Proposal 4–11 The Australian Government should ensure that people who may require decision-making support, and supporters and representatives (or potential supporters and representatives) are provided with information and advice to enable them to understand their roles and duties.
Proposal 4–12 The Australian Government should ensure that Australian Public Service employees who engage with supporters and representatives are provided with regular, ongoing and consistent training in relation to the roles of supporters and representatives.
4.105 The ALRC considers that consistent information and advice, and targeted training and guidance for all parties involved in the Commonwealth decision-making is of vital importance in ensuring the effective operation of the proposed Commonwealth decision-making model.
4.106 In addition to being central to the successful implementation of the model, as the model aligns Commonwealth decision-making structures with art 12 of the CRPD, such education, training and guidance may also contribute to the fulfilment of Australia’s obligations under art 4 of the CRPD. It may also respond to the recommendations made by the UNCRPD that Australia
provide training, in consultation and cooperation with persons with disabilities and their representative organizations, at the national, regional and local levels for all actors, including civil servants, judges and social workers, on recognition of the legal capacity of persons with disabilities and on the primacy of supported decision-making mechanisms in the exercise of legal capacity.
4.107 The ALRC considers the complementary proposals with respect to training, awareness raising and guidance material are important because, as the Office of the Public Advocate (SA) noted in its submission,
while supported decision-making interventions might notionally address a person’s impairments, most of the work is in tackling attitudinal and environmental barriers. In particular, overcoming attitudinal beliefs that a person with disability cannot make a decision, and addressing environmental barriers, such as a lack of practical decision-making assistance and support.
4.108 Similarly, Queenslanders with Disability Network emphasised that
for any changes to be effective, accessible information and services must be provided, and free access to additional supports (advocacy, translation and interpretation) must be available. It is also critical that if systemic changes are made, these must be communicated to all stakeholders including people with disability.
4.109 The ALRC considers it is necessary to develop and deliver accessible and culturally appropriate information and training for:
supporters and representatives, and potential supporters and representatives;
people who require decision-making support; and
the employees of Commonwealth departments and agencies which operate under the proposed model, as well as associated experts and third parties.
4.110 This approach was strongly encouraged by a range of stakeholders. For example, the Mental Health Council of Australia emphasised the need for
capacity building measures, programs or processes at the individual or community levels to empower consumers and communities to actively participate in supported decision-making. These could include programs to educate consumers and carers.
4.111 In relation to supporters and representatives, the OPA (SA) noted that, in delivering its Supported Decision-Making Pilot Project, it established that ‘a key element in educating supporters is that they have a support role only: the supporter is not the decision maker, and is educated as such on support strategies, and how not to inadvertently become a substitute decision maker in this role’. Carers NSW emphasised the need for carers taking on either supported or substitute decision-making roles ‘should have access to an easy to read document outlining the definition of capacity and any expectations and requirements involved with their role’.
4.112 In addition, some stakeholders emphasised the need to develop the capacity of people with disability to make decisions. Stakeholders such as the DSC (Vic) has also emphasised the need for ‘training and support being provided for people with disabilities to enhance their own decision making skills and their understanding of the various options for assistance’. The NSW Council for Intellectual Disability submitted that for some people with intellectual disability,
in ideal circumstances they may be able to make their own decisions. However, they may not be in those circumstances in that they have had very limited exposure to alternatives to current deprived lifestyles and/or are in entrenched relationships of control (benevolent or malevolent) by family members or other long-standing people in their lives.
4.113 The ALRC welcomes stakeholder feedback on these proposals, either generally or in relation to specific areas of Commonwealth law.
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(1)(i). See also art 8.
Committee on the Rights of Persons with Disabilities, ‘Concluding Observations on the Initial Report of Australia, Adopted by the Committee at Its Tenth Session (2–13 September 2013)’ (United Nations, 4 October 2013) 26.
Office of the Public Advocate (SA), Submission 17.
QDN, Submission 59.
Carers NSW, Submission 23; Disability Services Commissioner Victoria, Submission to the Victorian Law Reform Commission, Guardianship Inquiry, May 2011.
Office of the Public Advocate (SA), Submission 17; Disability Services Commissioner Victoria, Submission to the Victorian Law Reform Commission, Guardianship Inquiry, May 2011.
MHCA, Submission 77.
Office of the Public Advocate (SA), Submission 17.
Carers NSW, Submission 23.
Disability Services Commissioner Victoria, Submission to the Victorian Law Reform Commission, Guardianship Inquiry, May 2011 6.
NSW Council for Intellectual Disability, Submission 33.