Recommendation 4–6 Relevant Commonwealth legislation should include the concept of a representative and provide for representative arrangements to be established that reflect the National Decision-Making Principles.
4.97 In certain circumstances, a person may require someone else to make decisions for them. The ALRC recommends the introduction of representatives as a mechanism for this in areas of Commonwealth law.
4.98 A representative should only be appointed as a last resort and in limited circumstances. A representative under the model is an individual or organisation appointed by a person who requires decision-making support, or through some other appointment mechanism as discussed below. A representative would support a person to make decisions and express their will and preferences in making decisions; determine the person’s will and preferences and give effect to them; or consider the person’s human rights relevant to the situation in making a decision where their will and preferences cannot be determined at all.
4.99 As with supporters, the introduction of representatives would occur under specific Commonwealth legislation and needs to be tailored to suit the particular legislative context. As discussed below, a number of core elements should be included in any Commonwealth scheme for representatives.
4.100 Representatives might be appointed under the Commonwealth decision-making model in a number of ways. The preferable form of appointment involves a person appointing their own representative. A person may choose to appoint a representative—including in circumstances where they have decision-making ability but would prefer to appoint a representative, or in anticipation of losing decision-making ability.
4.101 A representative should not generally be appointed without a request from the person, except where the person needs a representative but is unable to request appointment themselves, even with support. However, other appointment mechanisms need to be considered to account for circumstances where a person may not be in a position to appoint their own representative, but requires a decision-maker in an area of Commonwealth law and may or may not have a decision-maker appointed for them under state or territory legislation with relevant duties or powers. In such circumstances, the initiative might come from a carer or other person who offers to be the representative.
4.102 The ALRC considered what mechanisms there should be at a Commonwealth level to appoint a representative for a person who requires decision-making support. There are different options for appointment through a Commonwealth mechanism, or in a specific area of Commonwealth law.
4.103 First, jurisdiction might be conferred on a Commonwealth court or tribunal (or other body) to appoint representatives. Appointment might operate in a similar way to the appointment of state and territory guardians and administrators. That is, the Australian Government could develop ‘a single scheme for assessment of the need for a representative in these [Commonwealth] decision making areas, with a system for impartial appointment and review’. ADACAS suggested that ‘the appointment of representatives should be made by an independent body’ at a Commonwealth level, mirroring the functions of state and territory tribunals.
4.104 The ALRC has not pursued the idea of a new court or tribunal jurisdiction or Commonwealth body with responsibility for appointing representatives across different areas of Commonwealth law. The areas in which Commonwealth legislation needs to provide separately for the appointment of representatives are few, and there is no need to create what might be seen as a parallel or duplicate guardianship system.
4.105 Another option is to provide for the appointment of a representative by the relevant Commonwealth department or agency, as is currently permitted in the context of the NDIS and social security.
4.106 Many stakeholders expressed concerns about the appointment of representatives by the heads of Commonwealth agencies, such as NDIA and Centrelink. The Springvale Monash Legal Service, for example, stated that, given ‘the imposition on the individual liberty of the represented person, the appointment of a substituted-decision maker should ideally be made by a tribunal or a court’. ADACAS submitted that agencies should not have power to appoint representatives because ‘there is a clear conflict of interest’ as ‘it can be expected that diligent representatives will find themselves in conflict with Commonwealth agencies at some point’.
4.107 Others were prepared to countenance the possibility, provided it was appropriately framed. The OPA (SA and Vic) stated that, in limited circumstances and subject to qualifications, representatives ‘appointed by CEOs/Departmental Secretaries under Commonwealth laws could play decision-making roles on behalf of individuals who do not have the capacity to make particular decisions’.
4.108 Finally, Commonwealth laws could provide mechanisms under which state and territory appointees would be recognised as representatives for the purposes of Commonwealth legislative schemes. That is, there would be a ‘more fully developed symbiosis with State and Territory substitute decision making schemes’. NDS considered that the ‘least bureaucratic mechanism’ for appointing representatives would be through these existing courts or tribunals, rather than the ‘specific Commonwealth agency responsible for each affected area of law’:
This allows a common approach, and indeed a common representative across different areas of life and perhaps across jurisdictions. This approach also allows the chosen mechanism to build expertise and infrastructure for making good determinations, instead of spreading across several small subunits within larger agencies. This external mechanism could potentially monitor both representative and supporter arrangements.
4.109 NDS strongly supported encouraging the appointment of existing representatives, such as state-appointed guardians for Commonwealth duties, where appropriate, although this should not be automatic. ADACAS also accepted that there may be a case for the Commonwealth recognising state and territory appointments. The OPA (SA and Vic) stated, if representatives were to be appointed under Commonwealth laws (as proposed by the ALRC), existing state and territory tribunal appointments should be recognised ‘where certain thresholds are met’. In addition,
There needs to be clarity around who can appoint, and who can be appointed as, representatives (taking note, for example, of earlier personal and tribunal appointments at state and territory level), and there would be a place for the articulation in federal legislation of general principles governing when tribunal appointments would be required.
4.110 The Safeguards Guidelines provide that the appointment of a representative decision-maker should be a last resort and not a substitute for appropriate support and that any appointment should be limited in scope, be proportionate, and apply for the minimum time. Further, decisions and interventions (which would include any appointment of a representative) must be the least restrictive of the person’s human rights; subject to appeal; and subject to regular, independent and impartial monitoring and review.
4.111 Under the Commonwealth decision-making model, any appointment mechanism for representatives should comply with these requirements. For the purposes of describing the model, the ALRC does not intend to be any more prescriptive than this, because the best appointment mechanism will depend on the exact role of the representative within the particular area of Commonwealth legislative responsibility.
4.112 Appointment mechanisms need to be ‘proportionate’. For example, the NSWCID has suggested that there should be
a straightforward process for a close family member to become representative of a person for processes like Centrelink and eHeath records … On the other hand, there will be situations where the enormity or contentiousness of the situation or the alleged inappropriateness of a proposed representative means that the issue of whether there should be a representative and who that should be needs to be determined by a tribunal analogously to guardianship proceedings in the current state and territory tribunals.
4.113 In some cases, including in relation to the NDIS, there should be a confined power for the agency head to appoint a representative. In doing so, the agency head should consider whether an existing state or territory appointed decision-maker (or existing Commonwealth supporter or representative) should be appointed. The appointment mechanism for representatives under the NDIS is discussed in more detail in Chapter 5.
Functions and duties
Functions of a representative
Recommendation 4–7 A representative assists a person who requires support to make decisions or, where necessary, makes decisions on their behalf and may:
(a) obtain and disclose personal and other information on behalf of the person, and assist the person to understand information;
(b) provide advice to the person about the decisions that might be made;
(c) communicate the decisions; and
(d) endeavour to ensure the decisions made are given effect.
4.114 The ALRC recommends that a representative perform the same basic functions as a supporter, with minor changes to reflect the fact that—while having a duty to support the person to make their own decisions where possible—the representative may make decisions on the person’s behalf, reflecting the person’s will and preferences.
Recommendation 4–8 Relevant Commonwealth laws and legal frameworks should provide that representatives of persons who require decision-making support must:
(a) support the person to make decisions or make decisions on their behalf reflecting their will and preferences;
(b) where it is not possible to determine the will and preferences of the person, determine what the person would likely want based on all the information available;
(c) where (a) and (b) are not possible, consider the person’s human rights relevant to the situation;
(d) act in a manner promoting the personal, social, financial and cultural wellbeing of the person;
(e) act honestly, diligently and in good faith;
(f) consult with existing appointees, family members, carers and other significant people in their life in making decisions; and
(g) assist the person to develop their own decision-making ability.
For the purposes of paragraph (f), ‘existing appointee’ should be defined to include existing Commonwealth supporters and representatives and a person or organisation who, under Commonwealth, state or territory law, has guardianship of the person, or is a person formally appointed to make decisions for the person.
4.115 A representative should have the same basic duties as a supporter, and additional duties reflecting the fact that a representative may make decisions on the person’s behalf, reflecting the person’s will, preferences and rights.
4.116 The core duties the ALRC considers are appropriate for representatives include the duty to support the person who requires decision-making support to express their will and preferences. As discussed in Chapter 3, this standard is preferred to an objective ‘best interests’ test, which currently applies to nominees under existing Commonwealth legislation and to state and territory appointed decision-makers.
4.117 This shift away from the best interests test received significant support from a wide range of stakeholders. In circumstances where a representative needs to determine the will and preferences of the person, because the person is unable to communicate them, the representative must determine what the person would likely want based on all the information available. This may, for example, involve consideration of decisions the person has made in the past. If that is not possible, consideration should turn to the person’s human rights relevant to the situation. Ultimately, however, this approach requires decision-making ‘based on facilitating access to the enjoyment of existing rights, rather than on making decisions on behalf of a person based on a subjective assessment of their best interest’.
4.118 What steps are reasonable to discharge the duties of a representative? It would have to be considered in the particular decision-making context. For example, it would be unreasonable to expect a representative to fulfil the duty to assist the person to develop their own decision-making ability in circumstances where a person does not have, and is unlikely ever to develop, the ability to make decisions.
4.119 The statement of representatives’ roles and duties set out in the Discussion Paper and, in particular, the focus on assisting people to express their will and preferences was broadly supported by stakeholders.
4.120 Beaupert, Gooding and Steele submitted that the functions of a representative should refer to ‘making representative decisions on a person’s behalf, only in situations where the person’s will and preferences and what they would likely want cannot be determined’.
Recommendation 4–9 The appointment and conduct of representatives should be subject to appropriate and effective safeguards.
4.121 Consistent with National Decision-Making Principle 4 and art 12(4) of the CRPD, the ALRC recommends that the appointment and conduct of representatives be subject to appropriate and effective safeguards.
4.122 Article 12(4) of the CRPD requires that all measures relating to the exercise of legal capacity provide for appropriate and effective safeguards. In particular, it requires that such safeguards:
- respect the rights, will and preferences of the person;
- are free of conflict of interest and undue influence;
- are proportional and tailored to the person’s circumstances;
- apply for the shortest time possible;
- are subject to regular review by a competent, independent and impartial authority or judicial body; and
- are proportional to the degree to which such measures affect the person’s rights and interests.
4.123 Stakeholders emphasised the importance of safeguards and made a range of suggestions in this regard. Justice Connect suggested a range of recordkeeping and audit requirements that should be imposed on representatives. In addition:
It may be appropriate to establish an independent regulatory body or Commonwealth agency (or confer state based tribunals with the power) to monitor and undertake investigations. It may also be appropriate for that body to receive declarations and carry out random audits.
4.124 Other stakeholders also referred to the desirability of an independent body to provide formal monitoring and safeguards for representative decision-making.
4.125 Review and appeal mechanisms were another area of concern. NACLC observed that the complexity of existing mechanisms ‘significantly affects the ability of some people with disability to seek review of government and substitute decision-maker decisions’. More generally, some concern was expressed about the absence of a ‘definite proposal for appointment, reviews, monitoring and safeguards’ under the Commonwealth decision-making model.
4.126 Clearly, there need to be safeguards with respect to representatives—both to protect people who require decision-making support from abuse, neglect or exploitation and to protect the appointed representative. However, the ALRC does not intend to be prescriptive about the nature or operation of the safeguards which should apply. As with appointment mechanisms, the appropriate safeguards are dependent on the decision-making context.
4.127 Article 12(4) of the CRPD represents the key safeguard elements of any Commonwealth representative scheme. In the light of art 12(4), it may be necessary for the Australian Government to consider the following elements in implementing the decision-making model in areas of Commonwealth law:
- mechanisms for review and appeal of the appointment of representatives, including on the application of any interested party;
- the potential for representatives to be periodically required to make declarations regarding compliance with their duties;
- reporting obligations on representatives with respect to decisions, for example by provision of a report, inventory or accounts;
- the powers of any Commonwealth body conferred with jurisdiction to appoint a representative should include the power to respond to instances of abuse, neglect or exploitation;
- the role of Commonwealth departments and agencies in monitoring, auditing and investigating the conduct of representatives; and
- the broader applicability of safeguards envisaged under a NDIS quality assurance and safeguards framework.
See, eg, ADACAS, Submission 108; Springvale Monash Legal Service, Submission 104.
Eg, in the appointment of enduring powers of attorney.
See, eg, National Disability Insurance Scheme (Nominee) Rules 2013 (Cth) r 3.15.
Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Discussion Paper No 81 (2014) Question 4–5.
AGAC, Submission 51.
ADACAS, Submission 108. See also NSW Council for Intellectual Disability, Submission 131.
Unless perhaps there were to be a national law dealing with supported decision-making, replacing existing state and territory guardianship and administration law.
National Disability Insurance Scheme Act 2013 (Cth); Social Security (Administration) Act 1999 (Cth). See Chs 5–6.
See, eg, National Association of Community Legal Centres, Submission 127; ADACAS, Submission 108; Mental Health Coordinating Council, Submission 94; Children with Disability Australia, Submission 68; Disability Advocacy Network Australia, Submission 36; Physical Disability Council of NSW, Submission 32.
Springvale Monash Legal Service, Submission 104.
ADACAS, Submission 108.
In relation to decision-making under the NDIS: see Ch 5.
Offices of the Public Advocate (SA and Vic), Submission 95.
AGAC, Submission 51.
National Disability Services, Submission 92.
ADACAS, Submission 108.
Offices of the Public Advocate (SA and Vic), Submission 95.
See Ch 3.
NSW Council for Intellectual Disability, Submission 131.
For example, an amended form of the considerations under r 3.14 of the National Disability Insurance Scheme (Nominee) Rules 2013 (Cth). See also considerations as recommended in the Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012).
See, eg, Social Security (Administration) Act 1999 (Cth) s 123O.
See, eg, PWDA, ACDL and AHR Centre, Submission 66; Qld Law Society, Submission 53.
PWDA, ACDL and AHR Centre, Submission 66.
Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Discussion Paper No 81 (2014) Proposals 4–7, 4–8.
Offices of the Public Advocate (SA and Vic), Submission 95; Mental Health Coordinating Council, Submission 94; National Disability Services, Submission 92.
F Beaupert, P Gooding and L Steele, Submission 123.
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 12(4).
See, eg, Vicdeaf, Submission 125; Justice Connect and Seniors Rights Victoria, Submission 120; Offices of the Public Advocate (SA and Vic), Submission 95.
Justice Connect and Seniors Rights Victoria, Submission 120.
Advocacy for Inclusion, Submission 126; Vicdeaf, Submission 125.
National Association of Community Legal Centres, Submission 127.
Office of the Public Advocate (Qld), Submission 110.
Note, however the VLRC did not favour this form of compliance requirement: Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) [18.105].
See, eg, National Disability Insurance Scheme Act 2013 (Cth) s 84; Social Security (Administration) Act 1999 (Cth) s 123L; Department of Social Services, Guide to Social Security Law (2014) [8.5.3]; Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) recs 297–302.
See, however, Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) [18.106]–[18.107].