7.1          This chapter discusses issues concerning decision-making ability that have implications for access to justice. Persons with disability may be involved in court processes in a number of different roles, including as parties and witnesses in criminal and civil proceedings.

7.2          In this chapter, the ALRC examines a range of Commonwealth laws and legal frameworks affecting people involved in court proceedings.[1] The issues discussed affect people as:

  • defendants in criminal proceedings—the concept of unfitness to stand trial;
  • parties to civil proceedings—the appointment and role of litigation representatives;
  • witnesses in criminal or civil proceedings—giving evidence as a witness, and consenting to the taking of forensic samples; and
  • potential jurors—qualification for jury service.

7.3          In each of these areas there are existing tests of a person’s capacity to exercise legal rights or to participate in legal processes. The ALRC recommends that these tests should be reformed consistently with the National Decision-Making Principles, based on art 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and other sources.[2]

7.4          Generally, the ALRC recommends that these tests be reformulated to focus on whether, and to what extent, a person can be supported to play their role in the justice system, rather than on whether they have capacity to play such a role at all. By providing models in Commonwealth laws, the ALRC also seeks to inform and provide a catalyst for reform of state and territory laws.

7.5          An important theme is the tension between laws that are intended to operate in a ‘protective’ manner—for example, in order to ensure a fair trial—and increasing demands for equal participation, in legal processes, of persons who require decision-making support.