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


Sabina Wynn (SW): Hello, I’m Sabina Wynn, Executive Director of the Australian Law Reform Commission, and I’m here with the ALRC’s President, Professor Rosalind Croucher, who is also the Commissioner in charge of the Disability Inquiry. So, Ros, what’s the Inquiry actually about?

Rosalind Croucher (RC):  We’re looking at two main things. The principal focus is on the equal recognition in Commonwealth laws of people with disability, and the second element is about the ability to exercise capacity on an equal basis with others.

SW: So, what do you actually mean by capacity?

RC:  The idea of capacity is one which focuses on your ability to make decisions. People make decisions about many kinds of things every day and those matters sometimes involve issues where law is involved. Decisions might be very simple, about what to wear, what to eat. They might also be decisions about what to buy, and the things that you buy might be very large things—cars, property, you name it. The idea of capacity is one that focuses on your ability to make decisions, and particularly decisions that will be recognised as valid decisions in law.

SW: Why this focus on disability at this time?

RC: The focus on disability is driven both through international concerns and also national ones. The international one of course is the Convention on the Rights of Persons with Disabilities, and I should say that Graeme Innes, the Disability Discrimination Commissioner who is working with the Australian Law Reform Commission on this Inquiry as a Part-time Commissioner calls the Convention “the Disco”. The Convention emphasises the rights of people with disability and Australia is a signatory to that. And then in Australian law, the federal commitment to the National Disability Insurance Scheme and from July 2013 its launch in a number of trial sites. And the National Disability Strategy which sits behind this whole scheme is one which commits to a unified approach and it embodies the spirit of the Convention—the CRPD or the Disco, as Graeme calls it.

SW: So we’ve been asked in this Inquiry to look at a number of areas where the law might impact on people with disability. Can you explain or give an example of the sort of things we might be looking at in one of these areas, for example, in voting?

RC: Yes. That’s a really good example because what we have to look at is laws that deny or diminish legal recognition. So, let’s take voting. We start from the point that everyone as adults is entitled to be on the electoral roll, but if you’re of ‘unsound mind’, which is the language of the Act, you might be removed from the roll. In other words you may be disqualified from voting because of disability. So that’s an example of denying. But if you think about diminishing, what diminishes your ability to vote? Well, the thing that came to my mind was the very complex voting paper in the September 2013 election for the Senate. Even people with very high qualifications found it very daunting. If people have intellectual disability of any kind, they may have found it extremely difficult and very complex to deal with a voting paper like that. So is there some other way we might be able to make an example like that, one that is more accessible and does not diminish equal recognition before the law of people with disability?

SW: Another area we’ve been asked to look at is in the human relationships area. What sort of issues arise there?

RC: Well that’s deeply personal and has some very troubling areas. What we have to look at under our Terms of Reference, which always map what we do, is a list of things in the intimate relationships area, including marriage, partnerships, parenthood and family law generally. And the concern there reflects one of the articles of the Convention on the Rights of Persons with Disabilities, article 23, which provides a right for people with disability to marry and found a family. In the context of disability there are a number of issues that we’ll be looking at. For instance, guardians appointed under state law might be asked to comment on whether a marriage should proceed, for instance. So what does that say about capacity? What about group homes and people wanting to have a sex life in a free and open way? What about that fairly delicate subject of access to sex workers? In some jurisdictions that might be regarded as a criminal activity, in others it might be regarded as appropriate support to a person with disability. Sterilisation is another very difficult subject, so you can see there they have a range of very deeply felt issues and ones that really go to the heart of some of the aspects of being regarded as equal before the law.

SW: The ALRC has just released an Issues Paper in this Inquiry and has set down a number of questions. We’re asking for people to tell us their stories. How can people actually get involved and tell us about their experiences?

RC:  Well the first thing is we’re really keen to have people talk to us as much as possible. Consultation, being involved in ALRC inquiries, is really at the heart of what we do and it’s been a commitment right from the very first of the Commission. So, the main way people can talk to us is through making a submission and there is a lot of information about that on our website, including some illustrations in Easy English about how to go about making a submission, and in community languages as well. In this particular Inquiry we want to open up the range of ways and we will be making available not just email contact, but also through telephoning, having a chat to one of our very experienced staff on the phone to provide us the information that’s important for us. I’ll just mention the contact details first. To go through our website, … well, you’re probably on our website, but I’ll mention the website details: www.alrc.gov.au. And on the telephone, this is a special line for this Inquiry, (02) 8238 6366. The important thing is to talk to us. We really need your stories, your ideas, your contributions. Because it’s through the participation and engagement with our range of stakeholders in each inquiry that provides us with the information that helps us develop the ideas that we will eventually put to government as recommendations.

SW: We obviously want to hear from people with disability. Who else are we looking to get submissions from?

RC: In most of our inquiries we are targeting very specific people. In this Inquiry we’re keen to hear from people with disability and their carers, family and supporters. But also community organisations, service providers dealing with people with disability, essentially anyone involved in law and policy across the disability area both at state and territory level where guardians and others like that are appointed, through to Commonwealth government concerns as well – so guardians, public advocates, you name it. If you have an interest in equal recognition of people with disability, please get in touch with us.

SW:  So, submissions are going to close on 20 January. What happens after that?

RC: After we receive submissions, that is when we start more consultations. We have three rounds. This is the first round, the first stage of the Inquiry where we have the Issues Paper, we have consultations, we have submissions. Then we produce a Discussion Paper where we include proposals for reform. We really start to pin our ideas down on the basis of all the contributions you make to our work. With the proposals, we’ll then do the same thing. We’ll have consultations, we will have submissions again, and then develop a report for government, for the end of August 2014. It’s a very staged process. We’ve done this kind of process many times over and we know how well it works. But it works best with the maximum participation of all those interested in improving the law.

SW: So, that submission date again, 20 January. We hope that we will hear from many people about their experience of living with disability and that they will be able to contribute to our Inquiry. Thank you Ros.

RC: Thank you Sabina. And I look forward to reading all your submissions.