Recommendation 10–1 State and territory governments should review laws and legal frameworks concerning individual decision-making to ensure they are consistent with the National Decision-Making Principles and the Commonwealth decision-making model. In conducting such a review, regard should also be given to:
(a) interaction with any supporter and representative schemes under Commonwealth legislation;
(b) consistency between jurisdictions, including in terminology;
(c) maximising cross-jurisdictional recognition of arrangements; and
(d) mechanisms for consistent and national data collection.
Any review should include, but not be limited to, laws and legal frameworks with respect to guardianship and administration; consent to medical treatment; mental health; and disability services.
10.5 The practical outcomes of the ALRC’s Inquiry will depend, in significant part, on whether it serves as a catalyst for review of state and territory laws. This is mainly because guardianship and administration laws are state and territory based, and remain the primary mechanism in which others are vested with power to make decisions on behalf of a substantial number of people who need decision-making support.
10.6 Further, many Commonwealth agencies and Commonwealth funded services, such as aged care service providers, rely on state and territory appointed substitute decision-makers in managing their relationships with individuals. In some areas—such as disability services under the National Disability Insurance Scheme (NDIS)—while states and territories will continue to play the major role in providing or overseeing the provision of services, ‘federal authorities … will likely exercise more direct federal regulation of, and prescription of, the way states and territories administer disability funding’.
10.7 As discussed in Chapter 3, the National Decision-Making Principles and associated Guidelines are intended to be consistent with art 12 of the CRPD. By reviewing guardianship and other laws in the light of these principles, states and territories will advance compliance with the CRPD.
10.8 This is important as, under international law, parties to treaties undertake to ensure that the terms of the treaty are performed in all parts of federal states. This is a requirement of the Vienna Convention on the Law of Treaties, to which Australia is a party, and an obligation required expressly by art 4(5) of the CRPD. Although it is the Australian Government that entered into the CRPD, the provisions of the Convention are binding not only upon the Australian Government, but also upon each state and territory government.
10.9 The intention of Recommendation 10–1 is that states and territories would examine relevant legislation to see how the approaches represented by the National Decision-Making Principles and associated guidelines might be incorporated—most fundamentally by facilitating a shift to supported decision-making.
10.10 The process envisaged by the ALRC would involve review of legislation that deals with decision-making by people who require decision-making support to ensure, among other things, that:
legislative tests of decision-making capacity do not provide that people are assumed to lack capacity on the basis of having a disability, and that ability is assessed by reference to the decision to be made and the available supports;
supported decision-making is facilitated by appropriate legislative recognition of supporters;
laws providing for the appointment of representative decision-makers do so only as a last resort and not as a substitute for appropriate support;
laws providing for the appointment of representative decision-makers provide for appointments that are limited in scope, proportionate, and apply for the minimum time; and
laws providing for supported and representative decision-making ensure that a person’s ‘will, preferences and rights’ are respected—including by imposing appropriate duties on supporters and representative decision-makers.
10.11 To some extent, states and territories have already commenced this process—in particular, with regard to guardianship, the legislative area of most obvious relevance. For example:
the Victorian Law Reform Commission (VLRC), in its review of the Guardianship and Administration Act 1986 (Vic), was asked to have regard to ‘the principle of respect for the inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons, and the other General Principles and provisions’ of the CRPD; and
the Queensland Law Reform Commission has recommended that the General Principles in the Guardianship and Administration Act 2000 (Qld) be amended to ‘reflect more closely the relevant articles’ of the CRPD.
10.12 The Victorian Government has been actively reviewing laws dealing with decision-making by people who need decision-making support. The Powers of Attorney Act 2014 (Vic) aims to simplify and consolidate certain aspects of Victoria’s power of attorney laws, to create the role of a ‘supportive attorney’ and to improve the protections for vulnerable people. A supportive attorney is a new legal mechanism, which recognises that some people with impaired decision-making ability do not need a guardian or administrator. The ability to appoint a supportive attorney will acknowledge family and other relationships of support, while ensuring that the person retains their right to make decisions.
10.13 Stakeholders endorsed the idea that the role of this Report should include influencing reform of state and territory laws. Some suggested, however, that review based on the ALRC’s recommendations would not go far enough towards desired results. Pave the Way described the ideal outcome as a ‘a cohesive national approach’ to the implementation of art 12 of the CRPD, and a national regime of supported decision-making that no longer permits ‘substitute’ or ‘best interest’ decision-making.
10.14 Dr Fleur Beaupert, Dr Piers Gooding and Linda Steele advocated for the repeal of all ‘discriminatory mental health legislation, guardianship legislation, and any other substituted decision-making regimes’ and stated:
When restrictions are placed on the right to exercise legal capacity and the right to refuse medical treatment on an equal basis with others, the basis for supported decision-making as a remedy for disability-based discrimination is compromised. Hence, even if provisions for ‘supported decision-making’ and other measures to support the exercise of legal capacity were installed into current mental health and guardianship laws, the violation of core obligations of the CRPD would remain.
10.15 In relation to the process of reform, the Australian Guardianship and Administration Council (AGAC) observed that the ‘move to harmonisation of legislation will take some time to achieve and the complexity of this process cannot be underestimated’.
10.16 The Law Council of Australia suggested that a co-operative approach with states and territories ‘in the form of mirror legislation or for the State and Territories to adopt model Commonwealth legislation, is the most practical way to achieve consistency across jurisdictions’. Justice Connect and Seniors Rights Victoria suggested that there should be a nationally consistent approach to implementing decision-making principles and that states and territories retain responsibility for the implementation of supported decision-making under the oversight of a federal monitoring body.
10.17 A comprehensive national review process might be coordinated through the Council of Australian Governments (COAG) or its ministerial councils, such as the Disability Reform Council, Law Crime and Community Safety Council or Health Council, in consultation with peak bodies such as AGAC.
In 2007, there were over 4,000 people under public guardianship in Australia: NSW Office of the Public Guardian, Submission No 7 to the NSW Legislative Council Standing Committee on Social Issues, Substitute Decision-Making for People Lacking Capacity, 2010. At the end of August 2009, the NSW Trustee and Guardian was directly managing the affairs of 9,182 individuals and overseeing the work of a further 2,795 Private Managers: NSW Trustee and Guardian, Submission No 13 to the NSW Legislative Council Standing Committee on Social Issues, Substitute Decision-Making for People Lacking Capacity, 2010. The Victorian body, State Trustees protects the legal and financial interests of over 9,500 people: State Trustees, Did You Know? <www.statetrustees.com.au>.
John Chesterman, ‘The Future of Adult Guardianship in Federal Australia’ (2013) 66 Australian Social Work 26, 33.
Vienna Convention on the Law of Treaties, 1155 UNTS 331, 8 ILM 679 (entered into force 27 January 1980) art 27.
‘The provisions of the present Convention shall extend to all parts of federal states without any limitations or exceptions’: UN Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008) art 4(5).
See Philip French, Julie Dardel and Sonya Price-Kelly, ‘Rights Denied: Towards a National Policy Agenda about Abuse, Neglect and Exploitation of Persons with Cognitive Impairment’ (People with Disability Australia, 2009) 14–15.
Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) xi.
Queensland Law Reform Commission, A Review of Queensland’s Guardianship Laws, Report No 67 (2010) i, rec 4–1.
Explanatory Memorandum, Powers of Attorney Bill 2014 (Vic).
Ibid. The Act implements a number of the VLRC’s recommendations: Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012).
National Association of Community Legal Centres, Submission 127; Illawarra Forum, Submission 124; National Mental Health Consumer & Carer Forum, Submission 100; AGAC, Submission 91; Pave the Way, Submission 90.
F Beaupert, P Gooding and L Steele, Submission 123; Pave the Way, Submission 90.
Pave the Way, Submission 90.
F Beaupert, P Gooding and L Steele, Submission 123.
AGAC, Submission 91.
Law Council of Australia, Submission 83.
Justice Connect and Seniors Rights Victoria, Submission 120.