The equal right to make decisions

3.12       The principal idea in any discussion of legal capacity is that adults have the right to make decisions for themselves. This is frequently expressed in terms of a presumption of legal capacity, which may be rebutted if circumstances demonstrate that the requisite level of capacity is lacking in that context.

3.13       Stakeholders supported the emphasis on the right to make decisions. Some wanted the statement to retain the form of a presumption;^[10] others that it should go further. A number of stakeholders also stated that it should be recognised that there are circumstances in which a person may not be able to exercise such a right for themselves—and where another may need to be appointed to act on their behalf.

3.14       In this Report, the ALRC adopts the paradigm shift evident in the language of, and discourse around, the CRPD. The ALRC considers that it is necessary to place the emphasis on the right of citizens to make decisions, rather than on the qualification intrinsic in a presumption. The conceptual difficulty in starting with a presumption of legal capacity as an overarching principle is that it already contains a binary classification—of those who have legal capacity, and those who do not.

3.15       This is not to suggest that legal agency may never be found to be lacking—for example through the application of common law doctrines about legal capacity when invoked in reviewing transactions. Nor is it meant to suggest that a person may never be appointed to act on behalf of another in making decisions. The ALRC agrees with many stakeholders on these points.^[11]

3.16       The ALRC considered whether the principle should be expressed as applying more broadly than just to adults. The Queensland Law Reform Commission (QLRC) used ‘adult’ in its formulations of principle,^[12] but the Victorian Law Reform Commission (VLRC) considered such a principle could have application to young people who are able to satisfy the Gillick ‘mature minor’ test endorsed by the High Court in Marion’s Case.^[13] The ALRC has sought to avoid confusion in the first principle by confining it to adults. Decision-making principles dealing with children involve a ‘best interests’ standard—a standard deliberately not used in this Inquiry.^[14]

3.17       This does not mean that the National Decision-Making Principles could not have a broader application, but only that for the purposes of this Inquiry the ALRC has limited the expression to adults—at least as a starting point for reform. The remaining Principles are expressed in terms of ‘persons’.