Recommendation 5–1 The objects and principles in the National Disability Insurance Scheme Act 2013 (Cth) should be amended to ensure consistency with the National Decision-Making Principles.
5.39 The ALRC recommends amendment of the existing objects and principles clauses contained in ss 3–5 of the NDIS Act to reflect the National Decision-Making Principles. This would ensure the National Decision-Making Principles guide the application and interpretation of the legislation as a whole, and the particular division of the Act dealing with supporters and representatives.
5.40 Stakeholders such as the Disability Advocacy Network Australia (DANA) expressed the view that
it should be an explicit object of legislation in the disability area, such as the NDIS Act, to promote the decision making capacity of people with disability, to build the capacity of people with disability to make decisions and participate in decision making, and to enable access to decision making support for all people with disability whose decision making capacity is impaired.
5.41 Section 3 of the NDIS Act contains general objects of the Act. Section 4 contains general principles guiding actions under the Act, including that:
people with disability should be supported to participate in and contribute to social and economic life to the extent of their ability;
people with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their support;
people with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity;
people with disability should be supported in all their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs; and
the role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.
5.42 Section 5 of the NDIS Act contains general principles guiding action of people who may do acts or things on behalf of others, including:
people with disability should be involved in decision making processes that affect them, and where possible make decisions for themselves; and
the judgments and decisions that people with disability would have made for themselves should be taken into account.
5.43 While the intent of the objects and principles provisions in many ways reflects the CRPD and National Decision-Making Principles, some amendment is required, not least to recognise will and preferences decision-making.
5.44 For example, the focus under the general principle in s 4(8) of the NDIS Act should be on the right of participants to express their will and preferences and to exercise choice and control with respect to decision-making. This would require removal of references to people with disability being ‘able to determine their own best interests’, and being ‘equal partners in decisions’. Such amendments would reflect the recommended shift from substitute decision-making to supported decision-making; the shift away from ‘best interests’ towards ‘will, preferences and rights’; and the idea that decision-making authority should remain with the participant.