Queensland
Law Reform Commission

Public Justice, Private Lives: 
A New Approach to Confidentiality
in the Guardianship System

Report
Volume 2

Report No 62
July 2007

The short citation for this Report is QLRC R 62.
Published by the Queensland Law Reform Commission, July 2007.
Copyright is retained by the Queensland Law Reform Commission.

ISBN:		978 0 7242 7753 6

Printed by:	cpx printing & logistics

To:	The Honourable Kerry Shine MP
Attorney-General and Minister for Justice and
Minister Assisting the Premier for Western Queensland

In accordance with section 15 of the Law Reform Commission Act 1968 (Qld), the Commission is pleased to present its Report, Public Justice, Private Lives: A New Approach to Confidentiality in the Guardianship System Volume 2.

				
The Honourable Justice R G Atkinson		Mr J K Bond SC
Chairperson						Member

				
Dr H A Douglas					Mr B J Herd
Member						Member

				
Mr G W O’Grady					Dr B P White
Member						Member

COMMISSION MEMBERS

		Chairperson:			The Hon Justice R G Atkinson

		Full-time member:		Dr B P White

		Part-time members:		Mr J K Bond SC
						Dr H A Douglas
						Mr B J Herd
						Mr G W O’Grady

SECRETARIAT

		Director:			Ms C E Riethmuller

		Secretary:			Mrs S Pickett
						Mrs J Manthey

		Principal Legal Officer: 	Mrs C A Green

		Legal Officers:		Ms M T Collier
						Ms P L Rogers
						Ms S-N Then

		Administrative Officer:	Mrs Z Boldery

Address:		7th Floor, 50 Ann Street, Brisbane, Qld 4000
Postal address:		PO Box 13312, George Street Post Shop, Qld 4003
Telephone:		(07) 3247 4544
Facsimile:		(07) 3247 9045
Email:			LawReform.Commission@justice.qld.gov.au
Website:		http://www.qlrc.qld.gov.au

Previous Queensland Law Reform Commission publications in this reference:

Confidentiality in the Guardianship System: Public Justice, Private Lives, Discussion Paper, WP 60 (July 2006)
Public Justice, Private Lives: A Companion Paper, WP 61 (July 2006)
Public Justice, Private Lives: A CD-ROM Companion, WP 62 (August 2006)
Confidentiality: Key questions for people who may need help with decision-making, MP 38 (July 2006)
Confidentiality: Key questions for families, friends and advocates, MP 39 (July 2006)

Table of contents

Preface	1
A NEED FOR GREATER OPENNESS	1
KEY RECOMMENDATIONS	1
Tribunal proceedings	1
Tribunal decisions and reasons	2
Publication of information about Tribunal proceedings	2
General duty of confidentiality	3
Draft Legislation	3
Appendix 1	5
Table of provisions	5
Draft Guardianship and Administration and Another Act Amendment 
Bill 2007	5
Draft Guardianship and Administration Tribunal Amendment Rule 2007	10
Appendix 2	11
Draft Guardianship and Administration and Another Act Amendment Bill 2007
Draft Guardianship and Administration Tribunal Amendment Rule 2007

Preface
A NEED FOR GREATER OPENNESS
1.1	In Volume 1 of this Report, the Commission set out its recommendations for a new approach to confidentiality in the guardianship system.
1.2	The central principle that has guided the Commission’s recommendations is that there should be greater openness.  The Commission considers this is important for two reasons.  
1.3	The first is the need for the community to have confidence in the guardianship system.  The response to the Commission’s consultation revealed some mistrust in the system, and issues of confidentiality often underpinned the concerns raised.  Greater openness will promote the accountability and transparency of the current system and enhance community confidence.  
1.4	The second reason why greater openness is needed is to promote and safeguard the rights and interests of adults with impaired capacity.  Traditionally, it has been argued that an adult’s rights and interests warrant the imposition of some level of confidentiality.  However, the Commission considers that insufficient weight has been given to the important role that open justice and procedural fairness play in promoting and safeguarding the rights and interests of adults with impaired capacity, both individually and as a group.  
KEY RECOMMENDATIONS
Tribunal proceedings
1.5	The Commission has examined the Tribunal’s power to close hearings to the public, to exclude people from hearings, and to withhold documents and information from active parties to proceedings.  To achieve greater openness, the Commission has recommended the following reforms.
•	The current provisions dealing with ‘confidentiality orders’ do not reflect the fact that it is only in limited circumstances that a document or information will be kept confidential from an active party.  Accordingly, the Commission has recommended the creation of four new types of orders (collectively called limitation orders) that better reflect the nature of the decision being made:
•	adult evidence orders – which permit the Tribunal to speak with the adult in the absence of others if, for example, it is necessary to obtain relevant information that the Tribunal would otherwise not receive;
•	closure orders – which permit the Tribunal to close a hearing or part of a hearing to all or some members of the public, or to exclude a particular person (including an active party) from a hearing or part of a hearing;
•	non-publication orders – which permit the Tribunal to prohibit the publication of information about Tribunal proceedings; and
•	confidentiality orders – which permit the Tribunal to withhold a document or information from an active party.
•	The Commission has recommended that the criteria for making limitation orders be significantly narrowed.  In particular, the Commission has recommended that there be a legislative presumption of openness and that, generally, the Tribunal must be satisfied that making such an order is necessary to avoid serious harm or injustice.
•	The Commission has recommended the establishment of a series of procedural safeguards to promote community confidence and ensure careful deliberation in the making of limitation orders.  These safeguards include:
•	granting standing to be heard, and to appeal, to the Public Advocate and others, such as the media; and
•	requiring the Tribunal to give written reasons for the making of a limitation order.
Tribunal decisions and reasons
1.6	The Commission has recommended that the Tribunal’s power to withhold from active parties to a proceeding a decision and the reasons for it be removed.  This reflects the Commission’s view that the provision of reasons for a decision is an integral part of ensuring transparent and accountable decision-making by the Tribunal.
1.7	The Commission has recommended, however, that the Tribunal may delay notification of a decision for a period up to 14 days to avoid serious harm to a person or the effect of the Tribunal’s decision being defeated.
Publication of information about Tribunal proceedings
1.8	The Commission has recommended that, generally, the media and others should be able to publish information about Tribunal proceedings.  The Commission considers that this will promote accountability and transparency in decision-making, and will also improve community understanding of the Tribunal and its role in the guardianship system.  
1.9	However, the Commission recognises the potential vulnerability of adults with impaired capacity, and has therefore recommended that the publication of information that is likely to lead to the identification of people about whom applications are made should be prohibited.  The Commission has also recommended that the Tribunal should have the power to vary this position so that publication of information otherwise permitted may be prohibited, and that publications generally prohibited may be permitted.
General duty of confidentiality
1.10	The Commission has recommended that the general duty to keep information that is received in the course of performing a role under the guardianship legislation confidential be retained.  However, the Commission has recommended that the duty be reconceptualised as a duty to use information appropriately rather than one that imposes a blanket prohibition on disclosure subject to the existence of an exception.  This shift in the nature of the duty responds to concerns expressed during consultation that the imposition of a blanket duty inhibits disclosures of confidential information that are appropriate and necessary for the guardianship system to function effectively. 
1.11	The Commission has recommended that a wider range of exceptions be introduced including exceptions permitting disclosures of confidential information to the police and guardianship agencies, and for the purpose of obtaining legal and financial advice.  The retention of a specific exception for disclosures by the Adult Guardian during an investigation has also been recommended.
Draft Legislation
1.12	Appendix 2 to this volume of the Report contains draft legislation, prepared by the Office of the Queensland Parliamentary Counsel, that gives effect to the Commission’s legislative recommendations made in Volume 1 of this Report:
•	draft Guardianship and Administration and Another Act Amendment Bill 2007; and
•	draft Guardianship and Administration Tribunal Amendment Rule 2007.
1.13	The Guardianship and Administration and Another Act Amendment Bill also contains minor amendments that clarify uncertainty in particular provisions identified by the Commission and the Office of the Queensland Parliamentary Counsel during the drafting process.  
1.14	Appendix 1 to this volume of the Report identifies the particular recommendation or recommendations to which each substantive provision of the draft legislation gives effect.  
1.15	The Commission would like to thank Ms Theresa Johnson, First Assistant Parliamentary Counsel, for her expertise and assistance in preparing the draft legislation.

Appendix 1
Table of provisions
The following table identifies, in relation to each substantive provision of the draft legislation in Appendix 2, the recommendation or recommendations in Volume 1 of this Report to which that provision gives effect. 
Draft Guardianship and Administration and Another Act Amendment Bill 2007
Clause	Substantive provision of the Guardianship and Administration Act 2000 (Qld)	Recommendation or paragraph	
4	80A	Definitions for ch 5A	
	80A		para 2.109	
5	80E	Relationship with ch 7	
	80E		para 2.109	
6	80G	Open	
	80G		para 2.109	
6	80N	Decision and reasons to each active party	
	80N		para 2.109	
7	98	Annual report	
	98		Rec 4-23	
8	108	Procedural fairness	
	108(1)–(3)		Rec 3-5, 4-2, 5-3	
	108(4)		Rec 4-2	
	108(5)		Rec 4-2	
8	108A	Open	
	108A		Rec 4-3	
8	109	Types of limitation order	
	109		para 4.187	
8	109A	Basis of consideration for limitation order	
	109A(1)(a)		Rec 4-6, 5-7	
	109A(1)(b)		Rec 4-6, 5-7, 7-10	
	109A(2)		Rec 5-3	
8	109B	Adult evidence order	
	109B(1)		Rec 4-9	
	109B(2)		Rec 5-3	
	109B(3)		Rec 4-16	
	109B(4)		Rec 4-24	
8	109C	Closure order	
	109C(1)(a)		Rec 4-7, 4-8	
	109C(1)(b)		Rec 4-7	
	109C(2)		Rec 4-16	
	109C(3)		Rec 4-24	
8	109D	Non-publication order	
	109D(1)		Rec 7-9	
	109D(2)		Rec 4-16	
	109D(3)		Rec 4-24	
8	109E	Confidentiality order	
	109E(1)(a)		Rec 5-6, 5-10	
	109E(1)(b)		Rec 4-11, 4-12	
	109E(2)		Rec 4-16	
	109E(3)		Rec 4-24	
8	109F	Non-publication or confidentiality order made other than at hearing	
	109F		Rec 4-20	
8	109G	Standing for limitation order	
	109G		Rec 4-18, 5-9, 7-12	
8	109H	Role of public advocate for limitation order (other than adult evidence order)	
	109H		Rec 4-19, 5-9, 7-12	
8	109I	Making and notifying decision for limitation order	
	109I		Rec 4-21, 5-9, 7-12	
8	109J	Written reasons for limitation order and copy of reasons	
	109J		Rec 4-21, 5-9, 7-12	
9	112	Publication about proceeding that discloses adult’s identity	
	112(1)		Rec 7-2	
	112(2)		Rec 7-3, 7-4, 7-5	
	112(3)(a)		Rec 7-6	
	112(3)(b)		Rec 7-7	
	112(3)(c)		Rec 7-8	
	112(4)		Rec 7-8	
	112(5)		Rec 7-8	
	112(6)		Rec 7-8	
	112(7) definition of ‘prohibited publication’	Rec 7-6	
	112(7) definition of ‘relevant adult’	Rec 7-3	
10	143A	Exclusion of disruptive person from tribunal	
	143A		Rec 4-1	
11	156	Making and notifying decision	
	156(1)		Rec 4-21	
	156(2)		para 1.13 (Volume 2)	
	156(3)		para 1.13 (Volume 2)	
	156(4)		Rec 6-4	
	156(5)		Rec 6-4	
	156(6)		Rec 6-2	
	156(7)		Rec 6-2	
	156(8)		para 1.13 (Volume 2)	
11	157	Written reasons for decision		
	157(1)		Rec 4-21	
	157(2)–(6)		para 1.13 (Volume 2)	
11	158	Copy of reasons to be given		
	158(1)		Rec 4-21	
	158(2)		para 1.13 (Volume 2)	
	158(3)		para 1.13 (Volume 2)	
	158(4)		Rec 6-2	
	158(5)		Rec 6-2	
12	159A	Definition for pt 7		
	159A		Rec 8-23	
13	164A	Notice of appeal		
	164A(2)		Rec 6-5	
14	193	Report after investigation or audit		
	193(4)		para 1.13 (Volume 2)	
14	193A	Prohibited use of report after investigation or audit	
	193A		Rec 8-9	
15	246	Definitions for pt 4		
	definition of ‘confidential information’	Rec 8-1, 8-6, 8-7	
	definitions of ‘relevant person’ and ‘relevant tribunal person’	Rec 8-3	
	definition of ‘use’	Rec 8-2	
16	249	Protected use of confidential information		
	249		Rec 8-1	
	249(1)		Rec 8-4	
	249(2)		Rec 8-2, 8-3, 8-5, 8-8	
	249(3)		Rec 8-10	
	249(3)(a)		Rec 8-11	
	249(3)(b)		Rec 8-12	
	249(3)(c)		Rec 8-1	
	249(3)(d)		Rec 8-13	
	249(3)(e)		Rec 8-14	

	249(3)(f)		Rec 8-14	
	249(3)(g)		Rec 8-14	
	249(3)(h)		Rec 8-14	
	249(3)(i)		Rec 8-14	
16	249A	Prohibited use of confidential information		
	249A		Rec 8-1, 8-2, 8-3, 8-5, 8-8, 8-19, 8-20	
16	250	Disclosure of information about investigations		
	250		Rec 8-15	
	250(1)		Rec 8-16	
	250(2)		Rec 8-17	
	250(3)		Rec 8-18	
17	Schedule 4	Dictionary		
	definition of ‘adult’	para 2.109	
	definition of ‘adult evidence order’	Rec 4-9	
	definition of ‘closure order’	Rec 4-7	
	definition of ‘confidentiality order’	Rec 4-3, 4-11	
	definition of ‘guardianship proceeding’	Rec 7-4	
	definition of ‘limitation order’	para 4.187	
	definition of ‘non-publication order’	Rec 7-9	
	definition of ‘power of attorney’	para 1.13 (Volume 2)	
Clause	Substantive provision of the Powers of Attorney Act 1998 (Qld)	Recommendation or paragraph	
19	74	Protected use of confidential information		
	74		Rec 8-1	
	74(1)		Rec 8-4	
	74(2)		Rec 8-2, 8-3, 8-5, 8-8			
	74(3)		Rec 8-10	
	74(3)(a)		Rec 8-11			
	74(3)(b)		Rec 8-12			
	74(3)(c)		Rec 8-1	
	74(3)(d)		Rec 8-13			
	74(3)(e)		Rec 8-14	
	74(3)(f)		Rec 8-14			
	74(3)(g)		Rec 8-14	
	74(3)(h)		Rec 8-14	
	74(3)(i)		Rec 8-14			
	74(4) definition of ‘confidential information’	Rec 8-1, 8-6, 8-7	
	74(4) definition of ‘guardianship proceeding’	Rec 7-4	
	74(4) definition of ‘use’	Rec 8-2	
19	74A	Prohibited use of confidential information		
	74A(1)		Rec 8-1, 8-2, 8-3, 8-5, 8-8, 8-19, 8-20	
	74A(2) definition of ‘confidential information’ 	Rec 8-1, 8-6, 8-7	
	74A(2) definition of ‘use’	Rec 8-2	

Draft Guardianship and Administration Tribunal Amendment Rule 2007
Clause	Substantive provision of the Guardianship and Administration Tribunal Rule 2004 (Qld)	Recommendation or paragraph	
3	Schedule	Prescribed non-contentious matters		
	Schedule	Rec 4-17	

Appendix 2
Draft Guardianship and Administration and Another Act Amendment Bill 2007
and
Draft Guardianship and Administration Tribunal Amendment Rule 2007