Launch of ‘Equality, Capacity and Disability in Commonwealth Laws’ – NSW Public Guardian

Graeme Smith, NSW Public Guardian presentation, at the launch of ALRC Final Report Equality, Capacity and Disability in Commonwealth laws in Sydney on 11 December 2014.

I congratulate the ALRC on the publication of this report.

I would also like to thank Ros Croucher for the opportunity to make a few comments on the importance of this report to those of us working in the area of guardianship and financial administration.

Guardianship and financial administration agencies have been eagerly awaiting the Australian Law Reform Commission’s final report and recommendations.

Of course we do not know yet what the Commonwealth Governments response to the report will be. However, we do know that contained in the report is a recommendation that the Commonwealth engage with the States and Territories in a process of law reform to ensure a nationally consistent approach to guardianship and administration laws that align with the ALRC’s recommendations.

Guardianship laws in Australia were introduced as a way to enable social participation by people with decision-making impairment and as a way of providing protection against abuse, neglect and exploitation. Certainly in this country, these laws are only ever intended to be used as a last resort where all other options have been exhausted.

The ALRC report emphasises the need for the provision of support for those people who may need support to exercise their legal capacity.

But such concepts only have meaning where there are genuine alternatives to guardianship and administration available and where a sense of equality of decision making rights is alive in the community.

The Commission’s report brings a national focus to the issue of equality, capacity and disability. The number and range of submissions made to the Commission indicates an enthusiasm for better support and more options for people with disability.

The report introduces the concepts of support and representation to the wider community with a reminder that the provision of support for decision making is a social responsibility.

This report explores the concept of supported decision making in some depth. However, we know that much work is necessary to ensure that we have a detailed knowledge about how supported decision making can be effective in enabling a person to exercise their legal capacity and can be provided to those people who need support, when they need support.

A viable community based infra-structure within which support can be readily obtained must be considered by all governments at all levels as part of the process of law reform.

The Public Guardian together with the NSW Trustee and Guardian and ADHC in NSW, along with Public Advocates in Victoria, South Australia and Queensland have been exploring the concept of supported decision making over the past 4 years and have designed and participated in state based trials, pilots and research on the issue.

So the need for law reform in relation guardianship and administration laws has been very much anticipated by the States and Territories and the tabling of this report brings that anticipation much closer to reality.

We know for example that identifying the will and preference of people with very complex communication needs and social relationships can be challenging and requires new thinking and new approaches. The Commission’s report offers us some clear guidance in the form of the National Decision-Making Principles and Guidelines. The guidelines set a clear pathway to help us, and others, work through issues of support, will and preference, rights and safeguards.

The Commission’s report provides recommendations concerning the need for reform of existing guardianship and administration laws at the state and territory level of government and offers some guidance for law reform that should now be pursued.

Law reform in this space will be complex. Article 12 of the Convention on the Rights of Persons with Disability is perhaps the most controversial element of the Convention. It has generated an enormous amount of discourse amongst legal and other academics which has resulted in a substantial variety of views as to its exact interpretation.

Many of those views have been canvassed in the submissions to the ALRC and subsequently captured well by the discussion contained in the ALRC’s final report.

Ensuring that people retain their legal capacity, and ensuring that people, when needed, are able to access the support they need to ensure that they can exercise their legal capacity presents law makers with a significant challenge in the immediate future.

Within the context of current and historical thinking, laws which provide for the appointment of a substitute decision maker seem difficult to reconcile with the notion that a person retains their legal capacity even when their decision making ability is diminished as a result of a significant cognitive impairment.

It is quite likely therefore that the recommendation concerning the appointment of representatives contained in this report will continue to generate a lot of debate amongst lawyers, academics and the wider community. 

Guardianship laws in Australia at the present time represent, to some extent, the codification of centuries of Parens Patriae law.

While we must understand this history, we must begin with a clean slate so to speak.  We must imagine a world where a person can easily access the support they need to enable them to exercise their legal capacity rather than the existing binary system in which we operate where a person’s diminished mental capacity equals the appointment of a substitute decision maker.

We must then consider what new laws in this area might look like, or in fact, perhaps even more controversially, whether they should exist at all.

Consultation with disability advocates and the wider community will be critical to any future success in the task of law making in this challenging area of the law.

Public Guardians, Public Advocates, Guardianship Tribunals and Public Trustees will need to work together and with their respective communities, to refine their views about the reform of their respective state and territory laws while ensuring national consistency.

When this process begins, I encourage members of the wider community to engage with their respective state and territory governments in the task of law reform ahead, a task that should follow the tabling of this report.

Thank you.