Review of equal recognition before the law and legal capacity for people with disability
I, Mark Dreyfus QC MP, Attorney-General of Australia, having regard to:
the United Nations Convention on the Rights of Persons with Disabilities, to which Australia is a party and which sets out:
rights for people with disability to recognition before the law, to legal capacity and to access to justice on an equal basis with others, and
a general principle of respect for inherent dignity, individual autonomy, including freedom to make one’s own choices, and independence of persons, and
Australian Governments’ commitment to the National Disability Strategy, which includes ‘rights protection, justice and legislation’ as a priority area for action.
REFER to the Australian Law Reform Commission (ALRC) for inquiry and report, pursuant to s 20(1) of the Australian Law Reform Commission Act 1996 (Cth):
the examination of laws and legal frameworks within the Commonwealth jurisdiction that deny or diminish the equal recognition of people with disability as persons before the law and their ability to exercise legal capacity, and
what if any changes could be made to Commonwealth laws and legal frameworks to address these matters.
For the purposes of the inquiry, equal recognition before the law and legal capacity are to be understood as they are used in the Convention on the Rights of Persons with Disabilities: including to refer to the rights of people with disability to make decisions and act on their own behalf.
Scope of the reference
In undertaking this reference, the ALRC should consider all relevant Commonwealth laws and legal frameworks that either directly, or indirectly, impact on the recognition of people with disability before the law and their exercise of legal capacity on an equal basis with others, including in the areas of:
- access to justice and legal assistance programs
- administrative law
- aged care
- anti-discrimination law
- board participation
- competition and consumer law
- disability services and supports
- electoral matters
- federal offences
- financial services, including insurance
- giving evidence
- holding public office
- identification documents
- jury service
- marriage, partnerships, intimate relationships, parenthood and family law
- medical treatment
- privacy law
- restrictive practices
- social security
- superannuation, and
- supported and substituted decision making.
The review should also have particular regard for the ways Commonwealth laws and legal frameworks affect people with disability who are also children, women, Indigenous people, older people, people in rural, remote and regional areas, people from culturally and linguistically diverse backgrounds and lesbian, gay, bisexual, transgender and intersex people.
The purpose of this review is to ensure that Commonwealth laws and legal frameworks are responsive to the needs of people with disability and to advance, promote and respect their rights. In considering what if any changes to Commonwealth law could be made, the ALRC should consider:
how laws and legal frameworks are implemented and operate in practice
the language used in laws and legal frameworks
how decision making by people with impairment that affects their decision making can be validly and effectively supported
presumptions about a person’s ability to exercise legal capacity and whether these discriminate against people with disability
use of appropriate communication to allow people with disability to exercise legal capacity, including alternative modes, means and formats of communication such as Easy English, sign language, Braille, and augmentative communications technology
how a person’s ability to independently make decisions is assessed, and mechanisms to review these decisions
the role of family members and carers and paid supports such as legal or non-legal advocates in supporting people with disability to exercise legal capacity for themselves—both in relation to formal and informal decisions and how this role should be recognised by laws and legal frameworks
safeguards—are the powers and duties of decision making supporters and substituted decision makers effective, appropriate and consistent with Australia’s international obligations
recognition of where a person’s legal capacity and/or need for supports to exercise legal capacity is evolving or fluctuating (where a person with disability may be able to independently make decisions at some times and circumstances but not others or where their ability to make decisions may grow with time and/or support), including the evolving capacity of children with disability, and
how maximising individual autonomy and independence could be modelled in Commonwealth laws and legal frameworks.
In conducting this inquiry, the ALRC should also have regard to:
initiatives under the National Disability Strategy, including the National Disability Insurance Scheme and other services and supports available to people with disability, and how these should/could interact with the law to increase the realisation of people with disability’s recognition before the law and legal capacity
how Commonwealth laws and legal frameworks interact with State and Territory laws in the areas under review, contemporaneous developments and best practice examples within the States and Territories, and
international laws and legal frameworks that aim to ensure people with disability are accorded equal recognition before the law and legal capacity on an equal basis with others, including international work to implement the Convention on the Rights of Persons with Disability.
In undertaking this reference, the ALRC should identify and consult with relevant stakeholders, particularly people with disability and their representative, advocacy and legal organisations, including through accessible formats, but also families and carers of people with disability, relevant Government departments and agencies in the Commonwealth and States and Territories, the Australian Human Rights Commission, and other key non-government stakeholders.
The Commission should provide its report to the Attorney-General by August 2014.
Dated 23 July 2013
Review of the Native Title Act 1993
I, Mark Dreyfus QC MP, Attorney-General of Australia, having regard to:
- the 20 years of operation of the Native Title Act 1993 (the Act)
- the importance of the recognition and protection of native title to Indigenous Australians and the broader Australian community
- the importance of certainty as to the relationship between native title and other interests in land and waters
- Australia’s statement of support for the United Nations Declaration on the Rights of Indigenous Peoples
- the need to ensure that the native title system delivers practical, timely and flexible outcomes for all parties, including through faster, better claims resolution
- significant and ongoing stakeholder concern about barriers to the recognition of native title
- delays to the resolution of claims caused by litigation, and
- the capacity of native title to support Indigenous economic development and generate sustainable long-term benefits for Indigenous Australians.
REFER to the Australian Law Reform Commission for inquiry and report, pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996, Commonwealth native title laws and legal frameworks in relation to two specific areas, as follows:
connection requirements relating to the recognition and scope of native title rights and interests, including but not limited to whether there should be:
a presumption of continuity of acknowledgement and observance of traditional laws and customs and connection
clarification of the meaning of ‘traditional’ to allow for the evolution and adaptation of culture and recognition of ‘native title rights and interests’
clarification that ‘native title rights and interests’ can include rights and interests of a commercial nature
confirmation that ‘connection with the land and waters’ does not require physical occupation or continued or recent use, and
empowerment of courts to disregard substantial interruption or change in continuity of acknowledgement and observance of traditional laws and customs where it is in the interests of justice to do so.
any barriers imposed by the Act’s authorisation and joinder provisions to claimants’, potential claimants’ and respondents’ access to justice.
In relation to these areas and in light of the Preamble and Objects of the Act, I request that the Commission consider what, if any, changes could be made to improve the operation of Commonwealth native title laws and legal frameworks.
Scope of reference
In performing its functions in relation to this reference, the Commission should consider:
- the Act and any other relevant legislation, including how laws and legal frameworks operate in practice
- any relevant case law
- relevant reports, reviews and inquiries regarding the native title system and the practical implementation of recommendations and findings, including the Taxation of Native Title and Traditional Owner Benefits and Governance Working Group, the Review of Native Title Organisations and the Productivity Commission inquiry into non-financial barriers to mineral and energy resource exploration
- the interests of key stakeholders, and
- any other relevant matter concerning the operation of the native title system.
In undertaking this reference, the Commission should identify and consult with key stakeholders, including:
- relevant Commonwealth, State, Territory and local governments, departments and agencies
- the Federal Court of Australia and the National Native Title Tribunal
- Indigenous groups, Native Title Representative Bodies and Native Title Service Providers, and Prescribed Bodies Corporate
- industry, including the agriculture, pastoral, fisheries, and minerals and energy resources industries, and
- any other relevant groups or individuals.
Timeframe for reporting
The Commission is to report by March 2015.
Dated 3 August 2013
Mark Dreyfus QC MP
Review of Commonwealth laws for consistency with traditional rights, freedoms and privileges
I, Senator the Hon George Brandis QC, Attorney-General of Australia, having regard to the rights, freedoms and privileges recognised by the common law,
REFER to the Australian Law Reform Commission (ALRC) for inquiry and report pursuant to section 20(1) of the Australian Law Reform Commission Act 1996 (Cth):
the identification of Commonwealth laws that encroach upon traditional rights, freedoms and privileges; and
a critical examination of those laws to determine whether the encroachment upon those traditional rights, freedoms and privileges is appropriately justified.
For the purpose of the inquiry ‘laws that encroach upon traditional rights, freedoms and privileges’ are to be understood as laws that:
- reverse or shift the burden of proof;
- deny procedural fairness to persons affected by the exercise of public power;
- exclude the right to claim the privilege against self-incrimination;
- abrogate client legal privilege;
- apply strict or absolute liability to all physical elements of a criminal offence;
- interfere with freedom of speech;
- interfere with freedom on religion;
- interfere with vested property rights;
- interfere with freedom of association;
- interfere with freedom of movement;
- disregard common law protection of personal reputation;
- authorise the commission of a tort;
- inappropriately delegate legislative power to the Executive;
- give executive immunities a wide application;
- retrospectively change legal rights and obligations;
- create offences with retrospective application;
- alter criminal law practices based on the principle of a fair trial;
- permit an appeal from an acquittal;
- restrict access to the courts; and
- interfere with any other similar legal right, freedom or privilege.
Scope of the reference
In undertaking this reference, the ALRC should include consideration of Commonwealth laws in the areas of, but not limited to:
- commercial and corporate regulation;
- environmental regulation; and
- workplace relations.
In considering what, if any, changes to Commonwealth law should be made, the ALRC should consider:
- how laws are drafted, implemented and operate in practice; and
- any safeguards provided in the laws, such as rights of review or other accountability mechanisms.
In conducting this inquiry, the ALRC should also have regard to other inquiries and reviews that it considers relevant.
In undertaking this reference, the ALRC should identify and consult relevant stakeholders, including relevant Commonwealth departments and agencies, the Australian Human Rights Commission, and key non-government stakeholders.
The Commission is to provide its interim report by December 2014 and its final report by December 2015.