Recommendation 3–1 Reform of Commonwealth, state and territory laws and legal frameworks concerning individual decision-making should be guided by the National Decision-Making Principles and Guidelines (see Recommendations 3–2 to 3–4) to ensure that:
supported decision-making is encouraged;
representative decision-makers are appointed only as a last resort; and
the will, preferences and rights of persons direct decisions that affect their lives.
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.
3.5 The National Decision-Making Principles are four general principles that reflect the key ideas and values upon which the ALRC’s approach in relation to legal capacity is based. They are distinct from the framing principles for the Inquiry as a whole (dignity, equality, autonomy, inclusion and participation, and accountability), but reflect and are informed by those principles.
3.6 The National Decision-Making Principles provide a conceptual overlay at a high level. 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. The Principles are supported by three sets of Guidelines.
3.7 The Terms of Reference require the ALRC to consider ‘how maximising individual autonomy and independence could be modelled in Commonwealth laws and legal frameworks’. The focus of the Inquiry is on the ‘ability to exercise legal capacity’ and equal recognition before the law of people with disability. The ALRC considers this can best be achieved by setting up an overall framework of principles and guidelines that can then be used as the template for specific reforms—both in Commonwealth areas of responsibility included in the Terms of Reference; and at state and territory level, in review of guardianship and related regimes.
3.8 The National Decision-Making Principles were strongly supported by stakeholders. The ACT Disability, Aged and Carer Advocacy Service (ADACAS), for example, said that the Principles ‘provide a sound basis for legislative change’. The Queenslanders with Disability Network (QDN) submitted that
The National Decision-Making Principles and Guidelines developed by the ALRC are a major step forward in creating a unified, progressive approach to empowering people with disability.
3.9 The National Decision-Making Principles will provide the basis for national consistency and ‘could play an important role in creating a framework for reform’ of Commonwealth, state and territory laws concerning decision-making by persons who may require support. National Disability Services (NDS) supported the
establishment of clearly articulated ‘national decision-making principles’ to guide reform of all Commonwealth, state and territory laws and legal frameworks that affect decision-making of people with disability. This appears to be the most effective strategy for building a more coherent approach to legal capacity. It should, over time, reduce the inconsistency and unnecessary administrative hurdles across different jurisdictions or areas of life that currently face people with disability, their families and service providers.
3.10 The NDS emphasised the importance of the Commonwealth taking the lead in implementing change, and encouraged incremental implementation:
The process of change should roll out slowly, providing opportunities for learning along the way. As indicated by the [ALRC], the Commonwealth may put into practice the various changes prior to states and territories. This will represent a useful opportunity to evaluate the practical ramifications. Similarly, the areas of law that have a clear role in addressing support for legal capacity, such as the National Disability Insurance Scheme (NDIS) Act, the Evidence Act and guardianship laws, may do the detailed work to develop specific legal solutions. These can then be more easily modified or adopted in other areas of law such as electoral, contract, banking and consumer protection.
3.11 The adoption of the National Decision-Making Principles will provide a crucial starting point for change:
The proposed principles should achieve a shift in practice to help embed the right of every adult to make their own decisions and to be provided with the support necessary to do so. They will also help to ensure that any decision made for a person with disability is directed by their will, preferences and rights. This shift will have different practical implications in the various relevant areas of law.
Terms of Reference (emphasis added).
As set out in the Discussion Paper: Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Discussion Paper No 81 (2014) Ch 3.
ADACAS, Submission 108.
Queenslanders with Disability Network, Submission 119.
Law Institute of Victoria, Submission 129.
National Disability Services, Submission 92.