2.1 This Inquiry takes place within a context of a national and international focus on the rights of persons with disability. This chapter describes the international human rights context and analyses the key concepts in the literature concerning disability and issues of ‘capacity’. It provides the essential conceptual structure to present the ALRC’s key proposals in this Inquiry.

2.2 The ‘paradigm shift’ in approaches to persons with disability is discussed, outlining the transition from ‘best interests’ approaches to ones that emphasise the will and preferences of the individual in models of ‘supported’ rather than ‘substitute’ decision-making. The tensions around the meaning and application of art 12 of the United Nations Convention on the Rights of Persons with Disabilities[1] (CRPD) are analysed in the light of the historical development of decision-making models for people who may require decision-making support. In this context Australia’s Interpretative Declaration in relation to art 12 is considered. The ALRC concludes that, whatever the correct legal understanding of art 12 and substitute decision-making models, the retention of the Interpretative Declaration may act as a handbrake on reform. The ALRC therefore proposes that the Australian Government should review the Interpretative Declaration with a view to withdrawing it.

2.3 The chapter concludes by summarising the implications for reform of the paradigm shift towards supported decision-making. This provides a prelude to Chapter 3, where the ALRC sets out National Decision-Making Principles as the basis for modelling supported decision-making in Commonwealth laws.