Some people with disability feel 'silenced' by this law. Now there's a fresh push for change

SBS Australia

3 hours ago

Members of Victoria's parliament are being urged to support proposed changes to a law that prevents some people with disability from speaking freely and publicly about their experiences. The Greens are set to introduce a bill to parliament today, alongside disability advocate Uli Cartwright, seeking to amend the 'gag law' — known as clause 37 — affecting those under guardianship or administration orders. Cartwright has long advocated for reform of this law based on his lived experience of such orders. "It's just outdated. It needs to be changed," he told SBS News.
In Australia, guardianship laws vary state to state but gag laws, which restrict public comment on such arrangements, are enforced across most jurisdictions.
For many Australians currently or formerly subject to guardianship, including Cartwright, this limits their ability to speak openly about their experiences. The move by the Greens seeks to change that in Victoria. The proposed amendment adds to calls of support from disability sector organisations, along with the Victorian Office of the Public Advocate — the state body responsible for advocating for the rights of people living with disability — which backed amending the legislation in 2023. "Not only are we listening to advocates in the sector, but the Office of Public Advocate has also made their position pretty clear on this exact reform," Greens MP Anasina Gray-Barberio said.
"We need to be ensuring that legislation as it stands does not constrain the rights of people with a disability."
What is clause 37? In Australia, a person may be placed under guardianship or administration orders if they require help with decision-making. An appointed guardian then has legal authority to make decisions or support decision-making on behalf of an individual about personal and lifestyle matters specified in an order. An administrator is someone granted authority over financial and property matters. In Victoria, the so-called gag law refers to clause 37 in schedule 1 of the Victorian Civil and Administrative Tribunal (VCAT) Act 1998, which states that, "unless the Tribunal orders otherwise", a person must not publish or broadcast information that could identify parties involved in guardianship and administration proceedings.
The tribunal may make an order, "only if it considers it would be in the public interest to do so".
The Greens' proposed amendment is set to be introduced to parliament in Victoria on Wednesday. Source: AAP / Con Chronis This provision can effectively stop people from talking publicly about any of their experiences of guardianship or administration orders. This can also extend to VCAT proceedings, according to a spotlight paper published by the Victorian Law Reform Commission (VLRC) in February.
In a letter to Victorian MPs, the state's peak advocacy organisation for adults with intellectual disability, VALID, said the "unnecessary restriction" is applied automatically and "assumes the need to protect people with disabilities". "Their will and preference is not taken into account," the letter reads.
"It contradicts human rights principles, undermines transparency and public trust and curtails free speech."
Gray-Barberio said the current legislation has a "silencing impact" on those under guardianship or administration orders. "It is so important for them to be able to have choice and control when it comes to their decision-making, to publicly share their lived experience and stories related to their guardianship. I think that is within public interest," she said.
"People living with disability or with chronic health [conditions] shouldn't have to ask for permission to tell their own story and lived experience."
Telling Uli Cartwright's story Cartwright, 30, is an advocate who lives with disability. He came up against the gag law several years ago when a documentary about his life became subject to it. Life is a Battlefield was acquired by SBS and broadcast in December 2021 as part of the International Day of People with Disability, after which it was available online via SBS' streaming service On Demand.
Two weeks after it screened, VCAT raised concerns relating to Cartwright having identified himself as someone previously under the control of the State Trustees. SBS decided to take the program down to allow legal concerns to be addressed.
Uli Cartwright has been a long-standing advocate for reform. Credit: Otis Filley Cartwright applied to VCAT for a declaration that clause 37 did not apply in his case, with a tribunal deputy president making an order allowing the material to be published. This meant the documentary could go back online, and Cartwright could be legally identified. Cartwright has been advocating for reform in Victoria ever since. Most states and territories in Australia, except the ACT, ban the publication of information about guardianship proceedings in some way, according to the VLRC paper. This varies state by state, with Tasmania introducing changes last September. The Victorian private member's bill, backed by Cartwright, proposes an amendment to clause 37 of the Act, which allows a represented person, or someone authorised by them, to disclose information about their proceedings without requiring tribunal approval. "I think there is a place for it [the gag provision]," Cartwright said. "I do believe that there needs to be some protections in place to stop abuse and weaponisation of people's stories, whether that's with the media or with family members. "But the bill says the silence mechanism is not the default. It's an extra step."
The Greens' Gray-Barberio said the change would ensure a "human rights approach" to legislation in the state.
'Simply the right thing to do' In a letter to Victoria's parliament on 6 August, VALID's chief executive Fionn Skiotis called on all members to support the upcoming bill. "Provisions to protect privacy and limit the disclosure of sensitive and personal information, for example by parties other than the person subject to an order, will continue to exist," Skiotis said.
"In our view, supporting this change is simply the right thing to do, for any elected representative in Victoria, so that all citizens in the state can enjoy the same freedoms and rights, whether they are a person with disability or not."
LISTEN TO It follows disability service providers Yooralla and Life Without Barriers supporting gag law reform in Victoria in late 2023. "Freedom for people with disability to speak with the media and share their experiences under guardianship is an important step in transparency and accountability and can contribute to safeguarding by individuals and organisations responsible for providing safe and quality support," Life Without Barriers said in a statement. Yooralla said current legislation is at odds with decision principles in the Guardianship and Administration Act 2019, which state that a person's will and preference should only be overridden to prevent serious harm.
"While safety and privacy are a factor, the Act conflicts with the United Nations Convention on the Rights of People with Disability, which provides the rights of people with disability to freedom of expression and opinion and the participation in political and public life," its statement said.
In April 2023, the Office of the Public Advocate (OPA) also voiced support for reform. The OPA recognised there are "valid reasons" to limit the disclosure of sensitive and personal information discussed in guardianship and administration proceedings to protect the privacy of those under orders. But it said these should ensure the person's right to tell their own story is not inadvertently limited. It called on the government to amend the legislation, saying: "Ensuring people can freely tell their own stories will increase transparency and promote public trust in this essential safeguarding system."
Gray-Barberio said there has been "no progress" in reform since 2023.
This is one small section which we feel is really important, that we feel the government should recognise. "The evidence is there, the calls are there from the community, from advocates, campaigners, as well as the Office of the Public Advocate. So really, it makes sense for them [the government] to come on board and support this reform," she said. The Victorian government has been contacted for comment.