‘I Want to Tell my Story’: The Guardianship and Administration Confidentiality Law
Views on the safeguards in interstate models
210 We explored the approach to statutory safeguards by comparing models across Australia. In particular, we examined the law in the Australian Capital Territory and Tasmania. While there was general consensus that safeguards are needed, there was no consensus on the form the safeguards should take.
The Australian Captial Territory model
211 There were varying views among consultation participants about law reform along the lines of the Australian Capital Territory approach. In that jurisdiction, the publication prohibition has been removed but the tribunal retains power to prohibit publication if needed. Consultation participants generally thought that this model went ‘too far’ because it did not have enough privacy protections for represented persons if other people were telling their story.[235] This approach ‘arguably does not enable a represented person to exercise choice and control directly’ and ‘arguably places an undue burden on the represented individual to protect their own privacy in circumstances where they may not be aware that this is necessary and may not be in a position to commence an application due to temporary or permanent incapacity’.[236] Another participant noted that VCAT might not be perfect, but a review by a tribunal member is better than no review.[237]
Hopefully a tribunal quickly sees that someone like Uli who wants to tell his story should have their application granted. There is very sensitive information disclosed in a VCAT proceeding. Yes, people should be able to tell their own story, but sometimes a person doesn’t quite understand what’s involved in the process or the extent of the sensitive information that is disclosed. The idea of moving to a position like the ACT is worrying.[238]
212 However, a few consultation participants thought that the Australian Capital Territory approach with safeguards was worth considering. They observed that problems are not arising in the Australian Capital Territory because of this law.[239]
213 One participant was concerned that ‘consent’ in the Tasmanian model was another barrier that might deter media from reporting important stories.[240] Some disability lawyers thought that the Tasmanian consent model seemed too complicated and could create more challenges for the represented person. They preferred the simplicity of the Australian Capital Territory approach:
To me, it would be more appropriate to have the ACT position—giving people the ability to apply to prevent publication if needed or wanted but for the default position to be that the person can talk.[241]
214 Supporters of the Australian Capital Territory approach thought that it was important for the tribunal to retain the discretion to prohibit publication, if needed to protect the represented person from harm.
215 In his report calling for the repeal of the Queensland prohibition,[242] the Queensland Public Advocate referred to the importance of other safeguards in the Guardianship and Administration Act 2000 (Qld), namely the power to issue a non-publication order in section 108[243] and a tribunal practice direction that restricts non-party access to tribunal files to only those with a ‘sufficient interest.[244] The Queensland Public Advocate provided examples of situations where a non-publication order might be sought:
the discovery that someone was using social media to reveal personal information about a guardianship client that significantly jeopardises their well-being. Similarly, a non-publication order might be sought where identification of the individual could result in other legal cases being prejudiced, such as ongoing criminal proceedings.[245]
Perspectives on the Tasmanian consent model
216 Some support was expressed for the Tasmanian consent-based approach (discussed in paragraphs 188-198) on the basis that it contained privacy protections and represented a better balance than the Australian Capital Territory model between openness and privacy.[246]
217 In talking about the experiences of First Peoples, the Victorian Commissioner for Aboriginal Children and Young People thought that consent was vital. Historical experiences of the collection and misuse of information and data by the state without First People’s consent, coupled with racism and demonisation by the media, has led to a strong desire among First Peoples to keep their information private and and not put it up for public consultation and discussion. It was suggested that First Peoples need to be engaged directly and asked if they consent to publication so they can have autonomy over their own story, in line with the principle of self-determination.[247]
218 Despite some support for a consent model, questions were raised about how this new law would work in practice. Some of the concerns raised included:
- A represented person with a cognitive impairment might not fully understand the consequences of consenting or might be manipulated into providing consent.
- A represented person who is not capable of meeting the threshold of consent may still want to tell their story or a guardian might want to tell their story for them and this should still be possible either through the use of pseudonyms or via an application to the tribunal.[248] We were also told that reform ‘should not prevent represented individuals or their guardians from discussing matters with family members, seeking legal advice, making a complaint to regulators, engaging with a member of Parliament or seeking support or assistance’. It would be preferable for any prohibition of identifying information (in the absence of consent) to only apply ‘to the publication of that information to the public or a section of the public, rather than prohibiting the disclosure of that information generally’.[249]
- Consent and capacity are not static. The law needs to be able to respond to these fluctuations.
- Participants did not think that it should be necessary to obtain consent from state parties like Public Guardians and Trustees and service providers. They noted that the Tasmanian model is not clear about this and called for clarity in any new legislative provisions in Victoria.[250]
-
For example, Consultation 5 (LIV Elder, Disability, Health Law Committees).
-
Yooralla Discussion paper titled ‘Guardianship and administration orders and confidentiality: Preliminary observations on potential reform options’, provided to the VLRC at the roundtable consultation.
-
Consultation 5 (LIV Elder, Disability, Health Law Committees).
-
Ibid.
-
Consultations 4 (Public Advocate (Qld)), 13 (Anne Connolly, reporter, ABC Investigations).
-
Consultation 13 (Anne Connolly, reporter, ABC Investigations).
-
Consultation 6 (Villamanta).
-
Guardianship and Administration Act 2000 (Qld) s 114A.
-
Ibid s 108.
-
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>.
-
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>.
-
Consultation 9 (Roundtable organised by Uli Cartwright and hosted by Yooralla). Also, Yooralla Discussion paper titled ‘Guardianship and administration orders and confidentiality: Preliminary observations on potential reform options’, provided to the VLRC at the roundtable consultation.
-
Consultation 10 (Commissioner for Aboriginal Children and Young People, Victoria).
-
Yooralla Discussion paper titled ‘Guardianship and administration orders and confidentiality: Preliminary observations on potential reform options’, provided to the VLRC at the roundtable consultation.
-
Ibid.
-
Consultation 9 (Roundtable organised by Uli Cartwright and hosted by Yooralla).
 |