National Decision-Making Principles

Proposal 3–1 Reform of Commonwealth, state and territory laws and legal frameworks concerning decision-making by persons who may require support in making decisions should be guided by the National Decision-Making Principles and Guidelines, set out in Proposals 3–2 to 3–9.

3.4 The National Decision-Making Principles are four general principles that reflect the key ideas and values upon which the ALRC’s approach in relation to legal capacity is based. They are distinct from the framing principles for the Inquiry as a whole (dignity, equality, autonomy, inclusion and participation, and accountability), but reflect and are informed by those principles.

3.5 The National Decision-Making Principles provide a conceptual overlay at a high level. They are drawn from the CRPD, other international models, stakeholder submissions and the work of other bodies and individuals. They are not prescriptive, and are of general application. The Principles are supported by four sets of Guidelines, with more specific detail in each area.

3.6 The Terms of Reference require the ALRC to consider ‘how maximising individual autonomy and independence could be modelled in Commonwealth laws and legal frameworks’.[2] The focus of the Inquiry is on the ‘ability to exercise legal capacity’ and equal recognition before the law of people with disability. The ALRC considers this can best be achieved by setting up an overall framework of principles and guidelines that can then be used as the template for specific reforms—both in Commonwealth areas of responsibility included in the Terms of Reference; and at state and territory level, in reviews of guardianship and related regimes. Application of the National Decision-Making Principles and Guidelines is then considered in a number of the areas set out in the Terms of Reference.

3.7 The National Decision-Making Principles identify the essential ideas in all recent law reform work on capacity. The tendency to suggest lengthy lists of principles may, however, distract from these four key ideas. The ALRC considers that identifying these four central ideas gives greater sharpness and clarity—and power—to the National Decision-Making Principles as reflecting the paradigm shift towards supported decision-making.

3.8 There is also a significant shift in the way these principles are expressed, starting with a right to make decisions, rather than a presumption of capacity.