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Australian Press Council submission to the Queensland Law Reform Commission in response to discussion paper, Confidentiality in the Guardianship System: Public Justice, Private Lives 31 October 2006 Executive Summary It is critical to the efficient functioning of our legal system that an appropriate balance be struck between the principle of open justice and the need to protect the confidentiality of parties. It is the contention of the Australian Press Council that Queensland's Guardianship and Administration Act 2000 fails to achieve such a balance. While the Press Council recognizes the need to protect certain vulnerable individuals who fall within the guardianship jurisdiction, the use of mechanisms such as suppression orders and closed hearings should be minimised. The prohibition in the Act against the publication of information about tribunal proceedings should be removed and disclosure of information should be permitted unless confidentiality is absolutely necessary to protect the welfare of parties, witnesses and other individuals involved in tribunal proceedings. Submission Open justice is an important principle to be upheld to the maximum extent. Confidentiality should also be protected, where justified, by Australia's legal system. The significance of these contrasting principles is widely, if not universally, accepted in the community. However, it is critical to the efficient functioning of our legal system that the appropriate balance be struck between these two diverging and often conflicting ideals. The Queensland's Guardianship and Administration Act 2000 in its present form does not achieve an appropriate balance. The need to balance Open Justice with confidentiality The notion of open justice is regarded by many members of the judiciary and by students of jurisprudence as one of the fundamental pillars of our legal system. By making courts and tribunals accessible to the public we ensure that they are accountable for their decisions and we encourage fairness and honesty. The right of newspapers to publish fair reports of proceedings ensures that decisions and reasons are disseminated widely. While there are many aspects of the Guardianship and Administration Act which have the potential to impact upon the delicate balance between privacy and open justice, the most significant is section 112(3), which prohibits the publication of information about the proceedings of the Guardianship Tribunal unless the tribunal has issued an order permitting that publication. This provision is utterly in conflict with the notion of open justice. It may be appropriate to restrict the disclosure and publication of information about Tribunal proceedings in certain instances, but such restrictions should only be imposed to the extent necessary to protect the safety and welfare of parties and witnesses. For this purpose, the discretion provided by section 109(2) is sufficient to enable the tribunal to protect the information from disclosure. Further, where the welfare of individuals is at risk the necessary protection can often be provided simply by protecting the identities of those concerned, there is no need for a blanket prohibition against disclosure. Section 112(3) should be removed from the legislation. In addition to the removal of section 112(3), it is important to set down criteria for the exercise of the discretion in section 109(2), in order to ensure that the discretion is not abused or used capriciously. Where a decision to suppress information has been made without reference to such criteria it should be regarded as being invalid. Seeking permission to disclose information The principle of open justice requires that non-parties have access to the proceedings of courts and tribunals. However, the combined effect of rule 2 of the Guardianship and Administration Tribunal Rule 2004 taken together with s 99 of the Guardianship Act ("prescribed non-contentious matters") and s 109 of the Act is that the Registrar, rather than the tribunal itself, has the right to impose confidentiality unless an "active party" objects. There may be instances where it is in the public interest to disclose information pertaining to tribunal proceedings, even where the "active parties" do not seek such disclosure. In such instances non-parties should have the right to object to the tribunal's restrictions upon disclosure. Rule 2 and section 99 should be amended to give recognition to the right of non-parties to object to the imposition of confidentiality, thereby ensuring that the tribunal is required to consider the appropriateness of confidentiality where any member of the public raises an objection. Where an individual objects to the tribunal's order restricting disclosure or publication, that individual should be entitled to have their objection heard and determined in a timely fashion. The Press Council is aware of an instance where a journalist who sought the tribunal's permission to publish information involving tribunal proceedings received no reply for a period of six weeks, and was then given a hearing date for two months later. Such a lengthy delay will, in most instances, defeat the purpose for which access or permission was sought. The tribunal should be required to respond to such applications promptly and to make a determination within as brief a period as possible. Where individuals have given their consent to the disclosure and/or publication of information concerning them, the tribunal should recognize the individual's wishes and (providing that the individual is capable of giving consent) permit disclosure. Where the party refusing to consent to disclosure is a government agency, that agency should be required to justify their refusal to consent. Disclosure should also be permitted where the individual whose confidentiality is being protected has since deceased. The Press Council is aware of at least one case in which a close relative of an individual who was the subject of a decision of the tribunal sought to publicly criticise that decision after the individual's death, but was unable to do so because of restrictions imposed by the Tribunal. In such instances the restriction on publication has the effect of shielding the Tribunal from public scrutiny and is clearly inconsistent with the notion of open justice. Defences The discussion paper raises the question of whether the legislation should include exemptions and defences. The Press Council supports, in principle, the notion that exemptions and defences should be included in the Act. With respect to the paper's suggestion that categories of "reasonable excuse" should be specified, the Press Council supports this notion provided that a clause is inserted which states that the defences "include, but are not limited to" those listed. A defence of "public interest" should be included in any list of specific defences. A "whistleblower" defence would also be appropriate, which would permit disclosure for the purpose of exposing corruption, dishonesty, or incompetence. A defence of "unintentional disclosure" may also be useful, which would excuse a disclosure where the defendant was not aware or could not reasonably have been aware that the information was subject to confidentiality. It should be recognised that in some instances there may be a conflict between the incapacitated adult's interests and those of the guardian, attorney, administrator or "substitute decision-maker". Even where this is not the case the guardian may not always act in the best interests of the incapacitated adult. In such instances, it may not be appropriate for the substitute decision-maker to have the power to withhold information and it may be in the interests of the adult with impaired capacity for information to be disclosed. An example would be where the proposed disclosure is for the purposes of reporting the decision-maker's failure of duty to the adult or the tribunal's response to that failure (e.g., misapplication of the adult's income or assets, abuse of the adult, or appointment of an inappropriate person as the decision-maker). Conclusion Over-zealous enforcement of confidentiality has a significant potential to prevent scrutiny of tribunal decisions and thereby to remove accountability of those charged with protecting the welfare of incapacitated individuals. For this reason, the Press Council urges the Law Reform Commission to recommend the removal of the prohibition on the reporting of Guardianship Tribunal proceedings and to establish mechanisms that facilitate the disclosure of information about such proceedings where appropriate. See also Return to Documents with the |
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