Recommendation 11–4 The Australian Government should review and replace provisions in Commonwealth legislation that require the termination of statutory appointments by reason of a person’s ‘unsound mind’ or ‘mental incapacity’.
11.74 Persons with disability are significantly under-represented in public office. The main barrier to holding public office for persons with disability may be the negative assumptions about their ability. The Law Council acknowledged that this social disadvantage, rather than any legal restriction, affects the capacity of people to hold public office, as well as to engage in a profession, vocation or other activities.
11.75 There are a considerable number of other provisions in Commonwealth legislation concerning public office holders that refer to the concept of ‘unsound mind’ or ‘mental incapacity’. In most cases, these provide that the appointment of a person who becomes of unsound mind or acquires a mental incapacity may be terminated. For example:
Australian Law Reform Commission Act 1996 (Cth) ss 17, 18—members of the ALRC;
Australian Securities and Investments Commission Act 2001 (Cth) s 207—Chairperson or Deputy Chairperson of ASIC;
Gene Technology Act 2000 (Cth) s 119—Gene Technology Regulator;
Inspector-General of Taxation Act 2003 (Cth) s 35—Inspector-General of Taxation;
National Blood Authority Act 2003 (Cth) s 35—General Manager of the National Blood Authority; and
Veterans’ Entitlements Act 1986 (Cth) s 164—members of the Veterans’ Review Board.
11.76 The ALRC suggests that these provisions be replaced over time with functional tests similar to those recommended by the ALRC in other contexts, including in relation to board membership, above. That is, an appointment should be able to be terminated if the person cannot be supported to: understand the information relevant to the decisions that they will have to make in performing the role; retain that information to the extent necessary to make those decisions; use or weigh that information as part of the process of making decisions; or communicate the decisions in some way.
Members of Parliament
11.77 The qualifications of members of the House of Representatives and Senators are set out in the Australian Constitution. They include eligibility as an elector under the Commonwealth Electoral Act 1918 (Cth). As discussed in Chapter 9, the ALRC recommends removing the ‘unsound mind’ provision contained in the Commonwealth Electoral Act.
11.78 Under the Australian Constitution, a Commonwealth judicial officer may be removed on an address from both Houses of the Parliament on the ground of ‘proved misbehaviour or incapacity’. A statutory process for assisting the Parliament to consider removal has been established by the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth). Under this Act, the Parliament may establish a commission to investigate and report on an allegation of misbehaviour or incapacity, so that the Parliament is well-informed about the decision at hand.
11.79 The Courts Legislation Amendment (Judicial Complaints) Act 2012 (Cth) modified various related laws such as the Family Law Act 1975 (Cth) and the Federal Court of Australia Act 1976 (Cth) to provide a statutory basis for the heads of jurisdiction to deal with complaints about judicial officers, including establishing a conduct committee.
11.80 The ALRC does not recommend any change to these laws because they appear to provide for an impartial and considered approach to the assessment of decision-making ability in their relevant contexts. At the time of writing, these 2012 laws had not yet been tested. In time, the ALRC’s National Decision-Making Principles may inform the decisions of Parliament and the heads of jurisdictions of Commonwealth courts.
In 2010, the Hon Kelly Vincent MLC, South Australia, from the ‘Dignity for Disability’ party was the first Member of Parliament in Australia to be elected on a disability platform.
Law Council of Australia, Submission 83.
Most of these provisions include the words ‘proved misbehaviour or physical or mental incapacity’.
Australian Constitution ss 16, 34.
Similar provisions exist at state level and, in Victoria, the constitution itself explicitly provides that a person who ‘by reason of being of unsound mind, is incapable of understanding the nature and significance of enrolment and voting is not entitled to be enrolled’: Constitution Act 1975 (Vic) s 48(2)(d).
Commonwealth Electoral Act 1918 (Cth) s 93(8)(b).
Australian Constitution s 72.
The heads of jurisdiction are the Chief Justices of the Federal Court and the Family Court and the Chief Federal Magistrate.