The Inquiry

1.1 This Inquiry focuses on legal capacity for people with disability. It reflects the commitment expressed in the United Nations Convention on the Rights of Persons with Disabilities (CRPD), to which Australia is a signatory, signalling

the movement from viewing persons with disabilities as ‘objects’ of charity, medical treatment and social protection towards viewing persons with disabilities as ‘subjects’ with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of society.[1]

1.2 The Inquiry commenced in July 2013, the same month in which a pilot of the National Disability Insurance Scheme (NDIS) in Australia was initiated, representing ‘a new way of providing community linking and individualised support for people with permanent and significant disability, their families and carers’.[2] The focus of the scheme is to provide greater choice and control over the disability services support received by persons with disability.

1.3 In considering what changes, if any, should be made to Commonwealth laws, the Terms of Reference for this Inquiry require the Australian Law Reform Commission (ALRC) to consider ‘how maximising individual autonomy and independence can be modelled in Commonwealth laws and legal frameworks’.[3]

1.4 In this Discussion Paper the ALRC proposes a model that includes high level principles in relation to decision-making—the National Decision-Making Principles—to provide a conceptual overlay and framework for reform of Commonwealth laws and a basis for review of relevant state and territory laws. The model also includes provision for supported decision-making in a formal way in key areas of Commonwealth laws—the Commonwealth decision-making model. The remaining chapters focus on particular areas identified in the Terms of Reference, demonstrating the application of the Principles in a range of Commonwealth laws.

1.5 The Discussion Paper commences the second stage in the consultation processes in this Inquiry. The first stage included the release of the Issues Paper, Equality, Capacity and Disability in Commonwealth Laws (IP 44), generating 84 public and 12 confidential submissions.[4] Both the Issues Paper and this Discussion Paper may be downloaded free of charge from the ALRC website. Hard copies may be obtained on request by contacting the ALRC on (02) 8238 6333.

1.6 In releasing this Discussion Paper, the ALRC again calls for submissions to build on the evidence base so far established and to inform the final stage of the deliberations leading up to the Final Report, which is to be provided to the Attorney-General by the end of August 2014.

How to make a submission

1.7 With the release of this Discussion Paper, the ALRC invites individuals and organisations to make submissions in response to the specific proposals and questions, or to any of the background material and analysis.

1.8 There is no specified format for submissions, although the questions and proposals may provide guidance. Submissions may be made in writing, by email or using the online submission form. Submissions made using the online submission form are preferred.

1.9 Generally, submissions will be published on the ALRC website, unless marked confidential. Confidential submissions may still be the subject of a request for access under the Freedom of Information Act 1982 (Cth). In the absence of a clear indication that a submission is intended to be confidential, the ALRC will treat the submission as public. The ALRC does not publish anonymous submissions.

Submissions using the ALRC’s online submission form can be made at: <>.

To ensure consideration for use in the Final Report, submissions must reach the ALRC by Monday 30 June 2014.