Proposal 3–2 National Decision-Making Principle 1
Every adult has the right to make decisions that affect their life and to have those decisions respected.
3.9 The principal idea in any discussion of legal capacity is that adults have the right to make decisions for themselves. This is frequently expressed in terms of a presumption of legal capacity, which may be rebutted if circumstances demonstrate that the requisite level of capacity is lacking in that context.
3.10 In this Inquiry, the ALRC seeks to reflect the paradigm shift evident in the language of, and discourse around, the CRPD, and considers that it is necessary to place the emphasis on the right of citizens to make decisions, rather than the qualification intrinsic to a presumption. The conceptual difficulty in starting with a presumption of legal capacity as an overarching principle is that it already contains a binary classification—of those who have legal capacity, and those who do not.
3.11 This is not to suggest that legal capacity may never be lacking. Rather, it is better considered, in principles of general application, as a matter going to the question of what support is required and the threshold of appointment of others as supporters or representatives in a decision-making process.
3.12 In terms of who has the right expressed in this principle, the ALRC considered whether it should be expressed more generally than applicable to adults. The Queensland Law Reform Commission (QLRC) used ‘adult’, but the Victorian Law Reform Commission (VLRC) considered the principle could have application to young people who are able to satisfy the Gillick ‘mature minor’ test endorsed by the High Court in Marion’s case. The ALRC has sought to avoid confusion in the first general principle by confining it to adults. The principles dealing with children involve a ‘best interests’ standard—a standard deliberately not used in this Inquiry.
3.13 This does not mean that the National Decision-Making Principles could not have a broader application, but only that for the purposes of this Inquiry the ALRC has limited the expression to adults—at least as a starting point of reform. The remaining Principles are expressed in terms of ‘persons’.