Proposal 10–1 State and territory governments should review laws that deal with decision-making by people who need decision-making support to ensure they are consistent with the National Decision-Making Principles and the Commonwealth decision-making model. In conducting such a review, regard should also be given to:
(a) interaction with any supporter and representative schemes under Commonwealth legislation;
(b) consistency between jurisdictions, including in terminology;
(c) maximising cross-jurisdictional recognition of arrangements; and
(d) mechanisms for consistent and national data collection.
Any review should include, but not be limited to, laws with respect to guardianship and administration; informed consent to medical treatment; and mental health; and disability services.
10.5 The practical outcomes of the ALRC’s Inquiry will depend, in significant part, on whether it serves as a catalyst for review of state and territory laws. This is mainly because guardianship and administration laws are state and territory based, and remain the primary mechanism in which others are vested with power to make decisions on behalf of people who need decision-making support.
10.6 Further, many Commonwealth agencies and Commonwealth funded services, such as aged care service providers, rely on state and territory appointed substitute decision-makers in managing their relationships with individuals. In some areas—such as disability services under the National Disability Insurance Scheme (NDIS)—while states and territories will continue to play the major role in providing or overseeing the provision of services, ‘federal authorities … will likely exercise more direct federal regulation of, and prescription of, the way states and territories administer disability funding’. Such federal regulation might include encouraging supported decision-making.
10.7 As discussed in Chapter 3, the proposed National Decision-Making Principles and associated Guidelines are intended to be consistent with the terms of art 12 of the CRPD. By reviewing guardianship and other laws in the light of the proposal, states and territories will advance fuller implementation of the CRPD in Australia.
10.8 This is important as, under international law, parties to treaties undertake to ensure that the terms of the treaty are applied in all parts of federal states. This is a requirement of the Vienna Convention on the Law of Treaties, to which Australia is a party, and is an obligation required expressly by art 4(5) of the CRPD.
10.9 In the Australian context, although it is the Australian Government that entered into the CRPD, the provisions of the Convention are binding not only upon the Australian Government, but also upon each state and territory government.
10.10 The proposal indicates to states and territories that, in light of the ALRC’s approach and its application in areas of Commonwealth law, similar state and territory laws also should be reviewed.
10.11 The intention is that states and territories would examine relevant legislation to see how the approaches represented by the National Decision-Making Principles and associated guidelines might be incorporated—most fundamentally by facilitating a shift from substitute to supported decision-making.
10.12 This would involve review of legislation that deals with decision-making by people who require decision-making support to ensure, among other things, that:
legislative tests of decision-making capacity do not provide that people are assumed to lack capability on the basis of having a disability, and that ability is assessed by reference to the decision to be made and the available supports;
supported decision-making is facilitated by appropriate legislative recognition of supporters;
laws providing for the appointment of representative decision-makers do so only as a last resort and not as a substitute for appropriate support;
laws providing for the appointment of representative decision-makers provide for appointments that are limited in scope, proportionate, and apply for the minimum time; and
laws providing for supported and representative decision-making ensure that a person’s ‘will, preferences and rights’ are respected—including by imposing appropriate duties on supporters and representative decision-makers.
10.13 To some extent, states and territories have already commenced this process—at least with regard to guardianship, the legislative area of most obvious relevance. For example:
the Victorian Law Reform Commission (VLRC), in its review of the Guardianship and Administration Act 1986 (Vic), was asked to have regard to ‘the principle of respect for the inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons, and the other General Principles and provisions’ of the CRPD; and
the Queensland Law Reform Commission has recommended that the General Principles in the Guardianship and Administration Act 2000 (Qld) be amended to ‘reflect more closely the relevant articles’ of the CRPD.
10.14 The Law Council of Australia suggested that
a co-operative approach with States and Territories, in the form of mirror legislation or for the State and Territories to adopt model Commonwealth legislation, is the most practical way to achieve consistency across jurisdictions.
10.15 The NSW Public Guardian submitted that ‘[a] uniform approach should fit with the Nation Disability Insurance Scheme’.
10.16 A more comprehensive national review process might be coordinated through the Council of Australian Governments (COAG) or its ministerial councils, such as the Disability Reform Council, Law Crime and Community Safety Council or Health Council, in consultation with peak bodies such as the Australian Guardianship and Administration Council. The ALRC would be interested in comment on the best way to ensure that the agenda suggested by its proposals is advanced nationally.
In 2007, there were over 4,000 people under public guardianship in Australia: NSW Office of the Public Guardian, Submission No 7 to the NSW Legislative Council Standing Committee on Social Issues, Substitute Decision-Making for People Lacking Capacity, 2010. At the end of August 2009, the NSW Trustee and Guardian was directly managing the affairs of 9,182 individuals and overseeing the work of a further 2,795 Private Managers: NSW Trustee and Guardian, Submission No 13 to the NSW Legislative Council Standing Committee on Social Issues, Substitute Decision-Making for People Lacking Capacity, 2010. The Victorian body, State Trustees protects the legal and financial interests of over 9,500 people: State Trustees, Did You Know? <https://www.statetrustees.com.au/our-story/did-you-know>.
John Chesterman, ‘The Future of Adult Guardianship in Federal Australia’ (2013) 66 Australian Social Work 26, 33.
Vienna Convention on the Law of Treaties, 1155 UNTS 331, 8 ILM 679 (entered into force 27 January 1980) art 27.
‘The provisions of the present Convention shall extend to all parts of federal states without any limitations or exceptions’: 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 4(5).
See Philip French, Julie Dardel and Sonya Price-Kelly, ‘Rights Denied: Towards a National Policy Agenda about Abuse, Neglect and Exploitation of Persons with Cognitive Impairment’ (People with Disability Australia, 2010) 14–15.
Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) xi.
Queensland Law Reform Commission, A Review of Queensland’s Guardianship Laws, Report No 67 (2010) i, rec 4–1.
Law Council of Australia, Submission 83.
NSW Public Guardian, Submission 50.