vic.gov.au/wp-content/uploads/2021/07/Guardianship_FinalReport_Full-text.pdf>.

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121. Ibid xxi.

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122. Victoria, Parliamentary Debates, Legislative Assembly, 19 December 2018, 60 (Jill Hennessy, Attorney-General).

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123. Guardianship and Administration Act 2019 (Vic) s 7.

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124. For example, see Guardianship and Administration Act 1986 (Vic) s 22.

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125. Guardianship and Administration Act 2019 (Vic) s 9(1)(a) and see also s 8(1)(a)(ii).

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126. Judicial College of Victoria, Bench Book: Guardianship, Administration and Enduring Powers of Attorney (Online Manual, 17 November 2022) 5 <https://resources.judicialcollege.vic.edu.au/article/1044918>; George Szmukler, ‘“Capacity”, “Best Interests”, “Will and Preferences” and the UN Convention on the Rights of Persons with Disabilities’ (2019) 18(1) World Psychiatry 34 <https://onlinelibrary.wiley.com/doi/full/10.1002/wps.20584?msockid=376e4408726d635d112a510573626270>.

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127. Guardianship and Administration Act 2019 (Vic) s 9(1)(b). The Australian Law Reform Commission considered how a decision-maker should act in the circumstances where the represented person’s will and preferences could not be determined in a 2014 report. See Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws: Final Report (Report No 124, 24 November 2014) 78 [3.62] <https://www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-alrc-report-124/>.

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128. Guardianship and Administration Act 2019 (Vic) s 9(1)(c).

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129. See ‘meaning of promote the personal and social wellbeing of a person’ in Ibid s 4(a)-(e).

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130. Ibid s 8.

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131. 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) ix. <https://disability.royalcommission.gov.au/publications/final-report-executive-summary-our-vision-inclusive-australia-and-recommendations>.

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132. 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 <https://disability.royalcommission.gov.au/publications/final-report-volume-6-enabling-autonomy-and-access>.

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133. Ibid 196.

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134. 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) 73 <https://disability.royalcommission.gov.au/publications/final-report-executive-summary-our-vision-inclusive-australia-and-recommendations>.

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135. 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 <https://disability.royalcommission.gov.au/publications/final-report-volume-6-enabling-autonomy-and-access>.

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136. Victorian Ombudsman, Investigation into State Trustees (Parliamentary Paper No 42, June 2019) 4, 92 <https://www.ombudsman.vic.gov.au/our-impact/investigation-reports/investigation-into-state-trustees/>.

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137. Ibid 99.

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

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139. Guardianship and Administration Act 2000 (Qld) s 114A.

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140. 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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141. Ibid 19.

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142. Ibid.

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143. Ibid 20; Namely a non-publication order in the Guardianship and Administration Act 2000 (Qld) s 108 and 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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144. Consultation 11 (Acting Tasmanian Public Guardian and Tasmanian Department of Justice representatives). See also Review of Guardianship and Administration Act 1995 (Tas) (Final Report No 26, December 2018) <https://www.utas.edu.au/lawreform/publications/completed-lawreform-projects>.

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145. Ibid.

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