Proposal 5–1 The objects and principles in the National Disability Insurance Scheme Act 2013 (Cth) should be amended to ensure consistency with the National Decision-Making Principles.
5.36 The ALRC proposes amendment of the existing objects and principles clauses contained in ss 3–5 of the NDIS Act to reflect the National Decision-Making Principles. This would ensure the National Decision-Making Principles guide the application and interpretation of the legislation as a whole, and to the particular division with respect to supporters and nominees.
5.37 Stakeholders such as the Disability Advocacy Network Australia expressed the view that
it should be an explicit object of legislation in the disability area, such as the NDIS Act, to promote the decision making capacity of people with disability, to build the capacity of people with disability to make decisions and participate in decision making, and to enable access to decision making support for all people with disability whose decision making capacity is impaired.
5.38 Section 3 of the NDIS Act contains general objects of the Act. Section 4 contains general principles guiding actions under the Act, including that:
‘people with disability should be supported to participate in and contribute to social and economic life to the extent of their ability’;
‘people with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their support’;
‘people with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity’;
‘people with disability should be supported in all their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs’; and
‘the role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected’.
5.39 Section 5 of the NDIS Act contains general principles guiding action of people who may do acts or things on behalf of others, including:
people with disability should be involved in decision making processes that affect them, and where possible make decisions for themselves; and
the judgements and decisions that people with disability would have made for themselves should be taken into account.
5.40 While the spirit and intent of the objects and principles provisions in many ways reflect the CRPD and National Decision-Making Principles, the ALRC suggests some amendment is required.
5.41 The ALRC does not intend to be overly prescriptive about necessary changes. However, by way of example, the focus under s 4(8) of the NDIS Act should be on the right of participants to express their will and preferences and to exercise choice and control with respect to decision-making. This would require removal of references to people with disability being ‘able to determine their own best interests’, and being ‘equal partners in decisions’. Such amendments would reflect the proposed shift from substitute decision-making to supported decision-making; the shift away from ‘best interests’ towards ‘will and preferences’; and the idea that decision-making authority should remain with the participant.
5.42 The ALRC welcomes stakeholder feedback on this proposal and on other changes necessary to the objects and principles under the NDIS Act to give effect to the National Decision-Making Principles.