1.33 Law reform recommendations cannot be based upon assertion or assumption and need to be built on an appropriate conceptual framework and evidence base.
1.34 The ALRC identified five framing principles for guiding the recommendations for reform in this Inquiry: dignity; equality; autonomy; inclusion and participation; and accountability. There was wide support by stakeholders for these principles, which are reflected in the decision-making model that is developed in the Report.
1.35 Dignity is one of the guiding principles of the CRPD and is recognised in a number of other international human rights instruments. In Australia, the National Disability Strategy (NDS) prioritised the concept of dignity in its principles. Similarly, the Productivity Commission identified human dignity as ‘an inherent right’ of persons with disability and suggested that dignity as a human being is linked to self-determination, decision-making and choice.
1.36 Equality is at the heart of the CRPD. The United Nations Committee on the Rights of Persons with Disabilities stated that: ‘Equality before the law is a basic and general principle of human rights protection and is indispensable for the exercise of other human rights’. Similarly, art 5 prohibits all discrimination on the basis of disability and requires States to promote equality, and arts 6 and 7 emphasise equality for women and children. The NDS principles emphasise equality of opportunity, and a range of Commonwealth laws also protect the equality of people and proscribe discrimination on the basis of disability—for example, the Disability Discrimination Act 1992 (Cth).
1.37 Autonomy is a significant principle underlying the ability of persons with disability to exercise legal capacity. It is enshrined in the general principles of the CRPD and is a key principle of the NDS. The objects and principles of the NDIS also reflect the notion of autonomy. This Inquiry has been informed by autonomy in the sense of ‘empowerment’, not just ‘non-interference’. This involves seeing an individual in relation to others, in a ‘relational’ or ‘social’ sense, and understanding that connects with respect for the family as the ‘natural and fundamental group unit of society’ that is entitled to protection by States Parties. Such a view sits comfortably with a shift in emphasis towards supported decision-making, which ‘acknowledges that individuals rely to a greater or lesser extent on others to help them make and give effect to decisions’.
1.38 Closely related to the principles of dignity and equality, the principles of inclusion and participation are central to many contemporary perspectives on disability, particularly a social model of disability. The social model emphasises that, while ‘a person might have an impairment, their disability comes from the way society treats them, or fails to support them’. Inclusion and participation are active values, consistent with an approach to autonomy as empowerment. An emphasis on inclusion has important consequences for education, workforce participation and economic security, as people with disability are seen as ‘citizens with rights, not objects of charity’. Further, one of the objects of the NDIS Actis to facilitate greater community inclusion of people with a disability. The focus on supported decision-making developed throughout the Report reflects the principle of inclusion and participation.
1.39 The principle of accountability has a number of key components. The first is the need for systemic and specific accountability mechanisms and safeguards. ‘Supporters’ who fulfil a supportive role in decision-making must be properly accountable, as well as those who are appointed to make decisions on a person’s behalf. Another important component is the accountability and responsibility of persons with disability for their decisions, recognising that active participation involves both responsibilities and risks.
Building an evidence base
1.40 A major aspect of building the evidence base to support the formulation of ALRC recommendations for reform is consultation, acknowledging that widespread community consultation is a hallmark of best practice law reform. Under the provisions of the Australian Law Reform Commission Act 1996 (Cth), the ALRC ‘may inform itself in any way it thinks fit’ for the purposes of reviewing or considering anything that is the subject of an inquiry.
1.41 The process for each law reform project may differ according to the scope of the inquiry, the range of stakeholders, the complexity of the laws under review, and the period of time allotted for the inquiry. For each inquiry the ALRC determines a consultation strategy in response to its particular subject matter and likely stakeholder interest groups. The nature and extent of this engagement is normally determined by the subject matter of the reference and the timeframe in which the inquiry must be completed under the Terms of Reference. While the exact procedure is tailored to suit each inquiry, the ALRC usually works within an established framework, outlined on the ALRC’s website.
1.42 A multi-pronged strategy of seeking community comments was used. Two consultation documents were released to facilitate focused consultations in stages through the Inquiry. An Issues Paper was released on 15 November 2013 and a Discussion paper on 22 May 2014.
1.43 The Discussion Paper put forward 56 proposals and 16 questions to assist the ALRC to develop its recommendations for reform. Both consultation papers and this final Report were also released in an Easy English format.
1.44 Two national rounds of stakeholder consultation teleconferences, meetings, forums and roundtables were also conducted following the release of each of the consultation documents.
1.45 The Terms of Reference for this Inquiry directed the ALRC to consult with relevant stakeholders, particularly persons with disability and their representative, advocacy and legal organisations, but also families and carers of people with disability, relevant Commonwealth, states and territory departments and agencies, the Australian Human Rights Commission, and other key non-government stakeholders. The many individuals, departments, agencies and organisations consulted in the Inquiry are listed at the end of the Report.
1.46 The ALRC received 156 submissions, a full list of which appears at the end of the Report. Submissions were received from a wide range of people and agencies, including: bodies representing persons with disability; courts; public guardians and advocates; individuals; academics; lawyers; community legal centres; law societies and representative groups; and Commonwealth and state government agencies.
1.47 The ALRC acknowledges the contribution of all those who participated in the Inquiry consultation rounds and the considerable amount of work involved in preparing submissions. This can have a significant impact in organisations with limited resources. It is the invaluable work of participants that enriches the whole consultative process and the ALRC records its deep appreciation for this contribution.
1.48 In addition to the contribution of expertise by way of consultations and submissions, specific expertise is also obtained in ALRC inquiries through the establishment of Advisory Committees, panels, roundtables and the appointment by the Attorney-General of part-time Commissioners. The Advisory Committee for this Inquiry had 11 members, listed at the beginning of the Report. Two meetings were held in Sydney on 3 October 2013 and 8 April 2014.
1.49 In this Inquiry the ALRC was able to call upon the expertise and experience of Graeme Innes AM, Disability Discrimination Commissioner, who was appointed as a part-time Commissioner specifically to assist the ALRC in this Inquiry. The Hon Justice Berna Collier of the Federal Court of Australia contributed her experience as a part-time Commissioner until October 2013 and thereafter on the Advisory Committee for the Inquiry.
1.50 While the ultimate responsibility in each inquiry remains with the Commissioners of the ALRC, the establishment of a group of experts as an Advisory Committee, panel or roundtable and the enlisting of expert readers are invaluable aspects of ALRC inquiries. These experts assist in the identification of key issues, providing quality assurance in the research and consultation effort, and assisting with the development of reform proposals. The ALRC acknowledges the significant contribution made by the Advisory Committee in this Inquiry and expresses its gratitude to them for voluntarily providing their time and expertise.
1.51 Once tabled in the Australian Parliament, the Report becomes a public document. ALRC reports are not self-executing documents. The ALRC is an advisory body and provides recommendations about the best way to proceed—but implementation is a matter for others. However, the ALRC has a strong track record of having its advice followed. The Annual Report 2012–2013 records that 61% of ALRC reports are substantially implemented and 28% are partially implemented, representing an overall implementation rate of 89%.
1.52 Quite apart from such statistics, an assessment of the contribution that law reform work makes must have a long view. Law reform inquiries have a far bigger impact than just the implementation of recommendations, some of which may occur shortly after a report is released, some many years later. But whether or not recommendations are implemented, ALRC reports provide enormous value. Each ALRC report provides not only a mapping of law as at a particular moment in time, but in reviewing the submissions and consultations the reports also provide a snapshot of opinion on the issues being considered—providing a considerable contribution to legal history, and increasingly locating that within its particular social context at a given time In making a submission to the Senate Standing Committee on Legal and Constitutional Affairs, when the Committee conducted an inquiry into the ALRC over the summer of 2010–2011, the Federal Court of Australia said that the Court benefits greatly from ALRC reports:
More often than not, an ALRC report contains the best statement or source of the current law on a complex and contentious topic that can remain the case for decades thereafter, whether or not the ALRC’s recommendations are subsequently implemented.