Proposal 4–6 Relevant Commonwealth legislation should include the concept of a ‘representative’ and provide that an agency, body or organisation may establish representative arrangements. In particular, legislation should contain consistent provisions for the appointment, role and duties of representatives, and associated safeguards, and reflect the National Decision-Making Principles.
4.65 In certain circumstances, a person may require full support in decision-making. The ALRC proposes the introduction of Commonwealth representatives as a mechanism for the provision of fully supported decision-making in areas of Commonwealth law.
4.66 A representative should only be appointed as a last resort and in limited circumstances. A representative under the model is an individual or organisation appointed by a person who requires decision-making support, or through some other mechanism (discussed below). A representative would support a person to make decisions and express their will and preferences in making decisions; determine the person’s will and preferences and give effect to them; or consider the human rights relevant to the situation in making a decision.
4.67 As with supporters, the introduction of representatives would occur under specific Commonwealth legislation and needs to be tailored to suit the particular legislative context. The ALRC proposes a number of key core elements of any Commonwealth representative regime.
4.68 The ALRC does not intend to make proposals with respect to different categories of representatives. However, consistent with the ALRC’s approach to ensuring that fully supported decision-making is the least restrictive alternative and the scope of the appointment is as narrow in scope as possible, consideration will need to be given to possible categories or types of representatives in implementing the Commonwealth decision-making model.
Question 4–5 What mechanisms should there be at a Commonwealth level to appoint a representative for a person who requires full decision-making support?
4.69 There are a number of ways a representative may be appointed. The most straightforward mechanism involves a person appointing their own representative. A person may choose to appoint a representative—including in circumstances where they have decision-making ability but would prefer to appoint a representative, or in anticipation of losing decision-making ability.
4.70 It may also be necessary or appropriate to incorporate other appointment mechanisms into the model to account for circumstances where a person may not be in a position to appoint their own representative, but requires fully supported decision-making in an area of Commonwealth law. The ALRC would be interested in stakeholder feedback on what mechanisms there should be at a Commonwealth level to appoint a representative for a person who requires full decision-making support.
4.71 There are a number of other potential options for appointment, either through a central Commonwealth mechanism, or in a specific area of Commonwealth law. For example, it may be appropriate to confer jurisdiction on a court, tribunal or other body to appoint representatives. In some senses appointment by a court, tribunal or other body might operate similarly to current appointment of state and territory guardians and administrators. However, given the different nature of the role, any court, tribunal or body conferred with such jurisdiction would need to be guided by considerations different from those currently provided for under Commonwealth, state and territory law. AGAC suggested a mechanism along these lines, submitting that the Commonwealth could develop ‘a single scheme for assessment of the need for a representative in these decision making areas, with a system for impartial appointment and review’. AGAC also submitted that an alternative may be ‘a more fully developed symbiosis with State and Territory substitute decision making schemes’.
4.72 Another option may be to provide for the appointment of a representative by the relevant Commonwealth department or agency, as is currently permitted in the context of the NDIS and social security. For example, the Social Security (Administration) Act 1999 (Cth) provides for appointment of a ‘nominee’, as does the NDIS Act. However, stakeholders expressed significant concerns about an agency head or their delegate having the power to make such an appointment, and about the considerations relevant to making an appointment.
4.73 In light of such concerns, the ALRC is interested in stakeholder views on whether there should be a very confined power for an agency head to appoint a representative in some limited circumstances, and about what considerations should be taken into account. For example, should the desirability of appointing an existing Commonwealth supporter or representative, or a state or territory appointed decision-maker, be a factor that must be considered?
4.74 In addition to possible appointment by a court, tribunal or other body, or in limited circumstances by an agency head, the ALRC is interested in stakeholder views on possible mechanisms at a Commonwealth level for the appointment of a representative for a person who requires full decision-making support.
Role and duties
Potential roles of a representative
Proposal 4–7 A Commonwealth representative may perform the following functions:
(a) assist the person who requires decision-making support to make decisions;
(b) handle the relevant personal information of the person;
(c) obtain or receive information on behalf of the person and assist the person to understand information;
(d) communicate, or assist the person to communicate, decisions to third parties;
(e) provide advice to the person about the decision they might make; and
(f) endeavour to ensure the decisions of the person are given effect.
4.75 The ALRC proposes that a representative may perform the same roles as a supporter in supporting a person who requires decision-making support to make a decision or decisions. These roles are discussed in more detail below.
Proposal 4–8 Relevant Commonwealth laws and legal frameworks should provide that Commonwealth representatives must:
(a) support the person requiring decision-making support to express their will and preferences in making decisions;
(b) where it is not possible to determine the wishes of the person who requires decision-making support, determine what the person would likely want based on all the information available;
(c) where (a) and (b) are not possible, consider the human rights relevant to the situation;
(d) act in a manner promoting the personal, social, financial and cultural wellbeing of the person who requires decision-making support;
(e) support the person who requires decision-making support to consult with ‘existing appointees’, family members, carers and other significant people in their life when making a decision; and
(f) assist the person who requires support to develop their own decision-making ability.
For the purposes of paragraph (e), ‘existing appointee’ should be defined to include existing Commonwealth supporters and representatives and a person or organisation who, under Commonwealth, state or territory law, has guardianship of the person, or is a person appointed formally with power to make decisions for the person.
4.76 A representative should have the same duties as a supporter, as well as a number of additional duties. It is important that representatives owe duties under the relevant Commonwealth legislation, even where they are an existing state or territory appointed decision-maker and are subject to duties under state and territory legislation.
4.77 The ALRC has outlined, in the context of supporters, some of the duties that a representative should have. The ALRC seeks stakeholder input on the appropriateness of these duties applying to both supporters and representatives. For example, in relation to the duty to develop the decision-making ability of the person being supported, the nature and content of the obligation should probably vary, according to the circumstances of the appointment. It would be unreasonable to expect a representative to fulfil this duty in circumstances where a person does not, and is unlikely ever to have, the ability to make decisions.
4.78 The key additional duties the ALRC considers may be appropriate for representatives include the duty to support the person who requires decision-making support to express their ‘will, preferences and rights’. The ALRC prefers this obligation to the objective ‘best interests’ test which currently applies to nominees under existing Commonwealth legislation and to state and territory appointed decision-makers. This shift away from the best interests test received significant support from a wide range of stakeholders and is discussed in Chapters 2 and 3, including in relation to the corresponding principle of the National Decision-Making Principles.
4.79 In circumstances in which a representative is providing full support and needs to determine the will and preferences of the person because they are unable to communicate that will and those preferences, the representative must determine what the person would likely want based on all the information available. This may, for example, involve consideration of decisions the person has made in the past. If that is not possible, consideration should turn to the human rights relevant to the situation. Ultimately, however, this approach requires decision-making ‘based on facilitating access to the enjoyment of existing rights, rather than on making decision on behalf of a person based on a subjective assessment of their best interest’.
Proposal 4–9 The appointment and conduct of Commonwealth representatives should be subject to appropriate and effective safeguards.
4.80 Consistent with National Decision-Making Principle 4 and art 12(4) of the CRPD, the ALRC proposes that the appointment and conduct of Commonwealth representatives be subject to appropriate and effective safeguards.
4.81 Article 12(4) of the CRPD requires that all measures relating to the exercise of legal capacity provide for appropriate and effective safeguards. In particular, it requires that such safeguards:
respect the rights, will and preferences of the person;
are free of conflict of interest and undue influence;
are proportional and tailored to the person’s circumstances;
apply for the shortest time possible;
are subject to regular review by a competent, independent and impartial authority or judicial body; and
are proportional to the degree to which such measures affect the person’s rights and interests.
4.82 There needs to be a number of safeguards and recognition of the different purposes of safeguards with respect to representatives. For example, some safeguards are designed to protect the person who may require decision-making support from abuse, neglect or exploitation. Other safeguards are designed to protect the appointed representative.
4.83 The ALRC does not intend to be overly prescriptive with respect to the nature or operation of the safeguards which should apply to the appointment and conduct of representatives. However, the ALRC considers the elements outlined in art 12(4) represent the key safeguard elements of any Commonwealth representative scheme. In light of those elements, it may be necessary for the Australian Government to consider the following in implementing the Commonwealth decision-making model in areas of Commonwealth law:
mechanisms for review and appeal of the appointment of representatives, including on the application of any interested party;
the potential for representatives to be periodically required to make declarations regarding compliance with their duties;
reporting obligations on representatives with respect to decisions, for example provision of a report, inventory or accounts;
considering the powers of any Commonwealth body conferred with jurisdiction to appoint a representative to ensure it is capable of responding to instances of abuse, neglect or exploitation;
considering the role of Commonwealth departments and agencies in monitoring, auditing and investigating the conduct of representatives; and
considering the broader applicability of safeguards envisaged under any NDIS quality assurance and safeguards framework.
This is like the appointment of enduring or lasting powers of attorney.
Australian Guardianship and Administration Council, Submission 51.
See, eg, Children with Disability Australia, Submission 68; Disability Advocacy Network Australia, Submission 36; Physical Disability Council of NSW, Submission 32.
For example, an amended form of the considerations under r 3.14 of the National Disability Insurance Scheme (Nominee) Rules 2013 (Cth). See also considerations as recommended in the Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012).
See, eg, Social Security (Administration) Act 1999 (Cth) s 123O.
See, eg, PWDA, ACDL and AHRC, Submission 66; Qld Law Society, Submission 53.
PWDA, ACDL and AHRC, Submission 66.
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 12(4).
Note, however the VLRC did not favour this form of compliance requirement: Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) [18.105].
See, eg, National Disability Insurance Scheme Act 2013 (Cth) s 84; Social Security (Administration) Act 1999 (Cth) s 123L; Department of Social Services, Guide to Social Security Law (2014) [8.5.3]; Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) recs 297–302.
See, however, Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) [18.106]–[18.107].