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Queensland Law Reform Commission: Public Justice, Private Lives: A New Approach to Confidentiality in the Guardianship System Report, Volume 2

NCJ Number
Date Published
July 2007
30 pages
This report contains draft legislation that implements the Queensland Law Reform Commission's (Australia) recommendations regarding a new approach to confidentiality in Queensland's guardianship system, so as to provide a better balance between confidentiality/privacy and openness for guardianship proceedings.
The Commission recommends greater openness for guardianship proceedings for two reasons. First, the public must have confidence in the guardianship system. It was evident in the Commission's consultation that there is some mistrust of the system with confidentiality issues often underlying the concerns raised. Greater openness will promote the accountability and transparency of the current system and enhance community confidence. Second, greater openness is required in order to promote and safeguard the rights and interests of adults with impaired capacity. Key recommendations pertain to tribunal proceedings, tribunal decisions and their underlying reasons, the publication of information about tribunal proceedings, and the general duty of confidentiality. Regarding the latter recommendation, the Commission has recommended retaining the general duty to keep information confidential when it is received in the course of performing a role under the guardianship legislation; however, the Commission recommends that the duty be reconceptualized as a duty to use information appropriately rather than continuing the current practice of a blanket prohibition on disclosure subject to the existence of an exception. This recommendation responds to concerns that the imposition of a blanket duty of confidentiality inhibits disclosures of information that is appropriate and necessary for the guardianship system to function effectively. A wider range of exceptions to confidentiality have also been proposed by the Commission. Recommended exceptions include disclosures to the police and guardianship agencies and for the purpose of obtaining legal and financial advice. The draft legislation prepared by the Office of the Queensland Parliamentary Counsel incorporates these recommendations. Appended recommendations to which each provision of the draft legislation gives effect