Podcast: Equality, Capacity and Disability in Commonwealth Laws – the Discussion Paper


This is Rosalind Croucher, I’m President of the Australian Law Reform Commission and I’m the Commissioner who has been leading the inquiry into Disability and Commonwealth Laws.

I’m very pleased to talk about the Discussion Paper, Equality, Capacity and Disability in Commonwealth Laws which the ALRC has just released. This is the second consultation document that we’ve produced in the Inquiry and it’s the key one in which we put forward the ideas for reform in the Commonwealth arena that we think will contribute markedly to the equal recognition before the law of people with disability, and lead Australia into compliance with the Convention on the Rights of People with Disabilities of the United Nations.

The Discussion Paper has 50 proposals for reform of both Commonwealth laws and legal frameworks, and also sets up the basis upon which state and territory laws may be reviewed, particularly those laws that deal with matters of guardianship and administration for people who may lack the ability to manage decision-making for themselves. In particular, what our proposals do is focus on the right to make decisions by people with disability, to make decisions that affect their lives and also to have those decisions respected. For us the starting point in the proposals is that right, the right to make decisions, and we put forward the proposals in terms of a model which is based upon supported decision-making.

There’s been a lot of discussion nationally and internationally about what is the right way to provide support for people with disability, people who may require support in making decisions and the overwhelming voice is for a model that moves dramatically away from standards which are called ‘best interest’ standards and to one which is a model of support, which places the person who may require that assistance right at the centre, it is their decision and they are supported in making the decision.

So the model that we put forward encouraged supported decision-making where people with disability are assisted to make their own decisions rather than starting with any assumption that a person is unable to make a decision because of some kind of condition. Certainly we have put a lot of thought into what people are saying both nationally and internationally and examined very closely some of the conflicts and tensions that have emerged around discussions about the UN Convention and most recently the general comment that the UN Committee on the Rights of People with Disabilities has put forward and we see that in our work we can make a major contribution to the advancement of the understanding of the Convention and the way it works in terms of domestic law.

So what we put forward is a series of national decision-making principles and we see that these should drive reform both in the Commonwealth level but also perhaps provide the lead for application at the state and territory level and those principles are that every adult has the right to make their own decisions and to be provided with the support necessary for them to do so, and any decisions made for them are directed by their will, preferences and rights, and especially not by other people’s ideas about their best interests, but first and foremost it is the person’s right to make decisions and to be supported in the making of those decisions. Those principles, as we’ve described them, the National Decision-Making Principles, should inform many areas of the law where people are required to make decisions including about the National Disability Insurance Scheme and in areas like social security, aged care, health and a myriad of other areas.

What the ALRC is proposing is a new Commonwealth model of supported decision-making and that this model will provide a framework for the way in which people interact with Commonwealth agencies and systems. The emphasis throughout is on recognising the ability of people with disability to make decisions for themselves and to provide the necessary support so that they can do this, with dignity and respect.

Another theme of reform is to look at the existing tests of a person’s capacity to exercise legal rights or to participate in legal processes. One of the key things that we’ve identified is the absolutely essential need to reform these tests so that language like ‘unsound mind’, ‘mental capacity’ or ‘legal disability’ are shifted out of the vocabulary and that we find a new lexicon and a new focus which looks at decision-making ability where supported.

So that gives you a bit of a snapshot of the focus of the Inquiry, it’s been a very demanding one in terms of really understanding the vast array of thinking around the appropriate model for reform and using this as an opportunity to send the signal at a Commonwealth level, that the person with disability is actually a person with ability and in supporting the person to make decisions they will truly have equal recognition before the law.

I’ve been working with a very fine team of legal officers at the Australian Law Reform Commission together with Part-time Commissioner, Graeme Innes, the Disability Discrimination Commissioner, and we look forward to receiving submissions on our work. We have a very tight timeframe to report to Government on this very important inquiry, we need to hear your voice, again, and we’re grateful for it and I would ask, please, that you get your submissions to the ALRC by Monday 30 June 2014.

Thank you and I do look forward to reading what you might have to say to us in relation to this very important inquiry.