Confidentiality in the Guardianship System:

Public Justice, Private Lives

Discussion Paper

WP No 60
July 2006
Queensland Law Reform Commission

The short citation for this Discussion Paper is QLRC WP 60.
Published by the Queensland Law Reform Commission, July 2006.
Copyright is retained by the Queensland Law Reform Commission.

ISBN:		0 7242 7751 X

COMMENTS AND SUBMISSIONS

You are invited to make comments and submissions on the issues and on the preliminary views in this Discussion Paper.

Written comments and submissions should be sent to:

The Secretary
Queensland Law Reform Commission
PO Box 13312
GEORGE STREET POST SHOP   QLD   4003

or by facsimile on:	(07) 3247 9045

or by e-mail to:	qlrcguardianship@justice.qld.gov.au

Oral submissions may be made by telephoning: (07) 3247 4544

Closing date: 31 October 2006

It would be helpful if comments and submissions address specific issues or questions in the Discussion Paper.

CONFIDENTIALITY

The Commission may refer to or quote from submissions in future publications.  If you do not want your submission or any part of it to be used in this way, or if you do not want to be identified, please indicate this clearly.

The Commission also lists in an appendix the names of those people who have made a submission.  Please indicate clearly if you would not like your name to be included in this list.

Unless there is a clear indication from you that you wish your submission, or part of it, to remain confidential, submissions may be subject to release under the provisions of the Freedom of Information Act 1992 (Qld).

Any information you provide in a submission will only be used for the purpose of the Commission’s review.  It will not be disclosed to others without your consent.

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

		Principal Legal Officer: 	Mrs C A Green

		Legal Officers:		Ms C T Arndell
						Ms M T Collier
						Ms P L Rogers

		Administrative Officers:	Mrs K Napa
						Mrs J Manthey (part-time)

Address:		7th Floor, 50 Ann Street, Brisbane
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:		www.qlrc.qld.gov.au

Table of contents

Chapter 1	1
Introduction to the review	1
The Guardianship review	2
About THIS DISCUSSION PAPER	3
Methodology	3
Content	4
How to read this Discussion Paper	6
Terminology	6
The Consultation Process	7
Consultation on this Discussion Paper	7
Call for Submissions	8
Chapter 2	9
Overview of the law in Queensland	9
Introduction	10
Overview of guardianship in queensland	10
When is an adult unable to make their own decisions for a matter?	10
What decisions can be made for an adult?	12
Financial matters	12
Personal matters	12
Health matters	13
Special health matters	13
Special personal matters	13
Who can make substitute decisions for an adult?	14
Informal decision-makers	14
Attorneys appointed in advance by the adult	15
Statutory health attorneys	16
Guardians and administrators appointed by the Tribunal	17
The Tribunal	19
How are substitute decisions for an adult to be made?	19
What agencies are involved in the guardianship system?	21
The Tribunal	21
The Adult Guardian	23
The Public Advocate	24
Community visitors	25
The Public Trustee	26
Overview of the confidentiality provisions	26
Introduction	26
Section 249: the general duty of confidentiality	27
Section 112: a prohibition specific to Tribunal proceedings	30
Section 109: case-by-case confidentiality orders	32
What rights might a confidentiality order displace?	33
When may a confidentiality order be made?	35
Who may make a confidentiality order?	35
When will a person contravene a confidentiality order?	36
Confidentiality orders in proceedings relating to children	37
Confidentiality orders in practice	39
Chapter 3	40
Guardianship and confidentiality	40
Introduction	41
Concepts of confidentiality and Privacy	42
A ‘right’ to privacy	42
Duties of confidentiality	43
Equity	44
Contract	44
Statute	45
Confidentiality in the guardianship System	45
Open justice	45
What are the elements of open justice?	46
What are the reasons for open justice?	47
Are there any exceptions to the principle of open justice?	48
Procedural fairness	49
What is the hearing rule?	50
What is the bias rule?	51
What are the reasons for procedural fairness?	52
What are the requirements of procedural fairness?	53
Nature of the guardianship system	55
Decisions about fundamental rights of vulnerable adults	55
Protective nature of the guardianship system	56
The adult’s rights and interests	56
Matters personal to the adult	57
Matters personal to others	58
Relationships and confidentiality	59
Call for submissions	60
Chapter 4	62
Tribunal hearings	62
The Law in Queensland	63
The Law in Queensland	63
Public and private hearings	63
Excluding a person from a hearing	64
Limiting disclosure to an active party of information given at a hearing	64
Criteria for making a confidentiality order	65
Views about special health care	68
Who may make a confidentiality order	69
Excuse for non-compliance with a confidentiality order	70
Confidentiality orders in practice	70
Legislation in Other jurisdictions	71
Open hearings with power to close, or to exclude particular people	71
Open hearings with power to close, or to exclude, but not particular 
people	72
Closed hearings with power to admit people	73
Issues for consideration	74
Should hearings be held in public or private?	74
Should the Tribunal have power to close a hearing or exclude 
particular people?	75
When should the Tribunal be able to close a hearing or exclude 
particular people?	75
General criteria in Queensland	75
General criteria in other jurisdictions	76
Criteria specific to special health care proceedings	76
Are there any people who should never be excluded?	77
Should the Tribunal have power to limit disclosure of information given 
at a hearing to an active party?	77
Should the Tribunal be able to initiate a confidentiality order?	78
Who may make a confidentiality order?	78
Is ‘reasonable excuse’ an appropriate way to define when a person is permitted to breach a confidentiality order?	79
Balancing concepts	79
Open justice	79
Procedural fairness	80
Nature of the guardianship system	80
Possible legal models	81
Model 1: open hearings with no power to close	81
Model 2: open hearings with power to close, or to exclude particular 
people	81
Model 3: open hearings with power to close, or to exclude, but not particular people	82
Model 4: closed hearings with power to admit people	82
A case study	82
Outcome of case study	83
A preliminary view	84
Call for submissions	84
Chapter 5	88
Documents before the Tribunal	88
Introduction	89
The law in Queensland	89
A general right of inspection for active parties	89
Scope of right to inspect	91
Which documents	91
Non-parties	91
Inspection by parties after a decision and prior to an appeal	92
Confidentiality orders	94
The Presidential Direction	96
The Tribunal Administration Practice	96
Confidentiality orders in practice	97
Who is applying for confidentiality orders and what documents are they seeking to protect?	97
Why is the Tribunal making confidentiality orders?	98
Who is the Tribunal precluding from document inspection?	98
Legislation in other jurisdictions	98
Victoria	99
Tribunal Rules	100
Represented person (the adult)	100
Other parties	101
Non-parties	101
Western Australia	102
Procedural fairness at common law: New South Wales	103
Issues for consideration	106
Should the Tribunal be able to make a confidentiality order in 
relation to documents?	106
When should the Tribunal be able to make a confidentiality order?	106
What is the meaning of ‘restricting’ disclosure of documents?	108
Should there be an option to disclose to a party’s representative only?	108
Balancing concepts	109
Open justice	109
Procedural fairness	110
Nature of the guardianship system	111
Possible legal models	112
Model 1: No power to limit disclosure of documents to parties	112
Model 2: Power to limit disclosure of documents to parties but no criteria to guide discretion	113
Model 3: Power to limit disclosure of documents to parties with criteria to guide discretion	113
A case study	113
Outcome of case study	114
A preliminary view	115
Call for submissions	116
Chapter 6	118
Tribunal decisions and reasons	118
Introduction	119
Introduction	119
The law in Queensland	119
Legislation in other jurisdictions	121
Western Australia	122
Mental Health Act 2000 (Qld)	123
Issues for consideration	124
Should the Tribunal be able to make a confidentiality order in relation to its decisions or reasons?	124
Should the legislation distinguish between decisions and reasons?	125
From whom should decisions or reasons be able to be withheld?	125
What criteria should guide the Tribunal’s discretion?	125
What does it mean to ‘restrict’ disclosure?	127
Conditional disclosure of decisions and reasons	127
Restrictions on content of decisions and reasons	127
Balancing concepts	128
Reasons and the right of appeal	128
Open justice	129
Procedural fairness	130
Nature of the guardianship system	131
Possible legal models	131
Model 1: no power to make decisions or reasons confidential	132
Model 2: power to make reasons confidential, but not decisions	132
Model 3: power to make both decisions and reasons confidential	132
A case study	132
Outcome of case study	133
A preliminary view	134
Call for submissions	135
Chapter 7	138
Publication of Tribunal proceedings	138
The Law in Queensland	139
Section 112	139
Section 109	142
The interaction between sections 109 and 112	143
Legislation in other jurisdictions	144
General prohibition with power to permit publication of de-identified information	144
General prohibition with power to permit publication of all information	145
Prohibition on publication of identity with power to permit	145
Further discretion to prohibit the publication of information	147
Issues for consideration	148
Should there be a prohibition on publishing information about a proceeding?	149
Whose identity should be protected?	150
What information will identify a person?	151
Who must be able to identify the person?	153
To whom should publication be prohibited?	156
Where people are specified	156
Where people are not specified	156
What discretion should there be to permit publication that is otherwise prohibited?	159
Should there be any exceptions or defences?	159
Further discretion to prohibit the publication of information	161
Balancing concepts	162
Open justice	162
Procedural fairness	163
Nature of the guardianship system	164
Possible legal models	164
Model 1: no prohibition but power to order that information or identity 
not be published	165
Model 2: general prohibition with power to permit publication of 
de-identified information	165
Model 3: general prohibition with power to permit publication of all information	165
Model 4: prohibition on publication of identity with power to permit publication	165
A case study	166
Outcome of case study	166
Model 1	166
Models 2 and 3	166
Model 4	167
A preliminary view	167
Call for submissions	168
Chapter 8	172
The general duty of confidentiality	172
Introduction	173
the law in queensland	174
The general duty of confidentiality	174
The people who are subject to the duty	174
The information that is protected by the duty	176
The type of conduct the duty prohibits	176
Exceptions to the duty	177
The general exceptions	177
Exceptions that apply to the Adult Guardian	179
Disclosures made ‘for this Act’	179
Disclosures during the course of an investigation	181
legislation in other jurisdictions	181
The general duty of confidentiality	182
The people who are subject to the duty	182
The information that is protected by the duty	184
The type of conduct the duty prohibits	184
Exceptions to the duty	186
The general exceptions	186
Disclosures made in the performance of functions under legislation	186
Disclosures required or authorised by law	186
Disclosures made with consent	187
Statistical information that does not identify the person	187
Disclosures at a hearing or proceeding under the 
legislation	188
Other exceptions	188
Specific exceptions for the Adult Guardian	189
Issues for consideration	190
Should there be a general duty of confidentiality under the 
guardianship legislation?	191
Who should be subject to the duty?	191
People involved in the administration of the legislation	191
Other people, including service providers	192
What information should be protected by the duty?	194
Information about a person’s affairs	194
Information that is not publicly disclosed	195
Identifying information	196
What sort of conduct should the duty prohibit?	197
Intentional and reckless disclosures	197
Secondary disclosures	197
Making a record	198
Should there be any exceptions to the duty, and what should they be?	198
Disclosures authorised by the person to whom the information 
relates	199
Disclosures made for the Act	200
Disclosure as a decision about a ‘matter’	200
Disclosures in the adult’s interests	202
Other potentially reasonable disclosures	202
Consistency within the guardianship legislation	203
Specific exceptions for the Adult Guardian	203
Balancing concepts	204
Open justice	204
Procedural fairness	204
Nature of the guardianship system	205
Possible legal models	206
Model 1: no general duty of confidentiality	206
Model 2: a general duty of confidentiality but with no exceptions	206
Model 3: a general duty of confidentiality with general exceptions	206
Model 4: a general duty of confidentiality with specific exceptions 
for the Adult Guardian (with or without other general exceptions)	207
A case study	207
Outcome of case study	208
A preliminary view	209
Call for submissions	209
Appendix 1	213
Terms of reference	213
Appendix 2	217
Membership of the Reference Group	217
Appendix 3	218
List of submissions and forums	218
Submissions	218
Forums	219
Appendix 4	220
Glossary	220
Appendix 5	228
Register an interest	228

Chapter 1	
	Introduction to the review

The Guardianship review	2
About THIS DISCUSSION PAPER	3
Methodology	3
Content	4
How to read this Discussion Paper	6
Terminology	6
The Consultation Process	7
Consultation on this Discussion Paper	7
Call for Submissions	8

The Guardianship review
1.1	The Attorney-General has asked the Queensland Law Reform Commission to review aspects of the Powers of Attorney Act 1998 (Qld) and the Guardianship and Administration Act 2000 (Qld).  This legislation regulates decision-making by and for adults with impaired decision-making capacity.  
1.2	Under its terms of reference, the Commission is to conduct the review in three stages.  The first two stages relate to specific aspects of the legislation and the third stage examines the legislation more generally. 
1.3	In stage one of the review, the Commission is to consider the confidentiality provisions of the legislation, and is directed by its terms of reference to have regard to the need to balance the protection of people’s privacy and the accountability of decision-making.  The Commission is to provide a final report to the Attorney-General on the confidentiality provisions by March 2007.  
1.4	In the second stage of the review, the Commission is to consider the legislation’s General Principles, and is directed again by its terms of reference to have regard to the need to protect the rights and interests of adults with impaired decision-making capacity.  The Commission is to provide an interim report on the General Principles to the Attorney-General by September 2007.  Work on this stage of the review will commence before the Commission’s work on the confidentiality provisions is completed. 
1.5	In the third stage of the review, the Commission is to consider the guardianship legislation more broadly.  In undertaking this stage, the Attorney-General has asked the Commission to give specific consideration to:  
(a)	the law relating to decisions about personal, financial, health matters and special health matters under the Guardianship and Administration Act 2000 and the Powers of Attorney Act 1998 including but not limited to:
•	the General Principles;
•	the scope of personal matters and financial matters and of the powers of guardians and administrators;
•	the scope of investigative and protective powers of bodies involved in the administration of the legislation in relation to allegations of abuse, neglect and exploitation;
•	the extent to which the current powers and functions of bodies established under the legislation provide a comprehensive investigative and regulatory framework;
•	the processes for review of decisions;
•	consent to special medical research or experimental health care; and
•	the law relating to advance health directives and enduring powers of attorney; and
•	the scope of the decision-making power of statutory health attorneys; and
•	the ability of an adult with impaired capacity to object to receiving medical treatment; and
•	the law relating to the withholding and withdrawal of life-sustaining measures;
(b)	the confidentiality provisions of the Guardianship and Administration Act 2000; 
(c)	whether there is a need to provide protection for people who make complaints about the treatment of an adult with impaired capacity; 
(d)	whether there are circumstances in which the Guardianship and Administration Act 2000 should enable a parent of a person with impaired capacity to make a binding direction appointing a person as a guardian for a personal matter for the adult or as an administrator for a financial matter for the adult. 
1.6	The Commission is to give the Attorney-General its final report on stage three of its review by the end of 2008.  
About THIS DISCUSSION PAPER
Methodology
1.7	This Discussion Paper deals exclusively with stage one of the review on the confidentiality provisions of the guardianship legislation.  It has been produced to provide information to interested organisations and individuals on the current law relating to confidentiality and the issues the Commission considers will need to be addressed in this stage of the review.  It invites readers to make submissions so that these views can be considered when the Commission formulates its recommendations. 
1.8	In order to prepare this Discussion Paper, the Commission has obtained preliminary information and advice from a number of people and organisations with experience in the operation of the legislation.  
1.9	At the end of 2005, the Commission established an informal Reference Group to provide expertise and advice on the review.  While the Commission acknowledges that it is impossible to adequately represent all of the interests in this area of law, the members of the Reference Group represent a cross-section of people who are affected by, administer, or are otherwise interested in, Queensland’s guardianship legislation.  To date, the Reference Group has met twice: at the beginning of the review, in December 2005, to identify issues for the Commission to consider, and prior to the finalisation of this Discussion Paper, in June 2006.  The Reference Group will continue to meet throughout all three stages of the Commission’s review.
1.10	The Commission was also pleased to receive 40 submissions from interested individuals and organisations.  Before releasing this Discussion Paper, the Commission had not yet formally called for submissions and so was encouraged by the level of interest in the review.  The Commission was also invited to participate in two forums and received views from the people attending about the guardianship legislation. 
1.11	Finally, as part of informing itself as to how the law is operating in practice, the Commission requested from the Tribunal, and was given, empirical information about how and when confidentiality orders are made.  The information provided covered an eleven month period from 1 July 2005 to 26 May 2006 and is referred to where relevant throughout the Discussion Paper.
1.12	The Commission is grateful for the assistance provided by these individuals and organisations and appreciates their valuable contribution to the review.
Content
1.13	The Powers of Attorney Act 1998 (Qld) and the Guardianship and Administration Act 2000 (Qld) contain provisions which protect certain information as confidential.  These provisions deal both with the confidentiality of information generally and with the confidentiality of information generated around proceedings of the Tribunal by:
•	imposing a duty on a person who gains confidential information through their involvement in the administration of the legislation prohibiting them from making a record of, or intentionally or recklessly disclosing, that information;
•	prohibiting the publication of information about Tribunal proceedings and the disclosure of the identity of a person involved in a Tribunal proceeding; and
•	conferring power on the Guardianship and Administration Tribunal to make confidentiality orders in a hearing in relation to the privacy of hearings and in relation to the confidentiality of documents and information before the Tribunal, and of the Tribunal’s decision and reasons. 
1.14	The confidentiality provisions in the legislation are brief but operate in a variety of contexts, each of which is separately dealt with in the Discussion Paper. 
1.15	Chapter 2 of the Discussion Paper provides a general introduction to the guardianship system and the relevant confidentiality provisions that are the subject of this Discussion Paper. 
1.16	Chapter 3 discusses the nature of privacy and confidentiality generally and considers three important concepts that inform choices about reform in this area: the principle of open justice, the requirements of procedural fairness, and the nature of the guardianship system. 
1.17	Chapters 4 to 7 deal with confidentiality in relation to Tribunal proceedings.  Chapter 4 considers the provisions that permit the Tribunal to hold hearings in private or to the exclusion of particular people.  Chapter 5 discusses the extent to which the Tribunal can displace a person’s statutory right to inspect documents before the Tribunal for a proceeding.  Chapter 6 considers the Tribunal’s ability to displace a person’s statutory right to obtain a copy of the Tribunal’s decision and any reasons for that decision.  Chapter 7 discusses the general prohibition against reporting of Tribunal proceedings. 
1.18	Finally, Chapter 8 of the Discussion Paper examines the general duty of confidentiality imposed on those people who are involved in the administration of the guardianship legislation.  
1.19	In examining the scope of Queensland’s confidentiality provisions, the Commission has sought to provide information about similar provisions that operate in the guardianship legislation in other Australian States and Territories.  The Discussion Paper also refers to comparative provisions in the guardianship legislation of jurisdictions outside Australia where those provisions are innovative, unique or may represent best practice.
1.20	In Chapters 4 to 8, hypothetical case studies have been included.  These case studies do not reflect any settled views or opinions of the Commission.  Rather, their purpose is to help readers understand how the confidentiality provisions might operate in practice and some of the challenges that the issues raise.  The Commission is aware that these case studies do not reflect the majority of cases that arise in the guardianship system.  However, hypothetical scenarios involving some level of conflict or potential misconduct most usefully highlight the tensions generated by the issue of confidentiality.  
1.21	Chapters 4 to 8 also contain expressions of the Commission’s preliminary views on some of the issues which this Discussion Paper has raised.  This has not been done to seek to persuade or influence people who are reading this paper.  Rather, its purpose, as part of a transparent process, is to inform readers what the Commission is currently thinking.  It is also intended to assist readers in formulating their own views.  Of course, the Commission’s views are only preliminary and may change during our consultation process and further research.
1.22	Finally, unless otherwise specified, the law is stated as at 24 July 2006.
How to read this Discussion Paper
1.23	The Commission realises that for various reasons some people may not wish to read this Discussion Paper in its entirety.  However, the Commission recommends that readers have particular regard to Chapters 2 and 3 as they introduce readers to the guardianship system, the confidentiality provisions and the principles that underpin the discussion that follows in subsequent chapters.  Regard should also be had to Chapter 4 as it contains some generic issues that are relevant to subsequent chapters.
1.24	The substantive analysis of the confidentiality provisions is contained in Chapters 4 to 8.  Those chapters deal with discrete issues and can be read independently according to the reader’s interest.  Each of those chapters contains questions on which the Commission is interested in receiving submissions.
Terminology
1.25	Throughout this Discussion Paper, the following terminology has been used: 
•	a reference to ‘the adult’ means the adult with impaired decision-making capacity;
•	the ‘guardianship legislation’ is used to refer to both the Powers of Attorney Act 1998 (Qld) and the Guardianship and Administration Act 2000 (Qld);
•	the term ‘Tribunal’ is used to refer to the Guardianship and Administration Tribunal in Queensland and, unless otherwise expressed, to those bodies in other jurisdictions exercising a judicial or quasi-judicial function under the relevant guardianship legislation.  
Some jurisdictions have Boards (South Australia and Tasmania) whilst others rely on a Court (Northern Territory).  Western Australia and Victoria do not have specialised guardianship tribunals and instead each has a generalist tribunal with jurisdiction for a range of matters including guardianship (the State Administrative Tribunal and the Victorian Civil and Administrative Tribunal respectively). 
•	The term ‘Adult Guardian’ is used in this Discussion Paper to refer to Queensland’s Adult Guardian and, unless otherwise expressed, the equivalent positions in other Australian jurisdictions.  In Victoria, Western Australia, South Australia and the Australian Capital Territory, the equivalent of the Adult Guardian is the Public Advocate.  New South Wales, Tasmania and the Northern Territory have a Public Guardian. 
1.26	Some of the other terms used in this Discussion Paper are explained in the Glossary, which is located in Appendix 4.
The Consultation Process
1.27	The Commission undertakes wide community consultation before making recommendations to the Attorney-General as to how the law might be improved.  The consultation process in this review will help the Commission in:
•	identifying all the key issues for the Commission to consider; 
•	finding out how the law works in practice, including what is causing problems; 
•	generating suggestions for how the law could be improved; and
•	refining, developing and testing proposed recommendations. 
1.28	The Commission is aware of the significant community interest in this review and is particularly keen to ensure that it hears from people affected on a daily basis by the guardianship legislation.  The Commission has engaged Ms Donna McDonald to assist with this consultation and is grateful for her assistance and advice on the review to date.
Consultation on this Discussion Paper
1.29	The Commission will be consulting on this Discussion Paper until the end of October 2006.
1.30	In order to facilitate wide and inclusive consultation, this Discussion Paper is supplemented by:
•	a shorter and independent guide to the Discussion Paper called Public Justice, Private Lives: A Companion Paper;
•	two pamphlets dealing with the key issues in the review called Confidentiality: Key questions for people who may need help with decision-making and Confidentiality: Key questions for families, friends and advocates; and
•	an interactive CD-ROM for people who prefer or need to see and/or listen to new information called Public Justice, Private Lives: A CD-ROM Companion.
1.31	Copies of these publications are available on the Commission’s guardianship website.  Readers can also request a copy of any of these publications by contacting the Commission.  
1.32	The Commission will hold a number of public forums in different parts of the State to promote widespread community participation in its review.  The Commission will also be holding several focus group discussions with different groups of people with particular interests and backgrounds.  The Commission also invites people to make a written submission or to contact the Commission in person or by telephone to share their views on the issues raised in this Discussion Paper. 
1.33	Details of the Commission’s public consultation process, including information about dates, venues and times for public forums, will be posted on the Commission’s guardianship website, and advertised widely.  
Call for Submissions
1.34	The Commission invites submissions on stage one of the review.  Submissions can relate to issues raised by this Discussion Paper generally or to the specific questions posed at the end of each chapter.
1.35	Details on how to make a submission are set out in the beginning of this Discussion Paper.  The closing date for submissions is 31 October 2006.
1.36	These submissions will be taken into consideration when the Commission is formulating its recommendations.  At the conclusion of the review, the Commission will publish its recommendations in its final report which will be presented to the Attorney-General for tabling in Parliament.

Chapter 2	
	Overview of the law in Queensland

Introduction	10
Overview of guardianship in queensland	10
When is an adult unable to make their own decisions for a matter?	10
What decisions can be made for an adult?	12
Who can make substitute decisions for an adult?	14
How are substitute decisions for an adult to be made?	19
What agencies are involved in the guardianship system?	21
Overview of the confidentiality provisions	26
Introduction	26
Section 249: the general duty of confidentiality	27
Section 112: a prohibition specific to Tribunal proceedings	30
Section 109: case-by-case confidentiality orders	32

Introduction
2.1	Before examining the law in detail in the chapters that follow, this chapter provides an overview of two important issues: Queensland’s system of guardianship, and the guardianship legislation’s confidentiality provisions.  
2.2	It begins with an overview of the guardianship system in Queensland.  Although the confidentiality provisions are the subject of this Discussion Paper, it is important to consider the wider context and legislative framework in which these provisions operate.
Overview of guardianship in queensland
2.3	Queensland’s guardianship legislation is comprised of the Powers of Attorney Act 1998 (Qld) and the Guardianship and Administration Act 2000 (Qld).  It provides a framework for decision-making by and for adults with impaired decision-making capacity.
2.4	The guardianship legislation is concerned with the following questions, which will be considered in turn: 
•	When is an adult unable to make their own decisions for a matter?
•	What decisions can be made for an adult?
•	Who can make substitute decisions for an adult?
•	How are substitute decisions for an adult to be made?
•	What agencies are involved in the guardianship system?
When is an adult unable to make their own decisions for a matter?
2.5	One of the ordinary incidents of being an adult (a person 18 years or older) is the ability to make your own decisions.  An adult may, however, be unable to make their own decisions if they have impaired decision-making capacity.  Capacity has been described as ‘a gatekeeper concept’ in that it is ‘a mechanism by which individuals retain or lose authority over and responsibility for decisions that affect their lives’.  Impaired capacity may result from an intellectual disability, dementia, acquired brain injury, mental illness, or an inability to communicate, for example, when a person is in a coma.
2.6	In Queensland, an adult will have ‘capacity’ for a matter if they are capable of:
•	understanding the nature and effect of decisions about the matter;
•	freely and voluntarily making decisions about the matter; and
•	communicating the decisions in some way.
2.7	An adult who does not satisfy these criteria in relation to a matter is described as having ‘impaired capacity’ for that matter.  Under Queensland’s guardianship legislation, the Guardianship and Administration Tribunal has power to make a declaration about an adult’s capacity on the basis of medical and other evidence.
2.8	There is a presumption, however, that every adult has capacity unless it is otherwise established.  The legislative framework also promotes the right of an adult to make all decisions to the extent that they are capable.  This includes the right to make decisions with which others may not agree.
2.9	Impaired capacity is specific to individual decisions about matters.  An adult may have capacity to make decisions about some matters but not others.  For example, an adult with mild dementia may not have sufficient capacity to execute a will but may be fully capable of making day-to-day decisions about their accommodation or lifestyle.
What decisions can be made for an adult?
2.10	An adult with impaired capacity for a matter may require a substituted decision-maker for decisions about that matter.  The guardianship legislation makes provision for a wide range of personal and financial decisions to be made for an adult with impaired capacity.  The legislation distinguishes between decisions concerning ‘financial matters’ which involve administration, and those concerning ‘personal matters’ which involve guardianship.  It also differentiates between ‘health matters’, ‘special health matters’, and ‘special personal matters’.  Each of these matters is discussed in turn.
Financial matters
2.11	All matters relating to an adult’s financial or property matters are referred to in the guardianship legislation as ‘financial matters’.  These include buying and selling property (including land); paying the adult’s expenses, rates, insurance, taxes and debts; conducting a trade or business on the behalf of the adult; making financial investments; performing the adult’s contracts; and all legal matters relating to the adult’s financial or property matters. 
Personal matters
2.12	All matters (other than ‘special personal matters’ and ‘special health matters’) relating to an adult’s care or welfare are referred to as ‘personal matters’.  These include where and with whom the adult lives; the adult’s health care; day-to-day issues such as diet and dress; the adult’s employment, education and training; and legal matters that do not relate to the adult’s financial or property matters.

Health matters
2.13	A type of personal matter, ‘health matters’ concern the ‘health care, other than special health care, of the adult’.  ‘Health care’ is defined in the guardianship legislation as:  
… care or treatment of, or a service or a procedure for, the adult—
(a)	to diagnose, maintain, or treat the adult’s physical or mental condition; and
(b) 	carried out by, or under the direction or supervision of, a health provider.
Special health matters
2.14	‘Special health matters’ are those relating to ‘special health care’.  They involve decisions about very significant health issues.  The guardianship legislation defines ‘special health care’ as:
(a) 	removal of tissue from the adult while alive for donation to someone else;
(b) 	sterilisation of the adult;
(c) 	termination of a pregnancy of the adult;
(d) 	participation by the adult in special medical research or experimental health care;
(e) 	electroconvulsive therapy or psychosurgery for the adult;
(f) 	prescribed special health care of the adult.
Special personal matters
2.15	‘Special personal matters’ are regarded as being of such an intimate nature that it would be inappropriate for another to make such a decision on behalf of an adult under the guardianship legislation.  These matters include voting; consenting to marriage; and making or revoking a will, a power of attorney, an enduring power of attorney, or an advance health directive.  
Who can make substitute decisions for an adult?
2.16	The guardianship legislation provides for substitute decisions for an adult to be made by several types of decision-makers, depending on the matter involved.  The legislation recognises:
•	informal decision-makers;
•	attorneys appointed in advance by the adult under an enduring document;
•	statutory health attorneys;
•	guardians and administrators appointed by the Tribunal; and
•	in some limited circumstances, the Tribunal.
2.17	The adult themselves may also be a decision-maker, by completing an advance health directive before they lose the requisite capacity for a matter.  In such a document, the adult may give directions about future health matters, including ‘special health matters’.  An adult may direct, for example, that in particular circumstances, a life-sustaining measure be withheld or withdrawn.
Informal decision-makers
2.18	The guardianship legislation recognises that substitute decisions for an adult can be made informally by the adult’s ‘existing support network’, that is, the adult’s family and close friends, and other people who the Tribunal decides provide support to the adult.
2.19	If there is doubt about the appropriateness of a decision, the Tribunal may ratify or approve informal decisions.  
2.20	However, sometimes situations can arise where the decision-making process for an adult needs to be formalised.  This might be because:  
•	the person wishing to make a decision on behalf of the adult does not have the necessary authority to do so;
•	the authority of the person making the decision is disputed; 
•	there is no appropriate person to make the decision;
•	the decision or decisions being made are considered inappropriate; or
•	a conflict occurs over the decision-making process.
2.21	The remainder of the decision-makers considered in this chapter are part of the formal decision-making processes established by the guardianship legislation.
Attorneys appointed in advance by the adult
2.22	An adult may formalise future substitute decision-making for themselves by appointing a person (an attorney) to make particular decisions on their behalf in the event they subsequently lose capacity.  There are two instruments that an adult (the principal) may use to appoint an attorney: an enduring power of attorney and an advance health directive.  An adult may only make such a document if they have sufficient capacity.
2.23	In an enduring power of attorney, a principal can assign to their nominated attorney or attorneys decision-making power for some or all financial matters and/or personal matters, including health matters.  A principal cannot, however, give power to an attorney for ‘special health matters’ or ‘special personal matters’. 
2.24	In an advance health directive, a principal can assign decision-making power to an attorney or attorneys for some or all health matters, other than for ‘special health matters’.
2.25	An attorney can exercise his or her assigned power with respect to personal matters only during a period when the principal no longer has capacity for the particular matter.  The power for financial matters becomes exercisable either at the time or in the circumstance the principal nominates in the document, or otherwise, once the enduring power of attorney is made.  Power for financial matters is also exercisable at any time the principal has impaired capacity.
2.26	The legislation imposes a range of obligations on attorneys as to how they exercise their power.  For example, an attorney must act honestly and diligently and must comply with the General Principles set out in the legislation and, for decisions about health matters, the Health Care Principle.  Attorneys for financial matters are also required, for example, to avoid conflict transactions and to keep their property separate from that of the adult.  An attorney is also regarded as an agent of their principal and so would be subject to the general law of agency to the extent that it is not inconsistent with the guardianship legislation.
Statutory health attorneys
2.27	A statutory health attorney is a person in a particular relationship with the adult who is declared by the legislation to be a person with authority to make decisions about health matters for an adult.  The legislation lists the relationships in a hierarchical order.  The first of the following who is ‘readily available and culturally appropriate’ to make the decision will be an adult’s statutory health attorney:
•	the adult’s spouse, if the relationship is close and continuing; 
•	a person 18 years or older who is caring for the adult but who is not a paid carer of the adult; or
•	a close friend or relation of the adult 18 years or older and who is not a paid carer of the adult. 
2.28	If no-one from that list is readily available and culturally appropriate, the Adult Guardian becomes the adult’s statutory health attorney. 
2.29	A statutory health attorney is authorised by the legislation to make any decision about an adult’s health matter that the adult could have made if he or she had capacity for the matter, but only during a period when the adult has impaired capacity for the matter.  A statutory health attorney must comply with the General Principles and the Health Care Principle set out in the legislation when exercising their power.  
Guardians and administrators appointed by the Tribunal
2.30	In some circumstances, the Tribunal has power to appoint formal substitute decision-makers for particular matters for an adult.  A guardian can be appointed for a personal matter, including a health matter (but not ‘special health matters’).  An administrator can be appointed for a financial matter.  The Tribunal may make such an appointment, on terms it considers appropriate, if: 
(a) 	the adult has impaired capacity for the matter; and
(b) 	there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and
(c) 	without an appointment—
(i) 	the adult’s needs will not be adequately met; or
(ii) 	the adult’s interests will not be adequately protected.
2.31	A person may only be appointed as a guardian or administrator for an adult if they are 18 years or older, they are not a paid carer or health provider for the adult, and the Tribunal considers them appropriate for appointment.  
2.32	The Tribunal is required by the guardianship legislation to take into account several considerations in deciding whether a person is appropriate for appointment.  These include: 
•	the extent to which the adult’s and the person’s interests are likely to conflict; 
•	whether the adult and the person are compatible including, for example, whether the person’s communication skills and cultural or social experience is appropriate; 
•	whether the person would be available and accessible to the adult; and
•	the person’s appropriateness and competence to perform the functions and exercise the powers conferred by an appointment order. 
2.33	A guardian or administrator is conferred with the authority to do anything in relation to a personal or financial matter for which they are appointed that the adult could have done if they had capacity for that matter (in accordance with the terms of appointment). 
2.34	Given the breadth of this power, the guardianship legislation imposes strict requirements on the exercise of authority by a guardian or administrator.  Such a person must exercise his or her power honestly and diligently, must apply the General Principles contained in the legislation (and the Health Care Principle if appropriate), is subject to regular review, and, if they are an administrator, must submit a management plan and avoid conflict transactions.  These requirements are reflective of those imposed in respect of the common law of agency. 
The Tribunal
2.35	The guardianship legislation also empowers the Tribunal to make substitute decisions for an adult in relation to some types of ‘special health care’.  If a special health matter for an adult is not dealt with by a direction given by the adult in an advance health directive, the Tribunal has power to consent to special health care for an adult, other than electroconvulsive therapy or psychosurgery.
2.36	The Tribunal’s authority to give consent is limited by several specific requirements imposed by the legislation.  The Tribunal must be satisfied, for example, that the special health care involves minimal risk to the adult and is the only reasonably available option.  In deciding whether to give consent, the Tribunal must also apply the General Principles and the Health Care Principle contained in the legislation. 
2.37	The Tribunal may also consent to the withholding or withdrawal of a life-sustaining measure for an adult with impaired capacity (if the matter is not dealt with by a direction given in an advance health directive) and to the sterilisation of a child with an impairment.
How are substitute decisions for an adult to be made?
2.38	Queensland’s guardianship legislation contains eleven General Principles, which apply to all decisions for adults, and an additional Health Care Principle which applies only in relation to decisions about health matters.
2.39	The General Principles and the Health Care Principle must be applied by any person or entity performing a function or exercising a power under the guardianship legislation in relation to a matter for an adult.  This includes the making of a decision for an adult by the potential decision-makers already discussed.  The guardianship legislation also makes specific provision for the application of these principles to the Tribunal, the Adult Guardian, and an adult’s guardian or administrator. 
2.40	The legislation also states that the ‘community is encouraged to apply and promote the general principles’. 
2.41	The General Principles include:
•	the presumption that an adult has capacity to make decisions;
•	an adult’s right to basic human rights and the importance of empowering an adult to exercise those rights;
•	an adult’s right to respect for his or her human worth and dignity; 
•	an adult’s right to be a valued member of society and the importance of encouraging an adult to perform valued social roles; 
•	the importance of encouraging an adult to participate in community life; 
•	the importance of encouraging an adult to become as self-reliant as possible; 
•	an adult’s right to participate in decision-making as far as possible and the importance of preserving wherever possible the adult’s right to make his or her own decisions; 
•	the principle of substituted judgment must be used, so that where it is possible to ascertain from previous actions what an adult’s views or wishes would be, those views and wishes are to be taken into account; 
•	any power under the legislation must be exercised in the way least restrictive of the adult’s rights;
•	the importance of maintaining an adult’s existing supportive relationships;
•	the importance of maintaining the adult’s cultural, linguistic and religious environment; and
•	an adult’s right to confidentiality of information about them.
2.42	The Health Care Principle provides that power for a health or special health matter should be exercised in the way least restrictive of the adult’s rights and only if the exercise of power:
•	is necessary and appropriate to maintain or promote the adult’s health or wellbeing; or
•	is, in all the circumstances, in the adult’s best interests. 
2.43	In deciding whether the exercise of a power is appropriate, the adult’s views and wishes and information given by the adult’s health provider are to be taken into account.  In addition, in deciding whether to consent to special health care, the Tribunal, which is the only potential decision-maker for such matters, must take into account the views of the adult’s guardian, attorney or statutory health attorney. 
What agencies are involved in the guardianship system?
2.44	Queensland’s guardianship legislation confers responsibilities on several agencies and officials.  These include:
•	the Tribunal; 
•	the Adult Guardian; 
•	the Public Advocate; 
•	community visitors; and
•	the Public Trustee. 
The Tribunal
2.45	The Guardianship and Administration Tribunal is a quasi-judicial body established by the Guardianship and Administration Act 2000 (Qld).  The Tribunal has exclusive jurisdiction for the appointment of guardians and administrators for adults, subject to the exercise of the Tribunal’s powers by the Supreme or District Court to make, change, or revoke the appointment of a guardian or administrator in particular civil proceedings.  The Tribunal also has concurrent jurisdiction with the Supreme Court for matters relating to enduring documents and attorneys appointed under enduring documents. 
2.46	The Tribunal’s functions include: 
•	making declarations about an adult’s capacity for a matter; 
•	hearing applications for the appointment of guardians and administrators and appointing, where necessary, guardians and administrators for an adult; 
•	making declarations, orders or recommendations, or giving directions or advice in relation to guardians, administrators, attorneys, and enduring documents; 
•	ratifying or approving an exercise of power by an informal decision-maker for an adult; and
•	giving consent to some types of special health care for an adult, to the withholding or withdrawal of life-sustaining measures, and to the sterilisation of a child with an impairment. 
2.47	At a hearing, the Tribunal is generally constituted by three members, unless the President considers it appropriate that a matter be heard by one or two members.  To the extent that it is practicable, the Tribunal that is hearing a matter is also to be constituted by either the President, a Deputy President or a legal member; a professional member; and a personal experience member, although the composition of the Tribunal will also depend on the nature of the matter.
2.48	Proceedings before the Tribunal are to be conducted as simply and quickly as practicable.  The Tribunal may inform itself on a matter in any way it considers appropriate, but it must observe the rules of procedural fairness. 
2.49	Tribunal orders are enforceable as if they were orders of a court.  A person may appeal against a Tribunal decision to the Supreme Court.  
The Adult Guardian
2.50	The Adult Guardian is an independent statutory official whose position is established under the Guardianship and Administration Act 2000 (Qld) to protect the rights and interests of adults with impaired capacity. 
2.51	The Adult Guardian’s functions include: 
•	protecting adults from neglect, exploitation, or abuse;
•	conducting investigations of complaints of such allegations, and investigations into the actions of an adult’s substitute decision-maker; 
•	mediating and conciliating disputes between an adult’s substitute decision-maker and others, such as health providers; 
•	acting as an attorney for an adult under an enduring document or as an adult’s statutory health attorney; 
•	acting as an adult’s guardian if appointed by the Tribunal; 
•	consenting to the forensic examination of an adult; 
•	seeking government or organisational assistance for an adult; and
•	undertaking educative, advisory, and research activities on the operation of the guardianship legislation.  
2.52	The Adult Guardian is also conferred with significant protective powers in relation to adults.  For example, the Adult Guardian may: 
•	temporarily suspend an attorney’s powers if there are reasonable grounds to suspect that the attorney is not competent; 
•	apply to the courts to claim and recover possession of property that the Adult Guardian considers has wrongfully been held or detained; and
•	apply to the Tribunal for a warrant to remove an adult from a place if there are reasonable grounds to suspect the adult is at immediate risk of harm due to neglect, exploitation, or abuse. 
The Public Advocate
2.53	The Public Advocate is an independent statutory official whose position is established under the Guardianship and Administration Act 2000 (Qld) to promote and protect the rights of adults.
2.54	The Public Advocate’s other functions include: 
•	promoting the protection of adults from neglect, exploitation, or abuse; 
•	encouraging the development of programs that foster and maximise adults’ autonomy; 
•	promoting service and facility provision for adults; and
•	monitoring and reviewing service and facility delivery to adults. 
2.55	Unlike the Adult Guardian, the Public Advocate’s functions are aimed at systemic advocacy rather than advocacy on behalf of individual adults.  The Public Advocate seeks to identify issues in the systems that impact on adults, and works towards influencing appropriate change.  Those systems include policy, service and legislative systems, across the government and non-government sectors.  Systemic advocacy may be conducted through a variety of advocacy strategies including discussions, correspondence, committee representation, submissions, discussion and issues papers, forums and conferences.
2.56	The Public Advocate may do all things necessary and convenient for the performance of its functions and may, with leave, intervene in a proceeding involving the protection of the rights or interests of adults in a court, tribunal, or official inquiry. 
Community visitors
2.57	Community visitors are appointed by the Queensland Government under the Guardianship and Administration Act 2000 (Qld) to safeguard the interests of ‘consumers’ by regularly visiting ‘visitable sites’.
2.58	A ‘consumer’ means any person who lives or receives services at an authorised mental health service; or an adult with impaired capacity for a matter or with a mental or intellectual impairment and who lives or receives services at a visitable site.
2.59	A ‘visitable site’ means a place where a consumer lives and receives services and is prescribed to be such a site under a regulation.  This includes residences and services funded by Disability Services Queensland or the Department of Health, some hostels and authorised mental health inpatient services.
2.60	Community visitors’ functions include: 
•	inquiring into and reporting on a range of matters about the visitable sites such as the adequacy of services for the assessment, treatment and support of adults; the appropriateness of services for adults’ accommodation, health and wellbeing; the extent to which adults receive services in the way that is least restrictive of their rights; and the adequacy of information given to adults about their rights; and
•	inquiring into and seeking to resolve complaints, and referring complaints to other entities for further investigation or resolution. 
2.61	Community visitors have power to do all things necessary or convenient in the performance of these functions.  
The Public Trustee
2.62	The Public Trustee of Queensland is a Queensland Government corporation established under the Public Trustee Act 1978 (Qld).  It may be appointed by the Tribunal as an adult’s administrator.  If appointed as an administrator, the Public Trustee has the same obligations as any other administrator appointed under the guardianship legislation.
Overview of the confidentiality provisions
Introduction
2.63	There are three main confidentiality provisions contained in Queensland’s guardianship legislation: 
•	section 249 of the Guardianship and Administration Act 2000 (Qld) and its mirror provision in section 74 of the Powers of Attorney Act 1998 (Qld);
•	section 112 of the Guardianship and Administration Act 2000 (Qld); and
•	section 109 of the Guardianship and Administration Act 2000 (Qld).
2.64	These provisions deal with the confidentiality of information within the guardianship system generally, and with the confidentiality of information generated by proceedings of the Tribunal.
2.65	Section 249 of the Guardianship and Administration Act 2000 (Qld) (and section 74 of the Powers of Attorney Act 1998 (Qld)) impose a blanket duty on people who receive confidential information through their involvement in the guardianship system.  There are exceptions to this duty, but it is the widest of the confidentiality provisions in terms of to whom and to which information it applies.
2.66	Section 112 also imposes a blanket prohibition, but this time more narrowly in relation only to information that is disclosed during Tribunal proceedings.  It prohibits the publication of what occurs during proceedings outside those proceedings.
2.67	Section 109 also applies only to Tribunal proceedings but its operation is on a case-by-case basis with the Tribunal being able to make confidentiality orders, for example, in relation to a particular hearing or a particular document at a hearing.  It also differs from section 112 because instead of applying only to the publication of information outside Tribunal proceedings, section 109 may also regulate the conduct of proceedings internally by imposing confidentiality on those participating in proceedings.
2.68	As part of facilitating the flow of information to the Commission for its consultation process, some minor amendments were made to sections 112 and 249 of the Guardianship and Administration Act 2000 (Qld) and to section 74 of Powers of Attorney Act 1998 (Qld).  These amendments will not be treated as part of the confidentiality provisions for the purposes of this Discussion Paper and so will not be considered further.
Section 249: the general duty of confidentiality
2.69	The duty imposed by section 249 is the widest and most general of the confidentiality provisions: it prohibits any person who gains ‘confidential information’ through their involvement in the administration of the legislation from recording or disclosing that information.  Section 74 of the Powers of Attorney Act 1998 (Qld) mirrors that duty in relation to attorneys.  
2.70	Together, these provisions apply to such people as:
•	Tribunal members and staff;
•	the Adult Guardian and staff;
•	the Public Advocate and staff;
•	guardians, administrators, and attorneys; and
•	community visitors.
2.71	The duty relates to confidential information, including ‘information about a person’s affairs’.  It does not apply to information that has already been publicly disclosed (unless further disclosure is prohibited by law) or to information that identifies the person to whom the information relates.
2.72	The provisions also contain a number of exceptions to the duty including, for example:
•	where the person is acting under the Guardianship and Administration Act 2000 (Qld) or is discharging a function under another law; 
•	where the person to whom the information relates has authorised the disclosure; or
•	where the Tribunal authorises the disclosure in the public interest because a person’s life or physical safety might otherwise be endangered. 
2.73	Section 250 of the Guardianship and Administration Act 2000 (Qld) also contains an exception to the duty.  It relates to the disclosure by the Adult Guardian of information related to ongoing investigations.  It confers a wide discretion on the Adult Guardian to disclose information, despite the duty, if it considers it is ‘necessary and reasonable in the public interest’ and if the disclosure is not likely to prejudice the investigation.
2.74	Section 249 of the Guardianship and Administration Act 2000 (Qld) provides:
249	Preservation of confidentiality
(1) 	If a person gains confidential information because of the person’s involvement in this Act’s administration, the person must not make a record of the information or intentionally or recklessly disclose the information to anyone other than under subsection (3).
Maximum penalty—100 penalty units.
(2) 	A person gains information through involvement in this Act’s administration if the person gains the information because of being, or an opportunity given by being—
(a) 	the president, a deputy president or another tribunal member; or
(b) 	the registrar, a member of the tribunal staff or a tribunal expert; or
(c) 	the adult guardian or a member of the adult guardian’s staff; or
(d) 	a professional consulted or employed by the adult guardian or an adult guardian’s delegate for an investigation; or
(e) 	the public advocate or a member of the public advocate’s staff; or
(f) 	a guardian or administrator; or
(g) 	a community visitor 
…
(3) 	A person may make a record of confidential information, or disclose it to someone else—
(a) 	for this Act; or
(b) 	to discharge a function under another law; or
(c) 	for a proceeding in a court or relevant tribunal; or
(d) 	if authorised under a regulation or another law; or
(e) 	if authorised by the person to whom the information relates; or
(f) 	if authorised by the tribunal in the public interest because a person’s life or physical safety could otherwise reasonably be expected to be endangered; 
…
(4) 	In this section—
…
confidential information includes information about a person’s affairs but does not include—
(a) 	information already publicly disclosed unless further disclosure of the information is prohibited by law; or
(b) 	statistical or other information that could not reasonably be expected to result in the identification of the person to whom the information relates. 
…
2.75	Section 74 of the Powers of Attorney Act 1998 (Qld) provides:
74	Preservation of confidentiality
(1) 	If a person gains confidential information because of being, or an opportunity given by being, an attorney …, the person must not make a record of the information or intentionally or recklessly disclose the information to anyone other than under subsection (2).
Maximum penalty—200 penalty units.
(2) 	A person may make a record of confidential information, or disclose it to someone else—
(a) 	to discharge a function under this Act or another law; or
(b) 	for a proceeding in a court or relevant tribunal; or
(c) 	if authorised under a regulation or another law; or
(d) 	if authorised by the person to whom the information relates; or
(e) 	if authorised by the court in the public interest because a person’s life or physical safety could otherwise reasonably be expected to be endangered;
…
(3) 	This section also applies to a statutory health attorney.
(4) 	In this section—
…
confidential information includes information about a person’s affairs but does not include—
(a) 	information already publicly disclosed unless further disclosure of the information is prohibited by law; or
(b) 	statistical or other information that could not reasonably be expected to result in the identification of the person to whom the information relates. 
…
2.76	These provisions raise a number of issues for consideration including what type of information should be protected, what type of conduct should be prohibited, to whom the duty should apply, and whether there should be any exceptions to that duty.  Sections 249 and 74 are examined in detail in Chapter 8.  
Section 112: a prohibition specific to Tribunal proceedings
2.77	The prohibition in section 112 of the Guardianship and Administration Act 2000 (Qld) is more specific than that contained in section 249 because it applies only to Tribunal proceedings.  Section 112 prohibits any person from publishing information about a Tribunal proceeding or disclosing the identity of a person involved in a proceeding.  However, while this prohibition relates only to Tribunal proceedings, it is wider in some respects as it applies to everyone and not just those people involved in the administration of the guardianship legislation.
2.78	The prohibition relates to ‘information about a proceeding’ which includes:
•	information given before the Tribunal;
•	matters contained in documents filed with, or received by, the Tribunal; and
•	decisions and reasons of the Tribunal.
2.79	It also applies to information that identifies a person ‘involved in a proceeding’.  Such people include:
•	a person who makes an application to the Tribunal;
•	a person about whom an application is made;
•	the active parties to a proceeding; 
•	a person who gives information or documents to a person performing a function under the legislation for the proceeding; and
•	a person who is a witness at a Tribunal hearing of the proceeding.
2.80	The section 112 prohibition does not apply, however, if the person has a reasonable excuse for making the publication or disclosure.  The Tribunal may also permit the publication of information about a proceeding or the disclosure of the identity of a person involved in a proceeding if it is satisfied that doing so is in the public interest.
2.81	Section 112 provides:
112	Publication about proceeding or disclosure of identity
(1) 	If the tribunal is satisfied publication of information about a proceeding is in the public interest, the tribunal may, by order, permit publication of the information.
(2) 	If the tribunal is satisfied publication of the identity of a person involved in a proceeding is in the public interest, the tribunal may, by order, permit disclosure of the person’s identity.
(3) 	A person must not, without reasonable excuse, publish information about a proceeding, or disclose the identity of a person involved in a proceeding, unless the tribunal has, by order, permitted the publication or disclosure.
Maximum penalty—200 penalty units.
...
(4) 	In this section—
…
information, about a proceeding, includes—
(a) 	information given before the tribunal; and
(b) 	matters contained in documents filed with, or received by, the tribunal; and
(c) 	the tribunal’s decision or reasons. 
involved, in a proceeding, includes—
(a) 	making an application in the proceeding to the tribunal; and
(b) 	being a person about whom an application is made in a proceeding; and
(c) 	being an active party for the proceeding; and
(d) 	giving information or documents to a person who is performing a function under this Act relevant to the proceeding; and
(e) 	appearing as a witness at the hearing of the proceeding. 
…
2.82	This provision raises a number of issues for consideration including whether publication of Tribunal proceedings should be prohibited, whether people’s identities should be protected, whether the Tribunal should be able to permit publication in some circumstances, and whether there should be any exceptions to the prohibition.  Section 112 is examined in detail in Chapter 7.  
Section 109: case-by-case confidentiality orders
2.83	Section 109 of the Guardianship and Administration Act 2000 (Qld), like section 112, operates specifically in relation to Tribunal proceedings.  There are, however, two important differences.  The first is that section 112 is a blanket prohibition on publishing information about proceedings whereas section 109 grants the Tribunal power to make confidentiality orders on a case-by-case basis.
2.84	The second major difference is that instead of applying only to the publication of information outside Tribunal proceedings, section 109 permits the imposition of confidentiality in relation to those participating in the proceedings and so may also regulate the conduct of proceedings internally.
2.85	Section 109(1) of the Guardianship and Administration Act 2000 (Qld) provides that generally, hearings of the Tribunal are to be conducted in public.  Section 109(2), however, empowers the Tribunal to make confidentiality orders in a proceeding to:
•	direct who may or may not be present at a hearing;
•	direct that a hearing, or part of a hearing, be held in private;
•	prohibit or restrict publication of information given before it or matters contained in documents before it; or
•	prohibit or restrict disclosure to an active party of information given before it, matters contained in documents before it, or its decision or reasons.
What rights might a confidentiality order displace?
2.86	There are three other provisions contained in the Guardianship and Administration Act 2000 (Qld) that are relevant to the Tribunal’s power to make confidentiality orders under section 109: sections 108, 134, and 158.  
2.87	Each of those sections provide that generally, the active parties to a proceeding, including the adult, must be given access to or copies of certain information, namely:
•	documents that are before the Tribunal and that are directly relevant to an issue in the proceeding (section 108);
•	written reports by Tribunal staff that are received in evidence by the Tribunal in the proceeding (section 134); and
•	the Tribunal’s decision and any written reasons for its decision on an application for a matter (section 158).
2.88	However, those sections also provide that a party’s right to receive that information can be displaced by a section 109(2) confidentiality order.
2.89	Section 108 provides:
108	Procedural fairness
(1) 	The tribunal must observe the rules of procedural fairness.
(2) 	Each active party in a proceeding must be given a reasonable opportunity to present the active party’s case and, in particular, to inspect a document before the tribunal directly relevant to an issue in the proceeding and to make submissions about the document.
(3) 	However—
(a) 	the tribunal may displace the right to inspect the document in a confidentiality order; and
(b) 	the tribunal rules may prescribe conditions in relation to inspection of the document.  [note omitted]
2.90	Section 134 provides:
134	Report by tribunal staff
(1) 	The tribunal may—
(a) 	receive in evidence in a proceeding a written report by tribunal staff on a matter in the proceeding; and
(b) 	have regard to the report.
(2) 	Generally, if the tribunal receives the report in evidence in a proceeding, the adult concerned in the proceeding and each other active party in the proceeding must be—
(a) 	advised of the contents of the report; and
(b) 	upon request, given a copy of the report.
(3) 	However, the right to be given a copy may be displaced in a confidentiality order.  [note omitted]
2.91	Section 158 provides:
158	Decision and reasons to the adult and each active party
(1) 	Generally, the tribunal must give a copy of its decision, and any written reasons for its decision, on an application about a matter to—
(a) 	the adult concerned in the matter; and
(b) 	each other active party in the proceeding.
(2) 	Generally, the tribunal must also give a copy of its decision to each person given notice of the hearing of the application.
(3) 	However, a confidentiality order may displace the requirement to give copies of its decision or reasons.
(4) 	The tribunal may also give a copy of its decision or reasons to anyone else as required by a tribunal order.  [note omitted]
When may a confidentiality order be made?
2.92	The Tribunal may make a confidentiality order under section 109(2) on its own initiative or on the application of a party to the proceeding.  
2.93	The Tribunal’s power to make confidentiality orders is guided by a number of criteria.
2.94	Section 109(2) provides that the Tribunal may make a confidentiality order if it ‘is satisfied it is desirable to do so because of the confidential nature of particular information or matter or for another reason’.  While this power is worded in very broad terms, it is not an unfettered discretion.  The Tribunal must exercise its discretion having regard to what is required in its jurisdiction by open justice and procedural fairness.
2.95	The Tribunal must also apply the General Principles contained in the guardianship legislation in exercising its power to make a confidentiality order, including General Principle 11 which provides that the adult’s right to confidentiality of information be recognised and taken into account.  
2.96	Section 109(4) additionally provides that in a proceeding on an application to obtain the Tribunal’s consent to special health care, a confidentiality order must not impede the adult’s relevant substitute decision-maker for health matters from forming and expressing a view about the special health care.  
Who may make a confidentiality order?
2.97	Section 109(2) of the Guardianship and Administration Act 2000 (Qld) gives the Tribunal power to make confidentiality orders.  Such an order may also, at present, be capable of being made by the Registrar.  
2.98	The Registrar has power under the legislation to perform the functions and exercise the powers of the Tribunal for ‘prescribed non-contentious matters’.  The Tribunal rules specify matters relating to section 109(2) as being such matters.  
When will a person contravene a confidentiality order?
2.99	Section 109(6) of the Guardianship and Administration Act 2000 (Qld) provides that a person must not contravene a confidentiality order unless the person has a ‘reasonable excuse’.  The question of whether a person has a reasonable excuse in a particular case is likely to be assessed in light of the purpose of the legislation and having regard to what a reasonable person would accept as appropriate.
2.100	Section 109 provides: 
109	Open
(1) 	Generally, a hearing by the tribunal of a proceeding must be in public.
(2) 	However, if the tribunal is satisfied it is desirable to do so because of the confidential nature of particular information or matter or for another reason, the tribunal may, by order (a confidentiality order)—
(a) 	give directions about the persons who may or may not be present; and
(b) 	direct a hearing or part of a hearing take place in private; and
(c) 	give directions prohibiting or restricting the publication of information given before the tribunal, whether in public or in private, or of matters contained in documents filed with, or received by, the tribunal; and
(d) 	give directions prohibiting or restricting the disclosure to some or all of the active parties in a proceeding of—
(i) 	information given before the tribunal; or
(ii) 	matters contained in documents filed with, or received by, the tribunal; or
(iii) 	subject to subsection (3), the tribunal’s decision or reasons.
(3) 	The tribunal may make a confidentiality order prohibiting or restricting disclosure of the tribunal’s decision or reasons to the adult concerned only if the tribunal considers disclosure to the adult might be prejudicial to the physical or mental health or wellbeing of the adult.
(4)	In a proceeding to obtain the tribunal’s consent to special health care for an adult, the tribunal may not make a confidentiality order that is likely to affect the ability of any of the following persons to form and express a considered view about the special health care—
(a) 	a guardian for the adult;
(b) 	an attorney for a health matter for the adult under an enduring document;
(c) 	the statutory health attorney for the adult.
(5) 	The tribunal may make a confidentiality order on its own initiative or on the application of an active party.
(6) 	A person must not contravene a confidentiality order, unless the person has a reasonable excuse.
Maximum penalty—200 penalty units.
2.101	These provisions raise a number of issues for consideration including whether Tribunal hearings should be held in public or private, whether the Tribunal should have power to exclude people from a hearing, and whether the Tribunal should be able to limit the disclosure of documents or copies of its decisions or reasons to parties to a proceeding.  Section 109 is examined in Chapters 4, 5, and 6.  
Confidentiality orders in proceedings relating to children
2.102	One of the Tribunal’s functions under the Guardianship and Administration Act 2000 (Qld) is consenting to the sterilisation of a child with an impairment.  Those matters are dealt with under chapter 5A of the Guardianship and Administration Act 2000 (Qld).  The Act contains two provisions dealing with the confidentiality of proceedings in relation to those matters: sections 80G and 80N.  Those sections mirror the provisions of sections 109 and 158 of the Act.  
2.103	Section 80G is substantially identical to section 109.  It provides that proceedings for chapter 5A matters are generally to be conducted in public but that the Tribunal has power to make a confidentiality order in a proceeding.
2.104	The Tribunal’s power to make a confidentiality order under section 80G is guided by the same criteria as for an order under section 109.
2.105	Section 80G provides:
80G	Open
(1) 	Generally, a hearing by the tribunal of a proceeding in relation to a chapter 5A application must be in public. 
(2) 	However, if the tribunal is satisfied it is desirable to do so because of the confidential nature of particular information or matter or for another reason, the tribunal may, by order (a confidentiality order)—
(a) 	give directions about the persons who may or may not be present; and
(b) 	direct a hearing or part of a hearing take place in private; and
(c) 	give directions prohibiting or restricting the publication of information given before the tribunal, whether in public or in private, or of matters contained in documents filed with, or received by, the tribunal; and
(d) 	give directions prohibiting or restricting the disclosure to some or all of the active parties in a proceeding of—
(i) 	information given before the tribunal; or
(ii) 	matters contained in documents filed with, or received by, the tribunal; or
(iii) 	subject to subsection (3), the tribunal’s decision or reasons.
(3) 	The tribunal may make a confidentiality order prohibiting or restricting disclosure of the tribunal’s decision or reasons to the child only if the tribunal considers disclosure to the child might be prejudicial to the physical or mental health or wellbeing of the child.
(4) 	The tribunal may not make a confidentiality order that is likely to affect the ability of an active party to form and express a considered view about the proposed sterilisation. 
(5) 	The tribunal may make a confidentiality order on its own initiative or on the application of an active party.
(6) 	A person must not contravene a confidentiality order, unless the person has a reasonable excuse.
Maximum penalty for subsection (6)—200 penalty units.
2.106	Section 80N is substantially identical to section 158.  It provides that generally, the active parties to a proceeding must be given a copy of the Tribunal’s decision and any written reasons for the decision.  However, it also provides that a confidentiality order may displace this requirement.
2.107	Section 80N provides:
80N	Decision and reasons to each active party
(1) 	Generally, the tribunal must give a copy of its decision, and any written reasons for its decision, on a chapter 5A application to each active party in the proceeding.
(2) 	Generally, the tribunal must also give a copy of its decision to each person given notice of the hearing of the application.
(3) 	However, a confidentiality order may displace the requirement to give copies of its decision or reasons.
(4) 	The tribunal may also give a copy of its decision or reasons to anyone else as required by a tribunal order.  [note omitted]
2.108	Because these sections effectively mirror the provisions of sections 109 and 158 of the Act, they are not separately examined in this Discussion Paper but are referred to in the following chapters only to the extent necessary to note any minor differences in drafting between the provisions.  Otherwise, references in the following chapters to sections 109 and 158 should be taken as being references also to sections 80G and 80N.
Confidentiality orders in practice
2.109	The Commission was given empirical information by the Tribunal about how and when confidentiality orders are made.  The information provided generally covers an eleven month period from 1 July 2005 to 26 May 2006.  The information on confidentiality orders made in relation to the publication outside Tribunal proceedings of information before the Tribunal or of matters contained in documents before the Tribunal is more limited, however, as collection of this information only began in February 2006.
2.110	The Commission has been advised that during the relevant periods, confidentiality orders have been made in relation to 48 of the 5083 applications made to the Tribunal.  The total number of orders made in that period was 51, which is due to the fact that two confidentiality orders were made in three of the matters.  All but two of the confidentiality orders made during the relevant period related to the inspection of documents.  This empirical information will be discussed further in each of the relevant chapters dealing with particular aspects of confidentiality orders. 

2.1	
Chapter 3	
	Guardianship and confidentiality

Introduction	41
Concepts of confidentiality and Privacy	42
A ‘right’ to privacy	42
Duties of confidentiality	43
Confidentiality in the guardianship System	45
Open justice	45
Procedural fairness	49
Nature of the guardianship system	55
Relationships and confidentiality	59
Call for submissions	60

Introduction
3.1	The fundamental question posed by this review is: what role should confidentiality play in Queensland’s guardianship system?  
3.2	Answering this question will involve the Commission examining not only whether the extent of confidentiality imposed by the current legislative provisions is appropriate, but also tackling the more general question of whether confidentiality should continue to play a greater role in the guardianship system than in the wider legal system.  As part of answering this question, the Commission will consider the principle of open justice, the requirements of procedural fairness and the nature of the guardianship system. 
3.3	Open justice and procedural fairness are fundamental principles of our legal system.  Their strict application tends to limit the role of confidentiality in decision-making.  For example, in order to promote accountability, consistency and predictability in decision-making, the principle of open justice will usually require judicial proceedings to be heard in public, and that the evidence relied upon and the outcome of the proceeding be made available to the public.  The rules of procedural fairness require decision-makers to follow some or all of a number of well-recognised rules aimed at ensuring fair treatment of people who seek or oppose the making of a decision.  This may operate to require the disclosure to one person of information that another person regards as confidential.
3.4	On the other hand, the primary focus of the guardianship system is to safeguard the rights and interests of the adult, which includes the adult’s right to privacy.  This area of law also often involves decisions about highly personal issues, such as the adult’s medical treatment, the adult’s financial position, and where and with whom the adult is to live.  For these reasons, it may be argued that the nature of the guardianship system itself permits the recognition of a higher degree of confidentiality than is otherwise allowed in the wider legal system.  Conversely, it may also be argued that the very significance of the decisions made in the guardianship system is itself a good reason for the existence of open and transparent decision-making.
3.5	Open justice and procedural fairness are fundamental principles of legal systems generally and so represent the Commission’s starting point.  However, the law concerning the application of both principles does recognise that a measure of confidentiality can be appropriate in particular circumstances.  The fundamental question about what role confidentiality should play is largely answered by determining whether the particular circumstances of the guardianship system sufficiently distinguish it from other areas of law to require a greater level of confidentiality, and if so, to what extent.
3.6	This chapter begins by considering the nature of confidentiality, as well as the related concept of privacy.  Then, and with a view to providing a platform for the examination of the specific legislative provisions dealing with confidentiality which appear in later chapters, it examines the principle of open justice, the requirements of procedural fairness, and the nature of the guardianship system.  A final matter considered is whether different levels of confidentiality might be appropriate depending on the relationship that a person or group of people has with the adult.
Concepts of confidentiality and Privacy
A ‘right’ to privacy
3.7	The Commission’s terms of reference require it to have regard to the need to protect the privacy of people involved in the guardianship system.  The privacy interest that is relevant here is a person’s claim to privacy of information about them.  ‘Information privacy’ relates to ‘control of the availability and flow of personal information’ about an individual and has been described as ‘perhaps the most significant privacy interest’.  Australia’s common law does not recognise a general right to privacy, although the human right to be free from arbitrary interferences with privacy forms part of international law.  A number of commentators have also promoted the importance of privacy, arguing that it is a key aspect of human dignity, autonomy and identity.
3.8	The concept of privacy has proved difficult to articulate, but a commonly cited definition is that:
Privacy is the claim of individuals, groups or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.
3.9	This is a concept that is distinct from confidentiality.  Central to the distinction are the circumstances in which the information is communicated.  Information is confidential if it is received in circumstances that impose a duty of confidentiality.  In contrast, information that is private (and hence might be protected by a right to privacy) does not depend on how it came to be known or disclosed; information is private because of its nature.
3.10	For example, a person may learn of very personal and sensitive information relating to another’s lifestyle, but not in circumstances that impose a duty of confidentiality.  This information is clearly private, in that it deals with personal matters that the individual may not want disclosed, but it is not confidential.  Accordingly, while private information is sometimes protected by a duty of confidentiality, this is not always the case.  Information considered private by a person is only confidential and therefore protected from disclosure if a legal duty is imposed in relation to it.
Duties of confidentiality
3.11	A duty of confidentiality may arise in three ways: in equity, in contract, or in statute.
Equity
3.12	An equitable duty of confidence will arise in situations where confidential information is imparted to another person who promises, or is obliged, not to disclose it to a third party because of the special circumstances in which the communication occurred.  Predominantly utilised in the commercial context to protect trade secrets and business information, the duty of confidence derives from the principle of equity that:
… he who has received information in confidence shall not take unfair advantage of it.  He must not make use of it to the prejudice of him who gave it without obtaining his consent.
3.13	For such a duty to arise, the relevant information must have the necessary quality of being confidential.  Some types of information are generally regarded as confidential, such as information about health and medical treatment.
Contract
3.14	A duty of confidentiality may also arise as an incident of contract.  For example, the duty may be imposed as an express term of a contract, such as an employment contract or commercial agreement.  Alternatively, the nature of a contractual relationship, such as one between doctor and patient or solicitor and client, may be such that the duty is imposed by an implied contractual term.
Statute
3.15	A duty of confidentiality may also be imposed by statute.  Examples include the duties imposed on people who serve on juries and on people who receive or deal with complaints from whistleblowers.  As discussed earlier, particular people who gain information through their involvement in the guardianship system are prohibited by statute from disclosing confidential information.  
Confidentiality in the guardianship System
3.16	This section of the chapter examines three concepts that need to be balanced in determining the appropriate role for confidentiality in the guardianship system, namely the principle of open justice, the requirements of procedural fairness and the nature of the guardianship system.
3.17	As has already been discussed, the current confidentiality provisions of the guardianship legislation apply to a wide range of decision-makers, including the Tribunal, the Adult Guardian and other people involved in the administration of the legislation.  Accordingly, the relevance and application of the concepts discussed in this section will vary depending on the decision-maker and the context in which the decision is being made.  These variations will be explored in the subsequent chapters that examine specific aspects of the law governing confidentiality under the guardianship legislation.
Open justice
3.18	One of the two concepts that tends to weigh against confidentiality, at least in a judicial context, is the principle of open justice.  It is a basic tenet of the common law that bodies discharging judicial functions conduct their proceedings in public.  The principle that judicial proceedings be held in open court has been described as ‘the right of the public to be informed and the corresponding right of the media to inform them’.
What are the elements of open justice?
3.19	The principle of open justice has been described as comprising the following four elements:
•	Access to proceedings – a right of attendance at proceedings by members of the public and by media representatives;
•	Reporting of proceedings – a derivative right of those in attendance to report proceedings to others;
•	Identification – a requirement that the names of those involved in a proceeding, such as the parties to the proceedings and witnesses, be available to the public; and
•	Access to documents – a right of the public to inspect documents that have come into existence for proceedings.
3.20	Others have also recognised a fifth element: that the principle of open justice requires reasons for a decision to be produced and made available to the public. 
3.21	In practice, the application of the principle of open justice often results in matters which might otherwise be regarded as very private being considered in open court and examined in published decisions.  For example, matters involving personal injuries may lead to sensitive evidence being given in public and referred to in reasons for judgment about a person’s disabilities and the loss they have experienced, including information about changes in personal and sexual relationships.
3.22	Although open justice is a central feature of our legal system, it is clear that it remains a principle and not a right:
The principle of open justice is a principle, it is not a freestanding right. … As a principle, it is of significance in guiding the court in determining a range of matters including, relevantly, when an application for access should be granted pursuant to an express or implied power to grant access.  However, it remains a principle and not a right.  (original emphasis)
What are the reasons for open justice?
3.23	The rationales for the principle of open justice may be grouped into three categories: the disciplinary rationale, the educative rationale and the investigatory rationale.
3.24	Central to the disciplinary rationale of open justice is that it acts as a safeguard against judicial ‘partiality, arbitrariness, or idiosyncrasy’ and is thus a means of accountability.  The disciplinary rationale also views open justice acting as a check on legal counsel and against dishonest testimony.
3.25	An open court has also been said to fulfil an educative function by, first, informing the public about the law and legal process, and second, by prompting judicial arbiters to educate themselves in ‘prevailing public morality and thereby avoid public criticism’.  Open justice also promotes predictability and consistency in decision-making in that both decision-makers and those advising people about the law are aware of previous decisions and can act accordingly.
3.26	Finally, under the investigatory rationale, it has been argued that an open court facilitates the production of additional witnesses and therefore plays an important part in securing completeness of testimony.  
Are there any exceptions to the principle of open justice?
3.27	At common law, exceptions to the principle of open justice are limited to those circumstances where the administration of justice would be affected.  For example, closure of the court is justified only if a public hearing ‘is likely to lead, directly or indirectly, to a denial of justice’.  It is insufficient justification for an infringement of open justice if public proceedings would cause embarrassment, distress, ridicule or reputational harm to a witness or party.  Similarly, the protection of privacy and confidentiality ‘traditionally take second place to the principle of open justice’.  One reason for this is that by choosing to pursue ‘their dispute in the forum of a court, the parties inevitably place themselves in a situation in which their privacy is compromised’.
3.28	Examples of where the common law has recognised that open justice poses a risk to the administration of justice include proceedings involving police informers, blackmail or matters of national security.
3.29	A more relevant example to guardianship is matters heard under the parens patriae jurisdiction, which is the inherent jurisdiction of superior courts in relation to people who are unable to make their own decisions.  Such proceedings have been recognised as an exception to the principle of open justice and may be held in private.  One rationale for this exception recognised by the House of Lords in Scott v Scott is that the court’s paramount duty in such cases is the care of the adult who is unable to make decisions.  In the interests of justice, that duty can override other principles such as the requirement to hear cases publicly.  The House of Lords also considered that the exception was warranted because such matters are essentially domestic and private in nature, and so therefore need not be open to the public: 
The affairs are truly private affairs; the transactions are transactions truly intra familiam; and it has long been recognised that an appeal for the protection of the Court in the case of such persons does not involve the consequences of placing in the light of publicity their truly domestic affairs.
3.30	In addition to the common law exceptions, the principle of open justice is frequently curtailed by statute.  These statutory exceptions customarily relate to proceedings involving juvenile defendants, adoption proceedings, family law proceedings, committal hearings, sexual offence proceedings and coronial inquests.  While there is little consistency between such provisions, some underlying policies have been identified, such as privacy protection and informality of proceedings.  It has also been recognised that informal tribunals are commonly granted specific powers to depart from the principle of open justice in appropriate circumstances.
Procedural fairness
3.31	The second concept that tends to weigh against secrecy in decision-making is that of procedural fairness.  Historically captured by the term ‘natural justice’, the common law requirement of procedural fairness imposes a set of procedural standards on decision-makers to ensure a fair hearing and determination for the persons affected by the decision.
3.32	Unless displaced by statute, the requirement of procedural fairness will apply, at common law, to the exercise of judicial and quasi-judicial functions.  It also applies to administrative decisions that affect a person’s rights, interests or legitimate expectations.  This is one way in which procedural fairness differs from open justice; open justice is based on the interests of the public generally whereas procedural fairness is concerned with the rights and interests of a particular person. 
3.33	Traditionally, the requirements of procedural fairness are based on two maxims:
•	Audi alteram partem – that both parties must be given an adequate opportunity to present their case (the hearing rule); and
•	Nemo debet esse judex in propria sua causa – that the decision-maker must be impartial or free from bias (the bias rule).
What is the hearing rule?
3.34	While the particular procedural requirements flowing from the ‘hearing rule’ will vary in each case, the ‘vital element’ is participation.  There are generally two aspects to the ‘right to be heard’, as it is often referred to: adequate prior notice and adequate disclosure with an opportunity to respond.  
3.35	A person must be given adequate prior notice of the date, time and location at which the matter will be heard and also of the nature of the issues that are to be decided.  Notice must be sufficiently detailed and given sufficiently early to allow the person ‘to make inquiries, to consider his position, and to prepare his response’.
3.36	The person must also be given adequate disclosure of the evidence upon which the decision-maker proposes to base its decision.  That is, the person should be given an opportunity to ‘deal with adverse information that is credible, relevant or significant to the decision to be made.’  This means that, for example, the person should be apprised of the substance of any documentary evidence and of any oral evidence that is received, and given an opportunity to respond to it.
What is the bias rule?
3.37	The second element of procedural fairness is the requirement that the decision-maker approach the task with an open mind, free from prejudice and without any interest, pecuniary or otherwise in the outcome.  The question of bias is resolved by asking ‘whether, in the circumstances, the public, including the parties, might entertain a reasonable apprehension of bias in the sense that the decision-maker is incapable of bringing an impartial and unprejudiced mind to the resolution of the issue’.  The bias rule is of lesser relevance to the issues of confidentiality considered in this paper and so is not discussed further.
What are the reasons for procedural fairness?
3.38	There are several arguments why procedural fairness, and in particular, the notion of participation in decision-making, is important.  
3.39	Some are arguments based in principle.  Fairness, whether in legal processes or otherwise, is valued as a quality in its own right.  Respect and dignity for others also suggests people should be included in the decision-making processes that affect them.  Participation is also an important political value in a democratic society.
3.40	Other rationales for procedural fairness relate to the quality of decision-making.  Minimum guarantees of participation for all parties are important in contributing to the completeness of evidence and, therefore, in going some way to securing accuracy, and fairness, in decision-making.  Failing to hear opposing views carries ‘notorious risks’:
… slender proofs may falsely seem irrefragable, and the scales of justice may falsely seem to be tipped by the weight of insubstantial factors.
3.41	Another rationale for procedural fairness relates to the legitimacy of the decision and the decision-maker.  Legal authorities, including judicial decision-makers, rely to some extent on having fair processes for their legitimacy.  Research in social psychology concludes that people tend to assess their satisfaction with decisions made by third parties in terms of the fairness of the procedure used to reach the decision, rather than the favourability of the decision itself.  Critical to that assessment of the process was whether people were given an opportunity to participate.
What are the requirements of procedural fairness?
3.42	Procedural fairness does not dictate adherence to a precise set of rules.  What it requires will depend on the circumstances of each case, including:
•	the nature of the proposed decision; 
•	the likely consequences of the decision for the person whose rights, interests or legitimate expectations are affected; 
•	the rules under which the decision is being made;
•	the information and resources available to the decision-maker; and
•	the urgency of the matter.
3.43	Given the importance of the circumstances in which a decision is made, the requirements of procedural fairness will be less demanding for an administrative decision-maker than for a court.  However, because of the origins of procedural fairness (in evaluating judicial and quasi-judicial decision-making), the starting point for making judgments about what is appropriate in a particular case is generally what is required in the judicial arena.
3.44	One of the circumstances that will be particularly relevant when determining the content of procedural fairness in the guardianship context is the nature and purpose of the jurisdiction:
If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred, the application of those principles would have to be qualified.
3.45	For example, although generally the requirements of procedural fairness will override considerations of individual privacy, the protective nature of the guardianship system may warrant varying levels of confidentiality in some circumstances.  A tension arises between safeguarding an adult’s privacy and other rights and interests, and still providing sufficient information to parties so that they receive a fair hearing.  Conflict between the protective nature of the system and procedural fairness may also arise in cases where disclosure of information to the adult might cause harm to the adult.
3.46	The personal and sensitive nature of the information in the guardianship system may also affect what is required by way of procedural fairness.  The courts have recognised that procedural fairness may permit withholding or limiting disclosure of adverse material where there is a compelling need for confidentiality or secrecy.  Such an issue might arise where a person has provided information to a guardianship tribunal but has requested that it remain confidential.  In such cases, there is a need to balance the requirements of procedural fairness against the policy goal of encouraging continued disclosure of information.
3.47	Conversely, however, it may also be argued that the disclosure of information through the application of the rules of procedural fairness may promote the protective nature of the guardianship system.  High quality decision-making is a critical part of safeguarding an adult’s rights and interests and this is more likely when decisions are based upon the full disclosure and discussion of all of the relevant evidence.
Nature of the guardianship system
3.48	The third concept relevant to the role of confidentiality is the nature of the guardianship system.  This system has some features that distinguish it from other areas of law and which may affect the extent to which it is appropriate for decision-makers within the guardianship system to adhere strictly to the principle of open justice and the requirements of procedural fairness.  The nature of Queensland’s guardianship system is discussed generally in Chapter 1, but there are two features that are important in the context of confidentiality.
3.49	The first relevant feature of the guardianship system is that it empowers the Tribunal and others to make decisions about fundamental rights of vulnerable adults.  The significance of these decisions may favour openness and transparency in decision-making rather than confidentiality.  The second relevant feature is the protective nature of the guardianship system.  The emphasis on safeguarding the rights and interests of the adult may warrant a greater recognition of confidentiality.
Decisions about fundamental rights of vulnerable adults 
3.50	Guardianship decisions made by the Tribunal and others affect the fundamental rights of the adult, and sometimes also of people close to the adult.  For example, the guardianship legislation permits the making of decisions that remove an adult’s ability to reproduce.  It also enables decisions to be made about refusal of medical treatment that is needed to stay alive.  The rights of people close to the adult can also be affected by decisions made under the legislation, such as decisions about where and with whom the adult is to live.  The more significant a decision that is being made, the more scrutiny that is warranted.  Interestingly, this view is in stark contrast to a view expressed above in Scott v Scott that these matters involve only questions of a domestic nature.
3.51	Importantly, these decisions are also made in relation to a vulnerable group of people who may not be able to advocate on their own behalf.  Although some adults may have support, the accountability, consistency and predictability brought by open decision-making may be an important safeguard for people who may be unable to champion their rights effectively and challenge decisions made about them.
Protective nature of the guardianship system
3.52	The protective nature of guardianship has an ancient history in the English common law where it was originally recognised as the duty of the monarch as parens patriae, or ‘parent of the country’, to protect vulnerable citizens.  A protective jurisdiction is one in which the rights of individuals who cannot care for themselves, such as infants and the mentally ill, are paramount.  A statutory example is the Family Court’s welfare jurisdiction in relation to children.
3.53	There are three elements of the protective nature of the guardianship system that might favour a greater role for confidentiality than in other contexts: the primary focus on the adult’s rights and interests; the consideration of matters personal to the adult; and the scrutiny given to the otherwise personal circumstances of others involved in the adult’s life.  
The adult’s rights and interests
3.54	The primary focus in the guardianship system is on the adult and safeguarding his or her rights and interests.  It is the fundamental purpose for which the system exists.  This focus on the adult may mean that the rights and interests of others may need to be modified or adapted in some circumstances if necessary.
3.55	Part of this responsibility to safeguard an adult’s rights and interests may require the taking of steps in appropriate cases to protect an adult’s privacy.  During guardianship proceedings, very private information about an adult is disclosed in a public forum.  Safeguarding an adult’s privacy may justify requiring that this information, which is only disclosed for a limited purpose, be treated confidentially.  It may also mean, for example, imposing an obligation of confidentiality where disclosure of certain information would harm the adult.  This safeguarding function may even involve, in exceptional cases, keeping information from the adult.
Matters personal to the adult
3.56	The second element of the protective system of guardianship is that it necessarily involves delving into the personal life of an adult and disclosing information which would otherwise be kept private.  Adults with capacity are capable of making these personal decisions in private without exposing intimate details of their lives.  It is only because an adult has impaired capacity that a wide range of sensitive and personal information needs to be disclosed in a public forum.  If adults with impaired capacity are to be accorded the same level of respect for privacy as other members of the community, this may justify imposing some level of confidentiality on this information.
3.57	Such an approach may be particularly appropriate because only very rarely will guardianship proceedings be instigated by the adult.  Instead, the application is generally brought by others concerned about the adult.  Hence guardianship matters can be distinguished from other types of litigation as the adult is not making a decision to pursue their rights through the courts, which has traditionally been regarded as one of the justifications for permitting open disclosure of that person’s private information. 
3.58	Some judicial support for this view is found in a second rationale advanced by members of the House of Lords in Scott v Scott for recognising the exception to open justice in cases invoking the parens patriae jurisdiction.  It was considered that such matters are essentially domestic and private in nature, and so therefore need not be open to the public: 
The affairs are truly private affairs; the transactions are transactions truly intra familiam; and it has long been recognised that an appeal for the protection of the Court in the case of such persons does not involve the consequences of placing in the light of publicity their truly domestic affairs.
Matters personal to others
3.59	This leads to the third element which applies not to the private information of the adult, but to the information of those parties involved in the guardianship system generally.  This element is based on the fact that the guardianship system’s protective nature does not, like other types of litigation, involve parties who are pursuing rights for their own benefit.  
3.60	Instead, proceedings are generally brought by a person who cares about an adult with a view to safeguarding that adult’s rights and interests.  If the parties to a proceeding participate on this basis, and are not pursuing personal interest, it may be inappropriate to suggest that such action would result in their private information being made public.  One of the concerns may be that if one or more of the consequences of seeking the assistance of the guardianship system is seen as undesirable, then this may impair its effective functioning because people will be discouraged from using it.
3.61	Similar arguments can be made in relation to the information which is before the Tribunal during proceedings.  It is desirable that decision-makers have access to all relevant information needed to decide a matter.  However, because these proceedings raise such private matters, there are concerns that people may be reluctant to participate in a frank and genuine way without some assurance of confidentiality.  These concerns might arise in relation to private assessments of an adult made by a health professional or in relation to disclosures by family members of an adult about relevant conduct or behaviour within that family.
Relationships and confidentiality
3.62	In establishing a conceptual framework to guide the review of the confidentiality provisions, another relevant consideration is the relationship that a person or group of people has with the adult.  Although not always the case, it may be that the closer the relationship between the adult and the relevant person, the more likely that it is appropriate to disclose information to that relevant person.  
3.63	For example, these six categories of people in the guardianship system are likely to have different rights and interests in relation to information about the adult:
•	the adult him- or herself;
•	any person who is empowered to make the relevant decision in question for the adult;
•	those who are actively involved and participating in decision-making generally for an adult.  In the context of a decision being made by the Tribunal, this category might be captured by the definition of those who are an ‘active party’ and so have a right to appear before the Tribunal as a party.  This might include members of an adult’s family;
•	other people not already mentioned but who are close to the adult or involved in their life.  Again, the definition of an ‘interested person’ might be one way in which this category could be defined, that is a person who has a ‘sufficient and continuing interesting’ in the adult.  This category might include service providers;
•	members of the press; and
•	everyone else, that is, members of the general public.
3.64	It is not necessarily suggested that any legislative regime needs to make specific provision for each of these six categories of people.  Indeed, there is often good reason for legislation to be cast in general terms with the discretion of a decision-maker being relied upon to tailor decisions to the specific circumstances.
3.65	Nevertheless, when establishing a conceptual framework for reviewing the role of confidentiality in the guardianship system, it is clear that there are different interests and responsibilities involved that may vary between the different categories.  For example, as noted above, it is suggested that it may be generally more appropriate that those close to an adult receive information about the adult than members of the general public.  Where relevant, these categories and the impact of having a relationship with the adult are examined in subsequent chapters.
Call for submissions
3.66	This chapter has identified three concepts that will inform choices about what role confidentiality should play in the guardianship system.  The tension between these competing factors is played out the chapters that follow, each of which examines a specific aspect of the confidentiality provisions.  
3.67	It is clear that whatever reform options are recommended, all involve compromise.  It is not possible to simultaneously accord full recognition to the openness required by open justice and procedural fairness and to the confidentiality that might be favoured by the nature of the guardianship system.  
3.68	For example, the principle of open justice cannot be applied in full if some level of the adult’s privacy is to be maintained.  Similarly, if some information is to be kept confidential, the requirements of procedural fairness in the guardianship system may have to be modified.  The Commission invites you to consider this inevitable compromise when reading the subsequent chapters of this Discussion Paper.
3.69	The Commission is interested in receiving submissions in response to the following questions, or on any other issues respondents consider relevant to establishing a conceptual framework for confidentiality in the guardianship system.
3-1	What concepts are relevant to determining the role of confidentiality in the guardianship system:
	(a)	open justice;
	(b)	procedural fairness;
	(c)	the nature of the guardianship system;
	(d)	other?
3-2	If there is conflict between these concepts, how should the balance between them be struck?  Why do you prefer that approach?  (In other words, are there concepts that are more important than the others and if so, why?)
3-3	Is the relationship that a person or a category of people has with the adult a relevant consideration for determining confidentiality in the guardianship system?
3-4	If so, are there other people who have relationships with the adult who have been omitted from the list set out at paragraph 3.63?

Chapter 4	
	Tribunal hearings

The Law in Queensland	63
Public and private hearings	63
Excluding a person from a hearing	64
Limiting disclosure to an active party of information given at a hearing	64
Criteria for making a confidentiality order	65
Who may make a confidentiality order	69
Excuse for non-compliance with a confidentiality order	70
Confidentiality orders in practice	70
Legislation in Other jurisdictions	71
Open hearings with power to close, or to exclude particular people	71
Open hearings with power to close, or to exclude, but not particular 
people	72
Closed hearings with power to admit people	73
Issues for consideration	74
Should hearings be held in public or private?	74
Should the Tribunal have power to close a hearing or exclude 
particular people?	75
When should the Tribunal be able to close a hearing or exclude 
particular people?	75
Are there any people who should never be excluded?	77
Should the Tribunal have power to limit disclosure of information 
given at a hearing to an active party?	77
Should the Tribunal be able to initiate a confidentiality order?	78
Who may make a confidentiality order?	78
Is ‘reasonable excuse’ an appropriate way to define when a person is permitted to breach a confidentiality order?	79
Balancing concepts	79
Open justice	79
Procedural fairness	80
Nature of the guardianship system	80
Possible legal models	81
Model 1: open hearings with no power to close	81
Model 2: open hearings with power to close, or to exclude particular 
people	81
Model 3: open hearings with power to close, or to exclude, but not particular people	82
Model 4: closed hearings with power to admit people	82
A case study	82
Outcome of case study	83
A preliminary view	84
Call for submissions	84

The Law in Queensland
4.1	As part of its review of the guardianship legislation’s confidentiality provisions, the Commission is required to consider the provisions that deal with confidentiality in hearings before the Tribunal.  Although hearings are generally required to be open, section 109(2) of the Guardianship and Administration Act 2000 (Qld) gives the Tribunal a broad discretion to impose confidentiality.  The Tribunal may, on application by an active party or on its own initiative:
•	hold proceedings in private;
•	direct who may or may not be present at a hearing; or 
•	prohibit or restrict disclosure of information given at a Tribunal hearing to some or all of the active parties to a proceeding. 
4.2	These provisions are outlined in turn. 
Public and private hearings
4.3	Section 109(1) of the Guardianship and Administration Act 2000 (Qld) provides that Tribunal hearings are generally to be held in public.  Section 109(2)(b), however, provides that the Tribunal may make a confidentiality order directing that a hearing, or part of a hearing, be conducted in private.  
4.4	Sections 109(1) and 109(2)(b) provide:
109	Open
(1) 	Generally, a hearing by the tribunal of a proceeding must be in public.
(2) 	However, if the tribunal is satisfied it is desirable to do so because of the confidential nature of particular information or matter or for another reason, the tribunal may, by order (a confidentiality order)—
…
(b)	direct a hearing or part of a hearing take place in private;
…
Excluding a person from a hearing
4.5	Section 109(2)(a) also gives the Tribunal power to direct, in a confidentiality order, that a particular person may or may not be present at a hearing.  The Tribunal may direct, for example, that despite the hearing being held in public, a particular person must not attend.  Alternatively, a confidentiality order might direct that pursuant to section 109(2)(b) (outlined above) the hearing is to be held in private, but that under section 109(2)(a), a particular person may nonetheless attend the hearing.  
4.6	The legislation does not limit the power to exclude only to particular categories of people such as members of the public without an interest in the proceeding.  Neither does the legislation specify particular people who cannot be excluded from a hearing, such as active parties to the proceeding.  
4.7	While hearings must generally be in public, section 109(2)(a) provides that the Tribunal may ‘	give directions about the persons who may or may not be present’.
Limiting disclosure to an active party of information given at a hearing
4.8	Section 109(2)(d)(i) of the Guardianship and Administration Act 2000 (Qld) provides that the Tribunal may make a confidentiality order directing that disclosure of ‘information given before the Tribunal’ to an active party be prohibited or restricted.  Although broadly worded, this appears to refer only to oral information received by the Tribunal at a hearing.  Other information given before the Tribunal could be documentary, but the Tribunal’s power to limit an active party’s access to documents is dealt with under a different provision.  
4.9	The Tribunal’s power to make an order under section 109(2)(d)(i) compliments the Tribunal’s power to make directions about who may and may not be present at a hearing.  For example, in order to prevent a party from hearing particular evidence, the Tribunal may need to give a direction excluding the party from the relevant part of the hearing, as well as prohibiting the information being disclosed to that party.
4.10	While hearings must generally be in public, section 109(2)(d) provides that the Tribunal may:
(d) 	give directions prohibiting or restricting the disclosure to some or all of the active parties in a proceeding of—
(i) 	information given before the tribunal; or
(ii) 	matters contained in documents filed with, or received by, the tribunal;
…  [note added]
Criteria for making a confidentiality order
4.11	The Tribunal’s power to make confidentiality orders under section 109(2) is guided by a number of criteria.
4.12	Section 109(2) provides that the Tribunal may make a confidentiality order if it ‘is satisfied it is desirable to do so because of the confidential nature of particular information or matter or for another reason’.  While this power is worded in very broad terms, the discretion must be exercised judicially and in accordance with accepted principles.  
4.13	A similarly worded power is given to the Commonwealth Administrative Appeals Tribunal.  Section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) relevantly provides:
Hearings to be in public except in special circumstances
…
Private hearing etc. 
(2) 	Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order: 
(a) 	direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and 
… 
(3) 	In considering: 
(a)	whether the hearing of a proceeding should be held in private; 
…
the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.  (emphasis added)
4.14	Significantly, that provision includes a specific requirement for the Tribunal to take the principle of the desirability of public hearings as the basis for its considerations as to whether such an order should be made.  
4.15	The Administrative Appeals Tribunal’s power to hold hearings in private and to exclude people from a hearing was considered in Re Pochi and Minister for Immigration and Ethnic Affairs.  In that case, Brennan J held that the exercise of the Tribunal’s discretion is informed by the principle of open justice and the requirements of procedural fairness.  Accordingly, Brennan J proposed certain ‘strict criteria’ that would guide the exercise of that Tribunal’s discretion.  
4.16	When examining the Tribunal’s discretion to exclude the public, Brennan J considered that such an order could be made only if the Tribunal was satisfied that:
•	there is ‘a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public’; or
•	‘publication of the proceedings would be contrary to the public interest’. 
4.17	In relation to the Tribunal’s discretion to exclude a party Brennan J considered that ‘a further criterion’ would need to be satisfied, namely, that ‘the information is of such importance and cogency that justice is more likely to be done by receiving the information in confidence, and denying the party access to it, than by refusing an order to exclude the party’.
4.18	Similar considerations are likely to inform the operation of the Guardianship and Administration Tribunal’s discretion.  It is noted, however, that the requirement in section 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) expressly tips the balance in favour of open hearings.  At present, the guardianship legislation does not contain such a provision.  
4.19	The Tribunal must also apply the General Principles contained in the legislation in exercising its power to make a confidentiality order.  This includes General Principle 11 which provides that the adult’s right to confidentiality of information be recognised and taken into account.  
4.20	A recent case in which a confidentiality order was made excluding a person from a Tribunal hearing, who was not an active party, was Re RJE.  This order was made by the Deputy President of the Tribunal prior to the hearing on the grounds that the person had been declared a vexatious litigant in the Supreme Court.  At the hearing, the Tribunal also had regard to the person’s previous behaviour in the Tribunal and other proceedings, and was concerned that:
•	the person was likely to disrupt the hearing; 
•	the person was likely to exert undue influence on the adult at the hearing; 
•	the adult would be likely to answer Tribunal questions according to how the person would wish her to if the person were present; and
•	the person would be likely to continually introduce material that was irrelevant to the hearing. 
Views about special health care
4.21	A final criterion must be satisfied in proceedings to obtain the Tribunal’s consent to ‘special health care’.  Special health care includes such medical procedures as sterilisation and termination of pregnancy.  In proceedings in relation to those matters, section 109(4) provides that a confidentiality order must not impede the adult’s relevant substitute decision-maker for health matters from forming and expressing a view about the special health care.  This might mean in a particular case that such people should not be excluded from a hearing. 
4.22	Section 109(4) provides:
109	Open
…
(4) 	In a proceeding to obtain the tribunal’s consent to special health care for an adult, the tribunal may not make a confidentiality order that is likely to affect the ability of any of the following persons to form and express a considered view about the special health care—
(a) 	a guardian for the adult;
(b)	an attorney for a health matter for the adult under an enduring document;
(c)	the statutory health attorney for the adult.  [notes added]
Who may make a confidentiality order
4.23	Section 109(2) of the Guardianship and Administration Act 2000 (Qld) gives the Tribunal power to make confidentiality orders, including orders in relation to hearings.  However, such an order may also be made by the Registrar.  
4.24	Section 99(3) of the Guardianship and Administration Act 2000 (Qld) provides that the Tribunal Rules may specify ‘non-contentious matters’ under the legislation that may be dealt with by the Registrar.  Such matters are described as ‘prescribed non-contentious matters’.  Section 85(1) of the Act provides that the Registrar may perform the functions and exercise the powers of the Tribunal in relation to such prescribed non-contentious matters.
4.25	Rule 2(1) of the Guardianship and Administration Tribunal Rule 2004 (Qld) specifies that matters related to a number of provisions in the Guardianship and Administration Act 2000 (Qld) are prescribed non-contentious matters for section 99(3) of the Act.  One of those provisions is section 109(2), which deals with confidentiality orders.  However, rule 2(2) provides that such a matter will cease to be a prescribed non-contentious matter if an active party to the proceeding advises the Registrar of an objection to the matter being dealt with by the Registrar.
4.26	The Commission understands that the purpose of this rule was to permit the Registrar to facilitate the inspection of documents in accordance with paragraph six of the Presidential Direction entitled ‘General Information in relation to the Inspection of Files and Confidentiality Orders’.  However, it appears the rule also empowers the Registrar to make confidentiality orders.  The Commission understands that no confidentiality orders have in fact been made by the Registrar.
Excuse for non-compliance with a confidentiality order
4.27	Section 109(6) of the Guardianship and Administration Act 2000 (Qld) provides that a person must not contravene a confidentiality order unless the person has a reasonable excuse.  What may constitute a ‘reasonable excuse’ has not been considered in the context of the guardianship legislation.  However, at common law, the phrase ‘reasonable excuse’ has been given its ordinary meaning.  The question of whether a person has such an excuse in a particular case is to be determined in the light of the purpose of the legislation and having regard to what a reasonable person would accept as appropriate.
Confidentiality orders in practice
4.28	The Tribunal has provided the Commission with empirical information about confidentiality orders made during an eleven month period from 1 July 2005 to 26 May 2006.  The Commission understands that in that period, the Tribunal did not make a confidentiality order closing a hearing or excluding people from a hearing.  The Tribunal has, however, made at least one such confidentiality order outside the relevant period.
4.29	In addition, the Tribunal has in some hearings spoken with the adult in the absence of some or all of the parties.  This was done with the consent of the relevant parties, and so the Tribunal was of the view that a confidentiality order was unnecessary.  After speaking with the adult, the Tribunal would then inform those parties who were absent of the substance of the adult’s evidence.  One question which arises is whether, in the absence of a confidentiality order being made, the adoption of such a process is consistent with the legislative intention expressed in section 109(1) of the Guardianship and Administration Act 2000 (Qld) that hearings must be in public.
Legislation in Other jurisdictions
4.30	The guardianship legislation in other jurisdictions also contains provisions dealing with closed hearings and the exclusion of particular people from hearings.  These provisions fall into three general categories that are discussed below: 
•	open proceedings with power to hold them in private and/or to exclude particular people;
•	open proceedings with power to hold them in private and/or to exclude particular people except for specific individuals who cannot be excluded; and 
•	closed proceedings with power to permit particular people to attend.  
4.31	None of the other jurisdictions in Australia specifically provide for the prohibition or restriction of disclosure of information or evidence given at a hearing to any of the parties to the proceeding.  Of course, the access of parties to information and evidence given at a hearing may be indirectly restricted by an order excluding that party from the hearing.  However, whether such information can be kept from those active parties who are excluded will depend on the rules of procedural fairness at common law.
Open hearings with power to close, or to exclude particular people
4.32	In jurisdictions falling into the first category, hearings are required generally to be held in public but the legislation confers discretion on the Tribunal to close a hearing to members of the public, or to exclude particular people from a hearing.  In some of these jurisdictions, the exercise of this discretion is governed by specific legislative criteria.
4.33	In New South Wales, hearings are to be open unless the Tribunal determines in a particular case that the hearing shall be conducted wholly or partly in the absence of the public.  
4.34	In Victoria, hearings must be held in public unless the Tribunal directs that the hearing or part of it be held in private.  
4.35	In the Australian Capital Territory, hearings are to be open to the public unless the Tribunal orders otherwise.  
4.36	In Queensland, the Tribunal has power both to exclude the public from a hearing, or part of a hearing, and to direct that particular people must not be present at a hearing.  The Tribunal may only exercise its discretion, however, in certain circumstances which were discussed earlier.
Open hearings with power to close, or to exclude, but not particular people
4.37	In jurisdictions in this category, hearings are again generally required to be conducted in public and the Tribunal is empowered to close a hearing and to exclude particular people.  The additional element though is that the power to exclude does not apply to certain categories of people.
4.38	In Western Australia, while hearings are generally to be held in public, the Tribunal may direct that people shall not be present, unless they are directly interested in the proceedings or otherwise authorised by the Tribunal to be present.  The Tribunal may make such a direction only if it is in ‘the best interests of the person to whom the proceedings relate for the hearing or part of the hearing to be closed to the public’.  The Tribunal is precluded, however, from excluding the news media from a hearing.
4.39	In the Northern Territory and Tasmania, proceedings are required to be open to the public unless a person directly interested in the proceedings requests otherwise.  Such a request enlivens a discretion to exclude a person or people from the hearing.  The discretion to exclude people from a hearing does not, however, extend to people who are directly interested in the proceedings or who are otherwise authorised to be present at the hearing.
4.40	The legislation in South Australia requires the Board to hold open hearings, but grants it an ‘absolute discretion’ to exclude the public or particular people.  The Board must not, however, exclude those people involved in the proceedings.  Additionally, in proceedings regarding prescribed medical treatment, the Board must allow the adult’s parents a reasonable opportunity to make submissions to the Board ‘if it thinks appropriate to do so’ and unless it does not consider it to be in the adult’s best interest.
Closed hearings with power to admit people
4.41	In jurisdictions falling into this category, the general rule is reversed so that proceedings are required to be closed to the public except as otherwise permitted by the court or tribunal.  None of the Australian jurisdictions take this approach.  
4.42	By contrast, in New Zealand, where the guardianship jurisdiction is vested in the Family Court, legislation provides that hearings are generally to be closed to the public, except in respect of certain specified interested parties such as the adult’s parent or guardian.  However, the Court has the power to require the adult’s parent or guardian, or their representative, to withdraw from the Court while the adult addresses the Court.  It also has discretion to permit other people to attend a hearing. 
Issues for consideration
4.43	This part of the chapter identifies the following issues for consideration when examining the Tribunal’s discretion to hold hearings in private, to exclude people from a hearing, and to prevent active parties from accessing information given at a hearing:
•	Should hearings generally be conducted in public or in private?
•	Should the Tribunal have power to close a hearing or to exclude particular people from a hearing?
•	If the Tribunal should have such power, in what circumstances should it be exercised?
•	Are there particular people who should never be excluded from a hearing?
•	Should the Tribunal have power to limit disclosure of information given at a hearing to an active party to the proceeding?
•	Should the Tribunal be able to initiate a confidentiality order?
•	Who should be able to make a confidentiality order?
•	Is ‘reasonable excuse’ an appropriate way to define when a person is permitted to breach a confidentiality order?
4.44	These last three issues relate to confidentiality orders generally and so will also be relevant to the discussion of these orders in Chapter 5 (Documents before the Tribunal), Chapter 6 (Tribunal decisions and reasons), and Chapter 7 (Publication of Tribunal proceedings).  However, to avoid repetition, these issues will be examined only in this chapter. 
Should hearings be held in public or private?
4.45	As discussed in Chapter 3, it is a fundamental common law principle that judicial proceedings be conducted in public.  The primary reason for this is that public access to open hearings enhances accountability in decision-making.  Both the common law and statute, however, provide exceptions to this principle in recognition of the fact that some circumstances may demand a level of confidentiality.
4.46	This may be the case in guardianship proceedings because of the protective nature of the system and the sensitive and inherently private nature of many of the matters under consideration.  However, the considerations that warrant exclusion of the public may arise only in relation to some hearings rather than across all hearings.  If this is so, the presumption should probably be that hearings would normally be open.
Should the Tribunal have power to close a hearing or exclude particular people?
4.47	If it is considered preferable for hearings generally to be held in public, an issue to consider is whether the Tribunal should have power to exclude the public by closing a hearing, or to exclude particular people from a hearing.  As mentioned above, it may be suggested that there are times when this is appropriate in order to protect the adult from harm, or when highly sensitive and private matters are under discussion.  Intimidation or the inability of an adult to speak freely in the presence of particular people may also be an issue.
4.48	There may, of course, be other ways in which the adult could be protected from harm that do not involve the making of a confidentiality order.  This may be a relevant consideration when examining whether the power to make such orders should be retained.  For example, concerns about intimidation may be addressed if parties could be involved in Tribunal proceedings without being physically present at the hearing or for part of the hearing.  This could be done through the use of telephone or video link-up facilities.
When should the Tribunal be able to close a hearing or exclude particular people?
4.49	If the Tribunal has power to exclude the public or other people from a hearing, a question arises as to the principles that should guide the exercise of that power.  For example, should a provision similar to section 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth), discussed above, be included in the legislation?  
4.50	Another issue to consider is whether different criteria should apply to the power to exclude the public and to the power to exclude a party from a hearing.  Also relevant to when confidentiality orders should be able to be made is whether a hearing could be conducted in another way to avoid particular harm or concerns, for example, by receiving evidence through the use of telephone or video link-up facilities. 
General criteria in Queensland
4.51	At present in Queensland, the Tribunal may direct that a hearing be held in private or that certain people not be present at a hearing only in certain circumstances.  The same test is applied in relation to both discretions.  The Tribunal must be satisfied it is desirable to do so because of the confidential nature of information or matter or for another reason.  What is required to satisfy that criterion is partly to be assessed in light of the common law’s interpretation of similar provisions in other legislative regimes, which will include having regard to the principle of open justice and the requirements of procedural fairness.  The Tribunal would also need to consider the General Principles, including General Principle 11 which deals with confidentiality.  
General criteria in other jurisdictions
4.52	The only other Australian jurisdiction that provides general criteria for the exercise of the Tribunal’s discretion is Western Australia.  It provides that the Tribunal may close a hearing only if it is in the best interests of the person to whom the proceedings relate.
4.53	A different approach, which focuses on the likelihood of harm, is found in Ontario.  In that jurisdiction, the court may exclude the public in guardianship hearings where there is a possibility of serious harm or injustice to any person which justifies departure from the general principle that proceedings be open.
Criteria specific to special health care proceedings
4.54	In addition to the general criteria of which the Tribunal must be satisfied before it may make a confidentiality order under section 109(2), the Queensland legislation provides an additional criterion in proceedings relating to consent to special health care.  In such proceedings, the Tribunal must not make a confidentiality order if it is likely to affect the adult’s guardian, attorney, or statutory health attorney from forming and expressing a view on the proposed special health care.  This may mean that, in a particular case, the Tribunal may not exclude the adult’s guardian, attorney, or statutory health attorney from a hearing. 
4.55	Similarly, in South Australia, the Board must, if it thinks it appropriate and unless it considers it is not in the adult’s best interest, allow the adult’s parents a reasonable opportunity to make submissions to the Board in proceedings regarding prescribed medical treatment.
Are there any people who should never be excluded?
4.56	Such people might include the adult, the parties to the proceeding, those who are directly interested in the proceeding, and representatives of the media.
4.57	In Queensland, there are no legislative limitations on the categories of people who may be excluded.  
4.58	In South Australia, the Northern Territory, Tasmania, and Western Australia, however, people who are involved or directly interested in the proceedings cannot be excluded from the hearing.  Additionally, the legislation in Western Australia specifically provides that members of the press cannot be excluded from a hearing.
Should the Tribunal have power to limit disclosure of information given at a hearing to an active party?
4.59	A related issue to consider is whether the Tribunal should have an additional power to restrict or prohibit disclosure of information given at a hearing to an active party to the proceeding.  Queensland is the only jurisdiction that grants the Tribunal such a discretion.  The same criteria as must be satisfied in making other confidentiality orders applies in relation to the exercise of that power.  
4.60	It would be difficult to give effect to an order about non-disclosure unless the party does not attend the relevant part of the hearing, either by that person’s choice or because of a direction made to exclude the person from that part of the hearing.  
4.61	It seems likely, therefore, that such an order might be considered in conjunction with an order to exclude the party from attending the hearing.  However, the reasons that compel the party’s non-attendance at the hearing may not additionally justify that the party be deprived of access to the information heard in their absence.  It may be, for example, that the party is excluded from the hearing because their presence would be upsetting to a witness and would affect the witness’s testimony.  There may be no reason, however, to prevent that information later being disclosed to the party.  
4.62	A power to prohibit or restrict disclosure of information given at a hearing is also conferred upon the Mental Health Review Tribunal of Queensland.  The role of that tribunal is quite different from that of the Guardianship and Administration Tribunal, and the ability of people to attend its hearings is significantly more restrictive.  However, it is useful to examine this aspect of its power to make confidentiality orders because of the lack of other comparative jurisdictions and also because it has jurisdiction over some adults with impaired capacity.
4.63	The Mental Health Review Tribunal has power to make a confidentiality order prohibiting or restricting disclosure of information given before it to the person the subject of the proceeding or the patient the subject of the application.  It may make such an order, however, only if it is satisfied the disclosure would:
•	cause serious harm to the health of the person or patient; or
•	put the safety of someone else at risk.
4.64	In addition, if the Tribunal makes such an order, it must disclose the information to the person’s lawyer or agent along with written reasons for making the confidentiality order.
Should the Tribunal be able to initiate a confidentiality order?
4.65	At present, the Tribunal has power to make a confidentiality order either on application by an active party or on its own initiative.  An issue to consider is whether the Tribunal should be able to make such an order on its own initiative and in the absence of any application made by a party and, if so, in what circumstances.
Who may make a confidentiality order?
4.66	Another issue for consideration is whether the power to make a confidentiality order to hold a hearing in private, to direct who may or may not be present at a hearing, or to prohibit or restrict disclosure to an active party of information given at a hearing, should be capable of being made by the Registrar.  It would appear that, given the gravity of these types of orders, the power to make such orders should reside solely with the Tribunal.
Is ‘reasonable excuse’ an appropriate way to define when a person is permitted to breach a confidentiality order?
4.67	There are advantages in excusing otherwise unlawful conduct by reference to the phrase ‘reasonable excuse’.  The inherent flexibility of the defence means that liability is not rigidly imposed in circumstances where it would be unjust to do so.  However, another consequence of this flexibility is uncertainty about what types of behaviour will be excused.  For example, a person may contravene a confidentiality order believing that he or she has a reasonable excuse, only to discover subsequently that their conduct was judged not to be reasonable.  
Balancing concepts
4.68	This part of the chapter briefly considers, in the context of access to Tribunal hearings, the three concepts examined in Chapter 3 that need to be balanced when determining the role of confidentiality in the guardianship system: open justice, procedural fairness, and the nature of the guardianship system. 
Open justice
4.69	The right of attendance at proceedings, including the ability to hear the evidence given at a hearing, by members of the public, and therefore by media representatives, is regarded as ‘the very core of the idea of open justice’.  It is a fundamental principle of the common law that judicial and quasi-judicial proceedings be conducted in open court.  The primary goal of open justice, to promote accountability in decision-making, depends on the scrutiny that an open hearing allows.  However, open justice is not an absolute concept.  For example, the traditional recognition that the courts’ parens patriae jurisdiction need not always be exercised in public is an exception to the principle of open justice.  
Procedural fairness
4.70	Restrictions on a party’s access to a hearing may also result in a failure to accord procedural fairness.  The hearing rule requires that evidence upon which a decision-maker intends to rely in making its decision must be disclosed to the person whose interests are to be affected and that the person must be given the opportunity to respond to the evidence.  A party may be denied this opportunity if they are excluded from the hearing.  This may not only be unfair, it may also reduce the quality of decision-making.
4.71	However, what is required by procedural fairness depends on what is fair in the circumstances.  It may be that procedural fairness will still be accorded if a summary of the information received in a party’s absence is subsequently provided to that party.
Nature of the guardianship system 
4.72	While open justice and procedural fairness may generally favour non-exclusion of people from hearings and the disclosure of information given at a hearing to the parties, the nature of the guardianship system may weigh in favour of some measure of confidentiality.  
4.73	The guardianship system is a protective one with its primary focus on safeguarding the rights and interests of the adult.  This may warrant excluding either the public or particular people because the adult may ‘feel they cannot speak freely in front of other people’.  It may also be appropriate to exclude a person from a hearing ‘to prevent them from intimidating or embarrassing another by their presence’.  Safeguarding an adult’s rights and interests might also require steps to be taken to avoid unnecessary intrusions into the adult’s privacy.  Finally, it might also be argued that the private and sensitive nature of the information about people connected with the adult, which may be discussed in the guardianship system, may justify a limitation on who can attend proceedings and hear this information. 
4.74	In contrast, the fact that Tribunal adjudications relate to questions about fundamental legal rights, such as those involved in matters dealing with the withdrawal or withholding of life-sustaining measures, may favour open hearings and the accountability that openness affords.
Possible legal models
4.75	The Commission has identified four possible models for how the law might deal with the issue of access to Tribunal hearings.  While these models do not capture all of the relevant issues that the Commission is examining, they provide a useful starting point for considering what general approach the law should take.  A hypothetical case study will be used to illustrate these models and how they might operate.  
Model 1: open hearings with no power to close
4.76	Under this model, hearings would be required to be conducted in public in all cases, with no exceptions.  None of the jurisdictions in Australia adopt this approach.
Model 2: open hearings with power to close, or to exclude particular people
4.77	Under this model, hearings would generally be required to be conducted in public but the Tribunal would have power to close proceedings and hold them in private and/or to exclude particular people from a hearing.  Under this model, there would be no restriction on the categories of people who could be excluded.
4.78	This is the current position in Queensland.  Similarly, in New South Wales, Victoria, and the Australian Capital Territory, hearings are generally open to the public unless otherwise ordered.  The legislative criteria, if any, for when this power can be exercised may be either quite broad (as it is currently in Queensland) or more detailed and specific.
4.79	It might additionally be provided, as it currently is in Queensland, that the Tribunal may prohibit or restrict disclosure of information given at a hearing to the parties to a proceeding.  None of the other jurisdictions provide such a power.  
Model 3: open hearings with power to close, or to exclude, but not particular people
4.80	As with model 2, hearings would generally be required to be conducted in public but the Tribunal would have power to close proceedings and/or exclude particular people from the hearing.  However, under this model, the Tribunal would not be able to exclude particular categories of people from a hearing, such as the parties or other people directly interested or involved in the proceeding.
4.81	This is the approach taken in Western Australia, the Northern Territory, Tasmania, and South Australia.  Again, the criteria to guide the exercise of this power will need to be considered.
Model 4: closed hearings with power to admit people
4.82	Under this model, all hearings would be required to be held in private.  Power to permit the public or particular people to attend a hearing might also be provided.  None of the Australian jurisdictions take this approach, though it is the model adopted in New Zealand where guardianship matters are dealt with by the Family Court.
A case study
Marlene is a 31 year old woman with an intellectual disability who lives with, and is cared for by her mother, Gwen.  They live next door to Marlene’s cousin, Jim.  He is an accountant and was previously appointed by the Tribunal as Marlene’s administrator to manage a large sum of money that she had inherited.
It was recently discovered that Marlene is pregnant.  Jim was subsequently charged with a sexual offence against Marlene (which is being dealt with in another court).  The police allege that Marlene did not consent to sexual intercourse.  Jim asserts his innocence and denies he is the person responsible.  
Gwen has brought an application before the Tribunal to terminate Marlene’s pregnancy.  She has also applied to the Tribunal to remove Jim as administrator on the basis of the criminal charges, but that application is being heard at a later date.
The active parties before the Tribunal at the hearing of the application to terminate the pregnancy are Marlene, Gwen and Jim.  Also present at the hearing are two members of the public who are unconnected with the family and a member of the press.  
Gwen is concerned that Marlene is frightened of Jim and feels intimidated in his presence.  She wants Jim to be excluded from the hearing while Marlene answers the Tribunal’s questions.  Gwen also feels very embarrassed talking about Marlene’s pregnancy in front of so many people.  She doesn’t think members of the public should be allowed at the hearing.  Jim protests and says that this is the first he has ever heard of Marlene being frightened of him.  He complains that it is not fair to exclude him at any time.
Outcome of case study
4.83	Under model 1, the Tribunal would have no authority to exclude Jim, the attending members of the public or the press from proceedings.  
4.84	In contrast, under model 2 (the current law), the Tribunal would be empowered to exclude any of these people provided certain criteria is met.  At present in Queensland, the Tribunal would have to be satisfied that exclusion is desirable because of the confidential nature of the information or matter or for another reason, having regard, as discussed above, to the principle of open justice, what is required by procedural fairness and the General Principles.  If the Tribunal considered that Jim’s presence at the hearing, or part of it, would frighten or intimidate Marlene and compromise her ability to give evidence, it might be satisfied that Jim should be excluded from that part of the hearing.  (In that case, the Tribunal would need to take other steps to inform Jim of what has occurred in his absence in order to accord him procedural fairness.)
4.85	However, given the importance of giving Jim an opportunity to respond to any allegations that might be made against him, the Tribunal may consider that he should not be excluded from the hearing.  It is also noted that even if Jim is excluded, the factors warranting his exclusion may be insufficient to justify an order that members of the public or the press also be excluded.
4.86	Under model 3, the Tribunal would be empowered to close proceedings to members of the public.  However, it may be precluded from excluding certain people, such as active parties.  In that case, Jim could not be excluded from the hearing because, as Marlene’s administrator, he is an active party to the proceeding.
4.87	Under model 4, Tribunal proceedings would be closed to both members of the public and press, unless the Tribunal otherwise permits.  As an active party, Jim would generally be able to attend but the Tribunal may have discretion to exclude him.  Such discretion would likely be applied in much the same way as it would under model 2.
A preliminary view
4.88	At this stage of its review, the Commission has a preliminary preference for a version of model 2: open hearings with power to close proceedings and hold them in private and/or to exclude particular people from a hearing, with that power being guided by specific legislative criteria.  The Commission also considers a power to prohibit or restrict disclosure of information to a party may, in some cases, be necessary to give effect to a direction to exclude a person from part of hearing.  
4.89	Open hearings are important because the principle of open justice and the accountability that it brings is critical in this jurisdiction given the significance of the decisions being made.  However, a discretion to close proceedings to the public and to exclude particular people should be available, given the protective nature of the system and the private and sensitive information that is often discussed.  This includes the exclusion of an active party.  Although such a step is a more serious matter than closing proceedings to the public, there may be situations where it is warranted.
4.90	The Commission does not have views at this stage as to what the legislative criteria that guides this discretion should be.  However, it is suggested that it would need to be sufficiently broad so as to avoid constraining what needs to be a relatively flexible discretion.  The Commission is conscious that any discretion will need to be exercised having regard to the principle of open justice, what is required by procedural fairness and the General Principles.
Call for submissions
4.91	The Commission is interested in receiving submissions in response to the following questions, or on any other issues respondents consider relevant to the issue of access to Tribunal hearings.  You may wish to nominate your preferred legal model, or provide more detailed comment on the particular issues that follow. 
Possible legal models
4-1	Should Queensland’s guardianship legislation reflect one of the following models in relation to access to Tribunal hearings:
	(a)	Model 1: open hearings with no power to close;
	(b)	Model 2: open hearings with power to close, or to exclude particular people; 
	(c)	Model 3: open hearings with power to close, or to exclude, but not particular people;
	(d)	Model 4: closed hearings with power to admit people; or
	(e)	other models?
Particular issues
4-2	Should Tribunal hearings generally be required to be held in public or in private?
4-3	If hearings are generally required to be held in public, should the Tribunal have power to make an order to close a hearing or part of a hearing to the public, or to exclude particular people from a hearing, or part of a hearing?
4-4	If so, what legislative criteria, if any, should guide the Tribunal’s power:
	(a)	the Tribunal may make an order if it is satisfied it is desirable to do so because of the confidential nature of particular information or matter or for another reason (the current legislative test in Queensland);
	(b)	the Tribunal may make an order taking into account as the basis for its consideration the principle that it is desirable that hearings should be held in public (the requirement imposed by section 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth));
	(c)	the Tribunal may make an order if it is satisfied there is a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public (a criterion suggested by Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs);
	(d)	the Tribunal may make an order if it is satisfied it is in the best interests of the person to whom the proceedings relate (the legislative test in Western Australia);
	(e)	the Tribunal may make an order if it is satisfied it is necessary to avoid the possibility of serious harm or injustice to any person (the legislative test in Ontario);
	(f)	other criteria?
4-5	In relation to question 4-4, should different legislative criteria apply to the exclusion of the public and to the exclusion of a party, and if so, what should the criteria be?
4-6	If the Tribunal has power to make an order to close a hearing or part of a hearing to the public or to exclude particular people, are there particular categories of people who should not be excluded:
	(a)	people who are directly interested in the proceedings or otherwise authorised by the Tribunal to be present (the legislative requirement in Western Australia and the Northern Territory);
	(b)	people who are involved in the proceedings (the legislative requirement in South Australia);
	(c)	for proceedings about special health matters, the adult’s guardian, attorney, or statutory health attorney (a current legislative requirement in Queensland);
	(d)	other people?
4-7	Should the Tribunal have power to make an order to prohibit or restrict disclosure of information given at a hearing to an active party?
4-8	If so, what legislative criteria, if any, should guide the Tribunal’s power to make such an order:
	(a)	the same criteria as should apply to the power to close a hearing or part of a hearing to the public or to exclude particular people (see question 4-4 above);
	(b)	if the Tribunal is satisfied disclosure would cause serious harm to the adult’s health or put a person’s safety at risk (as is provided in relation to the Mental Health Review Tribunal);
	(c)	other criteria?
4-9	If the Tribunal prohibits or restricts the disclosure of information given at a hearing to an active party, should the Tribunal be required to disclose the information to a representative of that party?
4-10	If the Tribunal has power to make an order to close a hearing or part of a hearing to the public or to exclude particular people, or to prohibit or restrict disclosure of information given at a hearing to an active party, should the legislation recognise a ‘reasonable excuse’ for not complying with such an order?
4-11	If hearings are generally required to be held in private, should the Tribunal have power to make an order to admit the public or particular people to a hearing, or part of a hearing?
4-12	If so, what legislative criteria, if any, should guide the Tribunal’s power?
4-13	In relation to question 4-12, should different legislative criteria apply to the admission of the public and the admission of particular people and, if so, what should the criteria be?
4-14	If the Tribunal has power to make an order about who may or may not attend a hearing, or part of a hearing, or make an order prohibiting or restricting disclosure of information given at a hearing to an active party, should it have power to make such an order on its own initiative or only on the application of an active party?
4-15	If the Tribunal has power to make an order about who may or may not attend a hearing, or part of a hearing, or prohibiting or restricting disclosure of information given at a hearing to an active party, who should be able to make such an order:
	(a)	the Tribunal;
	(b)	the Registrar?

Chapter 5	
	Documents before the Tribunal

Introduction	89
The law in Queensland	89
A general right of inspection for active parties	89
Confidentiality orders	94
Legislation in other jurisdictions	98
Victoria	99
Western Australia	102
Procedural fairness at common law: New South Wales	103
Issues for consideration	106
Should the Tribunal be able to make a confidentiality order in 
relation to documents?	106
When should the Tribunal be able to make a confidentiality order?	106
What is the meaning of ‘restricting’ disclosure of documents?	108
Should there be an option to disclose to a party’s representative only?	108
Balancing concepts	109
Open justice	109
Procedural fairness	110
Nature of the guardianship system	111
Possible legal models	112
Model 1: No power to limit disclosure of documents to parties	112
Model 2: Power to limit disclosure of documents to parties but no 
criteria to guide discretion	113
Model 3: Power to limit disclosure of documents to parties with 
criteria to guide discretion	113
A case study	113
Outcome of case study	114
A preliminary view	115
Call for submissions	116

Introduction
5.1	Queensland’s guardianship legislation creates a statutory right for active parties to a proceeding to inspect documents that are before the Tribunal.  However, that right may be displaced by the Tribunal through a confidentiality order, which may prohibit or restrict the disclosure of those documents.  The issue examined in this chapter is whether and, if so, in what circumstances, an active party’s current right to inspect documents before the Tribunal should be capable of being displaced by a confidentiality order.
The law in Queensland
A general right of inspection for active parties
5.2	Section 108 of the Guardianship and Administration Act 2000 (Qld) provides that each active party in a proceeding must be given a reasonable opportunity to present their case.  This includes inspecting documents before the Tribunal that are directly relevant to an issue in the proceeding.  The active parties to a proceeding are:
•	the adult;
•	the applicant (if not the adult);
•	the proposed guardian, administrator or attorney for the adult if the proceeding is for the appointment or reappointment of such person;
•	any current guardian, administrator or attorney for the adult;
•	the Adult Guardian;
•	the Public Trustee; and
•	any other person joined as a party to the proceeding.
5.3	Section 134 of the Guardianship and Administration Act 2000 (Qld), which deals with written reports prepared by Tribunal staff, provides that each of the active parties in a proceeding must be advised of the contents of and, upon request, be given a copy of any such report that is received in evidence in a proceeding.  The Commission understands, however, that Tribunal staff prepare such written reports in only a very limited category of cases.  
5.4	The rights to inspect documents under section 108 and to receive a copy of a report under section 134 are subject to limitations.  Section 108(3) provides that the Tribunal may displace the right to inspect a document in a confidentiality order.  It also provides that the Tribunal may make rules to prescribe conditions in relation to document inspection.  Section 134(3) similarly provides that the right to be given a copy of a report by Tribunal staff may be displaced in a confidentiality order.
5.5	Sections 108 and 134 of the Guardianship and Administration Act 2000 (Qld) relevantly provide:
108	Procedural fairness
(1) 	The tribunal must observe the rules of procedural fairness.
(2) 	Each active party in a proceeding must be given a reasonable opportunity to present the active party’s case and, in particular, to inspect a document before the tribunal directly relevant to an issue in the proceeding and to make submissions about the document.
(3) 	However—
(a) 	the tribunal may displace the right to inspect the document in a confidentiality order; and
(b) 	the tribunal rules may prescribe conditions in relation to the inspection of the document.  [note omitted]
134	Report by tribunal staff
(1) 	The tribunal may—
(a)	receive in evidence in a proceeding a written report by tribunal staff on a matter in the proceeding; and
(b) 	have regard to the report.
(2) 	Generally, if the tribunal receives the report in evidence in a proceeding, the adult concerned in the proceeding and each other active party in the proceeding must be—
(a)	advised of the contents of the report; and
(b)	upon request, given a copy of the report.
(3) 	However, the right to be given a copy may be displaced in a confidentiality order.
Scope of right to inspect
5.6	The right to inspect documents under section 108 is granted to a person who is an ‘active party in a proceeding’ as part of giving him or her ‘a reasonable opportunity to present the active party’s case’.  An issue to consider is the scope of this right to inspect and to whom it applies. 
Which documents
5.7	Section 108(2) permits the ‘inspection of a document directly relevant to an issue in the proceeding’.  This appears to be a relatively broad right, particularly if disparate applications are characterised and dealt with as a single proceeding.  For example, if a proceeding involved separate applications for guardianship and administration, the provision as currently worded might allow a person with an interest in the administration application to also inspect documents relevant only to the guardianship application.  
5.8	This wide interpretation may be read down, however, in that the power to inspect documents is conferred in order to provide an active party with a reasonable opportunity to present his or her case.  If, for example, a party’s application related to an adult’s health matters, section 108(2) would not create a right to inspect those documents relevant only to financial matters.  The scope of the provision may benefit, however, from some clarification.  
Non-parties
5.9	The right to inspect documents does not extend to non-parties to a proceeding.  A non-party is not an ‘active party’ and so falls outside section 108.  There are no other specific provisions in the guardianship legislation that grant non-parties a right to inspect documents.  One option available to a non-party who wishes to acquire such a right is to seek to be joined as a party.
5.10	Although non-parties do not have a right to inspect documents, the Tribunal may have power to permit the disclosure of documents to some non-parties in appropriate cases.  While the Tribunal does not have an inherent jurisdiction to do so, it has been granted relatively wide statutory powers in relation to the conduct of its proceedings.  Those powers may permit some non-party disclosures such as showing to a witness a document about which he or she is asked to comment. 
5.11	Those powers would apply, however, only while proceedings were active and so would not permit disclosure after the Tribunal has made a decision, which is the situation considered next. 
Inspection by parties after a decision and prior to an appeal
5.12	Doubts have been raised about whether such a right to inspect documents arises in the situation where the Tribunal’s decision in a proceeding has been made.  It seems that the right to inspect documents in section 108 of the Guardianship and Administration Act 2000 (Qld) would not apply in that situation. 
5.13	Once a decision has been made by the Tribunal, there may no longer be a ‘proceeding’ for which a person could be an active party.  Where the Tribunal has made its decision, the only avenue of appeal is to the Supreme Court.  After handing down its decision, the Tribunal no longer has a role in the matter, which suggests the ‘proceeding’ has concluded.  
5.14	Further, the right to inspect documents that is granted in section 108(2) is framed in terms of allowing a person a reasonable opportunity to present their case, rather than as a more general right to inspect.  This view is consistent with the Presidential Direction ‘General Information in relation to the Inspection of Files and Confidentiality Orders’ which is discussed below. 
5.15	It has been argued that section 108(1) of the Guardianship and Administration Act 2000 (Qld) provides an alternate basis for a right to inspect documents by a person who was an active party to proceedings in which a decision has been handed down.  That provision requires the Tribunal to observe the rules of procedural fairness.  The argument is that part of the requirement to observe procedural fairness includes an obligation to allow inspection of documents after a decision has been made.
5.16	However, the argument supposes that the fair hearing rule of procedural fairness requires access to documents after a decision has been made in the proceeding.  It is suggested that the fair hearing limb of procedural fairness imposes obligations only in relation to the hearing itself and so would not require the Tribunal to allow inspection of documents after the hearing has concluded and a decision has been made.
5.17	It is suggested, therefore, that any rights of active parties to inspect documents under section 108 are likely to cease on the determination of the proceedings before the Tribunal.  This would mean that once a decision has been made for a proceeding, a person who was an active party for that proceeding will not have a right to inspect the relevant documents under section 108 of the Guardianship and Administration Act 2000 (Qld). 
5.18	Such a right may arise, however, once an appeal has been filed with the Supreme Court.  When the Tribunal receives notice that an appeal has been lodged, a copy of the Tribunal’s file is transferred to the Supreme Court Registry.  This will enliven the Supreme Court’s processes relating to the inspection of its file.   
5.19	Although no right of inspection exists after a decision has been made under section 108, the Tribunal may potentially be able to grant a person access to a limited category of documents under section 249 of the Guardianship and Administration Act 2000 (Qld).  That section imposes a duty of confidentiality on those involved in the administration of the Act, but creates an exception that permits disclosure where it is authorised by the person to whom the information relates.  This may allow the Registry to permit inspection of documents that are on the Tribunal file which would otherwise be ‘confidential information’ under the Act.  However, the category of information released will be narrow as a person can authorise disclosure of information only to the extent the information relates to his or her own personal affairs.
5.20	In this chapter, the Commission will proceed as outlined above and examine the operation of the confidentiality provisions so far as they impact upon the right of active parties to a proceeding to inspect documents where that proceeding has not yet been determined.  As noted above, the question whether the application of this right should be extended to cover situations where, firstly, the Tribunal has made a decision but an appeal has not yet been lodged, and secondly, to non-parties, will be considered in stage two of the Commission’s review.
Confidentiality orders
5.21	Under section 109(2)(d) of Guardianship and Administration Act 2000 (Qld), the Tribunal may give directions in a confidentiality order to prohibit or restrict disclosure, to an active party, of matters contained in documents filed with, or received by, the Tribunal.  The reference to ‘matters contained in documents’ permits the Tribunal to make a limited order that imposes confidentiality in relation to particular parts of a document only.
5.22	In making such an order, the Tribunal must be ‘satisfied it is desirable to do so because of the confidential nature of particular information or matter or for another reason’, having regard to what is required in its jurisdiction by open justice and procedural fairness.  The Tribunal must also apply the General Principles, including General Principle 11, which refers to the adult’s right to confidentiality of information.  Finally, if the matter is one relating to special health care, the Tribunal must ensure that any confidentiality order does not impede the adult’s relevant substitute decision-maker for health matters from forming and expressing a view about the proposed special health care.  
5.23	Section 109 of the Guardianship and Administration Act 2000 (Qld) relevantly provides:
109	Open
…
(2) 	… [I]f the tribunal is satisfied it is desirable to do so because of the confidential nature of particular information or matter or for another reason, the tribunal may, by order (a confidentiality order)—
…
(d) 	give directions prohibiting or restricting the disclosure to some or all of the active parties in a proceeding of—
…
(ii) 	matters contained in documents filed with, or received by, the tribunal …
…
5.24	Very similar provisions in other jurisdictions have also received judicial and quasi-judicial consideration.  An almost identical power is conferred on the New South Wales Administrative Decisions Tribunal, the Appeal Panel of which has jurisdiction to hear appeals of decisions of that State’s Guardianship Tribunal.
5.25	When considering whether it was ‘desirable’ to make such an order in relation to an appeal of a decision by the Guardianship Tribunal, the Appeal Panel considered that ‘[t]he fundamental principles of open justice and procedural fairness mean that [the relevant provision] should be construed narrowly’. 
5.26	The Commonwealth Administrative Appeals Tribunal also has a similarly worded power.  In relation to that power, the Federal Court has held that even where a confidentiality order is made, the Tribunal’s obligation to accord procedural fairness remains.  The Tribunal must act as fairly as possible given the existence and content of the confidentiality order it has made.
The Presidential Direction
5.27	Under section 108(3)(b) of the Guardianship and Administration Act 2000 (Qld), Tribunal rules may prescribe conditions in relation to the inspection of a document.  At present, no such rules have been made.  However, the Tribunal has issued a Presidential Direction entitled ‘General Information in relation to the Inspection of Files and Confidentiality Orders’ to ‘provide information to parties as to the general procedures the Tribunal has adopted’ in relation to file inspection.  
5.28	The Direction summarises the position under the legislation for inspection of and access to filed documents that are directly relevant to an issue in the proceeding (prior to and at a hearing) by active parties.  It also contains a list of the types of documents that are accessible, and outlines the practical arrangements for file inspection prior to hearings.  It also refers to inspection rights of representatives of active parties.
The Tribunal Administration Practice
5.29	The Tribunal has also developed an Administration Practice for dealing with requests for confidentiality orders in relation to documents provided for a proceeding, particularly pre-hearing requests.  Requests for documents provided to the Tribunal to be treated as confidential are to be made in writing.  The matter is then heard in chambers by the President or the presiding member.
5.30	The person is advised by Registry staff if their request for confidentiality is denied.  Unless the person can provide additional information to support their request, they must nominate whether the document will either be returned to them and not be considered by the Tribunal or, alternatively, remain with the Tribunal and be able to be viewed by the active parties.  
5.31	The Administration Practice also includes three examples of when the Tribunal may be satisfied it is desirable to make a confidentiality order, namely, where the inspection or access may:
•	cause serious harm to the health or safety of a person; or
•	involve the unreasonable disclosure of information relating to a person’s personal affairs; or
•	breach a confidentiality provision imposed by a person who supplied the information.
Confidentiality orders in practice
5.32	The Commission was given empirical information by the Tribunal about how and when confidentiality orders were made during an eleven month period from 1 July 2005 to 26 May 2006.  All but two of the confidentiality orders made during that period related to the non-disclosure of documents.  This means that 49 such orders were made in 46 applications, out of the 5083 applications that were made to the Tribunal during that period.  The vast majority of those orders (42 out of 49) were made prior to the hearing.
Who is applying for confidentiality orders and what documents are they seeking to protect? 
5.33	The Commission understands that the majority of the Tribunal’s confidentiality orders were sought by health and other professionals in respect of reports and other documents relating to an adult’s medical and health matters.  Most of the other orders were sought by the adult’s family members.  Some orders were also sought by the Adult Guardian and the Public Trustee.
Why is the Tribunal making confidentiality orders?
5.34	The reason most often indicated for the making of a confidentiality order has been a risk of harm to the adult, being either a risk to the therapeutic relationship and associated psychological distress, or a risk of harm to the adult more generally.  The next most commonly indicated reason has been the confidential source of the information.  Several other reasons have also been cited, including the risk of harm to a third party, and professional privilege.
5.35	The Commission also understands that, in applying the General Principles, the Tribunal has, on one occasion, granted a confidentiality order preventing the adult and his or her family from inspecting a medical or related health report on the ground there was a history of the family misusing the adult’s confidential information.  
Who is the Tribunal precluding from document inspection?
5.36	The Commission understands that most often, confidentiality orders have been made to prevent disclosure to the adult.  Many other orders have precluded all of the parties involved in the proceeding from inspecting the relevant document and some orders have been made in respect of the adult’s family members only.  The Commission understands that in one case, everyone except for the parties’ legal representatives was precluded from viewing a document. 
Legislation in other jurisdictions
5.37	Victoria and Western Australia are the only jurisdictions in which parties to a proceeding for a guardianship matter have a statutory right of document inspection.  The legislation in those States also permits the discretionary limitation of those rights.  In those jurisdictions without equivalent legislative provisions, such as New South Wales, the rights of parties to access documents, and the circumstances in which those rights can be displaced, are based on the requirements of procedural fairness.  
Victoria
5.38	Section 146 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) establishes statutory rights to inspect and copy documents filed with the Victorian Civil and Administrative Tribunal.
5.39	It provides that a party in a proceeding may, without charge, inspect the file of that proceeding, which contains all documents lodged in the proceeding.  A party is also permitted to copy these documents, although this attracts a fee.  Non-parties may also, on payment of a fee, inspect a file and obtain a copy of any part of the file.  These rights are, however, subject to:
•	any conditions specified in the Tribunal rules;
•	any contrary direction of the Tribunal;
•	
any order of the Tribunal under section 101 of the Act; or
•	any certificate under section 53 or 54 of the Act.
Tribunal Rules
5.40	As permitted by section 146(4)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Tribunal’s Rules Committee has made rules that regulate the way in which these rights may be exercised.  Rule 6.23 of the Victorian Civil and Administrative Tribunal Rules 1998 (Vic) deals with parties to a proceeding and distinguishes between a represented or proposed represented person and other parties to a proceeding.  
Represented person (the adult) 
5.41	Rule 6.23(a) regulates the right of a represented or proposed represented person to personally inspect the file.  It provides that the represented person may inspect or obtain a copy of the file ‘except to the extent’ that a member of the Tribunal is satisfied that the person ‘should not be entitled personally to inspect or otherwise have access to all or any part of the file’ because the inspection or access would:
•	cause serious harm to the health of the person or to the health or safety or another person; or
•	involve the unreasonable disclosure of information relating to the personal affairs of any person; or
•	breach a confidentiality provision imposed by a person who supplied information that is contained in that part of the file.
5.42	However, if a represented or proposed represented person is unable to inspect the file or a document on the file under that rule, the Tribunal may permit a person who is representing that person before the Tribunal to inspect or obtain a copy of the file or otherwise have access to the document.
Other parties
5.43	Rules 6.23(c) and (d) impose limits on the right of any other party to inspect and obtain a copy of the file.  Those limitations differ depending on the stage of the proceeding at which the inspection is sought.
5.44	Prior to the hearing, such a party may inspect and obtain a copy of certain limited documents on the file, including those containing adverse criticism of him or her.  However, that inspection may occur only if a Tribunal member is satisfied the inspection would not:
•	cause serious harm to the health or safety of another person; or
•	involve the unreasonable disclosure of information relating to the personal affairs of any person; or
•	breach a confidentiality provision imposed by a person who supplied information that is contained in the documents or document.
5.45	After the hearing, a party’s right of inspection applies to all documents that were relied on by the Tribunal in making its decision.  In this situation, inspection may occur, except where the Tribunal is satisfied that one of the above outcomes may be caused as a result of that inspection.  
Non-parties
5.46	Finally, former rule 6.24 was intended to regulate the right of non-parties to inspect and obtain copies of a file for a proceeding.  It stated that a non-party must be specifically authorised by a Tribunal member to inspect and obtain a copy of any part of a file, although it did not set out the circumstances in which the Tribunal may authorise such inspection.  However, in Herald and Weekly Times Ltd v VCAT, the Victorian Supreme Court declared that the Tribunal’s Rules Committee did not have the power to make this rule and so it had ‘always been void and of no effect’.  Rule 6.24 has now been repealed.
Western Australia
5.47	In Western Australia, section 112 of the Guardianship and Administration Act 1990 (WA) creates a right to inspect documents before the Tribunal.  The legislation distinguishes between the rights of the adult (or the person representing him or her), other parties, and non-parties, but no distinction is made between inspection before and after a hearing.  The Tribunal is also granted a broad discretion to displace the rights of inspection.  
5.48	Section 112(1) of the Guardianship and Administration Act 1990 (WA) provides that a represented person, a person in respect of whom an application under the Act is made, or a person representing any such person in a proceeding is entitled to inspect or otherwise have access to documents and material lodged with or held by the Tribunal for the purposes of the application.  The same entitlements apply to any accounts submitted by an administrator to the Public Trustee.
5.49	The legislation then confers discretion on the Tribunal to ‘order otherwise’, although the circumstances in which the Tribunal may exercise that discretion are not specified.
5.50	Section 112(2) of the Act grants a right of inspection to other parties and their representatives in a proceeding, to documents and material lodged with or held by the Tribunal for the proceeding except:
•	a document or material that is or contains a medical opinion not concerning that party; or
•	if the Tribunal otherwise orders. 
5.51	Again, the circumstances in which the Tribunal may exercise the discretion to order that a party not inspect or have access to certain material are not specified.  The Tribunal has said, however, that in some circumstances, the right of inspection might be limited to documents ‘commensurate with the nature of their [the party’s] interest in the matter’.  
5.52	Finally, section 112(4) gives discretion to the Tribunal to authorise a non-party, upon application, to inspect or otherwise have access to documents or material lodged with or held by the Tribunal for an application.  The Tribunal may authorise such inspection or access either conditionally or unconditionally and may make any other order ‘contemplated by this section’.  The circumstances in which the Tribunal may authorise such inspection are not specified.
Procedural fairness at common law: New South Wales
5.53	In the remaining jurisdictions without legislative provisions dealing with access to documents and when that access can be denied, these matters will be decided by reference to the common law and what it requires by way of procedural fairness.  For example, in New South Wales, the Guardianship Act 1987 (NSW) does not specify whether or when a party to a proceeding should be given access to documents before the Guardianship Tribunal, but nevertheless the Tribunal is required at common law to observe the rules of procedural fairness.  
5.54	The law in New South Wales in relation to what is required by procedural fairness in relation to documents relied on by the Guardianship Tribunal will be considered further because there are a number of recent decisions of the Appeal Panel of the Administrative Decisions Tribunal that examine this issue.
5.55	The most significant decision is GM v Guardianship Tribunal.  Although that decision did not deal specifically with access to documents, the Appeal Panel established a two-step process of inquiry in determining the Guardianship Tribunal’s obligation to accord procedural fairness, and in particular the hearing rule, which has been applied subsequently to situations involving parties’ rights to inspect documents.  
5.56	The first inquiry is whether the particular person is entitled to be afforded procedural fairness.  This involves two questions: 
•	whether the person’s rights, interests, or legitimate expectations are affected.  The Appeal Panel found that the making of an order by the Guardianship Tribunal (for example to appoint a guardian) will always affect the rights of the adult, and that the rights, interests or legitimate expectations of others may also be affected, although this does not occur simply because a person is a party to the proceedings.
•	whether the requirements of procedural fairness are excluded by the legislation.  The Appeal Panel concluded that no intention to exclude the rules of procedural fairness is demonstrated in the Guardianship Act 1987 (NSW).
5.57	The second inquiry is, if the rules of procedural fairness do apply, what steps is the Guardianship Tribunal required to take.  In GM v Guardianship Tribunal, the relevant rule was the hearing rule.  In determining the operation of the hearing rule, the Appeal Panel considered the following principles:
•	The hearing rule will only arise in relation to adverse information that is ‘credible, relevant and significant to the decision’.
•	The content of the hearing rule must be ‘appropriate and adapted to the circumstances of the particular case’.  The Appeal Panel considered the task ‘is to determine the content of the hearing rule in light of the Tribunal’s jurisdiction, the statutory requirements about how that jurisdiction is to be exercised and judicial statements concerning the meaning of the obligation to abide by the rules of natural justice’. 
•	At a minimum, the ‘substance or gravamen’ of the adverse evidence should be disclosed to the person. 
•	However, the general rule that the person be given an opportunity to respond to adverse information may be displaced in ‘exceptional circumstances’ such as where there is a ‘need to keep material confidential, to maintain secrecy or to hear a matter urgently’.  
5.58	One issue raised in some of the decisions of the Appeal Panel that followed GM v Guardianship Tribunal is the role of procedural fairness in a protective jurisdiction.  While some commentators have suggested that the rights and interests of the adult may warrant limiting the strict application of the requirements of procedural fairness, the Appeal Panel has suggested instead that disclosure of documents to a party whose interests are affected will ordinarily help to ensure the best decision for the adult is made:
A fairer and more transparent approach which accords with the principles of procedural fairness, is to give parties access to documents (or communicate the substance of those documents) so that they can respond to the material and raise any concerns they may have.  In doing so, the interests of the subject person in being free from exploitation and abuse, will generally be promoted.
Issues for consideration
5.59	There are several issues to consider when examining the displacement by a confidentiality order of an active party’s right to inspect documents before the Tribunal:
•	Should the Tribunal be able to make a confidentiality order in relation to documents?
•	If so, when should it be able to make a confidentiality order?
•	What is the meaning of ‘restricting’ disclosure of documents?
•	Should there be an option to disclose documents to a party’s representative only?
Should the Tribunal be able to make a confidentiality order in relation to documents?
5.60	A threshold question is whether the Tribunal should have the power to order that the content of a document, or part of a document, be kept confidential from some or all of the active parties.  It may be thought appropriate to do so in particular circumstances.
When should the Tribunal be able to make a confidentiality order?
5.61	In Queensland, the Tribunal may make a confidentiality order only if it is ‘satisfied it is desirable to do so because of the confidential nature of particular information or matter or for another reason’.  The Tribunal must also have regard to what is required in its jurisdiction by open justice and procedural fairness, and apply the General Principles, including General Principle 11, which refers to the adult’s right to confidentiality of information.
5.62	The criteria in Victoria’s Rules are more detailed and refer to:
•	serious harm to the health or safety of the adult or another person;
•	unreasonable disclosure of information relating to the personal affairs of any person; and
•	breaching a confidentiality provision imposed by a person who supplied the information contained in the document.
5.63	These three factors are also referred to in the Queensland Tribunal’s Administration Practice as examples of when confidentiality orders might be made by the Tribunal.
5.64	A preliminary issue to consider is what criteria should guide the Tribunal when making a confidentiality order in relation to the inspection of documents.  Consideration might be given to whether the more detailed Victorian approach should be adopted, particularly if those criteria already reflect the circumstances in which orders are being made.  If such an approach is taken, it may also be valuable, however, to retain the current reference to making an order ‘for any other reason’ as there may be circumstances that fall outside more detailed criteria where it is still appropriate for the Tribunal to make a confidentiality order. 
5.65	Another issue for consideration is whether the harm that might result from not disclosing information should be considered when making a confidentiality order.  While this may currently be considered in practice, there is no express obligation in the legislation to consider the potentially harmful implications (for both the adult and others) of withholding the document.  
5.66	A further issue is whether a distinction should be made between making such an order in relation to the adult and making one in relation to another active party.  In Queensland, no such distinction is made with the Tribunal being given power to displace the statutory right of ‘some or all of the active parties’ in a proceeding to inspect filed documents.  Similarly, no distinction is made under the relevant legislation in Western Australia.  
5.67	The Victorian Rules do distinguish, however, between the adult and other parties.  First, harm to the person seeking access to documents is only relevant if that person is the adult.  The criterion based on harm in relation to access by other parties refers only to harm to another person and so would not include harm to the party themselves.  
5.68	Second, there is a shift in onus depending on the circumstances of inspection.  If the adult is the person seeking inspection, then they are entitled to have access to the documents unless the Tribunal is satisfied that harm, or one of the other listed consequences, would result.  However, if the person is a party and they are seeking inspection before a hearing, they must first show that none of the listed consequences will result before that right of inspection will arise.
What is the meaning of ‘restricting’ disclosure of documents?
5.69	The Tribunal is empowered to restrict (in addition to prohibiting) the disclosure of matters contained in documents before the Tribunal.  The meaning of the word ‘prohibit’ in this context is relatively clear: disclosure of matters contained in a document to the particular person or people would not be permitted at all.  However, the scope of a power to ‘restrict’ such disclosure may allow for confidentiality orders that grant some, though limited, access.
5.70	This might occur if a confidentiality order allows conditional inspection.  For example, a person may be granted access to a document but be required to keep the information from certain other people who might misuse it.  Another example might be permitting access to a document, but on the condition that the person undertakes counselling to minimise any harm that might be caused by seeing the document. 
Should there be an option to disclose to a party’s representative only?
5.71	If a decision is made to withhold a document from a party, it may still be possible to disclose the document in confidence to the party’s representative, for example, their lawyer.  This may be regarded as preferable to not disclosing the document at all.
5.72	In Victoria, the Tribunal is specifically granted a discretion to allow a party’s representative to inspect a document, even if the document is not disclosed to the actual party.  
5.73	In Queensland, this is referred to in the Presidential Direction and the Commission also understands that such an approach has been adopted in cases before the Tribunal.  This raises the question whether such a practice should be expressly authorised, or required, by the legislation.
Balancing concepts
5.74	This part of the chapter briefly considers, in the context of access to documents, the three concepts examined in Chapter 3 that need to be balanced when determining the role of confidentiality in the guardianship system: open justice, procedural fairness, and the nature of the guardianship system.
Open justice
5.75	The principle of open justice requires that members of the public should be able to inspect documents that have come into existence for the purpose of judicial proceedings.  To achieve the goals of open justice, namely, accountability of decision-making through public scrutiny and public education about the law and legal processes, members of the public must be able to follow the court or tribunal’s decision-making process.  This is difficult without knowing what is contained in documents being considered by the court or tribunal, particularly given that documents are often read by the judge prior to a hearing and not discussed in detail during proceedings.
5.76	These arguments about open justice relate to access by the public at large, but apply with even greater force in relation to the parties to a proceeding.  As such, open justice would favour parties to a proceeding being able to inspect documents that are before the court or tribunal.  
Procedural fairness 
5.77	Restricting a party’s access to documents may breach the rules of procedural fairness.  The hearing rule requires first, that any evidence upon which the decision-maker intends to rely be disclosed to the person whose interests will be affected and second, that the person be given the opportunity to respond to that evidence.  That is, the person should be given an opportunity to ‘deal with adverse information that is credible, relevant or significant to the decision to be made’.  Precisely what is required will depend on the circumstances of each case.  
5.78	It may be sufficient that a person be given an opportunity to respond to the substance of a document, but the nature of the document itself may be such as to require its actual production so that a party has a meaningful opportunity to deal with the information.  It might also be necessary to allow the person to ask questions and to adjourn proceedings to enable them to consider the document and to obtain further evidence of their own.
5.79	Although it is possible to make a confidentiality order and still meet the requirements of procedural fairness, depriving a party of access to a relevant document sits uncomfortably with the notion of the fair and transparent decision-making process favoured by the hearing rule.  Concerns have also been raised about the quality of decision-making that is not based on complete and tested evidence.  
Nature of the guardianship system
5.80	The protective nature of the guardianship system may call for documents before the Tribunal to be kept confidential in some circumstances.  Of primary concern is the safeguarding of the adult’s rights and interests, and this includes the adult’s privacy interests.  This issue may be especially acute in relation to the disclosure of material prior to a hearing and, therefore, prior to the material’s relevance and veracity having been tested:
[N]ot all information received by a board or tribunal will necessarily be relevant to a hearing, nor may it in fact be substantiated.  To distribute it may cause significant and unnecessary embarrassment to the person with a disability or to others involved in the hearing.
5.81	As such, the nature of the guardianship system may favour non-disclosure of the private and sensitive information considered in these proceedings.  This may be particularly appropriate in non-contentious proceedings where each of the parties is already aware of the matters contained in the document or documents so further dissemination is unnecessary.
5.82	The protective nature of the system may also weigh against disclosure of a document to an adult if such disclosure may be harmful to the adult.  For example, there may be concerns that disclosure to the adult of a medical report may damage the therapeutic relationship the adult has with the health professional who provided the report.  
5.83	Decisions by the Tribunal, however, affect fundamental rights of the adult (and other parties).  The Tribunal also deals with claims adverse to particular parties that can involve serious, and sometimes criminal, misbehaviour.  The significance of these matters suggests that a party should not be deprived of an opportunity to respond to a prejudicial document.  It may also be that allowing a person to respond to a document should be preferred as that may assist the Tribunal to make a decision that best meets the adult’s needs.
Possible legal models
5.84	The Commission has identified three possible models, outlined below, for how the law might deal with the issue of confidentiality in relation to documents before the Tribunal.  A hypothetical case study will be used to illustrate these models and how they might operate.
Model 1: No power to limit disclosure of documents to parties 
5.85	In this model, the Tribunal would have no power to make an order prohibiting or restricting disclosure of matters contained in documents before the Tribunal.  The current statutory entitlement to inspect documents could not be overridden.
Model 2: Power to limit disclosure of documents to parties but no criteria to guide discretion
5.86	Model 2 reflects the current position in Western Australia.  The relevant tribunal in that State is empowered to limit disclosure of documents to parties but there are no legislative criteria specified for the exercise of that discretion.  The legislation provides that parties may have access to the documents unless the ‘Tribunal orders otherwise’.
Model 3: Power to limit disclosure of documents to parties with criteria to guide discretion
5.87	This model reflects the current approach in Queensland and Victoria.  Again, the Tribunal is empowered to limit disclosure of matters contained in documents before it but the exercise of this discretion is guided by specific criteria.  If this model is preferred, a further question arises as to what matters should be included in those criteria.
5.88	Under the Queensland legislation, the Tribunal must be satisfied that matters in a document warrant non-disclosure because of the ‘confidential nature of particular information or matter or for another reason’.  
A case study
Edward is 84 years old and lives in an aged care facility.  He had been living independently but he had a stroke a year ago and acquired brain damage as a result.  He has a son, Peter, and a daughter, Emily.  Peter believes Edward has impaired capacity for decisions involving a moderate level of complexity and that his needs are not being met so he brings an application to the Tribunal to be appointed as guardian and administrator.  Emily wishes to contest Peter’s application and seeks those appointments for herself.  Edward is also experiencing clinical depression and is being treated by Padam, a psychiatrist.  
There are a number of documents before the Tribunal at the hearing and an issue arises as to whether a confidentiality order should be made (and to whom it should apply) in relation to two of them: a statement by Jo, a member of the nursing staff who looks after Edward, and a report by Padam.
Jo’s statement says that she has often heard Emily yelling at Edward and being aggressive and bullying towards him.  Jo is worried that if Emily finds out about this statement, Emily will try to move Edward out of the aged care facility.  Jo is concerned about how this might affect Edward’s welfare. 
In part of her psychiatric report, Padam indicates that Edward has a fixed delusion that his son, Peter, has been poisoning him.  This is not true, but Padam notes that Edward refuses to accept that his belief is a delusion.  She suggests that Edward requires ongoing treatment but is concerned that if Edward learns of her statement to the Tribunal, he will feel betrayed and angry, and that this may affect their ongoing therapeutic relationship.  Accordingly, Padam has requested that her report be kept confidential.
Outcome of case study
5.89	The relevant documents in the case study that might be made subject to a confidentiality order are the statement from Jo at the aged care facility and the psychiatric report by Padam.  If such orders are to be made, it is likely they would be made in relation to Emily for Jo’s statement and in relation to Edward for the Padam’s report.
5.90	Under model 1, the Tribunal has no power to displace a right to inspect documents so both documents would need to be disclosed to all of the parties, including Emily and Edward.  The Tribunal would be precluded from considering whether such an outcome is appropriate in the circumstances.
5.91	Under models 2 and 3, however, the Tribunal would be able to limit the disclosure of matters contained in the documents to active parties to the proceeding, including Emily and Edward.  The Tribunal’s discretion to do so would be wider under model 2 than model 3 given that its discretion under model 2 is not bounded by statutory criteria.  However, in practice, it is suggested the Tribunal would take into account similar factors as those likely to be considered in relation to the model 3 criteria and that the result would probably be similar.
5.92	Model 3 requires the Tribunal to have regard to specific criteria, and the current Queensland law will be used to illustrate how this model might operate.  
5.93	In relation to allowing Emily access to Jo’s statement, the Tribunal would be able to make a confidentiality order, if it considers it desirable because of the confidential nature of the information or for another reason.  Though it is not specified in the legislation, the Tribunal is likely to have regard to the potentially harmful impact that disclosure may have on Edward.  Consideration would probably be given to the likelihood of that harm occurring and its seriousness.  When making this assessment, the Tribunal would consider the assertions that Emily has bullied her father and that she may cause difficulties for Edward’s care at the aged care facility if she learns of Jo’s statement.  
5.94	Also likely to be relevant, although not specifically stated in the legislation, is the significance of the allegations made about Emily and the desirability of her having an opportunity to comment on what has been said.  What is required will depend on the circumstances of the case, but if the Tribunal decided to make a confidentiality order to refuse to provide access to the Jo’s statement, it may be required nevertheless to convey to Emily the substance of the allegations made against her.
5.95	In relation to allowing Edward to inspect Padam’s report, the Tribunal may again, in practice, consider the potential harm to Edward that might be caused by such disclosure, including the likelihood of harm and its seriousness.  Padam’s request for confidentiality would also be relevant to encouraging the ongoing and frank engagement with the Tribunal by health professionals who might be reluctant to participate if their views are to be disclosed to others.
5.96	Again, the Tribunal may decide to make a confidentiality order in relation to Padam’s report, although it would require a balancing of these factors.  The option of making such an order but conveying to Edward the substance of the report would also be available.
A preliminary view
5.97	The Commission’s preliminary view is that there may be circumstances when it is appropriate to withhold information from a party, particularly in cases where disclosure would result in harm to an adult.  
5.98	Accordingly, the Commission has a preliminary preference for model 3: that the Tribunal should have power to limit disclosure to parties of matters contained in documents before it, but that the exercise of this discretion should be guided by specific criteria.  Although the Tribunal would be likely to consider similar factors under model 2 to the criteria set out under model 3, the Commission prefers that any criteria to be considered when making a confidentiality order should be expressly set out in the legislation.
5.99	The Commission particularly welcomes comment as to what any such legislative criteria should be.
Call for submissions
5.100	The Commission is interested in receiving submissions in response to the following questions, or on any other issues respondents consider relevant to limiting the disclosure to parties of matters contained in documents before the Tribunal.  You may wish to nominate your preferred legal model or provide more detailed comment on the particular issues that follow.
Possible legal models
5-1	Should Queensland’s guardianship legislation reflect one of the following models in relation to limiting the disclosure to an active party of documents before the Tribunal in a proceeding:
	(a)	Model 1: No power to limit disclosure of documents to parties;
	(b)	Model 2: Power to limit disclosure of documents to parties but no criteria to guide discretion;
	(c)	Model 3: Power to limit disclosure of documents to parties with criteria to guide discretion;
	(d)	other models?
Particular issues
5-2	Should the Tribunal have power to make an order to keep documents (or matters in documents) before it in a proceeding confidential from an active party?
5-3	If so, what legislative criteria, if any, should guide the Tribunal’s power:
	(a)	the Tribunal may make an order if it is satisfied it is desirable to do so because of the confidential nature of particular information or matter or for another reason (the current legislative test in Queensland);
	(b)	the Tribunal may make an order if it is satisfied it is necessary to avoid: 
	(i)	causing serious harm to the health or safety of the adult; or
	(ii)	causing serious harm to the health or safety of another person; or
	(iii)	unreasonable disclosure of information relating to the personal affairs of any person; or
	(iv)	breaching a confidentiality provision imposed by a person who supplied information that is contained in the relevant document;
		(the current approach in Victoria);
	(c)	other criteria?
5-4	In relation to question 5-3, should different legislative criteria apply to orders limiting disclosure of documents to an adult and to those directed at other active parties, and if so, what should the criteria be?
5-5	If the Tribunal has power to make an order to keep documents (or matters in documents) before it in a proceeding confidential in relation to an active party, should the Tribunal also have power to impose conditions on inspection (by restricting, rather than prohibiting, disclosure)?
5-6	If the Tribunal has power to make an order to keep documents (or matters in documents) before it in a proceeding confidential in relation to an active party, should the Tribunal be permitted or required to allow the party’s representative to inspect the document?

Chapter 6	
	Tribunal decisions and reasons

Introduction	119
The law in Queensland	119
Legislation in other jurisdictions	121
Western Australia	122
Mental Health Act 2000 (Qld)	123
Issues for consideration	124
Should the Tribunal be able to make a confidentiality order in relation 
to its decisions or reasons?	124
Should the legislation distinguish between decisions and reasons?	125
From whom should decisions or reasons be able to be withheld?	125
What criteria should guide the Tribunal’s discretion?	125
What does it mean to ‘restrict’ disclosure?	127
Balancing concepts	128
Reasons and the right of appeal	128
Open justice	129
Procedural fairness	130
Nature of the guardianship system	131
Possible legal models	131
Model 1: no power to make decisions or reasons confidential	132
Model 2: power to make reasons confidential, but not decisions	132
Model 3: power to make both decisions and reasons confidential	132
A case study	132
Outcome of case study	133
A preliminary view	134
Call for submissions	135

Introduction
6.1	As part of its review of the confidentiality provisions of the guardianship legislation, the Commission is required to consider those provisions that permit the Tribunal to prohibit or restrict disclosure of a decision made in a proceeding, or the reasons for that decision, from a person who is otherwise entitled to this information.  Generally, Queensland’s guardianship legislation creates a statutory right for particular people involved in a proceeding to receive a copy of the Tribunal’s decision and reasons.  However, that right may be displaced by a confidentiality order made by the Tribunal.
6.2	The focus of this chapter is the question of whether the Tribunal should be able to displace a person’s current statutory entitlement to receive a copy of the Tribunal’s decision and/or reasons.  In stage three of the review, the Commission will consider the related issues of whether and, if so, when the Tribunal should be required to give reasons for a decision, and to whom Tribunal decisions and reasons should be given.  The general confidentiality of decisions and reasons imposed by the prohibition on publishing information about Tribunal proceedings under section 112 of the Guardianship and Administration Act 2000 (Qld) is examined in Chapter 7 of this Discussion Paper.
The law in Queensland
6.3	Section 158 of the Guardianship and Administration Act 2000 (Qld) provides that, generally, the Tribunal must give a copy of its decision and any written reasons for the decision to the adult concerned in the matter and to each other active party in the proceeding.  Those other active parties are:
•	the applicant (if not the adult);
•	the proposed guardian, administrator or attorney for the adult if the proceeding is for the appointment or reappointment of such person;
•	any current guardian, administrator or attorney for the adult;
•	the Adult Guardian;
•	the Public Trustee; and 
•	any other person joined as a party to the proceeding.
6.4	A copy of the Tribunal’s decision (although not a copy of any written reasons for the decision) must also be given to each of the people who were given notice of the hearing.  The effect of this is that, in addition to those who receive the Tribunal’s decision as an active party listed above, members of the adult’s family, any primary carer of the adult, and anyone else the Tribunal considered should have been notified of the hearing will also receive a copy of the decision.
6.5	The Tribunal is also empowered to order that anyone else may be given a copy of its decision or its reasons for a decision in a proceeding.
6.6	The rights which a person might have to the Tribunal’s decisions or reasons may, however, be displaced.  Section 158(3) of the Guardianship and Administration Act 2000 (Qld) provides that a requirement to give copies of a decision or reasons may be displaced by a confidentiality order made by the Tribunal under section 109.
6.7	Under section 109(2) of the Guardianship and Administration Act 2000 (Qld), the Tribunal may give directions ‘prohibiting or restricting the disclosure to some or all of the active parties in a proceeding’ of the Tribunal’s decision or reasons.  Before making such a confidentiality order, the Tribunal must be ‘satisfied it is desirable to do so because of the confidential nature of particular information or matter or for another reason’.  The Tribunal will also need to consider what is required in its jurisdiction by open justice and procedural fairness, and must also apply the General Principles.
6.8	If the Tribunal wishes to make such an order in relation to the adult, a further criterion must be satisfied.  The Tribunal may only take such a step if it considers the disclosure ‘might be prejudicial to the physical or mental health or wellbeing of the adult’.  
6.9	Section 109 of the Act relevantly provides:
109	Open
…
(2) 	… [I]f the tribunal is satisfied it is desirable to do so because of the confidential nature of particular information or matter or for another reason, the tribunal may, by order (a confidentiality order)––
…
(d) 	give directions prohibiting or restricting the disclosure to some or all of the active parties in a proceeding of––
…
(iii) 	subject to subsection (3), the tribunal’s decision or reasons.
(3) 	The tribunal may make a confidentiality order prohibiting or restricting disclosure of the tribunal’s decision or reasons to the adult concerned only if the tribunal considers disclosure to the adult might be prejudicial to the physical or mental health or wellbeing of the adult.
…
6.10	The Commission understands that the Tribunal has never displaced an active party’s right to decisions or reasons by making a confidentiality order.
Legislation in other jurisdictions
6.11	In all but one Australian jurisdiction, the guardianship or other relevant legislation creates rights for a party to a proceeding (and sometimes others) to receive (either as of right or by request) a decision made in that proceeding and the reasons for the decision.  In addition to Queensland, such provisions exist in the Australian Capital Territory, New South Wales, South Australia, Tasmania, Victoria and Western Australia.  In the remaining jurisdiction, the Northern Territory, the guardianship legislation creates a right for people involved in the proceedings to receive the Court’s order, but not its reasons.
6.12	Apart from Queensland, none of the other Australian jurisdictions provide for the displacement of these statutory rights to allow a tribunal to deny a party (or any other person so entitled) a copy of the decision and accompanying reasons.
Western Australia
6.13	Apart from Queensland, Western Australia is the only jurisdiction that makes provision for confidentiality in relation to decisions or reasons.  It is, however, only a limited recognition of confidentiality in that it applies only to the content of the reasons for decisions given by the State Administrative Tribunal.
6.14	Under section 80 of the State Administrative Tribunal Act 2004 (WA), the provisions that provide for the giving of reasons must be complied with in a way that:
•	is consistent with any order that was made under section 61(2) to hold the proceeding in private and in the absence of a particular person; and
•	gives effect to the Tribunal’s general obligation not to disclose ‘protected matter’ under section 160.
6.15	The effect of the first limb of section 80 is that it permits the exclusion of material considered during non-public proceedings from the reasons for decision.  However, it is suggested that this provision does not permit a blanket exclusion of all such material.  The grounds for excluding a particular person or members of the public will determine whether the reasons for decision need to be modified to be consistent with the order to have a non-public hearing.  If the order was made to protect confidential information, then it may be appropriate that the reasons for decision reflect that confidentiality.  However, if the order was made to allow the adult to participate in the hearing free from the influence of a particular person, and there was no issue of confidentiality, the reasons for decision may not need to be modified.
6.16	The second limb of section 80 of the State Administrative Tribunal Act 2004 (WA) requires that any reasons given must give effect to the Tribunal’s obligation under section 160 not to disclose ‘protected matter’.  ‘Protected matter’ means:
•	certain types of information in relation to which the Attorney-General has certified that disclosure is contrary to the public interest for reasons such as endangering national security or revealing information protected by parliamentary privilege; and
•	information that is exempt from disclosure under the freedom of information legislation. 
6.17	The duty in section 160 prevents disclosure of such matter other than to a sitting member of the Tribunal.  A further exception to the duty is that the Tribunal may give a party access to matters that have been certified by the Attorney-General, unless the matter is exempt under freedom of information legislation.  The effect of the second limb of section 80 is that the State Administrative Tribunal must exclude ‘protected matter’ from its reasons for decision. 
Mental Health Act 2000 (Qld)
6.18	The Mental Health Review Tribunal was established by the Mental Health Act 2000 (Qld) to safeguard the rights of people with a mental illness who are receiving involuntary treatment under that Act.  This Tribunal has quite a different role from that of the Guardianship and Administration Tribunal.  However, in the absence of comparable legislative provisions dealing with guardianship proceedings, and given that some of the people who fall within its jurisdiction have impaired capacity, an examination of the Tribunal’s power to make confidentiality orders in relation to reasons for decisions may be instructive.
6.19	Under section 458 of the Mental Health Act 2000 (Qld), the Mental Health Review Tribunal may make confidentiality orders prohibiting or restricting the disclosure of reasons for a decision (but not the decision itself) to the adult who is the subject of the proceeding.  However, the Tribunal may make such orders only if it is satisfied the disclosure would: 
•	cause serious harm to the health of the adult; or
•	put the safety of someone else at serious risk.
6.20	Unlike the relevant provision in Queensland’s guardianship legislation, the Mental Health Act 2000 (Qld) provides that if such an order is made, the Tribunal must disclose the information or matters that have been withheld from the adult to the adult’s lawyer or agent along with written reasons for making the confidentiality order.
Issues for consideration
6.21	This section raises issues for consideration when examining the Tribunal’s ability to prohibit or restrict disclosure of its decision or reasons: 
•	Should the Tribunal be able to make a confidentiality order in relation to its decisions or reasons?
•	Should the legislation distinguish between a decision and its reasons?
•	From whom should a copy of the Tribunal’s decision or reasons be able to be withheld?
•	What criteria should guide the Tribunal’s discretion to prohibit or restrict disclosure of its decision or reasons?
•	What does it mean to ‘restrict’ disclosure of the Tribunal’s decision or reasons?
Should the Tribunal be able to make a confidentiality order in relation to its decisions or reasons?
6.22	A threshold question to consider is whether the Tribunal should have the power to order that its decisions and the reasons for those decisions be kept confidential from those people who are otherwise entitled to a copy of those documents.  A related issue is whether the Tribunal should be permitted to exercise such a power on its own initiative or only on the application of an active party.
Should the legislation distinguish between decisions and reasons?
6.23	An issue for consideration is whether a distinction should be made between a decision in relation to a proceeding and the reasons given for that decision.  Under Queensland’s guardianship legislation, the Tribunal may not only withhold a copy of its reasons from an active party but also a copy of its decision.  This can be contrasted with the Mental Health Act 2000 (Qld) which prohibits or restricts access to the reasons for a decision only.
From whom should decisions or reasons be able to be withheld?
6.24	Those who are currently entitled to a copy of the Tribunal decision are the adult, any other active parties, and those people who were given notice of the hearing.  The Tribunal has power, however, to prohibit or restrict disclosure of decisions only in relation to active parties.  It seems anomalous that the legislation does not provide a similar power in respect of those who were not necessarily involved in the hearing but were merely given notice of the hearing.  It may be thought that participating as a party gives rise to a greater entitlement to a copy of the decision than might arise from simply being notified of the proceedings.
6.25	Another issue to consider is whether, if an adult is being denied a decision or reasons for a decision, there should be a requirement that the information be given to another person on the adult’s behalf.  There is a provision to this effect in the Mental Health Act 2000 (Qld).
What criteria should guide the Tribunal’s discretion?
6.26	Another matter to consider is the criteria upon which the Tribunal may exercise its discretion to prohibit or restrict the disclosure of its decisions and reasons.  Under Queensland’s guardianship legislation, such a confidentiality order may be made only if the Tribunal is ‘satisfied it is desirable to do so because of the confidential nature of particular information or matter or for another reason’.  The Tribunal would also need to have regard to what is required in its jurisdiction by open justice and procedural fairness and to apply the General Principles.
6.27	In the case of a restriction on the adult’s entitlement to receive a copy of the decision or reasons, the Tribunal must additionally consider whether the disclosure ‘might be prejudicial to the physical or mental health or wellbeing of the adult’.
6.28	The Mental Health Act 2000 (Qld) contains more demanding criteria in relation to the adult who is the subject of the proceeding.  The Mental Health Review Tribunal may make a confidentiality order prohibiting or restricting disclosure of its reasons to the adult if satisfied the disclosure would ‘cause serious harm to the health of the person’ or would ‘put the safety of someone else at serious risk’.
6.29	If harm is to be a criterion for the exercise of this discretion (and there may be others), some other issues should be considered.  One issue is who must be harmed.  Queensland’s guardianship legislation refers to harm to the adult only whereas the mental health legislation additionally refers to harm to other people.
6.30	A second issue is whether such a criterion should include a reference to the seriousness of the harm and its likelihood of occurring.  The current test in the guardianship legislation appears to be relatively undemanding.  There is only the need to show harm to the ‘physical or mental health or wellbeing of the adult’.  There is no threshold level of harm that needs to be met; only that some harm may occur.  Presumably this could include relatively minor harm.  This test is further weakened because it is only necessary to show that the disclosure of decisions or reasons ‘might’ cause this harm.  
6.31	This can be contrasted with the approach taken under the Mental Health Act 2000 (Qld).  That legislation requires that the disclosure ‘would’ result in either ‘serious harm’ or ‘serious risk’ to safety, rather than a mere possibility of some harm occurring.
6.32	A further issue to consider in relation to harm is whether the criteria should include some consideration of any harm that might be caused by failing to disclose the information.  There are very compelling justifications for providing parties to a proceeding with a decision and accompanying reasons as is discussed below, so a determination not to disclose this information is significant.  Such a decision may cause harm to the parties in that a person who is denied reasons cannot decide whether or not to appeal.  It may also cause harm on a wider level to the administration of justice by undermining the accountability of decision-makers.  It may be appropriate that any criteria not only require consideration of why decisions or reasons should not be disclosed, but also of any corresponding implications of such a course.
What does it mean to ‘restrict’ disclosure?
6.33	Another matter to consider is the implications of empowering the Tribunal to restrict (in addition to prohibit) the disclosure of its decisions and reasons.  
6.34	The meaning of the word ‘prohibit’ in this context is relatively clear: a person will not be permitted to receive the decisions or reasons at all.  However, the scope of a power to ‘restrict’ disclosure of decisions and reasons may permit two different types of confidentiality orders:
•	those that impose conditions upon which decisions or reasons are disclosed; and
•	those that restrict access to part of the content of a decision or reasons.
Conditional disclosure of decisions and reasons
6.35	The power of the Tribunal to impose conditions upon which a decision or its reasons are disclosed might allow a confidentiality order that says, for example, that a copy of the reasons may be given to a person on the condition that the person does not disclose it to a third party.  Another example might be that access to reasons is only permitted if accompanied by appropriate support such as counselling to minimise any harm that might be caused by learning of the decision or reasons. 
Restrictions on content of decisions and reasons
6.36	A power to restrict the disclosure of a decision and its reasons might also permit a copy of these documents to be given to some or all of the parties with certain material omitted.  This material might be information given before the Tribunal or matters in documents received by the Tribunal or findings made by the Tribunal.
6.37	This appears to be the effect of the Western Australian provisions discussed above.  Section 80 of the State Administrative Tribunal Act 2004 (WA) requires the giving of reasons to be consistent with provisions that impose confidentiality either because confidential material emerged in a non-public hearing or because information is regarded as ‘protected matter’.  To comply with these provisions, reference to such material would probably need to be excluded from a statement of reasons.
6.38	The power to exclude certain material from reasons raises the issue of how this is best achieved.  One option is to produce a comprehensive set of reasons that refers to the relevant material which is then deleted where necessary when giving those reasons to some, one, or all of the parties.  A disadvantage of such an approach is the confusion that may arise with more than one version of reasons being generated.
6.39	Another option is to produce reasons that do not refer to that material at all, which appears to be the approach of the Western Australian provisions.  A disadvantage of such an approach is that it may not be possible to make clear in the reasons that the relevant material influenced the decision.
6.40	A final issue to note is the potential interaction between this issue and the confidentiality orders discussed in Chapters 4 and 5.  These orders can be made by the Tribunal to prohibit or restrict disclosure to an active party of information given before the Tribunal and matters contained in documents filed with or received by the Tribunal.  A question arises as to how material which is the subject of one of those confidentiality orders should be treated in the Tribunal’s reasons for decision.
Balancing concepts
6.41	This section outlines some of the relevant issues to consider when examining whether and when the Tribunal should be able to displace a person’s statutory entitlement to decisions and reasons.  In considering these issues, it is useful to examine why the provision of reasons is generally regarded as an important feature of judicial and quasi-judicial decision-making.  The obligation to give reasons has been described as a normal incident of the judicial process and as being ‘of the essence of the administration of justice’.  Some of the arguments advanced in relation to the giving of reasons generally are helpful in exploring whether and when it might be appropriate to displace a person’s statutory right to this information.
6.42	It is useful to consider these issues by drawing on the three concepts examined in Chapter 3 that need to be balanced when determining the role of confidentiality in the guardianship system: open justice, procedural fairness, and the nature of the guardianship system.  The impact of reasons on a party’s ability to appeal a decision is also critical and is considered first.
Reasons and the right of appeal
6.43	Although the obligation to give reasons for a decision is not limited to those situations where an appeal is available, a failure to do so can defeat a party’s ability to exercise that right.  The provision of reasons enables a person ‘to determine whether he has good grounds for an appeal and will inform him of the case he will have to meet if he does decide to appeal’.  This has been used as the basis for recognising a duty to give reasons in some cases and in other cases, it has been described as ‘[p]erhaps the primary reason’ for the giving of reasons.
6.44	These arguments would also apply to provisions that permit confidentiality in relation to reasons, and particularly in relation to the decision itself.
Open justice
6.45	The principle of open justice ‘includes the promulgation of reasoned decisions’.  This promotes one of the core functions of open justice, that is, to afford a measure of accountability on decision-makers through public scrutiny.  This public scrutiny of reasons operates as a disincentive against partial, arbitrary decision-making and instead encourages decision-making that is careful and rational.  The principle of open justice also recognises that the provision of reasons can have an educative function in that it explains to people how and why particular decisions were made.
6.46	Although these arguments about open justice relate to the public at large, they are also compelling in relation to the parties to a proceeding.  For example, withholding reasons from a party, who is directly interested in the outcome of the matter and who may therefore take issue with an inadequately reasoned decision, would remove the decision from the proper scrutiny of that party.  Further, a party’s ability to understand how and why the decision was made will be constrained without reasons.  These concerns become even more acute if a party is also deprived of the Tribunal’s decision.
Procedural fairness 
6.47	In England and Canada, the courts have recognised that a duty to give reasons may arise if required by procedural fairness in the circumstances of the particular case.  In Australia, however, the law has not yet developed in this direction.  
6.48	Nevertheless, it has been argued that without reasons, the right to a fair hearing is ‘devalued’.  The essential feature of the hearing rule is participation, and it has been suggested that meaningful participation requires the giving of reasons for a decision: without reasons, the parties cannot be confident their cases ‘were duly noted, understood and properly considered’.  It has been said that it is:
a fundamental requirement of fair play … that parties should know at the end of the day why a particular decision has been taken. 
6.49	Further, providing reasons for a decision can help a party know and understand why they did not succeed and avoid the grievance of feeling that an injustice has occurred.
6.50	If these arguments are accepted in relation to the provision of reasons, they would also apply in the context of provisions that permit the imposition of confidentiality in relation to reasons and decisions.  Again, any sense of unfairness would be more significant if a party were not only denied a copy of the reasons for the decision, but also of the decision itself.
Nature of the guardianship system 
6.51	The nature of the guardianship system, however, may justify some measure of confidentiality in relation to decisions and reasons, in appropriate cases.  
6.52	The protective nature of the system might warrant such a discretion for the Tribunal as it may be necessary to keep reasons or decisions from the adult to avoid harming him or her.  Confidentiality in relation to other parties may also be justified as a means of safeguarding the rights and interests of the adult.  This might arise, for example, if the reasons contained an adverse finding about a person based on the adult’s evidence such that its disclosure is likely to prompt retribution from the person directed at the adult.
6.53	In contrast, the fact that the decisions made in the guardianship system affect fundamental rights suggests that decisions and reasons ought not to be withheld.  The magnitude of the decisions being made gives importance to accountability of decision-making and fairness to the parties.
Possible legal models
6.54	The Commission has identified three possible models, outlined below, for how the law might deal with the issue of confidentiality in relation to the Tribunal’s decisions and reasons.  These models do not capture all of the relevant issues the Commission is considering, but may provide a useful starting point for thinking about the general approach the law should take.  A hypothetical case study is used to illustrate these models and how they might operate.
Model 1: no power to make decisions or reasons confidential
6.55	In this model, the Tribunal has no power to make an order prohibiting or restricting disclosure of a decision or its reasons.  The current statutory entitlement to decisions and reasons cannot be overridden.  This is the position in most of the guardianship systems in Australia, other than Queensland.
Model 2: power to make reasons confidential, but not decisions
6.56	In this model, the current statutory entitlement to the Tribunal’s decision remains, but there is discretion to prohibit or restrict disclosure of the Tribunal’s reasons for the decision.  This is the approach adopted under the Mental Health Act 2000 (Qld).  It is also reflected, to some extent, in the Western Australian legislation, which provides for the removal of particular information from the reasons for decision.
6.57	Variations of this model will depend on matters such as whether any distinction is made between different categories of people, the criteria (if any) upon which the Tribunal’s discretion can be exercised, and whether the orders can be made to restrict, as well as prohibit, disclosure.
Model 3: power to make both decisions and reasons confidential 
6.58	As is currently the law in Queensland, this model permits the Tribunal to prohibit or restrict the disclosure of both its decisions and the reasons for those decisions.  Again, the scope of the model will vary depending on whether a distinction is made between different people, what criteria (if any) will apply to the discretion, and whether orders will be able to restrict, as well as to prohibit, disclosure.  
A case study
Stephen is a 24 year old man with a mental illness.  He lives with his parents, Carmella and Allan.  Stephen’s illness is such that he is unable to manage his own finances, so Allan has been managing Stephen’s money informally.  The relationship between Stephen and Allan is turbulent and has sometimes resulted in Allan being physically violent.  Despite this, Stephen idolises his father.
After a number of unhappy years, Carmella and Allan decide to separate.  This was in part because of Carmella’s concerns about the way in which Allan has been managing Stephen’s money.
After the separation, Carmella applies to the Tribunal to be appointed as Stephen’s administrator.  Despite Allan’s opposition, Carmella is appointed.  Stephen is not present at the hearing so is unaware of the decision.  Upon being informed of the decision at the conclusion of the hearing, Allan requests written reasons as he intends to appeal the decision.
During the Tribunal hearing, there was conflicting evidence from Carmella and Allan.  In reaching its decision, the Tribunal made adverse findings about Allan in relation to his management of Stephen’s money and also found him to be an untruthful witness.  
Carmella has concerns that these findings may upset Stephen and affect his medical treatment given his admiration for his father.  She also has a concern, given Allan’s past aggressive behaviour, that giving reasons to Allan may trigger an assault against Stephen or, perhaps, her.  The issue for the Tribunal is whether it should make a confidentiality order about its decision or reasons in relation to Stephen or Allan. 
Outcome of case study
6.59	Both Stephen and Allan are active parties to the proceeding and would be entitled under the Guardianship and Administration Act 2000 (Qld) to a copy of the decision and reasons.  Under model 1, there is no entitlement to displace the right to this information, regardless of what impact it may have.
6.60	Under model 2, the Tribunal would continue to be required to provide its decision to both Stephen and Allan although it would have discretion to refuse to provide its reasons.  Under model 3, the discretion would widen to allow the Tribunal to include preventing Stephen or Allan from having access to the decision itself.  
6.61	The material likely to be of concern in this case is the Tribunal’s adverse findings about Allan’s conduct.  This means it is the provision of a copy of the Tribunal’s reasons for the decision that is the critical issue, rather than of the decision itself.  The concern in disclosing the reasons to Allan is the potential violence that may ensue in reaction to the adverse findings.  There is also a concern the disclosure may adversely affect Stephen’s medical treatment.
6.62	Whether or not the Tribunal decides to exercise its discretion in relation to disclosure of reasons will depend on the relevant criteria and what evidence is received in relation to those matters.
6.63	The question under the current Queensland law in relation to Allan is whether non-disclosure ‘is desirable … because of the confidential nature of particular information or matter or for another reason’.  The Tribunal would also need to have regard to what is required by open justice and procedural fairness, and apply the General Principles.
6.64	The risk of a violent reaction by Allan to the findings, directed at Stephen, may be considered sufficient reason.  However, the Tribunal may also consider the prejudice that non-disclosure may have on Allan’s ability to appeal the Tribunal’s decision. 
6.65	It would be more difficult to refuse to disclose a copy of the reasons to Stephen (as the adult) than to Allan (as another active party).  This is because the Tribunal must additionally find that the disclosure of reasons ‘might be prejudicial’ to Stephen’s physical or mental health or wellbeing.
6.66	However, that additional test is relatively undemanding.  The suggestion of some damage to Stephen’s medical treatment may be sufficient to establish a possibility of prejudice.  An alternative and more robust test may require the Tribunal to be satisfied the disclosure ‘would cause serious harm’.  Whether this could be shown would depend on the evidence.  It would also include some consideration of the impact of a failure to disclose the reasons to Stephen.
6.67	It would be open to the Tribunal under models 2 and 3 to limit disclosure of the adverse findings to either, or both, Stephen and Allan.  Depending on the formulation of the legislative provision and whether it provides for such an approach, the Tribunal might still be able to give Stephen and Allan a copy of the reasons with references to the adverse findings removed.
A preliminary view
6.68	At this stage of the review, the Commission has a preliminary preference for model 2: that any statutory entitlement to decisions is absolute but that the Tribunal is given discretion to make confidentiality orders in relation to the reasons for a decision in appropriate circumstances.
6.69	The Commission has serious reservations about withholding the reasons for a Tribunal decision from the active parties to a proceeding.  The importance of reasons was discussed above and the Commission notes that no other guardianship legislation in Australia contains a provision empowering the withholding of a decision or statement of reasons from a person who is statutorily entitled to that information.  (The Western Australian legislation permits only the removal of particular material from a statement of reasons.)
6.70	However, the Commission recognises that there may be some circumstances in which it is appropriate to withhold certain information contained in a statement of reasons from a person otherwise entitled to receive this information.  The Commission considers that those occasions would be exceptional and so favours a tightly constrained discretion.  The Commission also considers that it is preferable that the Tribunal, in exercising its discretion, remove material from a statement of reasons where possible rather than make an order for non-disclosure of the entirety of its reasons for the decision.
6.71	The Commission also has serious reservations about not informing an active party of a Tribunal’s decisions, which is why its preferred model moves away from that position under the current law.
6.72	The difficulties where an active party does not receive reasons for a decision have already been outlined and would be compounded if the person is deprived of even knowing the outcome of a matter.  A party who is unaware of the decision is not only unable to consider whether an appeal might be warranted, they are also precluded from knowing whether an appeal is even necessary.
Call for submissions
6.73	The Commission is interested in receiving submissions in response to the following questions, or on any other issues respondents consider relevant to the displacement of a person’s current statutory entitlement to decisions and reasons.  You may wish to nominate your preferred legal model or provide more detailed comment on the particular issues that follow.
Possible legal models
6-1	Should Queensland’s guardianship legislation reflect one of the following models in relation to the displacement of a person’s current statutory entitlement to Tribunal decisions and reasons:
	(a)	Model 1: no power to make decisions or reasons confidential;
	(b)	Model 2: power to make reasons confidential, but not decisions;
	(c)	Model 3: power to make both decisions and reasons confidential;
	(d)	Other models?
Particular issues
6-2	Should the Tribunal have power to make an order to keep its decision and/or the reasons for its decision (or part of the reasons) confidential from the adult, any other active party, or another person who is currently entitled to a copy of that information?
6-3	In relation to question 6-2, should any such power include both a Tribunal’s decision and the reasons for that decision, or only the reasons?
6-4	If the Tribunal should have such a power, what legislative criteria, if any, should guide its exercise:
	(a)	the Tribunal may make an order if it is satisfied it is desirable to do so because of the confidential nature of particular information or matter or for another reason (the current legislative test in Queensland);
	(b)	the Tribunal may make an order if it is satisfied it is necessary to avoid:
	(i)	causing serious harm to the health of the adult; or
	(ii)	putting the safety of a person at serious risk.
		(such as the test provided under the Mental Health Act 2000 (Qld));
	(c)	the Tribunal may make an order to the extent necessary to give effect to any other order that has been made by the Tribunal in the proceeding (such as the provisions in Western Australia)?  That other order could be one to hold a hearing in private, or to exclude a person from that hearing, or to limit disclosure to a person of information or matters contained in documents before the Tribunal;
	(d)	other criteria?
6-5	In relation to question 6-4, should different legislative criteria apply for orders limiting disclosure to an adult and to those directed at other people, and, if so, what should the criteria be?  For example:
	(a)	the Tribunal may make an order in relation to an adult if it is satisfied the disclosure might be prejudicial to the physical or mental health or wellbeing of the adult (the current legislative test in Queensland);
	(b)	other criteria?
6-6	If the Tribunal has power to make an order to keep its decision and/or the reasons for that decision (or part of the reasons) confidential, should the Tribunal also have power to impose conditions on disclosure (by restricting, rather than prohibiting, disclosure)?
6-7	If the Tribunal has power to make an order to keep its decision and/or the reasons for that decision (or part of the reasons) confidential, should the Tribunal be permitted or required to allow disclosure of the information to the party’s representative?

Chapter 7	
	Publication of Tribunal proceedings

The Law in Queensland	139
Section 112	139
Section 109	142
The interaction between sections 109 and 112	143
Legislation in other jurisdictions	144
General prohibition with power to permit publication of de-identified information	144
General prohibition with power to permit publication of all information	145
Prohibition on publication of identity with power to permit	145
Further discretion to prohibit the publication of information	147
Issues for consideration	148
Should there be a prohibition on publishing information about a proceeding?	149
Whose identity should be protected?	150
To whom should publication be prohibited?	156
What discretion should there be to permit publication that is otherwise prohibited?	159
Should there be any exceptions or defences?	159
Further discretion to prohibit the publication of information	161
Balancing concepts	162
Open justice	162
Procedural fairness	163
Nature of the guardianship system	164
Possible legal models	164
Model 1: no prohibition but power to order that information or identity 
not be published	165
Model 2: general prohibition with power to permit publication of 
de-identified information	165
Model 3: general prohibition with power to permit publication of all information	165
Model 4: prohibition on publication of identity with power to permit publication	165
A case study	166
Outcome of case study	166
A preliminary view	167
Call for submissions	168

The Law in Queensland
7.1	As part of its review of the confidentiality provisions of the guardianship legislation, the Commission is required to consider those provisions that restrict the publication of Tribunal proceedings.
7.2	There are two provisions that address this issue, namely, sections 109 and 112 of the Guardianship and Administration Act 2000 (Qld).  It is convenient to deal with section 112 first, because it has the wider operation.
Section 112
7.3	Section 112(3) of the Guardianship and Administration Act 2000 (Qld) contains two prohibitions that restrict the way in which Tribunal proceedings may be reported.  First, it prohibits the publication of information about a Tribunal proceeding.  This includes information given before the Tribunal, matters contained in documents given to the Tribunal, and the Tribunal’s decisions and reasons.  Second, it prohibits the disclosure of the identity of a person involved in a Tribunal proceeding.  A person ‘involved in a proceeding’ includes a person:
•	who makes an application to the Tribunal in the proceeding; 
•	about whom an application is made in the proceeding; 
•	who is an active party in the proceeding;
•	who gives information or documents to a person performing a function under the Act relevant to the proceeding; and
•	who appears as a witness at the hearing of the proceeding.
7.4	There are exceptions to these prohibitions.  The Tribunal may make an order permitting the publication of information about a proceeding or the disclosure of a person’s identity if it is satisfied that to do so would be in the public interest.  For example, in a small number of cases, the Tribunal has used this provision to make orders allowing the publication of de-identified Tribunal decisions on the AustLII website.  A person will also be permitted to publish this information, or to disclose a person’s identity, if he or she has a reasonable excuse.
7.5	Section 112 relevantly provides: 
112	Publication about proceeding or disclosure of identity
(1)	If the tribunal is satisfied publication of information about a proceeding is in the public interest, the tribunal may, by order, permit publication of the information.
(2) 	If the tribunal is satisfied publication of the identity of a person involved in a proceeding is in the public interest, the tribunal may, by order, permit disclosure of the person’s identity.
(3) 	A person must not, without reasonable excuse, publish information about a proceeding, or disclose the identity of a person involved in a proceeding, unless the tribunal has, by order, permitted the publication or disclosure.
Maximum penalty—200 penalty units.
…
(4)	In this section—
…
information, about a proceeding, includes—
(a) 	information given before the tribunal; and
(b) 	matters contained in documents filed with, or received by, the tribunal; and
(c) 	the tribunal’s decision or reasons.
involved, in a proceeding, includes—
(a) 	making an application in the proceeding to the tribunal; and
(b) 	being a person about whom an application is made in a proceeding; and
(c) 	being an active party for the proceeding; and
(d) 	giving information or documents to a person who is performing a function under this Act relevant to the proceeding; and
(e) 	appearing as a witness at the hearing of the proceeding. 
…
7.6	A recent case in which the issue arose of making an order permitting the wider publication of information in the public interest was Re WEK No 2.  Although there was no formal application before the Tribunal on that occasion, the issue was raised by the parties.  The Tribunal commented, after considering section 112 of the Guardianship and Administration Act 2000 (Qld) and the General Principles (particularly General Principle 11), that:
… there were insufficient reasons advanced to convince it that it was in the public interest to agree to any other means to publish information related to this matter other than via Austlii.  It is accepted that publication on Austlii in a de-identified format allows public scrutiny of Tribunal processes, yet respects the confidentiality of the adult.
7.7	The Tribunal did, however, make such an order in Re MHE concluding that the circumstances of that case meant that some level of public disclosure was in the public interest.  It commented:
… there had already been wide publicity about MHE, and his family.  Some of the published information, particularly quotes attributed to some politicians were incorrect, misleading and confusing to the public.  It is in the public interest for citizens to know how decisions around ‘end of life’ can be made.
7.8	The Tribunal also made an order permitting wider publication in Re MLI.  In that case, the Tribunal considered that it was in the public interest for those people and bodies with responsibility for reviewing the relevant area of law to be permitted to receive information about the proceeding, including the identity of the parties.
Section 109
7.9	The second provision of the Guardianship and Administration Act 2000 (Qld) that may restrict the reporting of Tribunal proceedings is section 109(2)(c).  This provision gives the Tribunal power to make directions prohibiting or restricting the publication of information given before the Tribunal or of matters contained in documents filed with or received by the Tribunal.  The reference to ‘restricting’ would permit the Tribunal to impose conditions upon publication, such as limiting the people to whom the information can be published.
7.10	As with other confidentiality orders, the test employed by the Tribunal is whether ‘it is satisfied it is desirable to do so because of the confidential nature of the information or matter or for another reason’.  The Tribunal would also need to have regard to what is required in its jurisdiction by open justice and procedural fairness, and to apply the General Principles contained in the legislation.  A person must comply with a confidentiality order unless they have a reasonable excuse.
7.11	Section 109 relevantly provides:
109	Open
(1)	Generally, a hearing by the tribunal of a proceeding must be in public.
(2) 	However, if the tribunal is satisfied it is desirable to do so because of the confidential nature of particular information or matter or for another reason, the tribunal may, by order (a confidentiality order)—
…
(c) 	give directions prohibiting or restricting the publication of information given before the tribunal, whether in public or in private, or of matters contained in documents filed with, or received by, the tribunal; 
….
7.12	Two recent cases in which confidentiality orders were made under section 109(2)(c) are Re MLI and Re MHE.  In Re MLI, the Tribunal made a confidentiality order so that MLI’s matter could ‘be determined without MLI attracting the media notoriety he attracted in his home town.’  In Re MHE, which involved decisions in relation to withdrawing life-sustaining measures, the Tribunal made a limited confidentiality order having regard to ‘the intensely private nature of the matters before the Tribunal’.
7.13	The Commission has been informed that in the period between 1 July 2005 and 26 May 2006, the Tribunal has made only these two confidentiality orders in relation to the publication of information about a proceeding under section 109(2)(c).
The interaction between sections 109 and 112
7.14	As the law currently stands, it appears that section 109(2)(c) is unnecessary.  This provision permits the Tribunal to make a confidentiality order in relation to information about a proceeding, but such information is already prohibited from being published by section 112.  In other words, the discretion to prohibit information from being published is superfluous if the publication of that information is already prohibited.
7.15	As such, any recommendations in relation to the operation of section 112 may affect the extent to which section 109(2)(c) is considered necessary or desirable.  This chapter will therefore consider both provisions. 
7.16	The Commission also notes some inconsistency or tension in the policy that underpins section 109(1) (that proceedings are to be held in public, although there is a power to change that position) and that which underpins section 112 (that information about proceedings is not to be published, although there is a power to change that position).  The primary objectives in permitting people to attend hearings are to improve accountability in decision-making and to enhance community understanding of the law.  The tension in policy between the two provisions arises because those objectives are then undermined by the imposition of strict limits on what people can do with the information they receive during those open hearings.
Legislation in other jurisdictions
7.17	The relevant statutes in all of the Australian jurisdictions impose various prohibitions or restrictions on the publication of information about guardianship proceedings.  These prohibitions and restrictions can be categorised into three broad approaches that are considered in this section:
•	A general prohibition on publication of information about proceedings with power given to the Tribunal to allow publication of de-identified information.
•	A general prohibition on publication of information about proceedings with power given to the Tribunal to allow the publication of both de-identified and other information.
•	A general prohibition on publication of information about proceedings that would identify people (with publication of de-identified information otherwise permitted) and with power given to the Tribunal to allow the publication of identifying information.
7.18	This section also considers those jurisdictions in which the Tribunal is conferred with discretion to make an order prohibiting publication of information in particular cases, in addition to any general legislative prohibition or restriction on the publication of information.
General prohibition with power to permit publication of de-identified information
7.19	The guardianship legislation in both South Australia and the Northern Territory prohibits the publication of information about proceedings, subject to the Tribunal’s discretion to permit the publication of information in a de-identified form.  This limited discretion permits publication only if it does not contain ‘particulars calculated to lead to the identification’ of the adult or others concerned in the proceedings or if it does not contain material that ‘identifies or could tend to identify’ the adult.
7.20	In the Northern Territory, this discretion may be exercised only if publication is in the public interest.  There are no criteria specified for the exercise of the discretion in South Australia.
General prohibition with power to permit publication of all information
7.21	Whilst the guardianship legislation in Queensland imposes a blanket prohibition on the publication of information about proceedings, the Tribunal has a wide discretion to permit not only publication of de-identified information but also the publication of information about proceedings generally.  This is similarly the position in New Zealand.  In Queensland, the Tribunal can exercise its discretion where it is satisfied that publication is in the public interest, whilst in New Zealand there is no express test, only the requirement that the court grant leave.  The law in Queensland is discussed in more detail above.
Prohibition on publication of identity with power to permit
7.22	The relevant legislation in the Australian Capital Territory, New South Wales, Tasmania, Victoria and Western Australia have taken the third approach: the only information that is prohibited from publication is information that would identify relevant people, but the Tribunal is granted discretion to override that prohibition in appropriate cases.  The provisions in these jurisdictions generally contain two common elements, which are outlined briefly here to illustrate the operation of this approach, but are considered in more detail in the next section ‘Issues for Consideration’.
7.23	First, all jurisdictions begin by imposing a prohibition on the publication of information that will identify certain people.  The people whose identity must not be published vary in each jurisdiction and include the adult only, parties to the proceedings, or people generally involved or concerned in the proceedings.  
7.24	There are varying approaches taken to the question of what will be sufficient to identify a person.  Some legislation, such as that in Victoria, contains a generic test where the prohibition relates to information that ‘identifies, or could reasonably lead to the identification’ of a person.  Other jurisdictions go further and expressly state some of the ways in which a person may be identified.  The most comprehensive example of this is in Western Australia where the legislation refers to matters such as a person’s name or alias, their voice, their address, their physical description, their occupation, or their relationships or associations with others.
7.25	Second, having prohibited the publication of information that would identify a person, the respective Tribunals are then granted discretion to permit the publication of such information.  Victoria and Tasmania are the only jurisdictions in which a criterion for the exercise of that discretion, that of the ‘public interest’, is imposed.
Further discretion to prohibit the publication of information
7.26	In addition to a legislative prohibition or restriction on the publication of certain types of information, some jurisdictions grant the Tribunal a further discretion to prohibit the publication of information in particular cases.  This is the position in Queensland where, as discussed above, the Tribunal may make a confidentiality order in relation to the publication of information in addition to the legislative prohibition on the reporting of proceedings.
7.27	The Tribunals in Western Australia and Victoria are granted a similar discretion and may order that specific evidence or documents must not be published except in the manner and to the people specified by the Tribunal.  The criteria for the exercise of this discretion include whether such an order is necessary to avoid, for example, endangering national security, prejudicing the administration of justice, endangering a person’s safety, offending public decency or morality, the publication of confidential information, or ‘for any other reason in the interests of justice’.
7.28	The effect of these provisions is to grant the Tribunal the power to extend the prohibition on material that cannot be published.  The publication of information that identifies a person is already prohibited in Western Australia and Victoria.  This discretion further allows the Tribunal to order that specific evidence or documents not be published, even if they do not identify a person.
7.29	The discretion in Victoria, so far as it relates to identifying information, may also be wider than the legislative prohibition because it relates to ‘information that might enable a person who has appeared before [the Tribunal] to be identified’.  This is wider than the wording of the legislative prohibition, which refers only to a ‘party to the proceedings’.  The discretion is wide enough, for example, to allow suppression of identifying information about witnesses as well.
Issues for consideration
7.30	The discussion of the legislation in different jurisdictions above raises several issues to consider when examining any potential prohibitions on what can be published about Tribunal proceedings:
•	Should there be a prohibition on publishing information about a proceeding or publishing the identity of people involved proceedings?
•	If there should be a prohibition in relation to people involved in proceedings, whose identity should be protected?
•	In terms of prohibitions generally, to whom should the publication of information be prohibited?
•	What discretion should there be to permit publication?
•	Should there be any exceptions or defences to the prohibition?
•	Should there be any additional discretion to prohibit the publication of information in particular cases?
7.31	First, however, a threshold question arises as to the purpose of prohibiting the publication of Tribunal proceedings.  Is the prohibition designed to prevent only widespread discussion and reporting of Tribunal proceedings, such as in the media, or is it designed to apply more widely to prevent general discussion of proceedings?  
7.32	Both approaches are considered below when examining the meaning of specific aspects of the various statutes.  However, the issue is raised at the outset as the answer to this question (which involves a policy choice as to the appropriate balance to be struck between open justice and confidentiality) will inform how the specific issues considered below might be resolved.
Should there be a prohibition on publishing information about a proceeding?
7.33	The first issue to consider is what, if anything, should be prohibited from being published.  The guardianship legislation in all Australian jurisdictions imposes at least some restriction on the publication of information about proceedings.  A threshold issue to consider is whether there should be such a prohibition.  Generally, proceedings in court, including any evidence given and the identity of those people involved, are capable of being reported and publicly discussed, unless a specific suppression order has been made.  Although there are reasons why the guardianship system might be treated differently from some other legal settings, this is a threshold issue that should be considered.
7.34	If it is considered appropriate for the legislation to contain some prohibition on the publication of information, the issue then arises as to what information should be the subject of a prohibition.  The major question revealed by the comparison of legislation in other jurisdictions is whether the prohibition should apply to proceedings generally, or whether it should be limited to information that would identify relevant people.
7.35	Another issue that arises in relation to the scope of any prohibition is whether it should also extend to guardianship matters heard before the Supreme Court.  Such a matter may be before the Court at first instance or it may come before the Court on appeal from the Tribunal.  Currently, there is no prohibition on the publication of information in guardianship proceedings before the Supreme Court, although some cases have been reported in a de-identified format.  It might be regarded as anomalous if a matter cannot be reported upon or discussed while it is before the Tribunal, but may be freely reported on appeal.
Whose identity should be protected?
7.36	If the prohibition on the publication of information about guardianship proceedings is to be limited to information that will identify a relevant person, an issue to consider is who those people should be.  There are three categories of people whose identity might be protected, each of which builds cumulatively to include the previous categories. 
7.37	The first is the adult.  This is the position in the Australian Capital Territory, South Australia and New South Wales.
7.38	The second category is the parties to the proceeding, as is the case in Victoria.
7.39	The third category is the widest as it captures all people who are involved in the proceedings.  In addition to the adult and the parties to the proceeding, this would include any person who gives information or documents to the Tribunal and any witnesses.  This represents the law in the Queensland, the Northern Territory, Western Australia and Tasmania.
7.40	In practice, the difference between these categories may be less distinct than first appears because, for example, a restriction on the disclosure of an adult’s identity may have the practical consequence of restricting disclosure of other people’s identities, particularly family members, given that such information may indirectly identify the adult.
7.41	This raises the question, however, of what information will be sufficient to identify a person.
What information will identify a person?
7.42	The guardianship legislation in all Australian jurisdictions refers to the identification of a person.  A threshold matter to resolve is what it means ‘to identify’ a person.  Some guidance may be afforded by the law of defamation.  One of the elements of an action for defamation is that the defamatory material ‘must reasonably be taken to refer to the plaintiff’.  For defamation cases, a reference to the plaintiff’s name or inclusion of the plaintiff’s picture will be sufficient, but is not necessary, to satisfy that test. 
7.43	The legislation of the various Australian jurisdictions deals with the issue of identification differently.  An issue for consideration is what test should be adopted in the Queensland legislation as to when a person is regarded as having been identified.  
7.44	All of the Australian jurisdictions have a generic test of some kind that outlines when information will be sufficient to identify a person.  There are three such tests within the different jurisdictions.  The first refers to information that would actually identify a person.  In the Australian Capital Territory, the legislation refers to information that would ‘enable a person to be identified’, the Western Australian Act applies to information ‘being particulars that are sufficient to identify that person’ and in Queensland, the legislation forbids a person to ‘disclose the identity’ of another.
7.45	The second test is a little broader as it refers, in addition to information that would result in identification, to a likelihood or probability of the information being sufficient to identify a person.  The South Australian and Victorian legislation respectively prohibit the disclosure of ‘any information … that identifies, or could tend to identify, the person’ and information that ‘identifies or could reasonably lead to the identification of a party to proceedings’.  The legislation in New South Wales prohibits the publication of a person’s name, and goes on to state that a reference to a person’s name includes a reference to any information that ‘identifies the person or is likely to lead to the identification of the person’.
7.46	The third type of test is found in Tasmania and the Northern Territory, where identification occurs with the publication of any ‘particulars calculated to lead to the identification of any person’.  This shares with the second category the notion of probability of identification, but differs in that the word ‘calculated’ may be interpreted as requiring some element of intent. 
7.47	In addition to these generic tests for identification, some of the statutes list specific ways in which a person may be identified.  Most of these centre on the publication of a person’s picture on television or in the print media.  This is specified to amount to identification in Western Australia, and is the subject of specific prohibitions in the Australian Capital Territory and Tasmania.  In Victoria, the Tribunal is required to specify, if exercising its discretion to permit publication about proceedings, that pictures of the relevant people must not be taken. 
7.48	The Western Australian legislation goes further and sets out a detailed list of examples of the ways in which a person may be identified.  In determining whether the information is sufficient to identify a person, reference may be had to matters such as the person’s name or alias, their voice, their home or work address, a physical description of the person or their dress, their occupation or their relationships or associations with others.
7.49	In considering the framing of the identification test, a final issue to consider is whether section 112 of the Guardianship and Administration Act 2000 (Qld) should be consistent with section 249 of that Act and section 74 of the Powers of Attorney Act 1998 (Qld).  Section 112 states that people must not ‘disclose the identity’ of a person, whereas sections 249 and 74 exclude a duty of confidentiality in relation to statistical or other information ‘that could not reasonably be expected to result in the identification of the person to whom the information relates’.  The Commission favours a consistent approach in how the legislation deals with the issue of identification.
Who must be able to identify the person?
7.50	Having examined the various legislative formulations for what it means for information to identify a person, a further issue to consider is who must be capable of making that identification.  In other words, who needs to be able to identify the person from that information for the prohibition to be breached?
7.51	There are broadly two categories of people, at either end of a spectrum, who may be able to identify a person.  The first is private individuals, such as family members and close friends, who may be able to identify the person from minimal and non-specific information.  The second category is members of the public or of a section of the public who could only identify the person from reasonably specific information.  In between these two ends of the spectrum are a range of other people, such as service providers, work colleagues, neighbours, and members of the person’s local community, who would require varying levels of detail in order to identify the person. 
7.52	An issue for consideration is whether identification by any of those people, including people in intimate relationships with the person, is sufficient for the information to identify the person for the purpose of the prohibition.  If so, it would be relatively easy for identification to occur and for a publication to breach the prohibition, even when common identifying particulars, such as the person’s name or address, have not been disclosed.
7.53	At present, the Queensland legislation does not specify the people to whom someone’s identity must be apparent for the disclosure to breach the prohibition.  The only guardianship legislation in Australia that does address this issue is that in Western Australia, which refers to particulars being ‘sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires’.  That provision has not been judicially considered.  Nor have the prohibitions contained in the guardianship legislation of the other Australian jurisdictions, including Queensland, been judicially considered in relation to this question.
7.54	Similar legislative provisions that apply in other protective legal regimes, however, have received some, though limited, judicial consideration.
7.55	One is section 121 of the Family Law Act 1975 (Cth) which prohibits publication of an account of proceedings if it contains particulars that are ‘sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires’.  This uses identical wording to that of the Western Australian provision referred to above.  The prohibition is aimed at preventing ‘ridicule or curiosity or some kind of notoriety’ attaching to the parties and their children.  
7.56	This raises the issue of who constitutes a ‘section of the public’.  It appears that for the purposes of the prohibition in section 121, any group of people can constitute a ‘section of the public’, although this is a matter to be determined in the circumstances of each case.  If the special characteristics of a group give its members a ‘significant and legitimate interest’ above that of other sections of the public in receiving the particular information, the group, for that purpose, is isolated in a private capacity and is no longer considered a section of the public.
7.57	For example, child welfare authorities have a legitimate interest, not shared by other sections of the public, in receiving copies of Family Court judgments insofar as they relate to matters of child protection with which those authorities are concerned.  Similarly, section 121 does not apply to ‘conversations between a party to Family Court proceedings and a close personal friend’.  By contrast, the Family Court has held that residents of the parties’ small semi-rural township were a section of the public for the purpose of the prohibition.  
7.58	Another provision in a protective jurisdiction that imposes a prohibition on identification that has been judicially considered is section 36A of the Children’s Court of Western Australian Act 1998 (WA).  It prohibits publication of ‘any particulars or other matter likely to lead to the identification of a child concerned in proceedings’ as an accused, victim or witness and is aimed at preventing ‘the victimisation, humiliation and harassment’ of such children.  This provision is more likely than the law surrounding the Family Law Act 1975 (Cth) to be of assistance in ascertaining the current Queensland prohibition, as this provision does not specify the audience whose identification is relevant.
7.59	In interpreting this provision, the Western Australian Court of Appeal considered that the relevant capacity for identification is that by the public, including those members of the public in the child’s community, such as neighbours, ‘whose identification would be most likely to have practical consequences for the child’.  The Court of Appeal distinguished between people ‘closely and intimately connected with the child or the child’s family’ whose capacity for identification would not be relevant, and the ‘ordinary general reader’ who ‘may be a person who lives in the same small town as the child, or who attends or teaches at, or is the parent of a child who attends, the child’s school’ whose capacity for identification would be relevant.
7.60	This test is very similar to that which applies to the prohibition under the Family Law Act 1975 (Cth).  The Court of Appeal referred only once to the words ‘section of the public’, but its treatment of identification could comfortably sit with the definition of that phrase in the family law context.
7.61	The issue for consideration raised by this discussion is who must be capable of identifying a person.  The spectrum of people discussed above started with those very close to the adult and ranged through to the public, or a section of the public.  Although the law in Queensland is unclear, based on the cases discussed above, it seems that identification will only occur if a member of the public, or of a section of the public, is capable of identifying the relevant person.  If such an approach is to be preferred, there may be some advantage in making this clear with a specific reference in the legislation. 
To whom should publication be prohibited?
7.62	Another issue to consider is to whom the publication of information about proceedings should be prohibited.  This is a distinct issue from the one previously considered and arises regardless of whether the prohibition applies absolutely to all information about proceedings or only to information that identifies a person.
7.63	The statutes in the various jurisdictions take two approaches to this issue: one is to specify the people who shall not receive the relevant information; the other is to impose a prohibition without reference to the people who shall not receive the relevant information.
Where people are specified
7.64	The first approach in relation to the people in respect of whom the prohibition should apply, is to specify those people.  This is the position in the Australian Capital Territory, where a person must not ‘publish’ or ‘broadcast or play’ information ‘to the public, or to a section of the public’.  It is also the position in Western Australia.  The prohibition in that State is drafted in very similar terms to the relevant prohibition under the Family Law Act 1975 (Qld) and refers to ‘publishes in a newspaper or periodical publication or by radio broadcast or television, or otherwise disseminates to the public or to a section of the public by any means’.  The meaning of the phrase ‘public or to a section of the public’ was discussed above.
Where people are not specified
7.65	The second approach is to impose a prohibition without specifying the people to whom the relevant information must not be published.  This is the approach taken in most jurisdictions with the legislation simply forbidding a person to ‘publish’ information, and in some cases, additionally prohibiting its ‘broadcast’.  The Queensland legislation also refers to ‘publish’ in terms of information, but uses the term ‘disclose’ in relation to a person’s identity.
7.66	Where it is not stipulated in the legislation, the question arises whether communication of information to a single person, rather than to the public or a section of the public, would be covered by the prohibition.  This is the position under defamation law where publication occurs even if information is only disclosed to one person.
7.67	Such an interpretation in relation to the prohibition in the guardianship legislation may be problematic, however, because of its potential breadth.  If the prohibition applies to all communications to a single individual, the current law in Queensland could potentially forbid a wide range of publications that might otherwise be regarded as appropriate.  For example, it could prohibit a person from informing their spouse about guardianship proceedings in relation to their child (if the spouse was unable to attend the hearing and so did not know what occurred).  It could also prohibit a person from seeking legal advice about appealing a Tribunal decision, as this would involve publication of information about proceedings to the lawyer.
7.68	Section 112 of the Guardianship and Administration Act 2000 (Qld) does contain the defence of a reasonable excuse, which may cover the above examples.  However, as is discussed below, uncertainty as to what will be a reasonable excuse may mean that it is preferable to clarify the scope of the intended prohibition. 
7.69	Given these difficulties, it could be argued that a more limited interpretation of ‘publish’ should be adopted.  There is some authority for such an approach in relation to legislative prohibitions in other legal systems with a similar protective focus.  When considering the scope of a prohibition on the publication of information about victims of sexual offences, the Victorian Court of Appeal has concluded that to ‘publish’ under that legislation means ‘to make public, to make generally known, to disseminate to the public at large’, despite the provisions themselves being silent about the people to whom publication must be made.  The Court’s reasoning was informed by similar considerations to those outlined above, namely, to avoid a number of absurd outcomes, one of which was that a person could not tell their spouse of a sexual assault on their child. 
7.70	A similar interpretation has also been suggested in respect of wardship proceedings in the United Kingdom so that the relevant prohibition is limited to communications ‘addressed to the public at large or any section of the public’, which would exclude communications within the family and to experts.
7.71	The foregoing discussion raises for consideration the issue of whether the legislation should specify the people to whom publication is prohibited.  Although the meaning of the phrase ‘a section of the public’ is relatively amorphous, it may give greater certainty than not specifying who is forbidden to receive information about proceedings.
7.72	Another issue to consider is the matter raised above about who must be capable of identifying a person.  Decisions made in relation to this issue are related to those made about the breadth of any prohibition on publication.  For example, if the decision is made to impose a prohibition on publication only to the public or a section of the public (and not individuals), then it may be unnecessary to address the issue whether a close family member is capable of piecing together information that would identify the adult.
7.73	A final issue to consider is whether the Queensland prohibition in relation to a person’s identity should continue to refer to ‘disclose’ rather than ‘publish’ as is the case in relation to information about proceedings.  The word ‘disclose’ has been judicially defined as revealing information that is previously unknown to the person receiving that information.  This current wording may be regarded as undesirable if it allows a person to reveal the identity of another person simply because the information is already known publicly or to particular individuals.
What discretion should there be to permit publication that is otherwise prohibited?
7.74	In all Australian jurisdictions, the various Tribunals are conferred with discretion to override the general prohibition against publication of information.
7.75	An issue to consider, if such a power is to continue, is the criteria, if any, upon which such discretion must be exercised.  In some jurisdictions, including Queensland, the test applied is whether disclosure is in the ‘public interest’.  In other jurisdictions, the legislation is silent as to when the Tribunal can exercise its discretion.
7.76	A further issue to consider is the information to which the discretion should relate.  In South Australia and the Northern Territory, where there is a blanket prohibition on publication of information, the Tribunal has discretion to allow the publication only of de-identified information.  A blanket prohibition also operates in Queensland, but the Tribunal is afforded a wider discretion to permit the publication not only of information generally but also of identifying information.  In all other jurisdictions, where there is a prohibition on publication only of identifying information, there is discretion to permit publication of that information.
Should there be any exceptions or defences?
7.77	Having considered in detail the prohibition on publishing information about proceedings, an issue for consideration is whether there should be any exceptions to this prohibition.  
7.78	In Queensland, the defence of a ‘reasonable excuse’ is available in relation to a breach of the relevant prohibition in section 112(3) of the Guardianship and Administration Act 2000 (Qld).  The phrase ‘reasonable excuse’ has been given its ordinary meaning and the issue of whether a person has such an excuse in a particular case is determined in light of the purpose of the legislation and having regard to what a reasonable person would accept as appropriate.
7.79	There are advantages in excluding conduct that involves a ‘reasonable excuse’ from the prohibition.  The inherent flexibility of the defence means that liability is not rigidly imposed when it would be unjust to do so.  However, this flexibility also gives rise to uncertainty.  A person may breach the prohibition believing he or she has a reasonable excuse, only to find out subsequently that their conduct was not judged to be reasonable.  An issue for consideration is whether reasonable excuse should remain in the legislation.  
7.80	If there is a desire for greater certainty as to when the prohibition will be breached, a further issue for consideration is whether the legislation should include a list of specific exceptions.  This is the position in Western Australia where, in equivalent terms to the prohibition in section 121 of the Family Law Act 1975 (Cth), its guardianship legislation includes the following exceptions:  
•	the communication of a transcript of evidence or other document to people concerned in court proceedings for use in connection with those proceedings;
•	the communication of a transcript of evidence or other document to a body responsible for disciplining members of the legal or medical professions or to people concerned in proceedings before such disciplinary bodies;
•	the communication of a transcript of evidence or other document to a body that grants legal aid assistance in order to facilitate a decision whether such assistance should be provided; 
•	the bona fide publication of any material intended primarily for use by any profession being a law report or any other publication of a technical nature; and
•	the publication or other dissemination of an account of proceedings to a member of a profession in connection with the person’s practice of that profession or in the course of professional training, or to a person who is a student in connection with the person’s studies.
7.81	The guardianship legislation in New South Wales also provides a specific exception for the publication or broadcast of identifying material contained in an official report of the proceedings of the Tribunal.  Similarly, in New Zealand, the prohibition on publication of information about proceedings does not apply in respect of a publication of a bona fide professional or technical nature intended for circulation amongst members of the legal or medical profession.
7.82	If such a list of exceptions should be included, a further issue to consider is what exceptions should be included, and whether such a list should be exhaustive.  One exception not mentioned above that might be considered is whether a person should be able to authorise publication of proceedings that involve them, so long as that publication does not identify others (without their additional authorisation).  A provision analogous to that contained in section 249 of the Guardianship and Administration Act 2000 (Qld) discussed in Chapter 8 might be appropriate.
Further discretion to prohibit the publication of information
7.83	As was discussed above, in addition to the general prohibitions on publishing information about guardianship proceedings, the Tribunals in Queensland, Victoria and Western Australia also have a further discretion to prohibit the publication of information.  One issue for consideration is the interaction between the prohibition and this further discretion.  Currently, the prohibition on publishing information in Queensland is sufficiently broad that the additional discretion to prohibit publication is probably unnecessary.  Whether such a provision serves a useful function will depend on what form the general prohibition takes.
7.84	A further issue for consideration is the criteria upon which any discretion should be exercised.  In Queensland, the criteria are quite broad as the Tribunal may make a confidentiality order where ‘it is desirable to do so because of the confidential nature of particular information or matter or for any other reason’.  The Tribunal will also need to consider what is required in its jurisdiction by open justice and procedural fairness, and must also apply the General Principles.
7.85	The criteria guiding the discretion in Western Australia and Victoria are even broader, partly because the Tribunals in those States have jurisdiction for a range of matters other than guardianship.  Those criteria include having regard to matters such as national security, the administration of justice, a person’s safety, public decency or morality, the protection of confidential information, and ‘the interests of justice’.
Balancing concepts
7.86	This part of the chapter briefly considers the three concepts examined in Chapter 3 that need to be balanced when determining the role of confidentiality in the guardianship system in the context of publication of information about Tribunal proceedings: open justice, procedural fairness, and the nature of the guardianship system.
Open justice
7.87	Open justice is a fundamental principle of the common law aimed at holding decision-makers accountable through public scrutiny.  It also promotes consistency and predictability of decision-making.  The right of public, and therefore media, attendance at judicial proceedings is a core requirement of open justice.  Derivative of that right are a right to report proceedings and a requirement that the names of those involved in proceedings, such as the parties and witnesses, be available to the public.  
7.88	While the principle of open justice favours open reporting of proceedings, it is not an absolute concept.  There are many types of proceedings in which the principle of open justice has been modified, either at common law or by statutory provisions.  One modification that is sometimes adopted is to permit the publication of information about proceedings but only if it does not identify particular people.  An example of this is the prohibition in family law proceedings of an account that identifies a party or witness.
7.89	It should also be recognised that the nature of open justice as it relates to publication of information about proceedings has changed with the advent of the internet.  For example, in relation to the publication of court and tribunal decisions, the internet has resulted in their wide dissemination, accessibility and searchability to the public at large.  This is in stark contrast to the ‘practical obscurity’ previously afforded by paper records which were difficult to search and not widely available.  This has led some to suggest that judges, being aware of the potential dissemination of their judgments, should adopt a cautious approach and avoid ‘unnecessary personal identifiers’ to reduce disclosure of personal information.  The breadth of possible publication may also be relevant when considering any prohibitions on how that information should be treated outside proceedings. 
Procedural fairness
7.90	Prohibitions on a party’s ability to discuss proceedings could also potentially lead to a failure to accord procedural fairness, depending on the scope of those prohibitions.  An inability to discuss a proceeding may, for example, inhibit an active party from seeking to join another party who has not previously attended any hearings, or from discussing matters with others as part of preparing for an appeal.
Nature of the guardianship system
7.91	The nature of the guardianship system may weigh against an absolute right to open reporting.  The guardianship system is a protective one in which the primary concern is the safeguarding of the rights and interests of adults with impaired capacity, and this includes the adult’s privacy interests.  Permitting widespread publication of information about an adult’s private life, which is only disclosed for a limited purpose, may infringe those privacy interests.  Such publication may also cause other harm to the adult, for example, in relation to employment opportunities if people make assumptions about the adult’s abilities based on a finding of impaired capacity for a particular matter. 
7.92	It may also be that future participation in the Tribunal’s proceedings will be facilitated by an assurance that the information disclosed to the Tribunal will not be the subject of public discussion.  
7.93	That decisions made in the guardianship system often affect the fundamental legal rights of an adult and people close to the adult may, however, weigh in favour of adherence to the principle of open justice.  Transparency of decision-making processes enhances accountability, and a proceeding may also raise issues of wider importance to the community.  For example, it may be in the public interest to allow publication about a proceeding that ‘reveals information of systemic abuse of persons with a decision-making disability … so as to assist in preventing further abuse’.
Possible legal models
7.94	The Commission has identified a number of possible models, outlined below, for how the law might deal with the issue of open reporting of Tribunal proceedings and the identification of people appearing before the Tribunal.  These models do not capture all of the relevant issues the Commission is considering, but may provide a useful starting point for thinking about the general approach the law should take.  A hypothetical case study is used to illustrate these models and how they might operate. 
Model 1: no prohibition but power to order that information or identity not be published
7.95	One model is to provide that reporting about proceedings, including disclosure of identifying information, is generally permissible, unless the Tribunal orders that information must not be published.  None of the jurisdictions in Australia currently adopt this model. 
Model 2: general prohibition with power to permit publication of de-identified information
7.96	Another model is the one adopted in the Northern Territory and South Australia.  In those jurisdictions, there is a prohibition on publication of information about a proceeding but the Tribunal is conferred with discretion to permit publication on the condition that it does not identify the people concerned in the proceeding.  Under this model, the most that may ever be published is a de-identified report of proceedings.  
Model 3: general prohibition with power to permit publication of all information
7.97	At present, section 112 of the Guardianship and Administration Act 2000 (Qld) provides that neither information about a proceeding nor the identity of a person involved in a proceeding may be disclosed, without reasonable excuse, unless the Tribunal is satisfied the disclosure is in the public interest and permits the disclosure by order. 
7.98	This reflects a further model, namely, that there is a general prohibition on publication of any information about a proceeding, including the identity of a person involved in a proceeding, but that the Tribunal has discretion to permit publication.
Model 4: prohibition on publication of identity with power to permit publication
7.99	A final model is to allow reporting of proceedings but prohibit the publication of identifying information, except as permitted by the Tribunal.  This model would allow, without the need for an order from the Tribunal, the reporting and disclosure of de-identified information about proceedings. 
7.100	This represents the position in the Australian Capital Territory, New South Wales, Tasmania, and Western Australia where there is a general prohibition on publication of identifying information unless the Tribunal otherwise permits it.  
A case study
Li is a 54 year old man with Alzheimer’s disease who is now unable to manage his own financial affairs.  He lives with his 42 year old wife, Justine, who helps him with some day-to-day decisions and also decisions about financial matters.  A dispute has arisen between Mei-Ching, Li’s daughter from his first marriage, and Justine as to how Li’s money is being spent.  Mei-Ching believes Justine is living off Li’s wealth and is using his money for her own purposes.  Justine denies this and believes Mei-Ching’s only interest in her father is the inheritance she will receive from Li.
Both Justine and Mei-Ching seek to be appointed as Li’s administrator by the Tribunal.  After hearing the evidence, the Tribunal decides to appoint Justine.
Mei-Ching is upset about the decision and wants to seek legal advice about an appeal.  She also decides to approach a reporter with a television station.  She gives an interview which is subsequently broadcast on television although the station decides to obscure Mei-Ching’s face and omit any references to the names of the people involved.  
The reporter then approaches Justine who refuses to give an interview, saying that it would infringe Li’s privacy and that family disputes should not be aired in public.  Justine does, however, tell her sister and her neighbour about the case.
Outcome of case study
7.101	The relevant disclosures in the case study that might be made the subject of a legislative or discretionary prohibition are: 
•	Mei-Ching’s disclosures to her lawyer and to the reporter; 
•	Justine’s disclosure to her sister and neighbour; and 
•	the television station’s disclosure to the public.  
7.102	The permissibility of those disclosures would differ under each of the models.  
Model 1
7.103	Under model 1, there would be no impediment to any of the disclosures, even with identifying information, unless the Tribunal made a specific order that information must not be published.   
Models 2 and 3
7.104	The effect of models 2 and 3 will depend on whether the relevant prohibition applies to all disclosures or only to those made to the public or to a section of the public.
7.105	If the prohibition were limited to disclosures made to the public or to a section of the public, the only prohibited disclosure requiring Tribunal permission would be the airing of the television report.  Mei-Ching’s and Justine’s disclosures, being made privately and to individuals, would be unlikely to fall within the scope of the prohibition.
7.106	If, however, the prohibition under models 2 or 3 were not limited to disclosures made to the public or to a section of the public, each of the disclosures would be prohibited and would require the Tribunal’s permission.
7.107	If the prohibition under models 2 or 3 applies, it will prohibit the publication of any information, even that information which does not identify people.  This means the television station’s report of proceedings will be unlawful, even if no-one can identify the people involved.  
7.108	Of course, the Tribunal has the power to permit the publication of such a report and it is this power that distinguishes model 2 and model 3.  Under model 2, the Tribunal may only permit the publication of information that will not identify the people involved.  Model 3 is wider in that it permits the Tribunal to authorise publication of identifying information as well.  This would mean, for example, the television station could be authorised by the Tribunal to air its story and show pictures of Li, Mei-Ching and Justine.
Model 4
7.109	Under model 4, there would be no impediment to any of the disclosures provided the information is de-identified.  This means that the television report, assuming that it conceals the identities of those people involved, could be aired without the need to seek the Tribunal’s authorisation.  If the television station wanted the report to include identifying information, it could approach the Tribunal to exercise its discretion to permit the publication of that information.  
7.110	Mei-Ching’s and Justine’s private disclosures are not in de-identified form, but there are doubts (discussed above) as to whether those disclosures would be covered by the prohibition as they are not made to the public or a section of the public.  If the disclosures do fall within the prohibition, both would require Tribunal authorisation before they would be permitted.
A preliminary view
7.111	At this stage of the review, the Commission’s preliminary preference is for model 4: that publication of Tribunal proceedings should ordinarily occur but only in a way that does not identify the people involved.  This is the position in most jurisdictions and appears to strike a reasonable balance between respecting the privacy of those involved in proceedings and promoting the transparency and accountability favoured by open justice.
Call for submissions
7.112	The Commission is seeking submissions in response to the following questions, or on any other issues respondents consider relevant to the publication of Tribunal proceedings.  You may wish to nominate your preferred legal model or provide more detailed comment on the particular issues that follow.
Possible legal models
7-1	Should the guardianship legislation in Queensland reflect one of the following models in relation to the reporting of Tribunal proceedings:
	(a)	Model 1: no prohibition but power to order that information or identity not be published;
	(b)	Model 2: general prohibition with power to permit publication of de-identified information;
	(c)	Model 3: general prohibition with power to permit publication of all information; 
	(d)	Model 4: prohibition on publication of identity with power to permit publication;
	(e)	Other models?
Particular issues
7-2 	Should publication of information about Tribunal proceedings generally be permitted or prohibited? 
7-3 	If publication of information about Tribunal proceedings should generally be permitted, should a publication that identifies a person involved in a proceeding be permitted or prohibited? 
7-4 	If publication of a person’s identity should be prohibited, which people should not be identified:
	(a)	the adult;
	(b)	the active parties to the proceeding;
	(c)	any person involved in the proceeding including any witnesses and any person who has given information or documents to the Tribunal for the proceeding;
	(d)	other people?
7-5	If publication of a person’s identity should be prohibited, should the legislation establish criteria for when identification will be taken to have occurred, or specify what kinds of information will be taken to identify a person?  If so, what criteria or what kinds of information should determine when a person has been identified:
	(a)	information that will identify the person;
	(b)	information that could reasonably, or is likely to, lead to the identification of the person;
	(c)	particulars calculated to lead to the identification of the person;
	(d)	the person’s name, address, or physical description;
	(e)	a picture or photograph of the person;
	(f)	a voice recording of the person;
	(g)	other criteria or information?
7-6	If publication of a person’s identity should be prohibited, should the prohibition relate to when identification is capable by any person or only by a member of the public or a section of the public to whom the publication is disseminated?
7-7	If publication of information about Tribunal proceedings generally, or of identifying information, should be prohibited, should the Tribunal have power to make an order to permit the publication of information about a particular proceeding?  If so, should that power permit the publication of information generally, or only permit publication of information that would not identify a person?
7-8	If the Tribunal should have power to make an order to permit the publication of information about a proceeding, what legislative criteria, if any, should guide the Tribunal’s power:
	(a)	the Tribunal may make an order if it is satisfied the publication is in the public interest (the current legislative test in Queensland);
	(b)	other criteria?
7-9	Whether or not publication of information about a Tribunal proceeding is prohibited, should the Tribunal have an additional power to make an order to prohibit publication of information about a particular proceeding?
7-10	If so, what legislative criteria, if any, should guide the Tribunal’s power:
	(a)	the Tribunal may make an order if it is satisfied it is desirable to do so because of the confidential nature of particular information or matter or for another reason (the current legislative test in Queensland);
	(b)	the Tribunal may make an order if it is satisfied it is necessary for reasons such as:
	(i)	that it is in the interests of justice;
	(ii)	to avoid endangering the safety of a person;
	(iii)	for the protection of confidential information
		(some of the criteria set out in the legislation in Western Australian and Victoria); 
	(c)	other criteria?
7-11	If publication of information about Tribunal proceedings is prohibited in any way, should the prohibition relate to all discussions of the proceeding or only to publications that are made to the public or to a section of the public?
7-12	Should the legislation recognise a ‘reasonable excuse’ for not complying with any prohibition or Tribunal order against publication of information about a Tribunal proceeding?
7-13	Should the legislation contain any other exceptions to any prohibition or Tribunal order against publication of information about a Tribunal proceeding and, if so, what should those exceptions be:
	(a)	the bona fide publication of any material intended primarily for use by any profession being a law report or any other publication of a technical nature (such as the exceptions provided in New South Wales, Western Australia, and New Zealand);
	(b)	the communication of a transcript of evidence or other document to:
	(i)	people concerned in court proceedings for use in connection with those proceedings;
	(ii)	a body responsible for disciplining members of the legal or medical professions or to people concerned in proceedings before such disciplinary bodies;
	(iii)	a body that grants legal aid assistance in order to facilitate a decision whether such assistance should be provided
		(such as the exceptions provided in the Western Australian legislation);
	(c)	the publication of information that is authorised by the person to whom the information about a proceeding relates;
	(d)	other exceptions?
7-14	Should any legislative prohibition on publication of information about Tribunal proceedings also apply to the publication of information about proceedings under the guardianship legislation that are conducted in the Supreme Court?

Chapter 8	
	The general duty of confidentiality

Introduction	173
the law in queensland	174
The general duty of confidentiality	174
Exceptions to the duty	177
legislation in other jurisdictions	181
The general duty of confidentiality	182
Exceptions to the duty	186
Issues for consideration	190
Should there be a general duty of confidentiality under the 
guardianship legislation?	191
Who should be subject to the duty?	191
What information should be protected by the duty?	194
What sort of conduct should the duty prohibit?	197
Should there be any exceptions to the duty, and what should they be?	198
Balancing concepts	204
Open justice	204
Procedural fairness	204
Nature of the guardianship system	205
Possible legal models	206
Model 1: no general duty of confidentiality	206
Model 2: a general duty of confidentiality but with no exceptions	206
Model 3: a general duty of confidentiality with general exceptions	206
Model 4: a general duty of confidentiality with specific exceptions for 
the Adult Guardian (with or without other general exceptions)	207
A case study	207
Outcome of case study	208
A preliminary view	209
Call for submissions	209

Introduction
8.1	In the course of performing relevant roles under the legislation, many people will gain information about an adult and other people who are involved in the adult’s life.  Much of this information will be private, sensitive, or personal.  
8.2	Section 74 of the Powers of Attorney Act 1998 (Qld) and section 249 of the Guardianship and Administration Act 2000 (Qld) impose a duty on a number of people, such as attorneys, guardians and administrators, Tribunal members and staff, and the Adult Guardian and his or her staff, as to how they deal with this personal information.  The legislation also contains a number of exceptions to the duty, including section 250 of the Guardianship and Administration Act 2000 (Qld) which specifically qualifies the Adult Guardian’s confidentiality obligations.  
8.3	As part of its review of the guardianship legislation’s confidentiality provisions, the Commission is required to consider these provisions, which regulate how people who act under the legislation may deal with confidential information about a person that they gain in the course of those actions.  Throughout this chapter, the phrases ‘confidential information’ and ‘information about a person’s affairs’ will be used to refer to the type of information that is the subject of those provisions.
8.4	It is noted that there are also other ways in which the law protects certain types of private and personal information from disclosure to other people.  In certain circumstances, the general law will impose an obligation of confidence on a person to whom confidential information has been disclosed.  Dealings with personal information by Commonwealth Government agencies, private sector health service providers, and some other private sector entities are regulated by the federal Privacy Act 1988 (Cth).  Queensland Government agencies are not regulated by the federal privacy legislation but are required to protect personal information under an administrative standard containing a number of information privacy principles.  
8.5	Depending on the circumstances, the guardianship legislation may impose additional confidentiality obligations.  To the extent of any inconsistency, the relevant provisions of the guardianship legislation will prevail over any general law or administrative obligations, while any applicable provisions of the federal privacy legislation will prevail over those of the guardianship legislation.
the law in queensland
8.6	This section of the chapter outlines the general duty of confidentiality imposed by section 74 of the Powers of Attorney Act 1998 (Qld) and section 249 of the Guardianship and Administration Act 2000 (Qld).  It also outlines the exceptions to this duty, including the exception for the Adult Guardian in section 250 of the Guardianship and Administration Act 2000 (Qld).
The general duty of confidentiality
8.7	Both the Powers of Attorney Act 1998 (Qld) and the Guardianship and Administration Act 2000 (Qld) impose a duty on certain people acting under those statutes to preserve the confidentiality of particular information.  The legislation generally provides that information about a person’s affairs obtained as a consequence of a person’s role under the guardianship legislation must not be disclosed.  The provisions are discussed in this section under the following three headings:
•	the people who are subject to the duty;
•	the information that is protected by the duty; and
•	the type of conduct the duty prohibits.
The people who are subject to the duty
8.8	Section 74 of the Powers of Attorney Act 1998 (Qld) applies to confidential information that is gained by a person because of being, or an opportunity given by being, an attorney or statutory health attorney.
8.9	Subsections 74(1) and (3) of the Powers of Attorney Act 1998 (Qld) relevantly provide:
74	Preservation of confidentiality
(1) 	If a person gains confidential information because of being, or an opportunity given by being, an attorney …, the person must not make a record of the information or intentionally or recklessly disclose the information to anyone other than under subsection (2).
Maximum penalty—200 penalty units.
…
(3) 	This section also applies to a statutory health attorney.
8.10	Section 249(1) of the Guardianship and Administration Act 2000 (Qld) provides that the duty imposed by that section applies to ‘a person [who] gains confidential information because of the person’s involvement in this Act’s administration’.  Section 249(2) then appears to set out an exhaustive list of those people.  It provides that a person gains confidential information through involvement in the Act’s administration if the person gains the information because of being, or an opportunity given by being:
•	a Tribunal member, a member of the Tribunal’s staff, or an expert engaged by the Tribunal;
•	the Adult Guardian and his or her staff, including consultants and those delegated by him or her to conduct investigations;
•	the Public Advocate and his or her staff;
•	a guardian or administrator; or
•	a community visitor.
8.11	Subsections 249(1) and (2) of the Guardianship and Administration Act 2000 (Qld) relevantly provide:
249	Preservation of confidentiality
(1) 	If a person gains confidential information because of the person’s involvement in this Act’s administration, the person must not make a record of the information or intentionally or recklessly disclose the information to anyone other than under subsection (3).
Maximum penalty—100 penalty units.
(2) 	A person gains information through involvement in this Act’s administration if the person gains the information because of being, or an opportunity given by being—
(a) 	the president, a deputy president or another tribunal member; or
(b) 	the registrar, a member of the tribunal staff or a tribunal expert; or
(c) 	the adult guardian or a member of the adult guardian’s staff; or
(d) 	a professional consulted or employed by the adult guardian or an adult guardian’s delegate for an investigation; or
(e) 	the public advocate or a member of the public advocate’s staff; or
(f) 	a guardian or administrator; or
(g) 	a community visitor;
…
The information that is protected by the duty
8.12	The duty imposed by section 74 of the Powers of Attorney Act 1998 (Qld) and section 249 of the Guardianship and Administration Act 2000 (Qld) applies to ‘confidential information’.  For both statutes, ‘confidential information’ is defined as including ‘information about a person’s affairs’.  However ‘confidential information’ does not include information that is already publicly disclosed (unless further publication is prohibited by law) or statistical or other information that is not reasonably expected to reveal a person’s identity.
8.13	Sections 74(4) of the Powers of Attorney Act 1998 (Qld) and 249(4) of the Guardianship and Administration Act 2000 (Qld) relevantly provide:
confidential information includes information about a person’s affairs but does not include—
(a) 	information already publicly disclosed unless further disclosure of the information is prohibited by law; or
(b) 	statistical or other information that could not reasonably be expected to result in the identification of the person to whom the information relates.
The type of conduct the duty prohibits
8.14	Both section 74 of the Powers of Attorney Act 1998 (Qld) and section 249 of the Guardianship and Administration Act 2000 (Qld) prohibit:
•	the making of a record of confidential information; and 
•	the intentional or reckless disclosure of the confidential information to any person.
8.15	Section 74(1) of the Powers of Attorney Act 1998 (Qld) relevantly provides:
74	Preservation of confidentiality
(1) 	If a person gains confidential information because of being, or an opportunity given by being, an attorney …, the person must not make a record of the information or intentionally or recklessly disclose the information to anyone other than under subsection (2).
8.16	Section 249(1) of the Guardianship and Administration Act 2000 (Qld) provides:
249	Preservation of confidentiality
(1) 	If a person gains confidential information because of the person’s involvement in this Act’s administration, the person must not make a record of the information or intentionally or recklessly disclose the information to anyone other than under subsection (3).
Exceptions to the duty
8.17	This part of the chapter outlines the general exceptions to the duty contained in section 74 of the Powers of Attorney Act 1998 (Qld) and section 249 of the Guardianship and Administration Act 2000 (Qld), and the exceptions that apply in respect of the Adult Guardian contained in section 250 of the Guardianship and Administration Act 2000 (Qld).
The general exceptions
8.18	Section 74 of the Powers of Attorney Act 1998 (Qld) and section 249 of the Guardianship and Administration Act 2000 (Qld) permit a person to make a record of or disclose confidential information, which would otherwise be prohibited, in a range of circumstances:
•	if acting under the Guardianship and Administration Act 2000 (Qld); 
•	if discharging a function under another law (including the Powers of Attorney Act 1998 (Qld));
•	during a proceeding in a court or relevant tribunal; 
•	if authorised under a regulation or another law;
•	if authorised by the person to whom the information relates; or
•	if authorised by the Tribunal in the public interest because a person’s life or physical safety could otherwise reasonably be expected to be endangered. 
8.19	There are some drafting differences in the exceptions provided in the Powers of Attorney Act 1998 (Qld) and the Guardianship and Administration Act 2000 (Qld).  For example, the Powers of Attorney Act 1998 (Qld) provides an exception for disclosures made ‘to discharge a function under this Act or another law’.  The Guardianship and Administration Act 2000 (Qld), however, provides two separate exceptions for disclosures made ‘for this Act’ or ‘to discharge a function under another law’.  
8.20	Section 74(2) of the Powers of Attorney Act 1998 (Qld) relevantly provides:
74	Preservation of confidentiality
…
(2)	A person may make a record of confidential information, or disclose it to someone else—
(a) 	to discharge a function under this Act or another law; or
(b) 	for a proceeding in a court or relevant tribunal; or
(c) 	if authorised under a regulation or another law; or
(d) 	if authorised by the person to whom the information relates; or
(e) 	if authorised by the court in the public interest because a person’s life or physical safety could otherwise reasonably be expected to be endangered;
…
8.21	Section 249(3) of the Guardianship and Administration Act 2000 (Qld) relevantly provides:
249	Preservation of confidentiality
…
(3)	A person may make a record of confidential information, or disclose it to someone else—
(a) 	for this Act; or
(b) 	to discharge a function under another law; or
(c) 	for a proceeding in a court or relevant tribunal; or
(d) 	if authorised under a regulation or another law; or
(e) 	if authorised by the person to whom the information relates; or
(f) 	if authorised by the tribunal in the public interest because a person’s life or physical safety could otherwise reasonably be expected to be endangered;
…
Exceptions that apply to the Adult Guardian
8.22	The Adult Guardian has a range of functions under the Guardianship and Administration Act 2000 (Qld), including the investigation of complaints and allegations about the actions of substitute decision-makers for an adult.  He or she also has power to investigate complaints or allegations of neglect, exploitation, or abuse of an adult, or of inappropriate or inadequate decision-making arrangements for an adult.  If the Adult Guardian is appointed as a guardian for an adult, he or she will also have the functions and powers that are conferred on guardians under the guardianship legislation.  
8.23	In carrying out these functions and exercising these powers, the Adult Guardian is subject to the duty imposed by section 249.  The Adult Guardian may, however, disclose confidential information under one or more of the general exceptions to the duty.  For example, one of those general exceptions permits disclosures made ‘for this Act’, that is, the Guardianship and Administration Act 2000 (Qld).  In addition, section 250 expressly permits the Adult Guardian to disclose confidential information about an investigation in certain circumstances.  These exceptions are considered in turn.  
Disclosures made ‘for this Act’
8.24	Section 249(3)(a) of the Guardianship and Administration Act 2000 (Qld) provides that confidential information may be disclosed (or recorded) ‘for this Act’.  A disclosure by the Adult Guardian may be made ‘for [the] Act’ in a number of circumstances, which are described further below:
•	where the disclosure is required or compelled under the Act; 
•	where the disclosure is necessary to carry out a function or power under the Act; and 
•	where the disclosure is a ‘matter’ for an adult for which the Adult Guardian has power to decide as the appointed guardian.  
8.25	The Adult Guardian would be disclosing information ‘for [the] Act’ if its disclosure is required or compelled under the legislation.  This would include, for example, disclosure of information that the Adult Guardian is compelled to give to the Tribunal under section 130, or as part of a written report of an investigation or audit that is required to be given under section 193.  
8.26	It is also likely that the Adult Guardian would be disclosing information ‘for [the] Act’ if the disclosure is a necessary incident of the Adult Guardian’s other functions or powers under the Act, such as in the exercise of protective powers or in the course of conducting an investigation.  In determining whether a disclosure is necessary, the Adult Guardian would be required to apply the General Principles, including General Principle 11 about the adult’s right to confidentiality of information.
8.27	Finally, if the Adult Guardian is appointed as guardian for an adult, he or she may also disclose otherwise confidential information ‘for [the] Act’ by deciding to do so as a matter for which he or she has power.  It is likely that a guardian has power to disclose confidential information in relation to matters for which the guardian has been appointed.  For example, a guardian appointed for health matters may be able to make a decision to disclose confidential information about health care as a matter for which they have power.  If the Adult Guardian was to consider such a disclosure as guardian, he or she would also need to apply the General Principles, including General Principle 11 on confidentiality, in making such decisions.  This issue is considered further below.
Disclosures during the course of an investigation
8.28	Section 250 of the Guardianship and Administration Act 2000 (Qld) provides a specific exception for the Adult Guardian in relation to the duty of confidentiality imposed by section 249.  It provides that, despite section 249, the Adult Guardian may disclose information about an issue that is the subject of an investigation if satisfied it is ‘necessary and reasonable in the public interest’.  
8.29	However, the exception provided by section 250 is limited.  First, a disclosure must not be made if it ‘is likely to prejudice the investigation’.  Second, a disclosure may only express a criticism of an entity if the entity has been given an opportunity to answer the criticism.  Third, the disclosure may only identify the complainant if it is ‘necessary and reasonable’ to do so.
8.30	Section 250 provides:
250	Disclosure of information about investigations
(1)	Section 249 does not prevent the adult guardian from disclosing information to a person or to members of the public about an issue the subject of an investigation by the adult guardian if the adult guardian is satisfied the disclosure is necessary and reasonable in the public interest.
(2)	However, the adult guardian must not make the disclosure if it is likely to prejudice the investigation.
(3)	In a disclosure under subsection (1), the adult guardian—
(a) 	may express an opinion expressly or impliedly critical of an entity only if the adult guardian has given the entity an opportunity to answer the criticism; and
(b) 	may identify the complainant, directly or indirectly, only if it is necessary and reasonable.
legislation in other jurisdictions
8.31	This section of the chapter outlines the general duty of confidentiality imposed by the guardianship legislation of other Australian jurisdictions and the exceptions to that duty, including exceptions specifically for the ‘Adult Guardian’ equivalents in those jurisdictions.
The general duty of confidentiality
8.32	Provisions similar to section 74 of the Powers of Attorney Act 1998 (Qld) and section 249 of the Guardianship and Administration Act 2000 (Qld) exist in all of the other Australian guardianship legislation, apart from the Northern Territory.  In each of those jurisdictions, there is a general duty of confidentiality imposed in relation to certain information gained by particular people in the performance of actions under the legislation.  The various statutes also create a number of exceptions to that duty.  The following aspects of the different jurisdictions are discussed below:
•	the people who are subject to the duty;
•	the information that is protected by the duty; and
•	the type of conduct the duty prohibits.
The people who are subject to the duty
8.33	The provisions in other jurisdictions generally follow one of two approaches in specifying the people who are subject to the duty.  The first is to refer broadly to any people who perform functions under, or act in connection with the administration or execution of, the particular legislation.  For example, section 80 of the Guardianship and Administration Act 1993 (SA) applies to ‘[a] person engaged in the administration of this Act’ and section 101 of the Guardianship Act 1987 (NSW) applies to ‘[a] person’ who obtains information ‘in connection with the administration or execution of this Act’.
8.34	The second approach is to refer, alternatively or additionally, to specific people to whom the provision applies, such as members of the relevant Tribunal’s staff.  The Queensland provisions adopt this course by specifying the particular people to whom the provisions apply.  
8.35	The Western Australian provisions, which are spread across two statutes, apply both to any ‘person performing any function’ under the guardianship legislation and, more specifically, to ‘any person who is or has been’ a member of the Tribunal, the executive officer or any other member of staff of the Tribunal, or a person acting under the authority of the Tribunal.
8.36	In Tasmania, the duty applies to the Board and the Public Guardian.  In the Australian Capital Territory, the duty in the guardianship legislation applies to the Tribunal, its staff, and other people authorised to act in relation to the Tribunal.  A separate duty of similar effect is contained in that Territory’s Public Advocate legislation, which applies to the Public Advocate and his or her staff in the exercise of the Public Advocate’s functions, including those functions under the guardianship legislation.  Similarly, in Victoria, the legislation governing the Tribunal imposes a duty on the Tribunal, its staff, and other people acting under the Tribunal’s authority while the guardianship legislation imposes a duty on the Public Advocate.
8.37	In both Western Australia and Victoria, the legislation governing the Tribunals additionally extends the application of the duty to any person who receives information from a person under an exception to the general duty.
The information that is protected by the duty
8.38	The legislation of other jurisdictions specifies the type of information that is protected from disclosure and/or recording with varying degrees of particularity.  At one end of the spectrum, the legislation in New South Wales refers simply to ‘any information obtained in connection with the administration or execution of this Act’.
8.39	Of more particularity are the provisions that apply to the Tribunals in Victoria and the Australian Capital Territory.  In Victoria, the duty applies to ‘any information about the affairs of a person acquired in the performance of functions under or in connection with this Act or an enabling enactment’ (emphasis added).  Similarly, the duty in the Australian Capital Territory applies to ‘information about a person that is disclosed to, or obtained by, a person … because of the exercise of a function or power under this Act in relation to the tribunal’ (emphasis added).
8.40	Finally, the duties in the South Australian, Tasmanian, and the Western Australian guardianship legislation apply with even greater particularity (and therefore more narrowly) to personal information of a particular person, namely the adult, that is obtained through involvement in the legislation.  For example, section 80(1) of the Guardianship and Administration Act 1993 (SA) prohibits a person from divulging ‘any personal information relating to a person in respect of whom any proceedings under this Act have been taken’ that is obtained in the course of administration of the Act.
The type of conduct the duty prohibits
8.41	The duties imposed by the legislation of other jurisdictions fall into three categories.  Statutes in the first category prohibit the person from disclosing or divulging the particular information.  For example, section 101 of the Guardianship Act 1987 (NSW) provides that a person ‘shall not disclose’ certain information and section 80(1) of the Guardianship and Administration Act 1993 (SA) provides that it is an offence to ‘divulge’ particular information.
8.42	Statutes in the second category prohibit a person from disclosing or divulging the information and also from making a record of the information.  That is the approach adopted in the Queensland provisions, which prohibit the making of a record of the information and the ‘intentional or reckless disclosure’ of the information.  For example, section 66D(2) of the Guardianship and Management of Property Act 1991 (ACT) provides:
66D	Secrecy
…
(2) 	A person to whom this section applies must not—
(a) 	make a record of protected information; or
(b) 	directly or indirectly, divulge or communicate to a person protected information about someone else.
8.43	Statutes in the third category additionally prohibit ‘secondary disclosure’ of the particular information.  For example, section 35(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) provides:
35	Prohibition on secondary disclosures
(1)	A person to whom information referred to in section 34(2) is disclosed, and any employee of that person, is subject to the same obligations and liabilities with respect to the recording or disclosure of the information as they would be if they were a person referred to in section 34(1) who had acquired the information in the performance of functions under this Act or an enabling enactment.
…  [note added]
Exceptions to the duty
8.44	This section of the chapter outlines the general exceptions to the duty imposed by the legislation of other Australian jurisdictions and the exceptions that apply specifically to the Adult Guardian equivalents of those jurisdictions.
The general exceptions
8.45	The statutes in other jurisdictions contain a number of exceptions that permit the disclosure and/or recording of otherwise confidential information, and they are outlined below.  Many of the exceptions are similar across jurisdictions, though there are some differences.  
Disclosures made in the performance of functions under legislation
8.46	All of the jurisdictions include an exception for disclosures made (or the making of records) ‘in connection with the performance of functions’ under the legislation, or a similarly worded circumstance.  For example, section 101(b) of the Guardianship Act 1987 (NSW) provides an exception for disclosures made ‘in connection with the administration or execution of this Act’.  In Queensland, section 249(3)(a) of the Guardianship and Administration Act 2000 (Qld) includes an exception for disclosures or records made ‘for this Act’.  Similarly, section 74(2)(a) of the Powers of Attorney Act 1998 (Qld) includes an exception for disclosures or records made ‘to discharge a function under this Act or another law’.
Disclosures required or authorised by law
8.47	In addition, many of the jurisdictions contain an exception for disclosing (or making a record of) information if authorised or required by law.  The Western Australian guardianship legislation, for example, permits otherwise prohibited disclosures if they are ‘authorised or required … by this Act or any other law’.  In South Australia, an exception is provided for divulging information ‘if authorised or required to do so by law’.
8.48	In Queensland, an exception for disclosures or records made ‘if authorised under a regulation or another law’ is contained in both the Powers of Attorney Act 1998 (Qld) and Guardianship and Administration Act 2000 (Qld).
Disclosures made with consent
8.49	Several jurisdictions also include an exception for disclosures (or records) made with the consent of the person to whom the information relates.  In New South Wales and the Australian Capital Territory, disclosure is permitted ‘with the consent of the person’.  In Victoria, disclosure by the Tribunal and its staff may be made with the person’s written consent.  
8.50	In Queensland, both the Powers of Attorney Act 1998 (Qld) and the Guardianship and Administration Act 2000 (Qld) contain an exception for disclosures or making of records ‘if authorised by the person to whom the information relates’.
Statistical information that does not identify the person
8.51	As noted earlier, in Queensland, statistical or other information that could not reasonably identify the person to whom the information relates is specifically excluded from the duty of confidentiality.  This is done by exempting such information from the definition of ‘confidential information’.  
8.52	Two other Australian jurisdictions also exclude de-identified information from the duty of confidentiality, although this is done by way of an exception to the duty.  Under the Victorian Tribunal legislation, a person may disclose information ‘for statistical purposes … provided the information does not identify any person to whom it relates’.  An identical provision applies to the Tribunal in Western Australia.
8.53	Additionally, the guardianship legislation in Western Australia permits a person performing a function under that legislation to disclose ‘statistical or other information that could not reasonably be expected to lead to the identification of any person to whom it relates’.  
Disclosures at a hearing or proceeding under the legislation
8.54	Some of the other jurisdictions also provide that the duty in relation to disclosure and/or the making of a record of confidential information does not apply in respect of proceedings or hearings conducted under the legislation.  
8.55	In Tasmania, disclosure is permitted ‘at a hearing under this Act’ and in New South Wales, disclosure is permitted ‘for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings’.  
8.56	In Queensland, the legislation provides exceptions for disclosures and records of information made ‘for a proceeding in a court or relevant tribunal’.
8.57	In the Australian Capital Territory, by contrast, the legislation provides that a person to whom the duty applies cannot be required to divulge protected information or to produce a document containing protected information to a court, ‘unless it is necessary to do so’ for the guardianship legislation or another Act.  Only those disclosures that are required to be made under legislation may be made in a court proceeding.  This is narrower than the exception in Queensland which would allow any disclosures made for a court or Tribunal proceeding to be made.
Other exceptions
8.58	A few other exceptions are also included in the various jurisdictions.  
8.59	Under the Victorian Tribunal legislation, for example, a person may disclose personal information ‘to a member of the police force for the purposes of reporting a suspected offence or assisting in the investigation of a suspected offence’.  An identical provision is contained in the State Administrative Tribunal Act 2004 (WA).  
8.60	In Tasmania, a much broader exception is provided to permit disclosure ‘where in the opinion of the Board or the Public Guardian it is in the best interests of the represented person to disclose the information’.  An exception of this type is considered further below. 
8.61	In Queensland, a disclosure of, or the making of a record of, confidential information is permitted ‘if authorised by the tribunal [or the court] in the public interest because a person’s life or physical safety could otherwise be expected to be endangered’.
Specific exceptions for the Adult Guardian 
8.62	Many of the other Australian jurisdictions have Adult Guardian equivalents conferred with similar investigatory functions to the Queensland Adult Guardian.  In those jurisdictions, disclosure of information that would otherwise be subject to the duty of confidentiality may fall under one of the general exceptions to that duty.  Like Queensland, one such exception is where a disclosure is made in the performance of legislative functions.  To the extent that disclosure of otherwise confidential information is a necessary incident of the performance of a function, the disclosure would probably be permitted.  
8.63	In addition, the Australian Capital Territory and Tasmania provide specific exceptions for their Adult Guardian equivalents.
8.64	The Australian Capital Territory’s Public Advocate is prohibited from recklessly recording or divulging protected information except in certain circumstances.  Section 17 of the Public Advocate Act 2005 (ACT), however, provides an exemption from that duty of confidentiality in relation to information about investigations in substantially the same terms as section 250 of the Guardianship and Administration Act 2000 (Qld).  It provides:
17	Disclosure of information about investigations
(1) 	Section 16 does not prevent the public advocate from disclosing information to a person (including members of the public) about an investigation by the public advocate if the public advocate is satisfied that the disclosure is necessary and reasonable in the public interest.
(2) 	The public advocate must not make a disclosure mentioned in subsection (1) that is likely to prejudice the investigation.
(3) 	In a disclosure mentioned in subsection (1), the public advocate must not— 
(a) 	express an opinion that is (expressly or impliedly) critical of a person or body unless the public advocate has given the person, or the principal officer of the body, an opportunity to answer the criticism; or
(b) 	identify the complainant (directly or indirectly) unless it is necessary and reasonable to do so.
8.65	In Tasmania, a discretion to disclose confidential information is also conferred on the Public Guardian, although it is not specific to information about investigations.  The Public Guardian is generally subject to a duty not to disclose the personal history or records of a represented or proposed represented person.  However, he or she has a general discretion under section 86(1) of the Guardianship and Administration Act 1995 (Tas) to disclose such information ‘where in the opinion of the … Public Guardian it is in the best interests of the represented person to disclose the information’.
Issues for consideration
8.66	This section of the chapter raises several issues to consider when examining the duty in relation to confidential information gained in the course of a person’s involvement in the administration of the guardianship legislation:
•	Should there be a general duty of confidentiality under the guardianship legislation? 
•	If so, who should be subject to the duty? 
•	What information should be protected by the duty? 
•	What sort of conduct should the duty prohibit? 
•	Should there be any exceptions to the duty, and, if so, what should they be? 
Should there be a general duty of confidentiality under the guardianship legislation?
8.67	A threshold question is whether the guardianship legislation should impose any general duty that imposes confidentiality on those involved in the administration of the legislation.  Except for the Northern Territory, the guardianship legislation of all Australian jurisdictions imposes a duty of confidentiality in some form.
Who should be subject to the duty?
8.68	There may be a range of people who acquire different information about an adult with impaired capacity (or information about other persons’ affairs) in a number of ways.  At present, however, the duty imposed by the guardianship legislation applies only to certain people who are involved in the administration of that legislation.  The duty does not apply to other people who may gain confidential information in other ways, such as service providers, informal decision-makers, or family members.  An issue for consideration is whether the duty should also apply more widely to any of those people.
People involved in the administration of the legislation
8.69	Section 249 of the Guardianship and Administration Act 2000 (Qld) imposes a duty to maintain the confidentiality of particular information, but only to the extent that the information is generated or received as a consequence of involvement with the legislation itself.  It therefore applies only to those people who gain information in the course of their involvement in the Act’s administration.  Section 249(2) of the Act appears to set out an exhaustive list of those people.  
8.70	Apart from the people included in the list in section 249(2) of the Guardianship and Administration Act 2000 (Qld), however, there are other people involved in the Act’s administration, and who may thereby gain confidential information, but who are not specifically referred to in that list.
8.71	First, while section 249(2) refers to ‘community visitors’, it does not refer to other staff of the community visitor program who are not themselves ‘community visitors’, such as the coordinator of the program.  
8.72	Second, section 249(2) does not refer to police officers or occupiers who may assist in the exercise of the Adult Guardian’s powers under a warrant to remove an adult from a place.
8.73	Despite not being specifically referred to in section 249, such people should observe General Principle 11 which provides:
11	Confidentiality
An adult’s right to confidentiality of information about the adult must be recognised and taken into account.
8.74	In addition, the information privacy principles contained in Information Standard 42, which govern the collection, storage, use, and disclosure of personal information by public sector agencies, apply to the operations of both the staff of the community visitor program and members of the police service.  Information disclosed to such people might also be subject to an equitable obligation of confidence.  
8.75	An issue for consideration is whether the duty in section 249 of the Guardianship and Administration Act 2000 (Qld) should also specifically apply to those people.
Other people, including service providers
8.76	While a range of people may gain confidential information about an adult, the duty contained in the legislation does not apply to people who are not involved in its administration.  Therefore, unless they gain information in this way as one of the people listed in the provision, people such as service providers, informal decision-makers, carers, family, and friends of an adult are not covered by the duty.
8.77	This raises a much broader question about the circumstances in which people should be required to protect the privacy of information they obtain about others.  As discussed in Chapter 3, there is no general right to privacy of information in Australia.  A certain amount of idle conversation and curiosity about others’ personal affairs is an ordinary incident of day-to-day life and is not unique to people who are subject to decision-making regimes or to people with impaired capacity.  As such, the law protects the confidentiality of information about a person in only limited circumstances.
8.78	In some circumstances, the general law may impose an obligation of confidence preventing a person from disclosing confidential information that is in their hands.  As discussed in Chapter 3, an obligation of confidence may arise as an incident of contract or in equity.  This ordinarily arises in the context of professional and commercial relationships. 
8.79	In addition, members of the community are ‘encouraged to apply and promote the general principles’ contained in the guardianship legislation, including General Principle 11, which deals with an adult’s right to confidentiality of information. 
8.80	Further, the operations of any Queensland public sector service providers, such as Disability Services Queensland, are subject to the information privacy principles contained in the Queensland Government’s administrative standard, Information Standard 42.  Finally, some private sector organisations, including health service providers, must comply with the requirements of the Privacy Act 1998 (Cth).
8.81	An issue for consideration is whether the duty in section 249 of the Guardianship and Administration Act 2000 (Qld) should also apply to service providers, informal decision-makers, carers, family, and friends of an adult, who are not currently covered by the duty.  The Commission notes that imposing a duty on such people would substantially widen its scope.  It also notes that disclosures of confidential information by these groups of people occur frequently outside of regimes such as this and that enforcement of the duty may be very difficult.
What information should be protected by the duty?
8.82	For both section 74 of the Powers of Attorney Act 1998 (Qld) and section 249 of the Guardianship and Administration Act 2000 (Qld), ‘confidential information’ is defined as including ‘information about a person’s affairs’, but not information that is either already publicly disclosed (unless further publication is prohibited by law), or statistical or other information that is not reasonably expected to reveal a person’s identity.
Information about a person’s affairs
8.83	A question arises as to what information will be regarded as ‘information about a person’s affairs’.  This phrase is not defined in the guardianship legislation and has not received judicial consideration.  However, ‘personal affairs’ information refers in freedom of information legislation to information that affects an individual or that is of private concern to a person.  For example, information about a person’s financial affairs, state of health, personal relationships, or personal attributes might be considered personal affairs information.  A similar meaning is likely to be ascribed to the phrase ‘information about a person’s affairs’ under the guardianship legislation.
8.84	It is also noted that information may relate to the affairs of more than one person.  For example, a document produced by one person may contain details of an opinion expressed by a second person about a third person.  Information about a person’s affairs will be confidential, however, only if it could reasonably identify ‘the person to whom the information relates’.  This issue is of particular significance in relation to the disclosure of information and is discussed below in relation to the exceptions to the duty.
8.85	Another issue for consideration is whether the duty should apply to information about a person’s affairs and/or to some other information.  As noted above, the legislation in other Australian jurisdictions refers to different types of information.  In New South Wales, any information that is gained in connection with the administration of the legislation is protected.  In Queensland, confidential information includes information about a person’s affairs, but presumably can also include other information too.  
8.86	In other jurisdictions, the only information that is captured by the duty is that which deals with a person’s affairs.  In some other jurisdictions, however, it is only information about an adult’s affairs that must be kept confidential.  An issue for consideration is whether the duty should apply to all information, information about a person’s affairs, or information about an adult’s affairs. 
Information that is not publicly disclosed
8.87	A further issue for consideration is whether information that is known to some people, but not to others, is ‘publicly disclosed’ and therefore not confidential.  Information about a person’s affairs will only be treated as confidential under the guardianship legislation if it has not already been publicly disclosed (unless further disclosure is prohibited by law).  This is consistent with the equitable doctrine of confidence which provides that once information has entered the public domain, it no longer has the necessary quality of confidentiality.  
8.88	It is not clear, however, what is required for information to be ‘publicly disclosed’ under the guardianship legislation.  In other contexts, information has been regarded as being publicly disclosed only if it is disclosed to the public at large, to a substantial number of people, or to a wide audience.  If a similar interpretation is adopted for the guardianship legislation, limited disclosures, made under an exception to the duty for example, would be unlikely to affect the continued confidentiality of the information.  However, a disclosure made to a wide audience, for example, in breach of the duty or by a person who is not subject to the duty (such as a journalist), may mean that the information subsequently loses its protection.  
8.89	This raises the appropriateness of excluding information that has already been publicly disclosed from the application of the duty.  The duty of confidentiality is imposed because the information is personal; that may not change if the information is published.  It may seem unreasonable, for example, for a fleeting or inconspicuous publication of such information, particularly one that is made in breach of the duty, to remove any subsequent protection and allow future, and possibly more enduring forms of, disclosure.
Identifying information
8.90	Section 74(4) of the Powers of Attorney Act 1998 (Qld) and section 249(4) of the Guardianship and Administration Act 2000 (Qld) provide that ‘confidential information’ does not include ‘statistical or other information that could not reasonably be expected to result in the identification of the person to whom it relates’.  It is noted, however, that the same formulation is not adopted for section 112 of the Guardianship and Administration Act 2000 (Qld) which prohibits the disclosure of ‘the identity of a person involved in a proceeding’.  An issue for consideration is whether the references to identifying information under each of these provisions should be consistent.
What sort of conduct should the duty prohibit?
8.91	Another issue for consideration is the type of conduct that should be prohibited by the legislation.  Section 74 of the Powers of Attorney Act 1998 (Qld) and section 249 of the Guardianship and Administration Act 2000 (Qld) prohibit both the making of a record of confidential information and the intentional or reckless disclosure of confidential information. 
Intentional and reckless disclosures
8.92	The duty not to disclose confidential information is currently limited to intentional or reckless disclosures.  ‘Intentional’ disclosures are those made for the purpose of disclosing the information and ‘reckless’ disclosures are those where there is foresight of the probable consequences of actions but a person displays indifference as to whether or not those consequences occur.  An issue for consideration is whether the duty should also prohibit the disclosure of information that occurs in circumstances where the person ought to have foreseen that the disclosure was likely to occur as a consequence of their actions.  In other words, it may be that the duty should also prohibit negligent disclosures.
8.93	There is also an inconsistency between the duty not to disclose information, which is prohibited if it occurs intentionally or recklessly, and the duty not to make a record, which is not subject to those qualifications, and so is stricter in its application.  The rationale for such a distinction may be that a person has greater control over when they make a record as that is usually a deliberate act, and so the duty imposed can be stricter.
Secondary disclosures
8.94	Whether the duty should also prohibit secondary disclosures as it does in some other jurisdictions is another issue to consider.  Presently, information may, under an exception to the duty, be disclosed to a person who is not subsequently required by the legislation to keep the information confidential.  It may seem incongruous with the intent of the duty not to prevent that third party from further disclosing information that they received under one of the limited exceptions permitted by the legislation.  
8.95	However, a prohibition on secondary disclosures would have significant implications for the scope of the duty as it could involve imposing a legislative duty on people beyond those involved in the administration of the legislation.  It may catch, for example, people who receive information casually or inadvertently.  It may also lead to the unintended situation that information given to a court during proceedings, which is a disclosure already permitted by the guardianship legislation, may then be prohibited from being further disclosed in that court’s reasons for judgment.
Making a record
8.96	One issue to consider is whether the duty of confidentiality should continue to include the making of a record of confidential information.  It could be argued a general duty not to make a record of information (unless one of the legislation’s exceptions applies) may undermine a person’s ability to properly undertake the tasks for which they have received the information.  Another consideration is whether the harm of widespread dissemination of confidential information is sufficiently addressed by prohibiting the disclosure of that information.
8.97	However, privacy legislation has recognised the importance of regulating the collection, storage, and use of personal information as part of protecting information privacy.  For example, one of the concerns that arises with recording information, particularly on centralised computerised storage systems, is that it gives rise to a risk of unauthorised disclosure or misuse which is prolonged the longer the record is kept.
Should there be any exceptions to the duty, and what should they be?
8.98	Although section 74 of the Powers of Attorney Act 1998 (Qld) and section 249 of the Guardianship and Administration Act 2000 (Qld) impose a duty of confidentiality upon certain people, those provisions also recognise a number of exceptions to that duty.  This section of the chapter outlines some issues to consider in relation to the general exceptions to the duty (those that apply generally) and the exceptions that apply specifically to the Adult Guardian:
•	disclosures authorised by the person to whom the information relates;
•	disclosures made for the Act;
•	disclosures in the adult’s interests;
•	other potentially reasonable disclosures; 
•	consistency within the guardianship legislation; and
•	specific exceptions for the Adult Guardian.
Disclosures authorised by the person to whom the information relates
8.99	One of the general exceptions to the duty is where the disclosure is authorised ‘by the person to whom the information relates.’  An issue for consideration is how that exception might operate when the information relates to more than one person.
8.100	Under federal freedom of information legislation, information about the personal affairs of both the person seeking access to the information (the applicant) and of a third person is known as ‘mixed personal information.’  In that regime, information can be released to the applicant only to the extent that it can be separated from information about the affairs of the third person, unless the third person consents to the release of information about their personal affairs.  While freedom of information legislation is not directly concerned with personal information but with access to government information, the approach of that regime to the release of personal information that would otherwise be exempt from disclosure may be instructive for the guardianship legislation.  
8.101	As such, it seems likely that to the extent that information about one person is separable from information about another, that person may authorise its disclosure.  It would follow that if the information cannot be separated, it could be disclosed only with the authorisation of the other person to whom it also relates.  
8.102	This may cause particular difficulties in relation to information about an adult who does not have capacity to consent to disclosure.  It is likely that much of the confidential information which is gained by a person in the administration of the guardianship legislation will relate, at least indirectly, to an adult with impaired capacity.  Such information will often be difficult, if not impossible, to disentangle from information about the other person to whom the information may also relate.  For example, information about a person’s actions in caring for an adult may simultaneously comprise information about the carer and the adult.  In such cases, it is suggested that a substitute decision-maker for the adult will have power to provide authorisation on the adult’s behalf.  This is considered below.
Disclosures made for the Act
8.103	Another general exception to the duty of confidentiality is where the disclosure or record is made ‘for this Act’, which includes both the Powers of Attorney Act 1998 (Qld) and the Guardianship and Administration Act 2000 (Qld).  As discussed earlier in relation to the Adult Guardian, information may be disclosed ‘for [the] Act’ in a number of circumstances. 
8.104	For example, a person compelled to give information to the Tribunal or to the Adult Guardian under the legislation would be a disclosure ‘for [the] Act’.
8.105	It would also be a disclosure ‘for [the] Act’ if it was necessary to carry out functions or powers under the legislation.  This was discussed in relation to the Adult Guardian, but this can also arise in relation to other people.  For example, in making decisions about the adult’s health care, a guardian may need to disclose otherwise confidential information about the adult’s medical history in the course of seeking medical advice.
8.106	One issue for consideration that arises in relation to disclosures ‘for [the] Act’ is the power of a substitute decision-maker to make a decision for a ‘matter’ when that ‘matter’ is the disclosure of otherwise confidential information about the adult.
Disclosure as a decision about a ‘matter’
8.107	It is likely that a decision whether or not to disclose confidential information about an adult will itself be a decision for a matter for which a person may have power and, therefore, such disclosure may be one made for the Act.
8.108	Substitute decision-makers for an adult are given power for particular matters under the guardianship legislation.  A guardian or attorney (under an enduring power of attorney) appointed for personal matters, including health matters, has power to do anything in relation to those matters that the adult could have done if they had capacity.  An administrator or attorney (under an enduring power of attorney) appointed for financial matters, has power to do anything in relation to those matters that the adult could have done if they had capacity.  A statutory health attorney or an attorney under an advance health directive has power to make decisions about health matters for the adult.
8.109	A matter for which a substitute decision-maker has power is defined under the legislation as one ‘relating to’ particular issues.  For example, a health matter, which is a type of personal matter, is ‘a matter relating to health care’.  Similarly, a financial matter is ‘a matter relating to the adult’s financial or property matters’.  The words ‘relating to’ are probably wide enough to mean that a matter will include decisions about whether or not information about the matter should be disclosed.  This means, for example, that a decision whether or not to disclose information about the adult’s health care will itself probably be a decision for a health matter.  Indeed, unless it is a matter on which a substitute decision-maker can decide, no other person would have the power to disclose this information on behalf of the adult.
8.110	Like any other exercise of power for a matter under the legislation, a decision about disclosure would need to be made in compliance with the General Principles.  In particular, General Principle 11 requires that the adult’s right to confidentiality of information be recognised and taken into account.  
8.111	In determining the circumstances in which a substitute decision-maker (or other person) should be permitted to disclose confidential information about an adult, the Commission notes there is a fine balance to consider.  On the one hand, excessive weight given to confidentiality of information may inappropriately or unreasonably exclude family members or close friends from participating in the adult’s life.  For example, where the adult’s capacity is impaired due to an acquired brain injury and the adult’s previous conduct indicates they would have wanted certain family members to know the information, it may be unreasonable to prevent disclosure of that information to those family members, particularly if the disclosure would not harm the adult.  
8.112	On the other hand, if insufficient weight is given to confidentiality of information, disclosures that are inappropriate or disrespectful of the adult’s privacy may result.  For example, disclosing the contents of the adult’s will to family members merely to satisfy the family’s interest or curiosity, rather than any need to know the information, may be considered by some to be unreasonable and insensitive.
Disclosures in the adult’s interests
8.113	Another issue for consideration is whether the guardianship legislation should permit disclosures to family members, friends, or carers made in the adult’s interest.  There may be circumstances where such a disclosure would benefit the adult, but none of the current exceptions to the duty of confidentiality apply.
8.114	There is currently power for the Supreme Court or the Tribunal to authorise disclosure if the adult’s life or physical safety may be endangered.  However, the scope of that power is quite limited.  By contrast, in Tasmania, a disclosure is excused if, in the opinion of the Tribunal or the Public Guardian, ‘it is in the best interests of the represented person to disclose the information’.  An issue for consideration is whether a similar provision should be included in Queensland’s legislation.  
8.115	Alternatively, another issue is whether the Tribunal should be empowered to authorise disclosures in the public interest generally, rather than being limited to circumstances involving harm, or where the disclosure is in the adult’s interests.  This would be similar to the power granted to the Tribunal in section 112 of the Guardianship and Administration Act 2000 (Qld). 
Other potentially reasonable disclosures
8.116	There may be other disclosures made by a person that might be appropriate for the guardianship legislation to recognise in certain limited circumstances.  For example, if a guardian or an attorney for an adult needs to seek counselling or treatment for any stress or anxiety that might arise from their experiences in their role acting for the adult, it may be reasonable that they disclose that information in the course of that treatment.  
8.117	Despite the disclosure in such a scenario being legitimate and being made in the context of a confidential professional relationship, it does not currently fall within any of the exceptions to the duty and would not be captured under any exception for disclosures made in the adult’s interest.  This may be an unintended consequence of the duty which perhaps should be remedied.  It may be that disclosures made in such circumstances would be considered to have been made with a ‘reasonable excuse’, though this is not currently provided for in the legislation.
Consistency within the guardianship legislation
8.118	A further issue for consideration is whether the general exceptions provided in the Powers of Attorney Act 1998 (Qld) and the Guardianship and Administration Act 2000 (Qld) should be consistent with each other and with the other confidentiality provisions in the legislation.  
8.119	There are some drafting differences between the two statutes in relation to the general exceptions that are provided.  For example, while each of the other confidentiality provisions in the guardianship legislation provides that disclosures may be made with a ‘reasonable excuse’, there is no equivalent excuse under section 74 of the Powers of Attorney Act 1998 (Qld) or section 249 of the Guardianship and Administration Act 2000 (Qld).  An issue for consideration is whether such an excuse should be available.
Specific exceptions for the Adult Guardian
8.120	As discussed earlier, the Adult Guardian may disclose otherwise confidential information under any of the general exceptions to the duty or, where the information relates to an ongoing investigation, under the specific exception provided in section 250 of the Guardianship and Administration Act 2000 (Qld).  
8.121	An issue for consideration is the extent to which section 250 is necessary.  That provision permits the Adult Guardian to disclose confidential information about an issue that is the subject of an investigation in certain limited circumstances.  As discussed earlier, to the extent that disclosure of otherwise confidential information is necessary for the conduct of an investigation, it would fall within the general exception for disclosures made ‘for this Act’.  It could be argued therefore that the provision is unnecessary.  
8.122	However, there may be some value in having a provision such as section 250 for clarifying the existing law, or in going further and establishing a statutory framework for when these decisions can be made.  When it previously examined this issue in the 1990s, the Commission considered that safeguards on the disclosure of information during investigations by the Adult Guardian should be included ‘to ensure fairness to both those who make complaints and those against whom complaints are made’.  It noted that ‘although in some situations it may be in the public interest for information about investigations to be disclosed, the information may be highly sensitive and disclosure may have serious consequences’.
8.123	Section 250(3) incorporates some such safeguards.  It provides that a complainant can be identified in a disclosure only if it is necessary and reasonable.  It also ensures that before an opinion that is critical of an entity is disclosed, the entity has been given a chance to answer the criticism.  Subsections 250(1) and (2) also contribute to the statutory framework by establishing some criteria for such disclosures, stating that it is permitted only if it will not prejudice the investigation and if it is ‘necessary and reasonable in the public interest’.  
8.124	One issue for consideration in relation to section 250 is whether its safeguards and criteria are appropriate.  Another is whether the provision should also include a specific reference to permitting the Adult Guardian to disclose critical or adverse information about a person to that person.  Although the current wording of section 250(1) is currently wide enough to permit such disclosure, as it refers to ‘disclosing information to a person’, it may be useful to place the matter beyond doubt.
Balancing concepts
8.125	This part of the chapter briefly considers, in the context of the confidentiality of information gained by a person in the course of the administration of the guardianship legislation, the three concepts examined in Chapter 3: open justice, procedural fairness, and the nature of the guardianship system.
Open justice
8.126	The principle of open justice applies to the conduct of judicial or quasi-judicial proceedings and so is of limited application in this chapter.  Nevertheless, the factors that underpin open justice, such as accountability and transparency, should inform decision-making generally and so may suggest a more limited duty of confidentiality for those involved in the administration of the guardianship legislation.
Procedural fairness
8.127	Procedural fairness generally militates against strict confidentiality of information that should, in fairness, be made available to people with an interest in the matter.  One of the requirements of the ‘fair hearing rule’, for example, is that a person about whom a decision is being made must be apprised of the substance of the evidence upon which the decision-maker intends to rely and be given a reasonable opportunity to respond to it.  Such an obligation may arise, for example, in relation to decisions made by the Adult Guardian, such as to suspend the operation of an attorney’s powers, and also in relation to investigations conducted by the Adult Guardian.
8.128	Procedural fairness, with its commitment to open decision-making, may therefore prefer a constrained duty of confidentiality.  At a minimum, it would require that any duty include sufficient exceptions to permit appropriate disclosures so that any decision made is both fair and based on accurate and complete evidence.
Nature of the guardianship system
8.129	The nature of the guardianship system may favour the confidentiality of personal information that is gained through being involved with the legislation.  
8.130	The guardianship system is a protective one in which personal and sensitive information about an adult and people close to the adult is received by many different people and entities.  Of primary concern is the avoidance of harm to the adult, including harm to the adult’s privacy interests.  Privacy is of particular concern in this system given that much of the personal information gained as a consequence of the legislation relates to matters that would, but for the adult’s impaired capacity, be dealt with in private.  A duty of confidentiality may help protect the adult’s privacy interests by limiting disclosures of confidential information.
8.131	However, decisions made within the guardianship system by the Adult Guardian, for example, may have a significant and serious impact on an adult and on other people involved with the adult.  The desire for accountability and transparency in decision-making within the guardianship system may favour disclosure of otherwise confidential information in certain circumstances, particularly to the person to whom the information relates.
8.132	There is also an argument that the protective nature of the guardianship system may favour, in appropriate cases, the disclosure of information about an adult.  An adult’s interest in their privacy is only one of an adult’s rights and interests and it may be that, on balance, a better decision for the adult may be made if otherwise confidential information is disclosed and tested during the decision-making process.
Possible legal models 
8.133	The Commission has identified four possible models, outlined below, for how the law might deal with the issue of confidentiality of information gained by a person through involvement in the administration of the guardianship legislation.  These models do not capture all of the relevant issues the Commission is considering, but may provide a useful starting point for thinking about the general approach the law should take.  A hypothetical case study is used to illustrate these models and how they might operate.
Model 1: no general duty of confidentiality
8.134	In this model, there would be no general duty of confidentiality in the guardianship legislation in relation to confidential information gained through the administration of the legislation.  This is the position under the Adult Guardianship Act (NT).  Under this model, information may still be subject to duties imposed by other legislation, the general law obligations of confidence or, where it is collected and held by a public sector agency, obligations under the Queensland Government’s information privacy principles.
Model 2: a general duty of confidentiality but with no exceptions
8.135	In this model, the duty of confidentiality would be absolute in that there would be no exceptions that permit the disclosure of information gained through involvement in the administration of the legislation.  None of the guardianship systems in Australia currently adopt this approach.
Model 3: a general duty of confidentiality with general exceptions
8.136	In this model, there would be a duty of confidentiality imposed but with any number of general exceptions to the duty.  This approach is reflected in New South Wales, Victoria, South Australia, and Western Australia.
Model 4: a general duty of confidentiality with specific exceptions for the Adult Guardian (with or without other general exceptions)
8.137	In this model, the duty of confidentiality will be subject to specific exceptions that permit the Adult Guardian to disclose information in certain circumstances.  There may also be a range of general statutory exceptions to the duty as in model 3.  This is the current position in Queensland and is also reflected in the Australian Capital Territory and Tasmania.
A case study
Olga is a 78 year old woman with dementia.  She lives with her adult daughter, Laura and has another adult daughter, Sue.
Laura has been Olga’s primary carer for many years.  Olga’s children generally have always cooperated in decisions involving their mother and this has pleased Olga who had always encouraged an open approach to family matters.
Recently, a disagreement between Olga’s children has arisen in relation to a proposed change her to medication, which eventually resulted in the Adult Guardian being appointed as Olga’s guardian (by agreement of the children).
The Adult Guardian has advised the children that she will make a decision about the proposed change in Olga’s medication and that it will be based on advice that she has received from Olga’s GP and from a specialist doctor.  The children wish to see this information.
Olga’s estranged brother, Bastian, is also curious about Olga’s health and has asked to see this medical information.  He and Olga have not been close since a falling out twenty years ago. 
Now that the Adult Guardian has been appointed, Laura and Sue are also unsure whether they are allowed to tell anyone (including Bastian if he asks) information they already have about Olga’s medical history.
Outcome of case study
8.138	Unless otherwise noted, under the models below, the Adult Guardian, as Olga’s appointed guardian, will probably have the power to disclose information by making a decision for such a matter.  In considering whether or not to make such a decision, the Adult Guardian would apply the General Principles, including General Principle 11 on confidentiality.  The Adult Guardian may conclude that given Bastian’s distant relationship with Olga, disclosure of her medical information to him would not be appropriate.  The position is likely to be different in relation to Laura and Sue to whom disclosure may be appropriate.
8.139	Under model 1, there would be no statutory duty in the guardianship legislation requiring the Adult Guardian not to disclose the information provided by Olga’s GP and by the specialist doctor to Olga’s children.  As there is no such duty, the Adult Guardian could consider whether to disclose the information as discussed above without having to identify an exception to that duty.
8.140	Under model 2, it is likely that the Adult Guardian would be unable to make disclosures about the doctors’ advice.  There would be an absolute statutory duty of confidentiality without exceptions so the information could not be shared with Laura, Sue or Bastian.
8.141	Under model 3, disclosure of the doctors’ advices by the Adult Guardian would be prevented unless they fell within one of the general exceptions.  One of those exceptions might be where the disclosure is made ‘for [the] Act’.  This may permit the Adult Guardian to make a decision for that matter as discussed above and authorise the disclosure of the information.  
8.142	The position would be the same under model 4 as for model 3 except that the Adult Guardian may be able to disclose the information under a specific exception to the duty.  Section 250 of the Guardianship and Administration Act 2000 (Qld), however, is currently limited to disclosures of information about investigations and would not assist the disclosure of the doctors’ advices by the Adult Guardian in this case study.
8.143	The case study also raises the issue of whether or not Laura or Sue should be subject to a duty of confidentiality in relation to the information that they know.  Currently, they would not be covered by the duty as neither is listed as a person involved in the administration of the guardianship legislation, although they would be encouraged to apply the General Principles.
A preliminary view
8.144	The Commission’s preliminary view is that confidential information received as a consequence of a person’s involvement in the administration of the legislation should remain confidential, although there are circumstances in which it is appropriate that the information be disclosed or recorded.  The Commission also sees some advantages in providing a statutory framework for disclosures during investigations by the Adult Guardian.
8.145	Accordingly, the Commission has a preliminary preference for model 4: a statutory duty with general exceptions to the duty as well as specific exceptions for the Adult Guardian.  The Commission does not have views at this stage as to what should be the precise content or extent of the duty or its exceptions.
Call for submissions
8.146	The Commission is interested in receiving submissions in response to the following questions, or on any other issues respondents consider relevant to the confidentiality of information gained because of a person’s involvement in the administration of the legislation.  You may wish to nominate your preferred legal model or provide more detailed comment on the particular issues that follow.
Possible legal models 
8-1	Should Queensland’s guardianship legislation reflect one of the following models in relation to the duty of confidentiality imposed on information gained through a person’s involvement in the administration of the legislation: 
	(a)	Model 1: no general duty of confidentiality;
	(b)	Model 2: a general duty of confidentiality but with no exceptions;
	(c)	Model 3: a general duty of confidentiality with general exceptions;
	(d)	Model 4: a general duty of confidentiality with specific exceptions for the Adult Guardian (with or without other general exceptions);
	(e)	Other models?
Particular issues
8-2	Should a person be subject to a duty of confidentiality in relation to information gained through their involvement in the administration of the guardianship legislation?
8-3	If so, to whom should the duty apply:
	(a)	specific people who gain information through their involvement in the administration of the legislation such as:
	(i)	Tribunal members and staff;
	(ii)	the Adult Guardian and his or her staff;
	(iii)	the Public Advocate and his or her staff;
	(iv)	community visitors and other staff of the community visitor program;
	(v)	guardians, administrators, and attorneys for an adult;
	(b)	all people who gain information through their involvement in the administration of the legislation;
	(c)	other people?
8-4	If yes to question 8-2, what information should the duty protect:
	(a)	any information gained through a person’s involvement in the administration of the legislation;
	(b)	information about any person’s affairs;
	(c)	information about an adult’s affairs only;
	(d)	only information that has not already been publicly disclosed;
	(e)	only information that could reasonably be expected to identify a person;
	(f)	other information?
8-5	If yes to question 8-2, what type of conduct should the duty prohibit:
	(a)	intentional or reckless disclosure of the information;
	(b)	negligent disclosure of the information;
	(c)	making a record of the information;
	(d)	secondary disclosure of the information;
	(e)	other conduct?
8-6	If yes to question 8-2, should there be any general exceptions to the duty and, if so, what should they be:
	(a)	exceptions currently provided for under the guardianship legislation:
	(i)	if acting under the guardianship legislation; 
	(ii)	to discharge a function under another law;
	(iii)	for a proceeding in a court or relevant tribunal; 
	(iv)	if authorised under a regulation or another law; 
	(v)	if authorised by the person to whom the information relates; 
	(vi)	if authorised by the Tribunal in the public interest because a person’s life or physical safety could otherwise be endangered;
	(b)	if it is in the adult’s interests;
	(c)	if the person has a reasonable excuse;
	(d)	other exceptions?
8-7	If yes to question 8-2, should there be any exceptions to the duty specific to the Adult Guardian and, if so, what should they be:
	(a)	if the disclosure is made about an issue the subject of an investigation;
	(b)	other exceptions?
8-8	If there should be an exception specific to the Adult Guardian for disclosures of information about an issue the subject of an investigation, what criteria should govern that disclosure:
	(a)	the Adult Guardian must first be satisfied the disclosure is necessary and reasonable in the public interest;
	(b)	the disclosure must not be likely to prejudice the investigation;
	(c)	the complainant must not be identified except where the identification is necessary and reasonable;
	(d)	a critical opinion expressed about an entity to another person may occur only if the entity has been given an opportunity to answer the criticism;
	(e)	other criteria?
8-9	If there should be an exception specific to the Adult Guardian for disclosures of information about an issue the subject of an investigation, should that exception specifically permit the Adult Guardian to disclose critical or adverse information about a person to that person?

Appendix 1
	Terms of reference
A review of the law in relation to the General Principles, the scope of substituted decision-making, the role of the support network, adequacy of investigative powers, health and special health matters, and other miscellaneous matters, under the Guardianship and Administration Act 2000 and the Powers of Attorney Act 1998
1.	I, LINDA LAVARCH, Attorney-General and Minister for Justice, having regard to—
•	the need to ensure that the General Principles continue to provide an appropriate balance of relevant factors to protect the interests of an adult with impaired capacity;
•	the need to ensure that the powers of guardians, administrators and other officers or bodies established by the legislation are sufficiently extensive to protect the interests of an adult with impaired capacity;
•	the need to ensure that there are adequate and accessible procedures for review of decisions made under the Acts;
•	the need to ensure that adults are not deprived of necessary health care because they have impaired capacity;
•	the need to ensure that adults with impaired capacity receive only treatment that is necessary and appropriate to maintain or promote their health or wellbeing, or that is in their best interests;
•	the need to ensure that the confidentiality provisions that apply to the proceedings and decisions of the Guardianship and Administration Tribunal and other decisions under the Guardianship and Administration Act strike the appropriate balance between protecting the privacy of persons affected by the Tribunal’s proceedings and decisions and promoting accountability of the Tribunal; 
•	the fact that some parents of a person with impaired capacity (whether or not an adult), may wish to make a binding direction, appointing a guardian or administrator for a matter for the adult, that applies if the parents are no longer alive or are no longer capable of exercising a power for a relevant matter for the adult;
refer to the Queensland Law Reform Commission (the Commission), for review pursuant to section 10 of the Law Reform Commission Act 1968—
(a)	the law relating to decisions about personal, financial, health matters and special health matters under the Guardianship and Administration Act 2000 and the Powers of Attorney Act 1998 including but not limited to:
•	the General Principles;
•	the scope of personal matters and financial matters and of the powers of guardians and administrators;
•	the scope of investigative and protective powers of bodies involved in the administration of the legislation in relation to allegations of abuse, neglect and exploitation;
•	the extent to which the current powers and functions of bodies established under the legislation provide a comprehensive investigative and regulatory framework;
•	the processes for review of decisions;
•	consent to special medical research or experimental health care; and
•	the law relating to advance health directives and enduring powers of attorney; and
•	the scope of the decision-making power of statutory health attorneys; and
•	the ability of an adult with impaired capacity to object to receiving medical treatment; and
•	the law relating to the withholding and withdrawal of life-sustaining measures;
(b)	the confidentiality provisions of the Guardianship and Administration Act 2000;
(c)	whether there is a need to provide protection for people who make complaints about the treatment of an adult with impaired capacity;
(d)	whether there are circumstances in which the Guardianship and Administration Act 2000 should enable a parent of a person with impaired capacity to make a binding direction appointing a person as a guardian for a personal matter for the adult or as an administrator for a financial matter for the adult.
2.	In performing its functions under this reference, the Commission is asked to prepare, if relevant, draft legislation based on the Commission’s recommendations.
3.	The Commission is to provide a final report to the Attorney-General and Minister for Justice on the confidentiality provisions by March 2007, an interim report on the General Principles by September 2007, and a final report on all other matters by the end of 2008.
The Hon Linda Lavarch MP
Attorney-General and Minister for Justice

Appendix 2
	Membership of the Reference Group
Ms Paige Armstrong, Manager, Community Advocacy and Support, Endeavour (nominee of ACROD)
Ms Pam Bridges, Residential Care Manager, Aged Care Queensland
Mrs Pat Cartwright, Coordinator, Community Visitor Program
Mr Mark Crofton, Official Solicitor to the Public Trustee
Ms Madonna Cuthbert, Director, Policy and Legislation, Queensland Health
Dr Chris Davis, Director, Geriatric Medicine and Rehabilitation, The Prince Charles Hospital (nominee of Australian Medical Association (Queensland))
Ms Margaret Deane, Manager, Queensland Aged and Disability Advocacy Inc
Mr David Deans, Chief Executive, National Seniors
Mr John Dickinson, Chief Executive Officer, Brain Injury Association of Queensland
Ms Marianne Gevers, Vice-President, Alzheimer’s Australia (Qld) Inc
Mr Cameron Gledhill, Communications Officer, Queensland Alliance
Ms Katie Holm, Director, Disability Strategic Policy, Disability Services Queensland
Ms Michelle Howard, Public Advocate
Mrs Bronwyn Jerrard, Principal Legal Consultant, Strategic Policy, Department of Justice and Attorney-General
Ms Ann Lyons, President, Guardianship and Administration Tribunal
Ms Dianne Pendergast, Adult Guardian
Mr Julian Porter, Systems Legal Advocacy, Queensland Advocacy Inc
Mr Graham Schlecht, Executive Director, Carers Queensland
Mr Phil Tomkinson, President, Queensland Parents for People with a Disability Inc
Professor Lindy Willmott, Faculty of Law, QUT

Appendix 3
	List of submissions and forums
Submissions
Prior to the publication of this Discussion Paper, the Commission received 40 submissions from the following interested individuals and organisations:

Mr Stephen Graham Brown
Mr Trevor Croll
Ms Gwenyth Cutler
Mr Rob Davis, President, Queensland Law Society
Mr Ross Davis
Mr Graham Douglas
Mr Brien Dunne and Mr Michael Dunne
Ms Libby Eichmann with Mr Andrew Willis
Guardianship and Administration Reform Drivers (GARD)
Ms Ann Handyside
Ms Jo Hobbs
Mr Neil Hollingsworth
Ms Michelle Howard
Mr Farne Hunt
Ms Bogita Jazazienvski
Ms Norma Kawak
Ms Gabriel Killin
Mr Bob Lee, Sunshine Coast Citizen Advocacy
Ms Felicity Maddison AM
Ms Dianne Moore
Mr Paul Morrison
Mr Doug Peterson
Ms Marion Reid
Mr Neil Reynolds
Ms Angelina Roper
Ms Paula Scully, former Adult Guardian
Mr Harley Sims
Ms Eugenia Slinko
Mrs Jean Tincknell
Dr Laurence Trappett
Ms Katrina Turnbull
Mr Darcy Tyrrell
Uni Research
Mr Matthaus von Schrader
Ms Judy Walker
Ms Mary Walsh OAM
Mr JJ Williams
Ms Karen Williams with Mr Stephen Keim SC
Mrs Beverley Williamson
Mr Mark Wurth

Forums
The Commission was also invited to participate in two forums at which it received views from the people attending.
Carers Queensland, ‘Maintaining a family focus in guardianship reform’ (Brisbane, 7 March 2006)
Endeavour, ‘Review of Queensland’s guardianship laws’ (Brisbane, 23 May 2006)

Appendix 4
	Glossary

Active party	An active party for a Tribunal proceeding may appear at a hearing before the Tribunal and receive a copy of the Tribunal’s decision and any written reasons for the decision.  The active parties for a proceeding are:
•	the adult;
•	the applicant (if this is not the adult);
•	the proposed guardian, administrator, or attorney for the adult if the proceeding is for the appointment or reappointment of such person;
•	any current guardian, administrator, or attorney for the adult;
•	the Adult Guardian;
•	the Public Trustee; and 
•	any person joined as a party to the proceeding.	
Administrator	A person appointed by the Tribunal as a substitute decision-maker for an adult for a financial matter(s).  A person may be appointed as an administrator only if they are 18 years or older, they are not a paid carer or health provider for the adult, and the Tribunal considers them appropriate for appointment.  	
Adult	A person 18 years or older who has impaired capacity for a matter.	

Adult Guardian	An independent statutory official whose role is to protect the rights and interests of adults with impaired capacity.  The Adult Guardian’s functions are wide-ranging and include:
•	investigating complaints or allegations of neglect, exploitation, or abuse of an adult; 
•	acting as an attorney for an adult under an enduring document or as an adult’s statutory health attorney; and
•	acting as an adult’s guardian if appointed by the Tribunal.
The Adult Guardian also has a number of protective powers in relation to adults.	
Advance health directive	A document made under the Powers of Attorney Act 1998 (Qld) by a principal (18 years or older) to:
•	give directions about a health matter(s) or a special health matter(s) for the principal’s future health care; and/or 
•	appoint an attorney(s) to make decisions about a health matter(s), but not about a special health matter(s), in the event those directions prove inadequate.
An advance health directive may only be made while the principal has sufficient capacity to do so and operates only during a period when the principal no longer has capacity for the matter(s).	
Attorney	A person appointed by a principal to exercise decision-making power under a power of attorney, an enduring power of attorney, or an advance health directive for an adult for a matter(s).  An attorney may also be a ‘statutory health attorney’ (also defined in this glossary).	
Capacity	Every adult is presumed to have capacity unless it is otherwise established.  An adult will have ‘capacity’ for a matter if they are capable of:
•	understanding the nature and effect of decisions about the matter;
•	freely and voluntarily making decisions about the matter; and
•	communicating the decisions in some way.
An adult who does not satisfy this criteria in relation to a matter is described as having ‘impaired capacity’ for that matter.	
Community visitors	Community visitors are appointed to safeguard the interests of persons who live or receive services at particular visitable sites.  Those sites include residences and services funded by Disability Services Queensland or the Department of Health, some hostels and authorised mental health inpatient services.  Community visitors regularly visit those sites and have inquiry and complaint functions.	
Confidentiality order	An order made by the Tribunal under section 109 of the Guardianship and Administration Act 2000 (Qld) to:
•	direct who may or may not be present at a hearing;
•	direct that a hearing, or part of a hearing, be held in private;
•	prohibit or restrict publication of information given before it, or of matters contained in documents before it; or
•	prohibit or restrict the disclosure to some or all of the active parties for a proceeding of information given before it, matters contained in documents before it, or the Tribunal’s decision or reasons.	
De-identified information	Information that has been modified to prevent disclosure of a person’s identity.	

Enduring power of attorney	A document made under the Powers of Attorney Act 1998 (Qld) by a principal (18 years or older) to appoint an attorney(s) to make decisions about a financial or personal matter(s), including a health matter(s).  An enduring power of attorney may only be made while the principal has sufficient capacity to do so.  
For personal matters, an enduring power of attorney will operate only during a period when the principal no longer has capacity for the particular matter.  For financial matters, an enduring power of attorney will operate from the time it is made, unless a different time is specified, and will operate at any time the principal has impaired capacity.
This is different from a general power of attorney by which a principal can appoint an attorney(s) to make decisions about a financial or legal matter(s), but not about a personal matter(s).  A general power of attorney will operate from the time it is made, unless another time is specified, and will be automatically revoked if the principal no longer has capacity. 	
Financial matter	A matter relating to an adult’s finances or property.	
General Principles	Eleven principles contained in the guardianship legislation, which must be applied by any person or entity performing a function or exercising a power under the guardianship legislation in relation to a matter for an adult.  The community is also encouraged to apply and promote the principles.  The General Principles include:
•	the presumption that an adult has capacity to make decisions;
•	an adult’s right to basic human rights and the importance of empowering an adult to exercise those rights;
•	an adult’s right to respect for his or her human worth and dignity; 
•	an adult’s right to be a valued member of society and the importance of encouraging an adult to perform valued social roles; 
•	the importance of encouraging an adult to participate in community life; 
•	the importance of encouraging an adult to become as self-reliant as possible; 
•	an adult’s right to participate in decision-making as far as possible and the importance of preserving wherever possible the adult’s right to make his or her own decisions; 
•	the principle of substituted judgment must be used, so that where it is possible to ascertain from previous actions what an adult’s views or wishes would be, those views and wishes are to be taken into account; 
•	any power under the legislation must be exercised in the way least restrictive of the adult’s rights;
•	the importance of maintaining an adult’s existing supportive relationships;
•	the importance of maintaining the adult’s cultural, linguistic and religious environment; and
•	an adult’s right to confidentiality of information about them.	
Guardian	A person appointed by the Tribunal as a substitute decision-maker for an adult for a personal matter(s), including a health matter(s) but not a special health matter(s).  A person may only be appointed as a guardian if they are 18 years or older, they are not a paid carer or health provider for the adult, and the Tribunal considers them appropriate for appointment.	
Guardianship and Administration Tribunal (the Tribunal)	The Guardianship and Administration Tribunal is a quasi-judicial body whose functions include: 
•	making declarations about an adult’s capacity for a matter; 
•	hearing applications for the appointment of guardians and administrators and appointing, where necessary, guardians and administrators for an adult; 
•	making declarations, orders or recommendations, or giving directions or advice in relation to guardians, administrators, attorneys, and enduring documents; 
•	ratifying or approving an exercise of power by an informal decision-maker for an adult; and
•	giving consent to some types of special health care for an adult and to the withholding or withdrawal of life-sustaining measures. 	
Health Care Principle	A principle contained in the guardianship legislation that must be applied by any person or entity performing a function or exercising a power under the guardianship legislation in relation to a health matter(s) or a special health matter(s) for an adult.  The Health Care Principle provides that power for a health or special health matter should be exercised in the way least restrictive of the adult’s rights and only if the exercise of power :
•	is necessary and appropriate to maintain or promote the adult’s health or wellbeing, having regard to the adult’s views and wishes and information provided by the adult’s health provider; or
•	is, in all the circumstances, in the adult’s best interests. 	
Health matters	A type of personal matter concerning the adult’s health care, other than special health care, including care, treatment, services or procedures for the adult’s physical or mental condition carried out or supervised by a health provider.	
Impaired capacity	When an adult does not have capacity for a matter.	
Parens patriae jurisdiction	The jurisdiction of superior courts, of ancient origin, deriving from the monarch’s obligation to act as parens patriae (parent of the people) to protect vulnerable citizens.  The jurisdiction allows the court to make a decision on behalf of a person who is incapable of making the decision themselves.	
Personal matter	A matter (other than a ‘special personal matter’ or a ‘special health matter’) relating to an adult’s care or welfare.  This includes matters about where and with whom an adult lives, health care, diet and education.	
Public Advocate	An independent statutory official whose role is to promote and protect the rights of adults.  The Public Advocate’s other functions include: 
•	promoting the protection of adults from neglect, exploitation, or abuse; 
•	encouraging the development of programs that foster and maximise adults’ autonomy; 
•	promoting service and facility provision for adults; and
•	monitoring and reviewing service and facility delivery to adults. 
The Public Advocate’s functions are aimed at systemic advocacy rather than advocacy on behalf of individual adults.  	
Public Trustee	The Public Trustee of Queensland is a Queensland Government corporation established under the Public Trustee Act 1978 (Qld), and may be appointed by the Tribunal as an adult’s administrator.	
Special health matter	A matter relating to an adult’s ‘special health care’ which involves very significant health issues such as:
•	removal of tissue from the adult while alive for donation to someone else; 
•	sterilisation; 
•	termination of a pregnancy; 
•	participation in special medical research or experimental health care; and
•	electroconvulsive therapy or psychosurgery. 	
Special personal matter	A matter regarded as being of such an intimate nature that it would generally be inappropriate for another person to make decisions about them on behalf of an adult.  These include voting; consenting to marriage; and making or revoking a will, a power of attorney, an enduring power of attorney, or an advance health directive.  	
Statutory health attorney	A person in a particular relationship with the adult who is declared by the guardianship legislation to be a person with authority to make decisions about health matters for an adult during a period when the adult has impaired capacity for the matter.  The legislation lists the relationships in a hierarchical order.  The first of the following who is ‘readily available and culturally appropriate’ to make the decision will be an adult’s statutory health attorney:
•	the adult’s spouse, if the relationship is close and continuing; 
•	a person 18 years or older who is caring for the adult but who is not a paid carer of the adult; or
•	a close friend or relation of the adult 18 years or older and who is not a paid carer for the adult. 
If no-one from that list is readily available and culturally appropriate, the Adult Guardian becomes the adult’s statutory health attorney.	

Appendix 5
	Register an interest

QUEENSLAND LAW REFORM COMMISSION
GUARDIANSHIP REVIEW
	
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