Legislative and regulatory framework

United Nations Convention on the Rights of Persons with Disabilities

19. The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is the first binding international human rights instrument to explicitly address disability.[7] The CRPD and its Optional Protocol opened for signature on 30 March 2007 and Australia became one of the original signatories. Australia ratified the CRPD in July 2008 and the Optional Protocol in 2009. The CRPD entered into force for Australia on 16 August 2008, and the Optional Protocol in 2009.[8]

20. The purpose of the CRPD is to ‘promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity’.[9] The CRPD consolidates existing international human rights obligations and clarifies their application to people with disabilities, rather than creating ‘new’ rights.

21. In addition to the general principles and obligations contained in the CRPD,[10] Article 12 underpins the ability of people with disability to achieve many of the other rights under the Convention. It recognises the right of people with disability to enjoy legal capacity ‘on an equal basis with others in all aspects of life’.[11]

22. By ratifying the CRPD, Australia accepts the obligation to recognise that people with disability enjoy legal capacity on an equal basis with others in all aspects of life and to take appropriate measures to provide people with disability access to the support they may require in exercising their legal capacity. It also requires that all measures relating to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse.[12]

23. Australia has made a number of Interpretative Declarations in relation to the CRPD. Upon ratifying the Convention, Australia made the following declaration in respect of Article 12:

Australia declares its understanding that the CRPD allows for fully supported or substituted decision-making arrangements, which provide for decisions to be made on behalf of a person, only where such arrangements are necessary, as a last resort and subject to safeguards.[13]

24. The Interpretative Declaration is intended to outline the Government’s understanding of its obligations under the Article.

25. There are differing views about the effect of Australia’s Interpretative Declaration, particularly in relation to the role of substitute decision-making. Some stakeholders and commentators suggest that the Article does not allow for substitute decision-making under any circumstances. Others argue it allows for substitute decision-making, but only in specific circumstances, as a measure of last resort, subject to safeguards, and when in the best interests of the person with disability. Some stakeholders have suggested that the Interpretative Declaration may potentially be limiting discussion and examination of supported decision-making models.

26. In September 2013, Australia appeared before the 10th session of the CRPD.[14] In its concluding observations, the Committee recommended that Australia review its Interpretative Declarations in order to withdraw them.[15] The Committee also made a number of comments and recommendations with respect to women and children with disability, supported decision-making, access to justice, medical intervention and restrictive practices, education, work, voting and data collection. Many of these observations are discussed in more detail later in this Issues Paper.[16]

Question 1. Australia has an Interpretative Declaration in relation to Article 12 of the United Nations Convention on the Rights of Persons with Disabilities. What impact does this have in Australia on:

(a) provision for supported or substitute decision-making arrangements; and

(b) the recognition of people with disability before the law and their ability to exercise legal capacity?

Other international instruments

27. In addition to the CRPD, there are other international instruments of relevance to this Inquiry.[17] The Universal Declaration of Human Rights enshrines the inherent dignity and the equal and inalienable rights of all people and affords the protection of these rights in law.[18] While the International Covenant on Civil and Political Rights (ICCPR) makes no specific reference to people with disability, it enshrines the right to self-determination of all people as well as rights to physical integrity, liberty and security of the person and equality before the law.[19] Additionally, the International Covenant on Economic, Social and Cultural Rights (ICESCR) protects the right to work, social security, family life, health, education and participation in cultural life.[20] The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT)[21] may also be relevant, as there has been suggestion that the use of restrictive practices with respect to people with disability might contravene the CAT.[22]

28. There are also a number of international instruments that specifically protect the rights of women,[23] children[24] and Indigenous peoples,[25] which are of relevance in considering intersectional discrimination.

Australian Constitution

29. Laws and legal frameworks affecting people with disability operate across the jurisdiction of the Commonwealth and the states and territories. The Australian Constitution establishes a federal system of government in which powers are distributed between the Commonwealth and the six states. It includes a list of subjects about which the Australian Parliament may make laws, including in a number of areas of relevance to this Inquiry, such as: insurance (s 51(xiv)); banking (s 51(xiii)); marriage, divorce and parental rights (s 51(xxi) and (xxii)); invalid and old-age pensions, and a range of allowances (s 51(xxiii) and s 51(xxiiiA). The external affairs power (s 51(xxix)) is the most significant and expanding head of Commonwealth legislative power, as the Australian Government enters into treaties and becomes a signatory to international conventions under the general executive power.[26] The external affairs power enables the Australian Parliament to make laws with respect to matters physically external to Australia[27] and matters relating to Australia’s obligations under bona fide international treaties or agreements, or customary international law.[28] For example, the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) was enacted with the express objective of giving effect to a number of international conventions.

30. As discussed later at paragraph 104, identifying the Constitutional basis for any national or nationally consistent approach to capacity will be a key issue for this Inquiry.

National Disability Insurance Scheme

31. In August 2011, the Productivity Commission (PC) released its report, Disability Care and Support.[29] The Report found that ‘current disability support arrangements are inequitable, underfunded, fragmented and inefficient, and give people with a disability little choice’.[30] The PC recommended the establishment of a new National Disability Insurance Scheme to provide insurance cover for all Australians in the event of significant disability. It suggested that the main function of the NDIS would be to fund long-term high quality care and support for people with significant disabilities.

32. In response, the Council of Australian Governments (COAG) recognised the need for major reform of disability services through a NDIS. At a meeting of the Select Council on Disability Reform in October 2011, all Select Council Ministers agreed to lay the foundations for the NDIS by mid-2013. In December 2012, COAG signed an Intergovernmental Agreement for the NDIS launch. The Commonwealth and several states and territories also signed bilateral agreements confirming the operational and funding details for the roll-out of the NDIS.

33. In March 2013, the NDIS Act was enacted. The Act is supplemented by National Disability Insurance Scheme Rules, which address the more detailed operational aspects of the scheme. The scheme is administered by the National Disability Insurance Agency (NDIA) (formerly DisabilityCare Australia). The structure and operation of the NDIS is discussed in more detail later in this Issues Paper at paragraphs 144 to 148.

34. Implementation of the NDIS began in July 2013 with roll-out in four sites—South Australia, Tasmania, the Hunter Area in New South Wales, and the Barwon area of Victoria. In July 2014, the NDIS will commence in the ACT and the Barkly region of the Northern Territory.

National Disability Strategy 2010–2020

35. The National Disability Strategy (NDS) was developed by Commonwealth, State and Territory Governments under the auspices of COAG. It draws upon the findings of the 2009 report by the National People with Disabilities and Carer Council, Shut Out: The Experience of People with Disabilities and their Families in Australia.[31]

36. The purposes of the NDS include, to:

  • establish a high level policy framework to give coherence to, and guide government activity across mainstream and disability-specific areas of public policy;

  • drive improved performance of mainstream services in delivering outcomes for people with disability;

  • give visibility to disability issues and ensure they are included in the development and implementation of all public policy that impacts on people with disability; and

  • provide national leadership toward greater inclusion of people with disability.[32]

37. The NDS covers six key policy areas: inclusive and accessible communities; rights protection, justice and legislation; economic security; personal and community support; learning and skills; and health and wellbeing.

38. Stakeholders have expressed general concerns about the lack of implementation of the NDS and the absence of monitoring and reporting requirements. Stakeholders have also highlighted concerns in specific areas, for example limited recognition of, or comprehensive actions to address the rights of people with disability to marry, form intimate partner relationships, have a family and be parents.

Question 2. What changes, if any, should be made to the National Disability Strategy 2010–2020 to ensure equal recognition of people with disability before the law and their ability to exercise legal capacity?

National Disability Agreement

39. The National Disability Agreement (NDA) is one of six national agreements between the Commonwealth, states and territories in place across health, education, skills and workforce development, disability services, affordable housing and Indigenous reform. The NDA provides a national framework and key areas for reform of government support to services for people with disability. It specifically outlines the respective roles and responsibilities of the Commonwealth and state and territory governments.[33] The objective of the NDA is to provide disability support services to ensure that ‘people with disability and their carers have an enhanced quality of life and participate as valued members of the community’.[34]

Disability Discrimination Act 1992 (Cth)

40. The Disability Discrimination Act 1992 (Cth) (DDA) includes a broad definition of disability and prohibits both direct and indirect discrimination against people on the basis of disability across a range of areas. The objects of the DDA include:

  • the elimination of discrimination;

  • ensuring people with disability have the same rights to equality before the law as the rest of the community; and

  • promoting recognition and acceptance within the community of the principle that people with disability have the same fundamental rights as the rest of the community.[35]

41. Amendments to the DDA were proposed in the course of the project to consolidate existing Commonwealth anti-discrimination laws into a single Act. The project formed a key component of Australia’s Human Rights Framework.[36] In November 2012, an exposure draft Human Rights and Anti-Discrimination Bill was released and was referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report. The Committee’s Report was released on 21 February 2013.

42. In March 2013, the Gillard Government announced that, aside from amendments to the Sex Discrimination Act 1984 (Cth), the consolidation process involved a number of issues requiring ‘deeper consideration’ and that the Attorney-General’s Department would ‘continue working on this project’.[37] The status of the project was unclear at the time of writing this Issues Paper.

Other inquiries, projects and reviews

43. In addition to the developments outlined above, there are a number of current inquiries and projects of relevance to the ALRC’s Inquiry. These include:

  • Australian Human Rights Commission (AHRC)—review of access to justice in the criminal justice system for people with disability. At the time of writing, the AHRC had not yet released its final report.

  • Productivity Commission, Access to Justice Arrangements—an inquiry into Australia’s system of civil dispute resolution, with a focus on constraining costs and promoting access to justice and equality before the law. The inquiry is due to report in September 2014.

  • National Reduction of Seclusion and Restraint Project—a national project which will analyse the use of seclusion and restraint in the context of mental health. It aims to identify what factors drive current practice and changes in service delivery to evaluate how these factors can lead to best practice.[38]

  • National Mental Health Commission—the Minister for Health, the Hon Peter Dutton MP has announced a review of mental health services by the Commission. Terms of reference for the review have not been announced, however the Minister stated that the review will aim to ‘ensure services are being properly targeted, that services are not being duplicated and that programmes are not being unnecessarily burdened by red tape’.[39] The Minister has indicated that gaps in ‘mental health research and workforce development and training’ will be identified as part of the review.[40]

  • NSW Supported Decision-Making Pilot Project—the pilot is a joint project between the NSW Department of Family and Community Services, Ageing Disability and Home Care, the NSW Trustee and Guardian and the Public Guardian. The pilot will develop, trial and independently evaluate a supported decision-making framework for people with disability, their families, carers, advocates and service providers in NSW.

  • Review of financial services—the Treasurer, the Hon Joe Hockey MP has indicated there will be a ‘root and branch’ review of the Australian financial system. At the time of writing this Issues Paper it was unclear what the terms of reference for the review will include.