Professor Rosalind Croucher – launch of ALRC Report 124

Introduction and welcome

Good morning and welcome to this important event. I am Professor Rosalind Croucher, President of the Australian Law Reform Commission, and it is my very great privilege to commence the proceedings.

I warmly welcome:

• Evan Lewis from the Department of Social Services, attending on behalf of Senator the Hon Mitch Fifield, Assistant Minister for Social Services, who sends his apologies
• the Hon Mark Dreyfus QC MP, Shadow Attorney-General (who provided the Terms of Reference for the inquiry)
• the Hon Jenny Macklin MP, Shadow Minister for Disability Reform
• Professor Gillian Triggs of the Human Rights Commission
• the Hon Justice Robertson Wright, President of the NSW Civil and Administrative Tribunal
• Graeme Inness AM, part-time Commissioner for the inquiry
• members of the Advisory Committee for the inquiry
• ALRC colleagues – the Disability team, and
• all of you here who assisted us so willingly and well in the inquiry

Welcome all!

In the presence of such eminent guests may I begin by acknowledging the Gadigal people of the Eora nation, who are the traditional owners and custodians of the land on which we meet—and I pay my respects to their elders, both past and present and acknowledge Indigenous guests attending today.

And now to the occasion of today — to launch the Australian Law Reform Commission’s 124^th report, Equality, Capacity and Disability in Commonwealth Laws.

The Law Reform Brief

The equal recognition of people with disability as persons before the law and their ability to exercise legal capacity was the central point of the inquiry. Our Terms of Reference asked us to examine laws and legal frameworks within the Commonwealth jurisdiction that denied or diminished this equal recognition, and to recommend what, if any, changes could be made.

We were asked to consider ‘how maximising individual autonomy and independence could be modelled in Commonwealth laws and legal frameworks’. This was to prove pivotal as so much of laws relating to capacity are entrenched in state laws, especially the law relating to guardianship and administration. Providing a model in Commonwealth laws that could lead the way for state and territory reforms would therefore be the most sensible use of ALRC expertise and resources. The report makes 55 recommendations for reform.

We started work in July 2013, the same month in which a pilot of the National Disability Insurance Scheme (NDIS) in Australia commenced. Very much in the national mind was also the role that Australia had played in the international arena as one of the initial signatories to the Convention on the Rights of People with Disabilities —the ‘DisCo’, as Graeme Innes calls it.

The law reform response

What became clear in this inquiry is that we needed to find new language and new priorities. We provided answers on both fronts.

First: A new lexicon

As a legal historian I had observed a number of significant shifts in language in my own studies in inheritance law. Like the language dealing with children born out of wedlock: from ‘bastards’ in the 13^th century, to ‘illegitimate’ to ‘ex-nuptial’ in the 1970s, the language concerning disability has shifted significantly over time, for example:

• the distinction between ‘lunatics’ and ‘idiots’ in William Blackstone’s day in the mid-18th century;
• the language of ‘unsound mind’ of the early 20th century, as evident for example in the Commonwealth Electoral Act 1918 (Cth);
• the use of the terms ‘mentally retarded persons’ and ‘disabled persons’ in United Nations Declarations of 1971 and 1975; and
• ‘persons with disabilities’ in the CRPD in 2007.

When the ALRC did some work on guardianship in the 1980s, the report said, succinctly:

There is a problem of language when dealing with people with disabilities.

People with disability have tackled this language problem in a myriad of ways. The incomparable Stella Young, who so sadly passed away this week so unexpectedly, had her own particular take on language. In her letter to herself as an 80 year old, she spoke of herself as a disabled woman and a ‘crip’—something she said horrified people. But for her it was about ‘owning’ her own labels. About feeling proud. About feeling strong and powerful.

I was the 1,484,173rd to watch the YouTube clip of her TEDX talk filmed in April this year. Stella’s powerful message was against objectifying disability. That she was not wrong for the world she lived in — the world she lived in was not yet right for her. What she hoped was that, by the time she was 80, she would have written things that change the way people think about disability. I think we all acknowledge that even by the time Stella had reached her 32 years, she had already gone a long way to achieving this. I know many of you knew and worked with Stella and I offer you the ALRC’s sincerest condolences on this great loss.

The ALRC, too, through this inquiry and all the contributions made by so many people, hopes to contribute to changing the way that people think about disability.

First, we sought to move the language from terminology that reflected previous times. Consistent with the approach identified by the ALRC in 1989, it was clear that words and terms should not be used that tend to lower the dignity of people with disabilities. We also sought to place the emphasis in law, and in language, on support.

What words had to go? ‘Unsound mind’ for starters — and we have a specific recommendation about getting rid of this remnant phrase in the Commonwealth Electoral Act. Old words like ‘guardian’ should go too. Where we could suggest a model, as we have done in Commonwealth laws, we use the terms ‘supporter’ and ‘representative’. Our new Commonwealth decision-making model encourages the adoption of supported decision-making at a national level and introduces mechanisms for the appointment of ‘supporters’ for adults who may require decision-making support, and provisions relating to ‘representatives’ to address circumstances in which a person may desire (eg through an instrument made in advance), or require, someone else to make decisions for them. The model is based on principles of dignity, equality, autonomy, inclusion and participation—and accountability.

Second: New priorities

Law has always started with a presumption of capacity: that people should be assumed to be capable of making decisions and acting. This is a good thing in law and is, not surprisingly, the starting point of much recent work on capacity. But in this report we concluded that we had to go further to articulate the paradigm shift evident in the language of, and discourse around, the UN Convention. Here I acknowledge especially our Advisory Committee in working through the conceptual implications of this for us and in reaching the conclusion that it was necessary to place the emphasis on the right of citizens to make decisions, rather than on the qualification intrinsic in a presumption. The conceptual difficulty in starting with a presumption of legal capacity as an overarching principle is that it already contains a binary classification—of those who have legal capacity, and those who do not. It is echoed in words that Stella used, about the world she lived in being wrong for her, not the other way round.

We did not say that legal agency may never be found to be lacking; nor is it meant to suggest that a person may never be appointed to act on behalf of another in making decisions. But as a starting point as a matter of principle we decided that we had to start from the right, not a presumption. The key element in equal recognition, as understood in the CRPD and the discourse that has developed around it, is the embracing of a supported decision-making paradigm so that persons with disability are acknowledged as having the right to make decisions on an equal basis with others and are supported in exercising that right.

The new priorities are expressed in terms of National Decision-Making Principles and guidelines that can be used as a template for specific reforms. The four general principles reflect the key ideas and values upon which the ALRC’s approach is based. They are drawn from the CRPD, other international models, stakeholder submissions and the work of other bodies and individuals. They are not prescriptive, and are of general application.

Principle 1: The equal right to make decisions

All adults have an equal right to make decisions that affect their lives and to have those decisions respected.

Principle 2: Support

Persons who require support in decision-making must be provided with access to the support necessary for them to make, communicate and participate in decisions that affect their lives.

Principle 3: Will, preferences and rights

The will, preferences and rights of persons who may require decision-making support must direct decisions that affect their lives.

Principle 4: Safeguards

Laws and legal frameworks must contain appropriate and effective safeguards in relation to interventions for persons who may require decision-making support, including to prevent abuse and undue influence.

Key to the principles is the paradigm shift signalled in the UN Convention away from ‘best interests’ decision-making to a focus on ‘wills, preferences and rights’, particularly in the context of when another may be needed to act.

It is important that when people with disability are supported to make decisions, or have decisions made for them, it is their wishes and preferences that drive those decisions—not other people’s ideas about their best interests. And even when another person is appointed to act for us, that person must act as our representative. The change to ‘representative’ also reflects the central change that is critical to the whole report, in that the way that person has to act is as a representative: a representative of you, to act according to your will and preferences

As to the intersections between federal and state systems, there should be a presumption that an existing state or territory appointed decision-maker should be appointed, eg, as the representative for NDIS purposes.

Development of the reform response

In developing a reform response we talk to a lot of people. We listen to a lot of people. And a lot of people put in submissions. Commitment to widespread consultation is a hallmark of best practice law reform—and this inquiry was no exception. We received more than 150 submissions and undertook two national rounds of stakeholder consultation meetings, forums and roundtables.

Thank yous

An inquiry such as this requires many thank yous.

First, I must single out the wonderful work of the team: the legal officers of the ALRC—Bruce Alston, Amanda Alford, Khanh Hoang, Sonya Kim; the production team, under the leadership of ALRC Executive Director Sabina Wynn with Tina O’Brien once again providing key support as Project Coordinator and typesetting everything under the sun, Trisha Manning, designed the cover; and Marie-Claire Muir—our one-woman website ‘team’.

Our part-time Commissioners: the Hon Justice Berna Collier (until October 2013) and Graeme Innes AM.

Our Advisory Committee—many of whom are here today and two of whom are speaking (Graeme Smith and Rosemary Kayess). May I acknowledge also Emeritus Professor Terry Carney who has been on a number of Advisory Committees for the ALRC and always contributes so willingly and graciously his expertise to our work — and those of others. Both on advisory committees and as an expert reader, his contributions are invaluable.

And a huge vote of thanks to all those with whom we consulted, all over the country; and to those who put in submissions. The depth of engagement reflected in this process of consultation is the hallmark of best practice law reform and the ability of governments to implement them. Many of those stakeholders have been with us now for several inquiries.

Everyone here today has played a part.

Thank you all!

Next speakers

I am delighted now to introduce three speakers to speak about the report, as esteemed members of the Advisory Committee:

First: Rosemary Kayess, Director, Human Rights and Disability Project, Australian Human Rights Centre, Faculty of Law, UNSW and Chairperson of the Australian Centre for Disability Law;

Second: Graeme Smith, New South Wales Public Guardian

Third: the incomparable Graeme Innes, who will also officially launch the report.