Defining the scope of the Inquiry

Terms of Reference

11. The ALRC works under Terms of Reference issued by the Attorney-General. They mark out the scope of each Inquiry. The Terms of Reference for this Inquiry require an examination of Commonwealth ‘laws and legal frameworks’ that ‘deny or diminish the equal recognition of people with disability as persons before the law and their ability to exercise legal capacity’.^[5]

12. A non-exhaustive list of specific areas is also set out alphabetically:

• access to justice and legal assistance programs;

• administrative law;

• aged care;

• anti-discrimination law;

• board participation;

• competition and consumer law;

• contracts;

• disability services and supports;

• electoral matters;

• employment;

• federal offences;

• financial services, including insurance;

• giving evidence;

• holding public office;

• identification documents;

• jury service;

• marriage, partnerships, intimate relationships, parenthood and family law;

• medical treatment;

• privacy law;

• restrictive practices;

• social security;

• superannuation; and

• supported and substituted decision-making.

13. The last bullet-point is one that may be seen to be relevant across all the areas where legal capacity is in issue.

14. The Inquiry is also to have particular regard for the ways Commonwealth laws and legal frameworks affect people with disability who are also children, women, Indigenous people, older people, people in rural, remote and regional areas, people from culturally and linguistically diverse (CALD) backgrounds and lesbian, gay, bisexual, transgender and intersex (LGBTI) people.

Purpose

15. The purpose of this Inquiry is to ensure that Commonwealth laws and legal frameworks are responsive to the needs of people with disability and to advance, promote and respect their rights. The rights envisaged are those set out in the CRPD. The ALRC is directed to have regard to a number of considerations, such as:

• how laws and legal frameworks are implemented and operate in practice;

• the language used in laws and legal frameworks;

• how decision-making by people with impairment that affects their decision-making can be validly and effectively supported;

• presumptions about a person’s ability to exercise legal capacity and whether these discriminate against people with disability;

• use of appropriate communication to allow people with disability to exercise legal capacity, including alternative modes, means and formats of communication such as Easy English, sign language, Braille, and augmentative communications technology;

• how a person’s ability to make decisions independently is assessed, and the mechanisms to review these decisions;

• the role of family members, carers and paid supports such as legal or non-legal advocates in supporting people with disability to exercise legal capacity for themselves—both in relation to formal and informal decisions and how this role should be recognised by laws and legal frameworks;

• safeguards—whether the powers and duties of decision-making supporters and substituted decision-makers are effective, appropriate and consistent with Australia’s international obligations;

• recognition of where a person’s legal capacity and/or need for supports to exercise legal capacity is evolving or fluctuating (where a person with disability may be able to independently make decisions at some times and circumstances but not others or where their ability to make decisions may develop with time and/or support), including the evolving capacity of children with disability; and

• how maximising individual autonomy and independence can be modelled in Commonwealth laws and legal frameworks.

State and territory laws

16. The principal focus of this Inquiry is on Commonwealth laws and legal frameworks. The Terms of Reference direct the ALRC to have regard to, or to consider how, Commonwealth laws and legal frameworks interact with state and territory laws in the areas under review. However, as the subject matter of the Inquiry is the ability of people with disability to exercise legal capacity, and as laws concerning guardianship of people are state and territory based, the Inquiry necessarily will involve a consideration of state and territory laws and practice in these areas.

17. The recommendations that will be made in the Final Report in August 2014 will be directed principally at areas in relation to which the Commonwealth is responsible or to cooperative processes that include the Commonwealth. The ALRC has also been asked to consider solutions that could be ‘modelled’ at the Commonwealth level. This will necessarily involve comparison with state and territory laws.^[6]

Laws and legal frameworks

18. The Terms of Reference direct the ALRC to examine ‘laws and legal frameworks within the Commonwealth jurisdiction’. There may be issues of a systemic kind about barriers for people with disability exercising legal capacity, as well as issues relating to service delivery. While this Inquiry may receive comments of a general kind, the ultimate focus of the recommendations will be on laws and legal frameworks, as required by our Terms of Reference. However, the idea of ‘frameworks’ extends beyond law in the form of legislative instruments to include policy and practice guides, codes of conduct, standards, education and training about legal rights and responsibilities, and other related matters.