Framing principles

73. In this Inquiry, the ALRC considers that, in defining the new policy settings in the form of specific framing principles, assistance may be derived from both the international and domestic arenas. The ALRC considers that five interlinking principles are strongly evident: dignity; equality; autonomy; inclusion and participation; and accountability.


74. The theme of ‘dignity’ emerges clearly in recent literature regarding people with disability. Importantly, it is seen as a ‘relational concept’ as it comes into play in transactions between individuals and between individuals and the State.[70] In the international context, dignity is one of the guiding principles of the CRPD.[71] The first paragraph in the Preamble recalls ‘the principles proclaimed in the Charter of the United Nations which recognize the inherent dignity and worth’ of ‘all members of the human family’. Dignity is also recognised in a number of other international human rights instruments.[72]

75. In the domestic context, the NDS prioritises the concept of dignity in its principles.[73] Similarly, the PC identified human dignity as ‘an inherent right’ of persons with disability and suggested that dignity as a human being is linked to self-determination, decision-making and choice.[74]


76. The UNCRPD commenced its Draft General Comment on article 12 of the CRPD in September 2013 by saying that ‘[e]quality before the law is a basic and general principle of human rights protection and is indispensable for the exercise of other human rights’.[75] Similarly, article 5 prohibits all discrimination on the basis of disability and requires States to promote equality;[76] and articles 6 and 7 emphasise equality for women and children.

77. In the domestic context, the NDS principles emphasise equality of opportunity.[77] A range of Commonwealth laws also protect the equality of people and proscribe discrimination on the basis of disability—for example, the DDA. Similarly, in the ACT and Victoria, specific human rights legislation reinforces the ‘right to recognition and equality before the law’.[78]

78. The concept of equality is also considered above at paragraphs 48 to 51 in the discussion of equal recognition before the law.


79. Autonomy is a significant principle underlying the ability of persons with disabilities to exercise legal capacity. The principle of autonomy is enshrined in the general principles of the CRPD[79] and is a key principle of the NDS.[80] The objects and principles of the NDIS also reflect the notion of autonomy.[81]

80. Autonomy can be understood in two distinct senses. A focus on the individual emphasises ideas of self-agency. A focus on the individual in relation to others is expressed in the concept of ‘relational autonomy’. This understanding of autonomy connects to respect for the family as the ‘natural and fundamental unit group unit of society’ that is entitled to protection by States Parties.[82] Such a view sits comfortably with the social model of disability and a shift in emphasis towards supported decision-making, which ‘acknowledges that individuals rely to a greater or lesser extent on others to help them make and give effect to decisions’.[83]

81. At times, tensions may arise between the role of the family in providing support to people with disability to build their capacity for autonomy and their often protective role, which may limit the individual autonomy of a person with disability.

Inclusion and participation

82. Closely related to the principles of dignity and equality, the principles of inclusion and participation are central to many contemporary perspectives on disability, particularly to the social model. This essentially suggests that ‘whilst a person might have an impairment, their disability comes from the way society treats them, or fails to support them’.[84] It has been suggested that promoting inclusion, through legal and social mechanisms, is a significant way of reducing these social barriers.[85]

83. The inclusion and participation of people with disability is a commitment that is grounded in both international law and in Australia’s domestic policy aims.[86] One of the principles of the CRPD is ‘full and effective participation and inclusion in society’.[87] At a domestic level, the Australian Government’s social inclusion agenda specifically prioritised people with disability in the goal of reducing disadvantage.[88] An emphasis on inclusion has important consequences for education, workforce participation and economic security, as people with disability are seen as ‘citizens with rights, not objects of charity’.[89] Further, one of the objects of the NDIS Act is to facilitate greater community inclusion of people with a disability.[90]

84. In the NDS, inclusion is seen to involve a consultative and collaborative approach to law reform and policy development.[91] As it is ‘the principle that we are all entitled to participate fully in all aspects of society … that we all have something to contribute’,[92] the NDS recognises the need to include people with disability and their carers in consultation with government to develop a ‘shared agenda’.[93] Thus, inclusion is also linked with civic participation, voting and public office.

85. The concept of inclusion refers both to the inclusion of persons with disability in social and public life and inclusion within the community of people with disability. Accordingly, the NDS expressly notes the importance of recognising diversity within the community of persons with disability, particularly due to the intersection of multiple disadvantage.[94] Age, sex, sexuality, ethnicity, socio-economic status and location are all factors that also shape a person’s lived experience.[95] Therefore, particular emphasis is placed on the need to address the variety of needs and perspectives that exist.


86. The concept of accountability has a number of key components. The first is the need for systemic and specific accountability mechanisms and safeguards associated with measures that relate to arrangements for the exercise of legal capacity.[96]

87. One important consequence of the shift towards empowering persons with disability to exercise their full legal capacity, is the need to ensure that any ‘supporters’ who fulfil a supportive or assisted decision-making role are properly accountable. Article 16(1) of the CRPD stresses the need for States Parties to take

all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects.

88. Consequently, an important focus of any reform relating to decision-making schemes is to ensure the inclusion of effective accountability mechanisms, both at a systemic and practical level.

89. Another important component is the accountability and responsibility of people with disability for their decisions, recognising that with rights come responsibilities.

Question 3. The ALRC has identified as framing principles: dignity; equality; autonomy; inclusion and participation; and accountability. Are there other key principles that should inform the ALRC’s work in this area?