Guardianship and Administration and Other Acts Amendment Bill
Posted by Administrator (admin) on Oct 10 2008
2008 >>

This bill implements the recommendations of them Queensland Law Reform Commission report entitled Public justice, private lives, a new approach to confidentiality in the guardianship system. In producing this report, the Queensland Law Reform Commission undertook an extensive consultation process, holding 10 publicly advertised community forums across the state in addition to 15 focus groups with people interested in or affected by guardianship laws. They received 260 submissions and heard the views of hundreds of people, which is the largest response the commission has ever had in relation to its consultations.

Currently, proceedings before the Guardianship and Administration Tribunal are generally held in public and an active party has a right to inspect documents before the tribunal and present their case to the tribunal which, if it decides it is desirable to do so, may make a confidentiality order to direct who may or may not be present at the hearing; direct that the hearing or part thereof is held in private; prohibit the publication of information given at a hearing or of documents filed with the tribunal; prohibit or restrict the access of active parties to information or documents before the tribunal; and prohibit or restrict the disclosure of the tribunal’s decision or reasons from the adult if satisfied that disclosure might seriously harm the physical or mental health or wellbeing of the adult.

Hearings in all other Australian guardianship jurisdictions are to be held in public, with the power to close the hearing or exclude people from the hearing. The criteria for closure or exclusion vary
between jurisdictions. No other jurisdiction specifically provides a prohibition or restriction of disclosure of documents or evidence given at the hearing to any of the active parties to the proceedings. They rely on the rules of procedural fairness at common law. Queensland is also the only jurisdiction where there is a specific provision that allows an order to be made for withholding of the reasons or decisions to the adult or other person. All jurisdictions impose various prohibitions on the publication of information about guardianship proceedings but Queensland has the strictest provisions.

In making its recommendations, the commission focused on striking a balance between protecting the privacy of persons and the promotion of accountability and transparency in decision making within the guardianship system. The commission found that the balance of the current system favoured protection of a person’s right to privacy which eroded the community’s confidence in the system. The government intends to improve community confidence in the justice system and supports the Queensland Law Reform Commission’s recommendations to allow for a more open guardianship
system.

This bill will promote accountability and transparency and increased community confidence in the guardianship system by: replacing the current regime of confidentiality orders with four new types of
orders—adult evidence orders, closure orders, non-publication orders and confidentiality orders, collectively called limitations orders; establishing a legislative presumption of openness and requiring
serious harm or injustice to be demonstrated before the tribunal can make a limitation order; and generally permitting publication of information about tribunal proceedings provided the publication does
not identify the adult.

The tribunal will have strict legislative criteria to observe before making an order to withhold information or documents or exclude a person from the hearing or withhold the publication of information
about a tribunal hearing. Such an order may only be made to avoid serious harm or injustice to a person. So the threshold for making a limitation order is high and may only be made in limited
circumstances. Where the tribunal is considering making a limitation order to protect privacy or health information it only needs to be satisfied that the release of the information would result in significant health detriment to a person. That is a lower threshold than the serious harm test which applies to the release of non-health related information. The bill modifies the duty of confidentiality owed by persons in the guardianship system and effectively allows for increased sharing of information between agencies where appropriate and necessary. It also confirms that the current offence provisions for breach of confidentiality orders remain and apply for breaches of all new types of limitation orders.

This bill strengthens an active party’s right to participate in hearings and be accorded procedural fairness through the legislative criteria which guides the decisions of the tribunal to make a limitation order. Recommendation 4-19 of the Queensland Law Reform Commission’s confidentiality report to allow the Public Advocate to have standing to make submissions in applications before the tribunal
about limitation orders will not be implemented. However, the Public Advocate will retain the right to intervene in proceedings where the Public Advocate believes there are systemic issues. This bill also includes amendments to the Jury Act 1995 to provide that a judge may allow a jury to separate or an individual to separate from the jury after the jury has retired to consider its verdict. This accords with most other Australian jurisdictions and of course has a very positive impact on the costs of the judicial system in that it avoids the need for retrials and so on. There are safeguards in
the amendments in that the judge may only allow a jury to separate if the judge considers it will not prejudice a fair trial. Conditions may be imposed on the jury or juries if they are allowed to separate.

Existing provisions in the act continue to apply to ensure confidentiality of jury deliberations where a jury is allowed to separate. I commend the bill to the House.

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