Queensland
Law Reform Commission

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

Report
Volume 1

Report No 62
June 2007

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

ISBN:		978 0 7242 7753 6

Printed by:	Nexus Print Management Pty Ltd

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

In accordance with section 15 of the Law Reform Commission Act 1968 (Qld), the Commission is pleased to present its Report, Public Justice, Private Lives: A New Approach to Confidentiality in the Guardianship System Volume 1.

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

				
Dr H A Douglas					Mr B J Herd
Member						Member

				

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

COMMISSION MEMBERS

		Chairperson:			The Hon Justice R G Atkinson

		Full-time member:		Dr B P White

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

SECRETARIAT

		Director:			Ms C E Riethmuller

		Secretary:			Mrs S Pickett
						Mrs J Manthey

		Principal Legal Officer: 	Mrs C A Green

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

		Administrative Officer:	Mrs Z Boldery

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

Previous Queensland Law Reform Commission publications in this reference:

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

Table of contents

Chapter 1	1
Introduction	1
terms of reference	2
The Discussion Paper and call for submissions	3
The consultation process and response	5
About this Report	7
Methodology	7
Structure and content	8
Terminology	9
future issues	10
Chapter 2	12
Overview of the law in Queensland	12
Introduction	13
Overview of guardianship in queensland	13
When is an adult unable to make his or her own decisions for a matter?	13
What decisions can be made for an adult?	15
Financial matters	15
Personal matters	15
Health matters	15
Special health matters	16
Special personal matters	16
Who can make decisions for an adult?	17
Informal decision-makers	17
Attorneys appointed in advance by the adult	18
Statutory health attorneys	19
Guardians and administrators appointed by the Tribunal	20
The Tribunal	22
How are substitute decisions for an adult to be made?	22
What agencies are involved in the guardianship system?	24
The Tribunal	25
The Adult Guardian	26
The Public Advocate	27
Community visitors	28
The Public Trustee of Queensland	29
Overview of the confidentiality provisions	29
Introduction	29
Section 249: the general duty of confidentiality	30
Section 112: a prohibition specific to Tribunal proceedings	34
Section 109: case-by-case confidentiality orders	36
What rights might a confidentiality order displace?	36
When may a confidentiality order be made?	38
Who may make a confidentiality order?	39
When will a person contravene a confidentiality order?	39
Confidentiality orders in proceedings relating to children	41
Confidentiality orders in practice	42
Chapter 3	44
Guardianship and confidentiality: guiding principles 
for reform	44
Introduction	45
Concepts of confidentiality and privacy	46
The nature of privacy	46
Duties of confidentiality	48
Equity	49
Contract	49
Statute	50
Openness and confidentiality in the guardianship system	50
Open justice	51
What are the elements of open justice?	51
What are the reasons for open justice?	52
Are there any exceptions to the principle of open justice?	54
Procedural fairness	55
What is the hearing rule?	56
What is the bias rule?	58
What are the reasons for procedural fairness?	58
What are the requirements of procedural fairness?	60
Nature of the guardianship system	62
Decisions about fundamental rights of vulnerable adults	63
Adult-focused nature of the guardianship system	63
The adult’s rights and interests	65
Matters private to the adult	66
Matters private to others	67
Less contesting of issues	68
The inquisitorial features of the Tribunal	69
‘Inquisitorial’ tribunals	69
The Guardianship and Administration Tribunal	71
Tribunal control over procedure	72
Tribunal control of evidence	72
Decisions on the Tribunal’s initiative	74
What might this mean for confidentiality?	74
The Discussion Paper	77
Submissions	77
The Commission’s view	82
Confidentiality and relationships	84
The Discussion Paper	84
Submissions	85
The Commission’s view	87
Confidentiality and relevance	88
The Commission’s view	89
Guiding principles	90
Chapter 4	92
Tribunal hearings	92
Introduction	94
The law in Queensland	95
Public and private hearings	95
Excluding a person from a hearing	95
Limiting disclosure to an active party of information given at a hearing	96
Criteria for making a confidentiality order	96
Views about special health care	98
Who has power to make a confidentiality order	100
Non-compliance with a confidentiality order	101
Confidentiality orders in practice	101
Legislation in other jurisdictions	102
Open hearings with power to close, or to exclude particular people	103
Open hearings with power to close, or to exclude, but not particular people	104
Closed hearings with power to admit people	105
The Discussion Paper	105
Possible legal models	106
Openness and confidentiality in the guardianship system	106
Open justice	107
Procedural fairness	107
Nature of the guardianship system	108
Issues for consideration	108
Issues not about confidentiality	109
Disrupting a hearing	109
Submissions	110
The Commission’s view	111
Confidentiality and relevance	112
Should hearings be held in public or private?	115
The Discussion Paper	115
Submissions	115
Open hearings	115
Closed hearings	116
Hearings open or closed depending on circumstances	118
Practical issues about the openness of hearings	119
Submissions	119
Information provided by the Tribunal	120
The Commission’s view	121
Public hearings	121
Practical issues about the openness of hearings	122
Should the Tribunal have power to close hearings, exclude people, 
or withhold information?	124
The Discussion Paper	124
Submissions	125
Closing a hearing or excluding a person	125
Excluding people involved in proceedings	128
Excluding the adult	130
No exclusion of the adult	131
Speaking with the adult in the absence of others	132
Private or preliminary hearings	134
Power to withhold information	135
Information obtained when speaking with the adult in the absence of others	136
No power to withhold information	137
Use of ‘special witness’ procedures	138
The Commission’s view	140
A general approach	140
Closure orders	142
Closing a hearing to the public or excluding particular persons (other 
than active parties)	142
Excluding active parties	143
Adult evidence orders	143
Confidentiality orders: withholding information from active parties	145
Alternative mechanisms	146
When should a limitation order be made?	147
The Discussion Paper	147
Closing a hearing and excluding particular persons	147
Withholding information from active parties	148
Special health care	149
Submissions	149
Current criteria	149
General criteria for limitation orders	150
Criteria for all limitation orders	150
Criteria for closure orders	152
Criteria for closure and confidentiality orders in relation to an active party	153
Issues not relevant to making limitation orders	154
Criteria for closure order in relation to an active party	154
Criteria for closure orders in relation to the public	156
Criteria for confidentiality orders to withhold information	157
The Commission’s view	158
Openness as the starting point	158
Closure orders and confidentiality orders	159
Adult evidence orders	160
Other criteria issues	160
Special health criterion	160
Criterion for the adult	161
Should the Tribunal have power to place ‘restrictions’ on 
disclosure of information?	161
The Commission’s view	162
Limited orders	162
Facilitation	162
Should confidential information be disclosed to an active party’s representative?	163
The Discussion Paper	163
Submissions	163
The Commission’s view	165
Issues concerning all limitation orders	165
Should the Tribunal be able to initiate a limitation order?	166
The Discussion Paper	166
Submissions	166
The Commission’s view	167
Who should have power to make a limitation order?	167
The Discussion Paper	167
Submissions	168
The Commission’s view	168
Procedural safeguards for making limitation orders	168
Submissions	168
The Commission’s view	169
Standing to be heard and to appeal	170
Involvement of the Public Advocate	173
Time of hearing in relation to the order	175
Written reasons for decision	176
Should it be an offence to breach a limitation order?	178
The guardianship legislation	178
Submissions	179
The Commission’s view	179
Should there be a defence of reasonable excuse for breach of a limitation order?	179
The Discussion Paper	179
Submissions	180
The Commission’s view	181
Future issues	182
Recommendations	182
Chapter 5	189
Documents before the Tribunal	189
Introduction	190
Introduction	190
The position in Queensland	190
Active parties’ right of inspection	191
The guardianship legislation	191
The Presidential Direction	193
Confidentiality orders displacing the right to inspect	193
The guardianship legislation	193
The Tribunal’s Administration Practice	195
Empirical information about confidentiality orders	196
Who is applying for confidentiality orders and what documents are they 
seeking to protect?	197
Why is the Tribunal making confidentiality orders?	197
Who is the Tribunal precluding from document inspection?	197
The position in other jurisdictions	198
Victoria	198
The adult	199
Other parties	199
Western Australia	200
The adult	200
Other parties	201
New South Wales	201
The Discussion Paper	204
Possible legal models	204
Openness and confidentiality in the guardianship system	205
Open justice	205
Procedural fairness	206
Nature of the guardianship system	207
Issues for consideration	208
Inspection of Documents by active parties	208
Submissions	210
Active parties not permitted to inspect certain documents	210
Practical impediments to effective inspection	213
Timeframe for inspection of documents	213
Awareness of the document inspection process	214
Notification of material filed after document inspection	214
Privacy during document inspection	214
The Commission’s view	215
Active parties not permitted to inspect certain documents	215
Practical impediments to effective inspection	216
Should the Tribunal have power to make a confidentiality order in relation to documents?	218
The Discussion Paper	218
Submissions	218
Power to withhold access to documents	219
Receipt of quality information by the Tribunal	220
Desirability of maintaining relationships	220
Preventing harm to the adult or another person	221
Preventing use of documents for another purpose	221
Support limited to particular circumstances	222
No power to withhold access to documents	223
Procedural fairness and the right to test evidence	223
Receipt of quality evidence and promotion of quality decision-making	224
Adequate preparation for a hearing	225
Open justice	225
Other	226
The Commission’s view	226
When should a confidentiality order in relation to documents 
be made?	229
The Discussion Paper	229
Submissions	230
Current criteria	230
General comments on criteria	230
Best interests of the adult	231
Harm to the adult or another person	232
Victorian Model	233
Other	233
Specific criteria for adult	235
The Commission’s view	236
Should the Tribunal have power to place ‘restrictions’ on 
disclosure of documents?	239
The Discussion Paper	239
Submissions	239
The Commission’s view	241
Limited orders	241
Facilitation	241
Should confidential documents be disclosed to an active party’s representative?	243
The Discussion Paper	243
Submissions	243
The Commission’s view	244
Future issues	245
Recommendations	246
Chapter 6	250
Tribunal decisions and reasons	250
Introduction	251
Introduction	251
The law in Queensland	251
Legislation in other jurisdictions	254
Western Australia	255
Mental Health Act 2000 (Qld)	256
The Discussion Paper	257
Possible legal models	257
Openness and confidentiality in the guardianship system	258
Open justice	258
Procedural fairness	259
Nature of the guardianship system	260
Reasons and the right of appeal	261
Issues for consideration	261
Submissions	262
Should the Tribunal have power to withhold its decisions or reasons?	262
Decisions	262
Reasons	262
Open justice and accountability	263
Procedural fairness	264
Adult-focused nature of the guardianship system	264
The right to appeal	266
Promoting understanding and acceptance by parties	266
Promoting public awareness of, and confidence in, the Tribunal	267
National legislative uniformity	267
What criteria should guide the Tribunal’s power to withhold decisions and reasons?	268
Serious harm to the health of the adult or risk to the safety of a person	268
Harm to the adult only	269
Separate criteria for withholding reasons from an adult	269
Other criteria	270
The Commission’s view	271
No power to withhold reasons	271
No power to withhold decisions	273
Should the tribunal have power to place ‘Restrictions’ on 
disclosure of decisions and reasons?	273
The Discussion Paper	273
Should the Tribunal have power to withhold part of a decision or reasons?	274
Legislation in other jurisdictions	274
Submissions	274
The Commission’s view	274
Should the Tribunal have power to impose conditions upon the disclosure of a 
decision or reasons?	275
Legislation in other jurisdictions	275
Submissions	275
The Commission’s view	276
should the tribunal have power to Delay notification of a decision?	277
Submissions	278
The Commission’s view	279
Future issues	280
Recommendations	280
Chapter 7	282
Publication of Tribunal proceedings	282
The Law in Queensland	284
Section 112	284
Section 109	286
The interaction between sections 109 and 112	287
Some recent Tribunal decisions	288
Legislation in other jurisdictions	289
Prohibition with power to permit publication of de-identified information	290
Prohibition with power to permit publication of all information	290
Prohibition only on publication of identity with power to permit publication	291
Further discretion to prohibit the publication of information	292
The Discussion Paper	293
Possible legal models	293
Openness and confidentiality in the guardianship system	294
Open justice	294
Procedural fairness	295
Nature of the guardianship system	296
Issues for consideration	296
Should there be a prohibition on publishing information about a 
Tribunal proceeding?	297
The Discussion Paper	297
Submissions	298
Arguments favouring greater openness	298
Promoting accountability and public confidence	298
Enhancing community awareness	300
Arguments favouring some level of confidentiality	301
Concerns about privacy	301
Concerns about other harm	302
Practical concerns about publication by the media	303
Possible legal models	304
The Commission’s view	307
Whose identity should be protected?	309
The Discussion Paper	309
Submissions	310
The Commission’s view	312
Who is the adult?	313
Who should be prohibited from receiving information?	314
The Discussion Paper	314
The law in Queensland	314
The family law approach	316
Personal disclosures	317
Disclosures when a sufficient interest exists	318
Disclosures to assist with proceedings	319
Submissions	319
Lack of clarity	320
Personal disclosures and those to the public	320
Disclosures for other purposes	322
Legal or advocacy advice	323
Medical or health reasons, or other support	323
Informing Government or Members of Parliament	323
Other reasons	324
Suggested approaches	325
The Commission’s view	325
Personal disclosures	326
Disclosures when a sufficient interest exists	327
Disclosures to assist with proceedings	328
When will disclosures not be to the public or a section of the public?	328
What constitutes ‘identification’?	330
Who must be able to identify the adult?	330
The Discussion Paper	330
Submissions	331
The Commission’s view	332
Actual or likely identification of an adult?	333
The Discussion Paper	333
Submissions	336
The Commission’s view	338
Should the Tribunal have power to permit publication that is 
otherwise prohibited?	340
The Discussion Paper	340
Submissions	341
The Commission’s view	343
Should there be any exceptions to the prohibition?	344
The Discussion Paper	344
Submissions	345
Bona fide reports	345
Disclosure of transcripts or other documents to specified persons	346
Authorised publication	346
Other exceptions	347
The Commission’s view	349
Disclosures not prohibited by the Commission’s recommendations	349
Publications that require a specific exception	351
Publication by the Adult Guardian or Public Advocate	351
Authorised publication	352
Death of an adult	353
Should it be an offence to breach the prohibition?	354
Submissions	354
The Commission’s view	354
Should there be any defences?	355
The Discussion Paper	355
Submissions	355
The Commission’s view	356
Should the tribunal have power to prohibit the publication of other information?	357
The Discussion Paper	357
Submissions	358
The Commission’s view	360
should the prohibition apply to Court proceedings?	363
The Discussion Paper	363
Submissions	363
The Commission’s view	364
Miscellaneous issues	367
Education and awareness	367
Submissions	367
The Commission’s view	368
Recommendations	368
Chapter 8	373
General duty of confidentiality	373
Introduction	374
The law in Queensland	374
Information privacy and disclosure mechanisms in Queensland	375
The Privacy Act 1998 (Cth)	375
Information Standard 42	376
The Freedom of Information Act 1992 (Qld)	378
Ad hoc statutory provisions	379
The guardianship legislation	380
The guardianship legislation in other jurisdictions	384
The Discussion Paper and issues for consideration	384
A general duty of confidentiality	386
Should there be a general duty of confidentiality?	386
The guardianship legislation	386
The legislation in other jurisdictions	387
Submissions	387
The Commission’s view	389
Who should be subject to the duty?	392
The guardianship legislation	393
The legislation in other jurisdictions	393
Submissions	394
The Commission’s view	396
The Community Visitor Program	396
The Tribunal	396
Guardians, administrators, and attorneys	398
Statutory health attorneys	400
Informal substitute decision-makers	400
Service providers	401
What information should the duty apply to?	402
The guardianship legislation	402
The legislation in other jurisdictions	403
Submissions	404
The Commission’s view	406
Information gained in connection with the administration of the legislation	406
Information about a person’s affairs	407
Information about an adult	409
Information that identifies the person	409
Publicly disclosed information	411
Publicly disclosed information: Tribunal hearings	414
What conduct should the duty apply to?	416
The guardianship legislation	416
The legislation in other jurisdictions	416
Submissions	418
The Commission’s view	420
Disclosure and making records	420
Secondary disclosure	422
Exceptions to the duty	424
Should there be exceptions to the duty?	424
The guardianship legislation	425
The legislation in other jurisdictions	426
Submissions	426
The Commission’s view	428
Disclosures made under the Act	429
The guardianship legislation	429
The legislation in other jurisdictions	430
Submissions	431
Consultation between substitute decision-makers	431
Gathering information and views	431
Informing carers and families of decisions	433
The General Principles	435
Procedural fairness	436
The Commission’s view	438
Compliance with obligations	439
Substitute decision-making and the General Principles	440
Performance of functions and exercise of powers	443
Compliance with procedural fairness	444
Other existing exceptions	445
The guardianship legislation	445
The legislation in other jurisdictions	446
Disclosures under another law	446
Disclosures for a court or tribunal proceeding	446
Disclosures authorised by the person	447
Disclosures authorised by the court or Tribunal	447
Submissions	447
The Commission’s view	448
Disclosures under another law	448
Disclosures for court or tribunal proceedings	449
Disclosures authorised by the person	450
Disclosures authorised by the court or Tribunal	452
Possible new exceptions	453
The legislation in other jurisdictions	454
Submissions	454
Adult’s interests	454
Health or safety	455
Police investigation	455
Scrutiny of the system	456
Legal advice and other support	456
Inter-agency disclosure	457
The Commission’s view	457
Disclosure in the adult’s interests	457
Disclosure for health or safety	458
Disclosure to seek legal or financial advice	459
Disclosure to police	459
Disclosure to guardianship agencies and officials	460
Disclosure for counselling or treatment	461
Media disclosure	461
Provision specific to the Adult Guardian	462
The guardianship legislation	462
The legislation in other jurisdictions	463
Submissions	464
The Commission’s view	466
The purpose of section 250	467
Release of information in the public interest	469
Factors in deciding whether disclosure is necessary and reasonable in the 
public interest	470
Liability for breach	473
Offence and penalty	473
The guardianship legislation	473
The legislation in other jurisdictions	473
Submissions	473
The Commission’s view	474
Defences	474
The guardianship legislation	475
The legislation in other jurisdictions	475
Submissions	475
The Commission’s view	476
Miscellaneous issues	476
Information about deceased persons	477
Submissions	477
The guardianship legislation	477
The legislation in other jurisdictions	477
The Commission’s view	477
Administrative policies to facilitate post-hearing disclosure	479
Submissions	479
The Commission’s view	480
Active parties	481
Non-parties	482
Facilitation of access	482
Education and awareness	484
Submissions	484
The Commission’s view	485
Future issues	485
Recommendations	488
Appendix 1	495
Terms of reference	495
Appendix 2	498
Membership of the Reference Group	498
Appendix 3	499
List of submissions	499
Appendix 4	501
List of community forums and focus groups	501
Appendix 5	503
Glossary	503