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

What is clause 37?

32     Clause 37 in Schedule 1 of the VCAT Act contains the ‘confidentiality of proceedings’ clause.

The origins of clause 37

33     Clause 37 has its origins in a 1982 review by the Minister’s Committee on Rights and Protective Legislation for Intellectually Handicapped Persons (the Cocks Committee).^[37] The review led to an entirely new framework for disability legislation in Victoria.^[38]

34     The 1982 Cocks Committee report recommended that new guardianship laws should include a confidentiality of proceedings clause. The Committee examined confidentiality of proceedings during a broader discussion about whether guardianship hearings should be open or closed to the public and the media. In this discussion, the main focus was the protection of privacy and the conduct of journalists.

35     The report noted the differing views of members of the public who made submissions to the Committee on the question of open/closed hearings:

Those who leaned towards closed hearings emphasised the very private nature of the evidence to be presented and the stigma and embarrassment which could be suffered by the subject of the application, his relatives and his friends who might not wish it to be known that he is the subject of an application. Others stressed the need for open hearings in order to ensure public scrutiny of proceedings.^[39]

36     The Cocks Committee concluded that guardianship proceedings should generally be open to the public. Open hearings, the Committee wrote, would ‘not only enable persons to familiarise themselves with procedure before the Tribunal, but more importantly, will enable persons to “keep an eye on” the Tribunal in order to satisfy themselves that justice is being done as well as seen to be done’.^[40]

37    The Cocks Committee made a number of key recommendations:

•     Journalists should be allowed to attend hearings but should not ‘be permitted to release any information that would reveal the identity of the subject of the application’.

•     Strict penalties should be imposed for breach of this requirement.

•     The tribunal should have the power to close hearings to journalists and the public if it determined that an open hearing would not be in the represented person’s best interests. Importantly, the Cocks Committee reasoned that the balance between public scrutiny of the judicial process and citizen privacy should be assessed by the tribunal:

the Tribunal would be a more appropriate arbiter of these competing interests than the subject of the application, his advocate, relatives or friends. For this reason, the Tribunal should not be bound by the wishes of any of these persons regarding the closure of proceedings though it would be expected to give careful consideration to their views.^[41]

38     The confidentiality law subsequently included in the Guardianship and Administration Board Act 1986 (Vic) (the 1986 Board Act) contained some differences from what was proposed by the Cocks Committee.^[42] Section 8 prohibited the publication of any report of a proceeding of the Board^[43] (the authority established to oversee the new legislation) without its permission. A discretion was also added to allow the Board to authorise publication of information from a proceeding where it was in the public interest, provided it did not contain any identifying information.^[44]

39     No rationale was given for these changes, or about the provision more generally, in the second reading speeches accompanying the Bills^[45] for the 1986 Board Act.^[46]

40     In 1998, the Board was abolished and its powers transferred to the newly established VCAT. The Act was renamed the Guardianship and Administration Act 1986 (Vic) (the 1986 Act). Section 8 was moved to the Victorian Civil and Administrative Tribunal Act 1998 (Vic),^[47] where it became clause 37 in Schedule 1.

41     When the confidentiality law moved into the VCAT Act it was amended again so that the prohibition only applied to publication of identifying material rather than the broader prohibition on publication of any report of a proceeding as in the 1986 Act. The discretion of the tribunal was also modified. While previously the tribunal could only allow publication of de-identified material in the public interest, the VCAT Act empowered the tribunal to allow publication of identifying material in the public interest. The reasoning behind these changes is not explained in publicly available material.^[48]

The operation of clause 37

42     The principle of open justice applies to VCAT hearings unless circumstances require its displacement. In the Kaplan case Deputy President Nihill stated:

Hearings in VCAT are open, like most other court hearings. It is good that what happens in tribunals and courts is open and transparent. Anyone can come to a tribunal or court hearing, and can read about what happens there, with few exceptions. That is open justice, and it is important. It is also important that the right of each person to privacy is respected, and that it is protected particularly in circumstances where a person’s capacity to assert that right is compromised.^[49]

43     Clause 37 states:

1.     Unless the Tribunal orders otherwise, 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^[50] 2019 that identifies, or could reasonably lead to the identification of, a party to the proceeding. Penalty: 20 penalty units.
2.     The Tribunal may make an order under subclause (1) only if it considers that it would be in the public interest to do so.
3.     An order of the Tribunal under subclause (1) must specify that pictures are not to be taken of any party to the proceeding.
4.     This clause does not apply to an application for an administration (missing person) order under Part 5 of the Guardianship and Administration Act 2019.

44     The legislation provides no further detail or explanation about the behaviour that clause 37 is intended to encompass. Further, there have only been a small number of VCAT decisions regarding applications seeking an order under subclause 1 (discussed below from paragraph 59). Those decisions concern public interest applications for media stories or requests to share information with other agencies. There are no decisions regarding breach of the prohibition in clause 37(1).

45     While it is open to interpret clause 37 narrowly as only prohibiting the publication or broadcasting of a ‘report of a proceeding’ or an account of what happened in the tribunal, our consultations confirmed that clause 37 is being interpreted more broadly. Some of the uncertainty concerns what it means to ‘publish’ or ‘broadcast’ a ‘report of a proceeding’. The terms ‘report of proceedings’, ‘publish’ and ‘broadcast’ are not defined in the VCAT Act. While there is no authoritative interpretation of the use of these terms in the clause 37 context,^[51] there is some guidance in cases related to similar laws prohibiting publication of reports of proceedings in the Family Court^[52] and Children’s Court.^[53] The Queensland Law Reform Commission also considered the meaning of the term ‘publish’ in its 2007 report.^[54]

46     VCAT appears to interpret the law in a broad sense, describing the clause in this way:

Under the law, no-one can publish or broadcast a report identifying any party in a case about guardians, administrators or powers of attorney, unless we order it. There are penalties for doing this.^[55]

47     Guardianship List matters discuss and address a range of very personal issues including information about health, finance, decision-making ability, friendships and family.^[56] Deputy President Nihill noted, ‘open justice is important, as is the right to privacy, and to having confidential information handled carefully and respectfully, and not exposed to public scrutiny’.^[57] In Kaplan, Deputy President Nihill identified that ‘Clause 37 acts as a check against private information about a hearing under the GA Act going out into the world without careful attention being given to whether that is the right thing to do’.^[58]

48     As noted above, our consultations have repeatedly revealed the view that the law applies to prohibit people from mentioning that they are on a guardianship or administration order and talking about any aspect of their experiences on those orders publicly. Our consultations raised concerns about whether the prohibition in clause 37(1) might be breached by a person:

•     talking about their experiences of guardianship or administration on social media or an online forum, at a conference or other public speaking event, or to the media
•     talking about their experiences even when the order is no longer in place
•     talking about their experiences while giving evidence at an inquiry or at a consultation
•     talking about a loved one’s experiences under an order even after the loved one has died
•     talking about VCAT proceedings even where an order for a guardianship or administration was not made.

49     The prohibition in clause 37(1) only applies to a report which identifies or could reasonably lead to the identification of a party to the proceeding. It may be possible to publish a report of a proceeding using pseudonyms, but only if any other information which could reasonably lead to identification is also removed or changed. While anonymisation may be used to avoid breaching the prohibition in clause 37(1),^[59] such an approach does not support the right of a person to tell their own story. We have also been told that even if a story is published on an anonymous basis, it may still be possible to identify people in the disability community based on the details of the story.^[60]

50     We have been told there are many reasons why people might want to talk about their experiences or why their family or the media might want to talk on their behalf. A person might want to talk about:

•     not being happy about moving from their home to an aged care facility
•     wanting to manage their own funds or manage them differently
•     their belief that they should not be on an order
•     not being happy with their guardian or administrator
•     positive experiences of being on an order or coming off an order
•     a VCAT decision not to appoint a guardian or administrator
•     concerns of abuse or coercion and control
•     wanting a different service provider or to live in a different residence
•     wanting to expose poor performance of a service provider or government agency
•     wanting to participate in research, policy consultations, law reform initiatives, conferences, a documentary or a film.

       Even if there is no special reason, people might also just want to know that they can talk about their experiences without needing permission from VCAT first.

51     To address some of these concerns, a represented person could return to VCAT to seek a variation to their order.^[61] However, we heard that some people do not want to go back to VCAT because this is too difficult or traumatic. Some people told us that they felt VCAT did not listen or respond appropriately to them previously and that they would rather speak publicly about their concerns as a consequence.^[62]

52     The penalty for breaching clause 37 is 20 penalty units. At the end of 2024, this equated to $3,952 ($197.59 per unit).^[63] This is a daunting amount for most people, but we were told that for many people with a disability, and their family and friends or for people who are seniors or unemployed, it is a particularly daunting prospect. The VLRC has heard that there have been very few prosecutions (if any) for breach of the clause, but the possibility of a fine is still a significant cause of concern for those aware of clause 37.

53     Under clause 37(2) of the VCAT Act, VCAT may allow publication of identifying information about guardianship proceedings where it considers that it would be in the public interest to do so.

54     The VCAT Act does not define ‘public interest’. It has generally been accepted by the courts in various legal contexts that ’public interest’ means more than just public curiosity.^[64] In paragraphs 59-99 we discuss VCAT cases that consider ‘public interest’ in the context of clause 37.

55     Privacy is itself a public interest consideration that must be balanced with other public interest considerations.^[65] In 2014, the Australian Law Reform Commission published the following non-exhaustive list of public interest matters a court may consider when deciding whether an invasion of a person’s privacy was justified:

a)    freedom of expression, including political communication and artistic expression

b)    freedom of the media, particularly to responsibly investigate and report matters of public concern and importance

c)    the proper administration of government

d)    open justice

e)    public health and safety

f)    national security; and

g)    the prevention and detection of crime and fraud.^[66]

56     In the guardianship context, in 2005 the then VCAT President, His Honour Stuart Morris, ruled that something more than a general claim to ‘open justice’ is required to pass the ‘public interest’ threshold, since Parliament deliberately chose to override that principle in enacting the confidentiality law. His Honour concluded that in the ‘vast majority of applications under the Guardianship and Administration Act it would be inappropriate for the identity of a party to be broadcast or published.’^[67]

57     VCAT has not permitted publication where:

•     There was no consent, or it was unclear if there was consent, from the represented person to publish.^[68]
•     The application was opposed by other family members.^[69]
•     Public advocacy could be pursued through other means without any need to identify the person.^[70]
•     The facts of the case did not involve an institution, and did not affect a significant number of people or raise issues of broad public concern.^[71]

58     Nevertheless, VCAT has allowed publication in the public interest in a small number of cases, discussed in the following paragraphs. The main reasons cited by VCAT for exercising the discretion include:

•     The represented person initiated or supported the application and was able to clearly express their will and preference and consent to being identified.^[72]
•     The issues involved were ‘the subject of public concern and public debate… [and] have a moral dimension’.^[73]
•     There was already significant publicity about the represented person and their medical condition in the public domain.^[74]
•     Publication could help locate a missing represented person and enable their family to take care of their affairs in their absence.^[75]
•     Publication could help improve public understanding of issues related to guardianship and disability.^[76]

VCAT decisions about clause 37

MK^[77]

59     MK suffered a severe brain injury and was in hospital on life support after being discovered in the boot of a car in 2005. MK’s husband and another person were charged with serious criminal offences related to her injury. The case attracted extensive media coverage.

60     VCAT was asked to make an order appointing the Victorian Public Advocate as a limited guardian for MK to make decisions about where she lived, who could see her and her medical treatment. The Age newspaper, supported by other media organisations, applied to VCAT for an order permitting them to publish and broadcast information revealing the identity of the parties. The application was opposed by MK’s financial administrator (her child), the hospital and MK’s husband.

61     The Age argued that an order permitting it to publish would be consistent with the principle of open justice. It also argued that the case had special features which set it apart from the great majority of guardianship matters.

62     Those opposing the application said that the matters in issue were private and sensitive, especially because MK had a young child. They argued that any genuine public interest in the case was only in the outcome (whether or not a guardian was appointed) and not in the details.

63     In his published reasons for making the orders, as noted above the then President of VCAT, Justice Stuart Morris, stated that the principle of open justice is not a principle that requires proceedings ‘to be open in every case, as there are other legitimate matters of public interest that sometimes operate in the other direction’.^[78]

64     President Morris observed that when Parliament enacted the VCAT Act it made a choice to exclude guardianship matters from the ‘open justice’ principle because of their sensitive nature:

Clearly the Parliament knew of that principle when it enacted clause 37. It deliberately chose that matters under the Guardianship and Administration Act be regarded as an exception to that principle, unless having regard to the public interest the tribunal makes an order allowing such publication.^[79]

65     But President Morris agreed with The Age that the case had special features which made it of particular public interest. MK needed a guardian to make medical decisions about her, including the possible withdrawal of treatment that would lead to her death:

These types of cases involve issues that are sometimes the subject of public concern and public debate; as they raise issues which have a moral dimension. Regardless of whether this case is about [MK] or any other person, that fact sets the matter apart from the typical application for a guardian.^[80]

66     President Morris took into account that the case had received ‘saturation publicity’. MK’s name and details of her medical condition were already known, partly as a result of the criminal charges. The charges were another factor that made the case unusual. This affected President’s Morris’ decision:

the fact that publicity has already occurred is clearly a relevant consideration. Indeed if there has been extensive publicity about a particular matter, it is sometimes better to allow more detail to be made public in order to shed light upon the truth of the matter.^[81]

67     Ultimately, President Morris decided that it was in the public interest to make an order permitting The Age and the other media outlets to publish and broadcast the identity of the parties. However, he imposed a condition preventing the publication or broadcast of photographs of MK and her child together at the hospital.

GMcG^[82]

68     GMcG was an 81-year-old man with dementia and a history of strokes and falls. In March 2007, the Victorian Public Advocate was appointed as his guardian with powers to make decisions about his accommodation, medical treatment and other services.

69     In April, the ABC applied for an order permitting it to broadcast an episode of Stateline identifying the parties. The episode featured an interview with GMcG and his wife. The intention was to raise public awareness of the rising number of guardianship orders and the role of the Victorian Public Advocate, and to encourage a public debate about the issue by telling the family’s story.

70     Deputy President Billings, in his reasons for granting the order, took into account that during the interview:

GMcG was involved in the discussion to the extent it was possible for him to be and that there was no indication that he was in any way unhappy about that.^[83]

71     Deputy President Billings referred to a statement from the Victorian Public Advocate that GMcG’s wife had agreed to the broadcast, and given the couple’s long and close relationship, ‘I was mindful that he might, if he were able, be willing to consent to that which she clearly desires’.^[84]

72     The Victorian Public Advocate stated that the broadcast was unlikely to cause harm to GMcG, there was unlikely to be follow-up media coverage to disturb him and his level of care would not be affected. The Public Advocate did not object to GMcG being identified as long as the broadcast did not reveal personal and medical information.

73     Deputy President Billings agreed with the decision in [MK] that, ‘in the vast majority of applications under the Guardianship and Administration Act it would be inappropriate for the identity of a party to be broadcast or published.’^[85] But he reasoned that some factors made the case of GMcG ‘exceptional’. They included the wishes of the represented person, as far as they could be inferred, and his wife.

74     He also considered that the broadcast was in the public interest:

There can be no doubt that there is a public interest in the community having a proper general understanding of the legislation and the role of guardians, including the Public Advocate, administrators and the Tribunal. There will be cases when identification of the represented person will be unnecessary for this purpose. … In the present case I accept the submission that it was necessary to identify GMcG to convey adequately an understanding of him and his needs and general situation and why a guardian should be appointed.^[86]

75     The order was granted, subject to the ABC undertaking not to disclose personal or medical information beyond what was needed for a fair and accurate report, or that was likely to cause distress or embarrassment.

DR^[87]

76     DR went missing in January 2010. When he had not been located after several months, his family sought to pay his bills, redirect his mail and deal with his landlord. They found that Victorian law did not allow anyone to be appointed to manage the estate of a missing person.

77     The Guardianship and Administration Act 1986 (Vic) was amended to allow VCAT to appoint an administrator in respect of the estate of a missing person. The change came into force in October 2010.

78     In November 2010, DR’s father applied to VCAT to be appointed administrator of his estate. The tribunal granted the order. In addition, with the applicant’s consent, VCAT made an order allowing the names of the parties to be published. In the reasons, Deputy President Coghlan stated:

I made the order permitting publication of his name with the applicant’s consent. I was satisfied that there was a strong public interest favouring such publication. That [DR] is missing is already well publicised and continues to be publicised. Anything that might assist in locating him and assuring him his affairs are being properly looked after, is in his and the public interest.^[88]

XKJ^[89]

79     XKJ had been diagnosed with Alzheimer’s dementia. In April 2015, VCAT appointed the Victorian Public Advocate as her guardian to make decisions about her accommodation, medical and dental treatment and access to services. Three of her five adult children were appointed as her financial administrators. XKJ died on 6 June 2016.

80     After her death, one of XKJ’s sons (Son A) applied for an order to publish documents relating to his mother’s guardianship. The son had various complaints about the care his mother had received, especially medical care. He believed she had experienced neglect and elder abuse.^[90]

81     Son A sought leave to publish reports of the proceeding to assist him to make various complaints about agencies and individuals associated with the care of his mother and to make broader law reform suggestions to improve the aged care system and elder law. His stated reason was ‘to achieve better outcomes for vulnerable people with dementia’.^[91] Son A’s application was supported by Son B.

82     XKJ’s daughter and Son C also sought leave under clause 37 to publish reports of the proceedings in relation to a complaint raised about Son A, a lawyer, with the Legal Services Board.

83    XKJ’s daughter and a third son (son C) opposed Son A’s application and did not believe it was in the public interest:

XKJ’s daughter submitted that she had concerns about her brother’s capacity to act responsibly with sensitive material, that his personal attacks on [the hospital, carers and] the Public Advocate were unfounded, and that her mother was well cared for and treated respectfully in her time at the aged care facility and at hospital.^[92]

84    The Victorian Public Advocate opposed the application, arguing that ‘son A had not given sufficient reasons to establish that the order sought would be in the public interest, and the apparent reason was to pursue a complaint or an interest of his own’.^[93] It said that complaints about XKJ’s care could be pursued in other ways without identifying her. It also said that there was no evidence that the application was in XKJ’s best interests.

85    Deputy President Nihill considered whether it would be in the public interest and the best interests of XKJ to allow the material to be published. Her discussion analysed and distinguished previous cases. The Deputy President explained that the details of this case were not already in the public domain, there was no compelling reason to identify XKJ, and XKJ had not granted or implied her consent to publication. Son A claimed that his mother would have supported his actions if she was still alive, but XKJ’s daughter disagreed.

86    Deputy President Nihill rejected the broader publication request. She permitted publication only in connection with pursuing complaints with certain agencies. She ruled that it would not be in the public interest to permit the broader publication of all and any matter relating to proceedings, including to the media.

Reports of this proceeding contain confidential details about the decision-making capacity of the represented person, and also about her highly personal and private health and care needs. In addition, there is voluminous evidence about conflicts and disagreements between the adult children of a mother who can no longer intervene and speak for herself. These are all private matters, and it is for these kinds of reasons, I am persuaded, that Clause 37 was enacted.^[94]

87    In making this decision, Deputy President Nihill noted that any investigations or law reform proposals about aged care could be pursued without ‘exposing the intimate and personal details of the life of a person who has not been able to control what is said about her for some years, and whose interests include a right to privacy’.^[95]

88    Deputy President Nihill also ruled that it would also not be in the best interests of XKJ or ‘consistent with her wishes as best they can be acertained, for the proposed widespread publication to be authorised’.^[96]

Kaplan/Cartwright^[97]

89    Uli Cartwright (previously known as Uli Kaplan), an advocate for people with disability, worked with a film-maker to create a documentary about his life, Life is a Battlefield. It was broadcast on SBS Television on 4 December 2021, as part of the International Day of People with Disability and was then available online. The documentary identified Mr Cartwright and referred to VCAT’s order appointing State Trustees as his administrator. That order was subsequently revoked.

90    SBS removed the documentary from its website when it was reminded about the confidentiality law by VCAT.

91    Mr Cartwright, through Villamanta Disability Rights Legal Service, applied to VCAT for a declaration that clause 37 did not apply in this case so that his story could be broadcast.

92    In her 2022 decision, Deputy President Nihill explained that clause 37 was intended to provide a balance between the principles of open justice and privacy:

Clause 37 has an important job to do. Applications under the GA Act are about personal matters, and usually the person about whom the application has been made is, for a short time or a long time, a person who is experiencing a disability that is affecting their capacity to make decisions. So usually, for a time at least, that person is not able to control what other people say or write about them. Their private information is in other people’s hands. Hearings in VCAT are open, like most other court hearings. It is good that what happens in the tribunals and courts is open and transparent. Anyone can come to a tribunal or court hearing, and can read about what happens there, with few exceptions. That is open justice, and it is important. It is also important that the right each person has to privacy is respected, and that it is protected particularly in circumstances where a person’s capacity to assert that right is compromised.^[98]

93    Deputy President Nihill went on to say that information in guardianship matters was often highly sensitive, involving a person’s health, finances and relationships. To expose this information could be a significant breach of privacy.

94    Deputy President Nihill concluded that in this case there was a public interest in making an order permitting the material to be published. A key factor was that Mr Cartwright was not only giving his permission but asserting that he wanted to identify himself in the documentary as part of his advocacy work. She said:

He wants to tell the story about his life, so that others can learn from it, and feel inspired and encouraged by it. This is a compelling reason to make an order under Clause 37(2).^[99]

95    In this case, Deputy President Nihill emphasised that the guiding principles of the new G&A Act 2019 differ from the original 1986 Act. Where the 1986 Act focused on promoting the best interests of the represented person, the 2019 Act focuses on protecting and promoting the human rights and dignity of people with disability, ‘including the right to make, participate in and implement decisions that affect their lives’.^[100] Deputy President Nihill also noted:

Section 8 of the GA Act says that the will and preferences of a person with a disability should direct decisions made for that person, and that powers, functions and duties under this Act should be exercised in way that is the least restrictive of the ability of a person with a disability to decide and act.^[101]

96    Deputy President Nihill also held that Mr Cartwright, ‘like every Victorian, is entitled to recognition and equality under section 8 of the Charter and there is no apparent basis for limiting this right he is choosing to exercise’.^[102]

97    VCAT ultimately made an order permitting the documentary to be broadcast identifying Mr Cartwright and the other parties to the proceeding.

ZBF^[103]

98     In this guardianship application hearing, Villamanta Legal Service made an application on ZBF’s behalf to exempt him from the prohibition in clause 37. Villamanta requested that ZBF ‘be able to speak about his experience at VCAT in relation to this proceeding and for an order to ensure that there was no legal barrier to him doing so’.^[104]

99    Senior Member Steele granted the application, ruling:

In this case, where the represented person says he may wish in future to be able to speak publicly about his experiences of guardianship and administration and is able to express his wish and preference about such issues, I agreed it is in the public interest that he should not be in fear of prosecution for so speaking.^[105]

37. Errol Cocks and Minister’s Committee on Rights & Protective Legislation for Intellectually Handicapped Persons (Victoria), Report of the Minister’s Committee on Rights & Protective Legislation for Intellectually Handicapped Persons (Report, 1982).

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38. Comprising the Mental Health Act 1986 (Vic); Intellectually Disabled Persons’ Services Act (Vic) 1986; and Guardianship and Administration Board Act 1986 (Vic).

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39. Errol Cocks and Minister’s Committee on Rights & Protective Legislation for Intellectually Handicapped Persons (Victoria), Report of the Minister’s Committee on Rights & Protective Legislation for Intellectually Handicapped Persons (Report, 1982) 38–39.

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40. Ibid 39

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41. Ibid 39-40.

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42. Explanatory Memorandum, Guardianship and Administration Board Bill 1985 (Vic); Explanatory Memorandum, Guardianship and Administration Board Bill 1985 (No.2) (Vic); Guardianship and Administration Board Bill 1985 (Vic); Victoria, Parliamentary Debates, Legislative Assembly, 28 November 1985, 2618 (Thomas Roper, Minister for Transport).

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43. The Guardianship and Administration Board Act 1986 (Vic) established a Guardianship and Administration Board to appoint guardians and administrators and the Office of the Public Advocate.

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44. There was also a change to the Board’s discretion to close hearings where it would be in the best interests of the represented person. This was removed and replaced with a requirement for the Board to close a hearing if it received a request to do so from someone directly interested in the matter: Victoria, Parliamentary Debates, Legislative Assembly, 28 November 1985, 2619 (Thomas Roper, Minister for Transport).

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45. There were two Bills for the 1986 Board Act. The second bill for the 1986 Act contained a number of amendments to the first bill after the latter was released for public consultation.

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46. Victoria, Parliamentary Debates, Legislative Assembly, 30 May 1985, 939 (Thomas Roper, Minister for Transport); Victoria, Parliamentary Debates, Legislative Assembly, 28 November 1985, 2618 (Thomas Roper, Minister for Transport).

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47. Victorian Civil and Administrative Tribunal Act 1998 (Vic) sch 1, cl 37.

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48. Explanatory Memorandum, Victorian Civil and Administrative Tribunal Bill 1998 (Vic) sch 1.

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49. Kaplan (Guardianship) [2022] VCAT 6, [13]. See also Open Courts Act 2013 (Vic) s 3 and 4.

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50. This includes hearings to appoint a guardian, administrator and supportive guardian or administrator.

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51. In XKJ (Guardianship) [2017] VCAT 1654 Deputy President Nihill briefly considered the meaning of a report of proceedings by drawing on the case Hinchcliffe v Commissioner of Police of the Australian Federal Police [2001] FCA 1747; (2001) 118 FCR 308. This case concerned section 121 of the Family Law Act 1975 (Cth), which prohibits the publication of an account of Family Law Court proceedings. In XKJ, the Deputy President accepted that a report of proceedings: ‘applies to a wider scope of publication than just the publication of documents. The phrase “report of a proceeding” includes a communication which purports to “narrate, describe, retell or recite something that has happened in the proceedings, or about the proceedings”. This means that, unless an order is made under Clause 37 (2), Clause 37 prohibits any person from publishing and broadcasting his or her own account of guardianship proceedings, as well as from publishing or broadcasting any documents or other material from the proceeding file, if publication or broadcast would identify a party to the proceeding.’ XKJ (Guardianship) [2017] VCAT 1654, [34].

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52. See Hinchcliffe v Commissioner of Police of the Australian Federal Police [2001] FCA 1747, [53]-[57]; (2001) 118 FCR 308, 323-325.

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53. See the discussion of the meaning of ‘report of a proceeding’ in Howe & Ors v Harvey; DPP v Tinkler & Ors [2008] VSCA 181; (2008) 20 VR 638. This case concerned section 26(1) of the Children and Young Persons Act 1989 (Vic), which contains a confidentiality law in relation to proceedings in the Children’s Court. The Court of Appeal upheld the finding of the Supreme Court and the Magistrates’ Court that it was enough if the publication would have disclosed to an ordinary reasonable person with only general knowledge that what was being reported was the result or outcome of a proceeding that took place in that court, and that the proceeding itself and the name of the court need not be directly mentioned.

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54. Submissions to QLRC’s 2007 review of confidentiality laws in guardianship expressed concern about uncertainty in the Queensland law at the time in terms of what ‘publish’ meant. In calling for greater clarity, the Queensland Public Advocate commented that: ‘It is not clear that publication under the guardianship regime is limited to publication in the media or to a section of the public as suggested. Although the better view may be that publication is not intended to cover disclosures of the information to a neighbour or close friend, as it currently stands, s112(3) is open to that interpretation.’ Public Advocate (Qld), Submission 1H to Queensland Law Reform Commission, Public Justice, Private Lives: A New Approach to Confidentiality in the Guardianship System – Vol 1 (No 62, June 2007) 320 [7.131] <https://www.qlrc.qld.gov.au/__data/assets/pdf_file/0005/372533/R62Vol1.pdf>.

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55. See ‘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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56. See the discussion in Kaplan (Guardianship) [2022] VCAT 6, [14].

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57. Ibid [15].

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58. Ibid.

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59. We note that published guardianship decisions are anonymised by VCAT. VCAT considers that clause 37 supports or requires anonymisation. Consultation 14 (representatives of VCAT).

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

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61. Guardianship and Administration Act 2019 (Vic) pt 7.

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

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63. Victoria, Government Gazette (No S 225, 7 May 2024) <https://www.gazette.vic.gov.au/gazette/Gazettes2024/GG2024S225.pdf#page=1>.

    ↑

64. For example, the dictum: ‘There is a world of difference between what is in the public interest and what is of interest to the public’, Lion Laboratories Ltd v Evans [1985] QB 526, 553. ‘Public interest’ can be interpreted narrowly or flexibly, depending on the purpose and scope of the legislation in which it appears: see Hogan v Hinch [2011] HCA 4, [31]; (2011) 243 CLR 506, 536; Allworth v John Fairfax Group Pty Ltd [1993] ACTSC 22 [57]; (1993) 113 FLR 254, 262. citing London Artists Ltd v Littler [1969] 2 QB 375, 391 (Lord Denning MR). Courts have held that it should be construed as an interest of the public generally, not the interest of an individual or group of individuals: Director of Public Prosecutions v Smith [1991] 1 VR 63, 75; Osland v Secretary, Department of Justice [2008] HCA 37, [119]; (2008) 234 CLR 275, 318 (Kirby J). The number of people involved or impacted is irrelevant, as is the material’s newsworthiness: Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 122 [319] (Lee J) citing R Parkes KC, A Mullis et al (eds), Gatley on Libel and Slander (Sweet & Maxwell Ltd, 13th ed, 2022) [625]; Doyle v Smith [2018] EWHC 2935 (QB) [70] (Warby J); and Jameel v Wall Street Journal [2006] UKHL 44 [408] (Baroness Hale). In the defamation context, courts have held that the public interest includes: 1) matters relating to the public life of the community and those who take part in it: Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 177 (Bingham CJ) and cited with approval by Lee J in Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223 [319]; 2) the governance of public bodies, institutions and companies which give rise to a public interest in disclosure: Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 176–177; 3) matters published in the course of, or for the purposes of, a discussion of the conduct of some person or institution that invites public criticism or discussion: Bellino v Australian Broadcasting Corporation [1996] HCA 47, [24]; (1996) 185 CLR 183, 221–222 (Dawson, McHugh and Gummow JJ) cited with approval by Lee J in Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223 [319].

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65. Korp (Guardianship) [2005] VCAT 779, [6].

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66. Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era: Final Report (Report No 123, 3 September 2019) <https://www.alrc.gov.au/publication/serious-invasions-of-privacy-in-the-digital-era-alrc-report-123/>; See also the discussion in Queensland Law Reform Commission, Public Justice, Private Lives: A New Approach to Confidentiality in the Guardianship System – Vol 1 (No 62, June 2007) 342–3 [7.210] – [7.213] <https://www.qlrc.qld.gov.au/__data/assets/pdf_file/0005/372533/R62Vol1.pdf>.

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67. Korp (Guardianship) [2005] VCAT 779, [8], also cited in GMcG (Guardianship) [2007] VCAT 646, [14].

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68. RCF (Guardianship) [2024] VCAT 748; XKJ (Guardianship) [2017] VCAT 1654.

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69. Ibid.

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70. XKJ (Guardianship) [2017] VCAT 1654.

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71. RCF (Guardianship) [2024] VCAT 748, [356].

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72. ZBF (Guardianship) [2024] VCAT 1011, [62].

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73. Korp (Guardianship) [2005] VCAT 779, [9].

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74. Korp (Guardianship) [2005] VCAT 779; Rosewall (Guardianship) [2010] VCAT 1994.

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75. Rosewall (Guardianship) [2010] VCAT 1994.

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76. GMcG (Guardianship) [2007] VCAT 646; Kaplan (Guardianship) [2022] VCAT 6.

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77. Korp (Guardianship) [2005] VCAT 779.

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78. Ibid [6].

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79. Ibid [7].

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80. Ibid [9].

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81. Ibid [10].

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82. GMcG (Guardianship) [2007] VCAT 646.↑

83. Ibid [8].

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84. Ibid [7].

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85. Ibid [18].

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86. Ibid [19].

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87. Rosewall (Guardianship) [2010] VCAT 1994.↑

88. Ibid [34]. Deputy President Coghlan referring to her decision of 4 November 2010.

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89. XKJ (Guardianship) [2017] VCAT 1654.↑

90. Ibid [11].

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91. Ibid [10].

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92. Ibid [40].

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93. Ibid [43].

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94. Ibid [57].

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95. Ibid.

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96. Ibid [62]

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97. Kaplan (Guardianship) [2022] VCAT 6.↑

98. Ibid [13].

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99. Ibid [18].

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100. Ibid [20].

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101. Ibid.

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102. Ibid.

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103. ZBF (Guardianship) [2024] VCAT 1011↑

104. Ibid [8].

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105. Ibid [62].

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