‘I Want to Tell my Story’: The Guardianship and Administration Confidentiality Law
Possible options for reforming clause 37
219 Through research and discussion with stakeholders, the VLRC has identified four possible options for reform, outlined in the table below. This is not a complete list of all possible reform options. It includes ideas that attracted the most feedback in our discussions with stakeholders. Each option could also be subject to additional detail.[251] Penalties may also apply but were beyond the scope of this discussion.
|
Possible reform for clause 37 |
Benefits |
Risks and considerations |
|---|---|---|
|
Option 1 Clause 37 is repealed. The default position is that there is no ban on the publication of identifying information about a guardianship or administration order or what happened in the tribunal hearing unless VCAT orders otherwise (of its own motion or on application by any interested party on grounds to be determined). This approach is based on the Australian Capital Territory model. |
• Simplifies the current law, which may improve accessibility. • Similar to the approach recommended by the Disability Royal Commission. • Easy to understand. |
• The represented person’s right to privacy is not automatically protected. • A third party could publish information about a represented person without considering their wishes unless the represented person or someone else asks the tribunal to prevent it. • Puts the burden on the represented person to apply for a non-publication order to protect their privacy and sensitive information. This could be counteracted by legislative guidance about how the tribunal could use its own motion power. • Education of represented persons and supporters will be needed so that people know to ask the tribunal to keep information confidential. • If clause 37 were repealed, consideration should be given to whether the existing laws in the G&A Act and the VCAT Act provide VCAT with sufficient powers to close hearings and keep VCAT files confidential. Section 108 of the Queensland Act and related practice direction may provide a possible example for Victoria to follow. • Legislation should clearly define legal concepts including ‘publication’ and the type of information that is sought to be protected by the provision. |
|
Option 2 The prohibition against publication that identifies a represented person or a party is retained but there is an exception where the represented person has given free and fully informed consent to the publication. This approach is based on the Tasmanian model. This option allows the represented person to tell their own story and for someone else to tell their story with their consent. Consent would be different to an assessment of capacity. In Tasmania, consent means that the represented person is freely giving their agreement to make the information public. The tribunal could also retain a discretion to allow publication if it is in the public interest and/or it promotes the personal and social well-being of the represented person. Otherwise, information could continue to be shared provided it does not identify any parties. |
• Balances protection of privacy with giving represented persons control over their own story. • A represented person can control the use of their information by choosing whether to give consent to a third party to tell their story. • Does not require a represented person or a third party to go back to the Tribunal to seek an order to publish if consent is given or if the represented person wants to tell their own story (e.g. on social media or at a conference). • Permission can be sought from VCAT on public interest/ personal and social well-being grounds if the represented person is unable to consent. |
• Defining or assessing the required ‘consent’ may not be straightforward. Legislative guidance about consent would be needed as well as training for VCAT members. • A represented person might be coerced into giving consent. • A represented person might consent without really understanding what is happening or the potential consequences of publication. • If this model is used, legislation should clarify that consent does not have to be obtained from state authorities or service providers to mention those organisations in a story by or about a represented person. Otherwise, under the Tasmanian model consent would be needed to disclose information relating to another person. • Legislation should clearly define legal concepts including ‘publication’ and the type of information that is sought to be protected by the provision. |
|
Option 3 A represented person could tell their own story, but a third party needs to seek permission from VCAT even if the represented person has provided consent to publish. There could be a presumption that the tribunal will allow a third-party publication request unless it is against the wishes of the represented person or it could cause them serious harm. Information could continue to be shared provided it does not identify any parties. This is a mixture of the approaches in the Australian Capital Territory and Tasmania. |
• Represented people would be empowered to tell their own stories without fear of being in breach of the law. • It simplifies the law for people with disability because they would be free to talk at any point. • VCAT would still be performing a supervisory role in relation to third party publication. |
• Does not give full effect to human rights obligations. • The media would still need to seek permission of the tribunal to publish a story that identifies a represented person. • Some represented people may feel that it is their right to ask media to publish their stories for them. • The law could still act as a barrier to media reporting. The media does not always have the resources or time to seek approval. • Consideration will need to be given to the formulation of the test by which to assess third party requests. |
|
Option 4 Simple steps could be taken to improve the status quo. Guidance could stipulate that tribunal members should explain the operation of the confidentiality law at every hearing for a guardianship or administration order. Guidance could also state that members should ask represented persons if they would like to seek an exemption to the operation of the clause at hearings in the Guardianship and Administration list. If the represented person is seeking an exemption to the operation of clause 37 there could be a presumption that VCAT will provide permission unless it is against the wishes of the represented person, or it could cause them serious harm. Legislation could be amended to provide clear examples of the type of conduct that constitutes a breach of clause 37 and include statutory definitions for ‘publish’, ‘broadcast’ and ‘report of proceedings’. |
• May improve understanding and reduce confusion about obligations under clause 37. • Would lead to greater consistency in how cases are managed at the tribunal. • VCAT maintains a supervisory role. |
• These changes do not give full effect to human rights obligations. • The burden remains on represented persons to request tribunal permission to tell their story in any identifying way. |
Next steps
220 This Spotlight discusses how clause 37 in the VCAT Act is out of touch with a modern human rights-based approach that promotes the full and effective participation of people with disability in the community, on an equal basis with others.[252] Some jurisdictions have pursued reform, but Victoria has not done so to date.
221 A range of stakeholders expressed support for reform, but did not agree on the most appropriate way of doing so. In particular, participants disagreed about how to achieve a balance between protecting privacy on the one hand and supporting autonomy and dignity on the other.
222 Wider consultation with people directly affected by clause 37 is a necessary step in any future reform.
223 As noted at the outset, this Spotlight paper may be used as a resource to inform and generate further community discussion about clause 37. An Easy Read summary of the Spotlight paper is available on the Commission’s website. We thank those who participated in our consultations and shared their ideas and views with us about improving the operation of clause 37.
224 Some additional issues arose during our examination of clause 37 that are beyond the scope of this paper, but any reform of the law should consider these further matters:
- Access to VCAT Guardianship List files: Reform should consider whether VCAT needs any specific new powers to restrict access to files in the Guardianship List, given the sensitive and often confidential nature of those files.[253]
- Clear legislation: New laws should be clear and contain examples of how the law might be applied to guide decision makers under the G&A Act 2019 as well as the community.[254]
- The provision of education resources: Appropriate resources should be provided to assist the represented person to understand the law, the impact of their decision-making and where to get support and assistance. [255]
- Consistency of related legislation: A representative of State Trustees said there is also a need to examine the way that the G&A Act 2019 and other connected legislation handles secrecy and privacy, to ensure consistent approach and language.[256]
- Right of reply to publications that name state authorities: Stories containing incorrect information may shake confidence in state agencies and discourage people from using their services. However, a number of state agencies that we spoke to were wary of creating a legislative right of reply to criticisms about their operations.[257]
- The publication of a story about a represented person who has died: Not everyone thought that an exception allowing the publication of identifying information after death would be helpful, because privacy concerns endure beyond death and so do family disputes. Others thought that families who had advocated for loved ones should be given the opportunity to speak in this situation.[258]
Endnotes
-
For instance, additional defences or exceptions such as the defence of reasonable excuse or the exception for disclosure of transcripts or information to public agencies, investigatory bodies or for court proceedings. See 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) 344–353, 355–356 <https://www.qlrc.qld.gov.au/__data/assets/pdf_file/0005/372533/R62Vol1.pdf>.
-
Convention on the Rights of Persons with Disabilities (3 May 2008, Adopted 12 December 2006 No UN Doc A/RES/61/106) art 3 <https://www.ohchr.org/sites/default/files/Ch_IV_15.pdf>.
-
In determining whether to grant access to these files, VCAT balances concerns about confidentiality with rights to procedural fairness. In Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal & Ors [2006] VSCA 7, [40]-[42], Justice Maxwell held that VCAT’s power to restrict access to documents in s 146(4)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) is conditioned on the principles of natural justice. A party seeking access to the VCAT file under s 146(4)(b) must be given the opportunity to be heard and respond to VCAT’s proposed direction to restrict access to the file.
-
Consultations 9 (Roundtable organised by Uli Cartwright and hosted by Yooralla), 12 (VALiD).
-
Consultation 1 (Public Advocate (Vic)). Also noted in Consultation 7 (representatives of State Trustees) and Consultation 12 (VALiD).
-
Consultation 7 (representatives of State Trustees).
-
We note that VCAT does not take a formal position on this but acknowledges that the public has the right to make complaints about their experience of the tribunal and its processes: Consultation 14 (representatives of VCAT).
-
See Guardianship and Administration Act 2000 (Qld) s 114A(3)(b) for an example of an exception for publication of identifying information after death.
 |