Specific legislative areas

Employment

159. The CRPD recognises the right of persons with disabilities to work on an equal basis with others. This includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and a work environment that is open, inclusive and accessible.[191] The CRPD also outlines a range of measures States Parties must take to give effect to the right to work.

160. Australia has among the lowest rates of employment of people with disability in the OECD.[192] Against this backdrop, there are a range of issues with respect to people with disability and employment. However, many of the issues do not necessarily relate to capacity or decision-making, which is the focus of this Inquiry, including for example:

  • low levels of employment participation by people with disability and the relationship between employment and social security systems;

  • the operation of the Job Services Australia and Disability Employment Services system, including the conduct of employment services assessments;

  • the operation of Australian Disability Enterprises;

  • the operation of the supported wage system and business service wage assessment tool;[193]

  • declining employment of people with disability in the Commonwealth public service; and

  • whether positive duties with respect to the employment of people with disability, should be imposed, for example, through quotas or targets.

161. While acknowledging these issues, the ALRC is particularly interested in stakeholder comments on ways in which Commonwealth laws and legal frameworks related to employment either diminish or facilitate the equal recognition of people with disability before the law and their ability to exercise legal capacity.

Question 15. In what ways, if any, do Commonwealth laws or legal frameworks relating to employment diminish or facilitate the equal recognition of people with disability before the law and their ability to exercise legal capacity?

Citizenship rights, public service and board participation

162. Australia has obligations under international law to guarantee that people with disability can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity to vote and be elected.[194]Accordingly, it is necessary to examine legislation and legal frameworks that restrict the right of people with disability to exercise citizenship rights and fully participate in society.

163. There are a number of areas relating to citizenship and participation in society in which people with disability may not be recognised as equal before the law, and face difficulties exercising their legal capacity. These areas include: electoral matters, holding public office; jury service; participating on boards; and identification documents.

Electoral matters

164. There are two key issues in relation to electoral matters that potentially deny or diminish the equal recognition of people with disability before the law and their ability to exercise legal capacity. The first relates to being placed or retained on the Electoral Roll and the right to vote. The second issue relates to the manner in which people with disability are able to exercise their right to vote.

165. The Commonwealth Electoral Act 1918 (Cth) provides that people are not entitled to have their name placed or retained on the Electoral Roll, or to vote, where they are incapable of understanding the nature and significance of enrolment and voting by reason of ‘unsound mind’.[195] An elector may object to the enrolment of another person on the basis of the unsound mind provisions. However, the Electoral Commissioner may dismiss an objection if it is not accompanied by evidence from a medical practitioner, and in determining the objection the Australian Electoral Commission requires evidence from a medical practitioner prior to removing any elector from the Roll.[196] There are a variety of avenues to challenge a decision to remove a person’s name from the Roll.[197]

166. In addition to concerns about the eligibility to vote and inclusion on the Roll, other issues affecting people with disability include:

  • the lack of easily understood information about candidates, voting and preferences;

  • difficulties enrolling;

  • access to voting (though noting this has improved somewhat with wheelchair accessible polling stations, telephone voting and postal voting);

  • lack of secrecy for people with disability casting a vote; and

  • fines associated with not voting where people with disability are not assisted to vote.

167. The UNCRPD has recommended that Australia ‘enact legislation restoring the presumption of the capacity of persons with disabilities to vote and exercise choice; and to ensure that all aspects of voting in an election are made accessible to all citizens with a disability’.[198]

168. The ALRC welcomes comments from stakeholders about the unsound mind provisions, as well as other aspects of electoral laws and legal frameworks to ensure people with disability are recognised as equal before the law and able to exercise legal capacity.

169. A related point which arises from the use of terminology and concepts such as ‘unsound mind’ is the use of particular language in laws and legal frameworks and its impact on the equal recognition of people with disability before the law or their ability to exercise legal capacity. The ALRC is interested in stakeholder comments on these issues.

Question 16. What changes, if any, should be made to the Commonwealth Electoral Act 1918 (Cth) or the Referendum (Machinery Provision) Act 1984 (Cth) to enable people with disability to be placed or retained on the Roll of Electors or to vote?

Question 17. What issues arise in relation to electoral matters that may affect the equal recognition before the law of people with disability or their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks to address these issues?

Question 18. How does the language used in Commonwealth laws and legal frameworks affect the equal recognition of people with disability before the law or their ability to exercise legal capacity?

Public office

170. Under some legislation, a person can be removed from public office if it is decided that he or she cannot or may not be able to fulfil the responsibilities of that office, or due to incapacity. For example, s 72 of the Australian Constitution provides that Justices of the High Court of Australia

shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity.[199]

171. Each jurisdiction has differing requirements prior to the removal of a person from public office and a range of reforms to the process have been recommended, including through a more interventionist approach by Parliament, or through relevant oversight bodies such as the Judicial Commission.[200]

172. There is a need to balance ensuring those people holding public office have the capacity to do so—to maintain public confidence in the office or system—with ensuring people with disability are able to hold public office if they wish to do so and they are able to perform the function of that office. As a result, the ALRC is interested in stakeholder comments on the ways in which Commonwealth laws and legal frameworks relating to holding public office diminish or facilitate the equal recognition of people with disability before the law and their ability to exercise legal capacity.

173. A related issue is the significant under-representation of people with disability holding public office. It may be that this under-representation arises as a result of the combination of cultural attitudes and stereotypes, cost and selection or pre-selection processes. While the ALRC welcomes stakeholder comment on this issue, the changes required to address these types of issues may require reform going beyond the focus of this Inquiry, that of laws and legal frameworks.

Question 19. In what ways do Commonwealth laws and legal frameworks relating to holding public office diminish or facilitate the equal recognition of people with disability before the law and their ability to exercise legal capacity?

Jury service

174. Jury service is a fundamental aspect of citizenship and a key dimension of the legal capacity of adults in Australia. Article 29 of the CRPD provides in part that States Parties must actively promote an ‘environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs’.[201] However, some people with disability in Australia may be ineligible for jury service on the basis of their disability.

175. Under the Federal Court of Australia Act 1976 (Cth), the Sheriff must remove a person’s name from the jury list[202] if satisfied that: the person is not qualified to be a juror; or the Sheriff would excuse the person from serving on the jury if the person were a potential juror.[203] The Sheriff may, either on application or on his or her own initiative, excuse a potential juror from serving on the jury if satisfied that they are ‘in all the circumstances, unable to perform the duties of a juror to a reasonable standard’.[204] In coming to a conclusion about a person’s ability to perform the duties of a juror, the Act requires that the Sheriff must have regard to the DDA.[205] People with a disability may therefore be prevented from serving on a jury, depending upon the Sheriff’s interpretation of the duties of a juror and the meaning and factors considered in assessing a reasonable standard.

176. However, in the Commonwealth context, the usual mode of trial is by judge alone, and trial by jury is only provided for in exceptional cases. Consequently, potential issues relating to people with disability and jury service primarily arise in a state and territory context. By way of example, under the Jury Act 1977 (NSW) a number of categories of people are ineligible to serve as jurors, including ‘a person who is unable, because of sickness, infirmity or disability, to discharge the duties of a juror’.[206] To determine whether a person is unable to discharge such duties, the Sheriff sends a notice to each person included on the supplementary jury roll containing a questionnaire. The respondent’s answers to the questionnaire are then used, among other things, to determine whether or not the person is ineligible to serve as a juror. The current practice appears to be that information indicating a potential juror is deaf or blind is considered sufficient to ground a determination that a person is ineligible to serve as a juror.[207] In particular, blind and deaf jurors appear to have been excluded from serving on juries on the basis of a number of concerns, including about comprehension and the presence of a 13th person in the jury room where an interpreter is used.[208]

177. The ALRC is interested in stakeholder comments on ways to ensure people with disability are not automatically excluded from jury service on the basis of their disability alone. The ALRC also welcomes feedback on the way in which issues relating to the provision of support and reasonable accommodation could be addressed,[209] and what amendments may be needed to Commonwealth, state and territory laws or legal frameworks to give effect to these ideas.

178. The ALRC is aware that individual communications have been made to the UN Committee on this issue pursuant to the Optional Protocol to the CRPD.[210] The ALRC will consider any outcome arising from these communications in the course of the Inquiry.

Question 20. What changes, if any, should be made to Commonwealth laws and legal frameworks to ensure that people with disability are not automatically or inappropriately excluded from serving on a jury or being eligible for jury service?

Board participation

179. Two key issues arise with respect to the participation of people with disability on boards, management committees and in similar roles. The first relates directly to the capacity of an individual to fulfil the obligations of the relevant position. The second issue is a broader one with respect to the representation of people with disability on Australian boards.

180. Under the Corporations Act 2001 (Cth), a person with disability can be disqualified from holding the office of director. For example, a personal representative or trustee may be appointed to administer a person’s estate or property if he or she is the only director and shareholder of a proprietary company and cannot manage the company ‘because of mental incapacity’. In turn, that personal representative or trustee may appoint another person as the director of the company.[211]

181. Under state and territory associations legislation and model rules, such as the Model Constitution under the Associations Incorporation Act 2009 (NSW), a casual vacancy of the relevant board or management committee occurs if a member becomes a ‘mentally incapacitated person’.[212]

182. These provisions primarily relate to circumstances in which a person’s capacity is fluctuating or diminishing and reveal a key tension between the need to ensure people in such positions are able to fulfil their role and comply with relevant duties and obligations; and considerations of capacity, in particular the appropriate way to determine and describe capacity in this context. The terminology used in such provisions also reflects broader concerns relating to the appropriateness of terminology used in legislation and legal frameworks.

183. The ALRC is interested in stakeholder comments on how to balance these issues, and in particular on the ways in which Commonwealth laws and legal frameworks relating to membership of, or participation on, boards diminish or facilitate the equal recognition of people with disability before the law and their ability to exercise legal capacity.

Question 21. In what ways do Commonwealth laws and legal frameworks relating to membership of, or participation on, boards diminish or facilitate the equal recognition of people with disability before the law and their ability to exercise legal capacity?

Identity documents

184. In a range of circumstances, individuals are required to prove their identity by providing original documents, often from an approved list. In some circumstances, people with disability may have difficulty obtaining the primary legally recognised forms of identification, such as a driver’s licence or other forms of identification which have the same level of integrity.

185. Many of the potential issues relating to identity documents arise under state and territory legislation. However, to the extent that difficulties obtaining nationally recognised identification documents deny or diminish the equal recognition before the law of people with disability, or their ability to exercise legal capacity, there may need to be a nationally consistent approach to this issue.

186. The ALRC is interested in stakeholder comments on the contexts in which the issue of identification documents may arise for people with disability and the types of identity documents required, as well as the changes which could be made to address such issues for people with disability.

Question 22. What issues arise in relation to identity documents for people with disability? In what ways, if any, should Commonwealth laws and legal frameworks relating to identity documents be amended to ensure people with disability are recognised as equal before the law and able to exercise legal capacity?

Access to justice, evidence and federal offences

187. The ALRC seeks submissions on the experiences of people with disability in accessing justice in a number of areas discussed below, as well as more broadly about circumstances in which people with disability may not be recognised as equal before the law, or are unable to exercise their legal capacity on an equal basis with others.

Access to justice

188. Access to justice is ‘access to information, support and opportunities’ to enjoy and exercise one’s rights in law.[213] Article 13 of the CRPD stipulates that States Parties must ensure effective access to justice for persons with disabilities on an equal basis with others by:

  • providing procedural and age-appropriate accommodations to facilitate their role as direct and indirect participants, including as witnesses, in all legal proceedings; and

  • promoting appropriate training for those working in the field of administration of justice, including police and prison staff.[214]

189. People with disability may be involved in court processes in a number of different roles. Regardless of the capacity in which a person with disability engages with the justice system, a number of personal and systemic issues may affect their ability to attain access to justice, for example:

  • communication barriers;

  • difficulties accessing the necessary support, adjustments or aids to participate in the justice system;

  • issues associated with giving instructions to legal representatives and capacity to participate in litigation;

  • the costs associated with legal representation; and

  • misconceptions and stereotypes about the reliability and credibility of people with disability as witnesses.[215]

Communication

190. Appropriate communication is key to people with disability knowing about their rights and exercising them in all areas of life. There are a number of aspects relevant to communication and accessibility in the context of access to justice. For example, improving access to justice for people with disability may require: changes to the language used in legislation; the provision of legal information in alternative formats; and the availability and use of augmentative and alternative communication or interpreters. The ALRC is interested in hearing about communication and accessibility issues which may limit the ability of people with disability to participate meaningfully in the justice system, as well as examples of best practice approaches to addressing such issues.

Capacity to give instructions and participate in litigation

191. A person’s capacity affects their ability to engage with the justice system at a broad level, but also to start or defend proceedings, to give instructions, or to settle a matter. As a result, in considering the ability of people to access justice a number of issues arise, including:

  • the relevant standard of capacity;[216]

  • the appropriate approach in circumstances where capacity is an issue in the course of proceedings and the role of legal practitioners representing a client who may lack capacity, as well as opponents in circumstances where the person is self-represented;

  • the appointment of litigation or case guardians, including the involvement of Public Guardians and Trustees and associated costs implications; and

  • capacity and authority to give instructions to legal representatives.

Criminal law

192. Despite under-reporting,[217] people with disability are over-represented as victims of crime, especially violence, fraud, sexual assault of women and abuse and neglect of children.[218] The reasons underlying such under-reporting may include: lack of understanding that what happened is a crime or willingness of others to consider it a crime; difficulties communicating with police and officers of the court; and dependence on others to take legal action.[219]

193. As defendants, people with disability may face difficulties obtaining legal representation or other assistance from the police or the courts that is appropriate to their needs. People with cognitive impairment and psychosocial disability are over-represented in the criminal justice system and studies indicate they are not receiving appropriate or adequate support in detention for their disability.[220] Aboriginal and Torres Strait Islander people with a cognitive or intellectual impairment and mental illness may be particularly vulnerable to a range of legal issues.[221]

Question 23. What issues arise in relation to access to justice that may affect the equal recognition before the law of people with disability and their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks relating to access to justice to address these issues?

Evidence

194. People with disability may not be afforded equal recognition before the law when they are witnesses in the justice system. Studies show that certain cultural perceptions of people with intellectual disability, for example, that they do not make credible witnesses, reduce the likelihood of charges actually being laid.[222] Victims or witnesses with an intellectual disability may be seen as ‘unintelligent, untruthful and inconsistent’ in their recounting of events.[223]

195. A witness in court must be competent to give evidence. The Evidence Act 1995 (Cth) recognises that a person with a mental, intellectual or physical disability may not be competent to give evidence.[224] Competence is defined as ‘the capacity to understand a question about the fact and the capacity to give an answer that can be understood to a question about fact’.[225] Instead of giving sworn evidence, a person who the court finds lacks capacity to give evidence can present an unsworn statement.[226] In this way, the test for competence to give evidence amounts to the capacity to understand the obligation to give truthful evidence.[227] The probative value of the unsworn statement will be assessed and the court may refuse to admit evidence that may be unfairly prejudicial to a party, misleading or confusing, or result in undue delays.[228]

196. There is a concern that people with disability are discouraged from participating in the justice system as witnesses because of the test for competence and because courts will not compel people with disability to give evidence if they are satisfied that:

  • ‘substantial cost or delay’ would be incurred in ensuring the person would have capacity to understand a question about the matter or to give an answer that can be understood; and

  • if there is adequate evidence on the matter at hand, or will be able to be given, from one or more other persons or sources.[229]

197. A number of evidence-related issues arise as a result of language and communication issues. For example, under the Evidence Act, interpreter assistance is available ‘unless the witness can understand and speak the English language’ sufficiently to understand and reply to questions put about the fact.[230] A specific provision is made for questioning ‘deaf and mute witnesses’ in ‘any appropriate way’ in the Evidence Act.[231] The right of these witnesses to have an interpreter is not affected by the provision.[232] However, there are concerns that the Australian Sign Language (Auslan) and Braille are not recognised as official languages in courts, that the description of ‘deaf and mute witnesses’ is outmoded and the specification of only people with hearing and speech impairment as potential witnesses may be too limited.

198. In relation to federal offences, the Criminal Code Act 1995 (Cth) obliges the police to provide special assistance in arranging interpreter and legal services for people with an ‘inadequate knowledge of the English language’ and for people with disability.[233] The Crimes Act 1914 (Cth) also provides for protection of particular categories of persons such as children, people with disability and Aboriginal and Torres Strait Islander people.[234] These provisions allow for:

  • the use of alternative arrangements such as closed-circuit television;[235]

  • the presence of one or more persons accompanying the ‘vulnerable person’.[236] Vulnerable persons include children, vulnerable adult complainants and special witnesses;[237]

  • the exclusion of members of the public from the courtroom;[238]

  • disallowing inappropriate or aggressive cross-examination;[239]

  • ensuring vulnerable persons are not compelled to give further evidence unless it is necessary in the interests of justice;[240]

  • ensuring warnings are not given to juries about giving lesser or greater weight to the evidence given by alternate means;[241]

  • ensuring officials not interview Aboriginal and Torres Strait Islander people unless an ‘interview friend’ is present or the person has waived that right.[242] An interview friend can be a relative, lawyer, a representative of an Aboriginal legal aid organisation or any other person chosen; and

  • in relation to forensic procedures such as taking of fingerprints and blood samples, the presence of parents or lawyers of ‘incapable persons’[243] who are suspects, offenders or volunteers to act as their interview friends to make requests or objections on behalf of the incapable person.[244] Where the incapable person must be informed of matters, the interview friends must also be informed in a language in which they can communicate with reasonable fluency.[245]

199. The ALRC is interested in stakeholder comments on the effect of these current provisions and whether they are useful for people with disability in giving evidence as witnesses in the justice system on an equal basis with others.

Question 24. What issues arise in relation to evidence law that may affect the equal recognition before the law of people with disability and their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks relating to evidence to address these issues?

Federal offences

200. A federal offence is ‘an offence against the law of the Commonwealth’[246] and the general principles of criminal responsibility outlined in the Criminal Code Act apply to those offences. Issues facing people with disability in relation to federal offences may concern the language used in legislation, the operation of the law, as well as concerns about access to justice[247] and giving evidence.[248]

201. The ‘mental impairment’ of a defendant is a defence to criminal responsibility.[249] Mental impairment includes ‘senility, intellectual disability, mental illness, brain damage and severe personality disorder’.[250] Where a person with an intellectual disability is convicted in a state or territory of a federal offence, the court may order a person be released to undertake a specified program or treatment.[251] The ALRC seeks stakeholder comments on the experience of people with disability relating to the assessment by the police, lawyers and the judiciary of their ‘mental impairment’.

202. Decisions by the Commonwealth Director of Public Prosecutions (CDPP) on the prosecution of federal offences may potentially affect people with disability as alleged offenders, defendants, witnesses or victims. The test for the CDPP in deciding to commence or continue a prosecution is if there is ‘a reasonable prospect of a conviction being secured’.[252] The Prosecution Policy of the Commonwealth states that, when applying this test, the CDPP should have regard to a number of matters, including the credibility of the witness, the perception of which may be affected by a physical or mental disability.[253]

203. If the CDPP is satisfied there is sufficient evidence to institute or continue a prosecution, the CDPP then determines whether or not there is public interest in pursuing the prosecution.[254] The ‘special vulnerability’ of the alleged offender is taken into account when establishing the public interest and it includes ‘the youth, age, intelligence, physical health and mental health’ of the alleged offender, witness or victim.[255] However, there are many other public interest considerations that may affect cases involving people with disability, such as the attitude of the victim towards prosecution [256] the availability of alternatives to prosecution[257] and the likely length and expense of a trial.[258] The ALRC is interested in stakeholder comments on the application of the law on federal offences, including the impact of prosecutorial discretion on people with disability.

Question 25. What issues arise in relation to the law on federal offences that may affect the equal recognition before the law of people with disability and their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks relating to federal offences to address these issues?

Social security, financial services and superannuation

Social security

204. People with disability are ‘less likely to be employed, more likely to be dependent on income support and more likely to live below the poverty line’.[259] Accordingly, the interaction between people with disability, their carers and supporters, and the social security system is central to the lives of many people with disability.

205. The Social Security Act 1991 (Cth) (the Social Security Act) and the Social Security (Administration) Act 1999 (Cth) form the legislative basis for the social security system in Australia. The Guide to Social Security Law, produced by the Department of Social Services (DSS) provides guidance to decision makers in implementing this legislation.[260] Social security law is administered by the Department of Human Services (DHS) through Centrelink. A range of avenues of internal and external review are available for social security-related decisions.[261]

206. The key income support payments of relevance to this Inquiry include: Disability Support Pension and Carer Payment—both pensions; as well as allowances such as Sickness Allowance, Mobility Allowance, Newstart and a range of carer-related allowances. In relation to income support payments, adequacy aside, potential areas of concern for people with disability in this context relate to:

  • navigating the social security system, including accessing and understanding relevant information and forms;

  • eligibility, including issues associated with obtaining necessary medical evidence and the assessment of capacity;

  • participation requirements;[262]

  • the consequences of breach of certain requirements;[263] and

  • appeals mechanisms.

207. The ALRC is aware of a range of systemic, adequacy and service delivery issues in the context of social security for people with disability, including the complexity of the social security system and difficulties people with disability face navigating the system, issues identified by previous inquiries and reviews. However, the ALRC is particularly interested in stakeholder feedback on issues arising under legislation or legal frameworks (such as policy guides) that affect the equal recognition of people with disability before the law and their ability to exercise legal capacity.

Question 26. In what ways do Commonwealth laws and legal frameworks relating to social security diminish or facilitate the equal recognition of people with disability before the law and their ability to exercise legal capacity?

Nominees

208. One area of particular relevance to people with disability relates to social security nominees. It engages issues of capacity and raises the interaction of nominee arrangements under social security law, with the NDIS and state and territory appointed guardians and administrators.

209. The Social Security (Administration) Act makes provision for a ‘principal’[264] to authorise another person or organisation to enquire or act on the person’s behalf when dealing with DHS. There are four types of arrangements:

  • enquiries only;

  • correspondence nominees—a person or organisation authorised to act and make changes on the principal’s behalf;[265]

  • payment nominees—a person or organisation authorised to receive a principal’s payment into an account maintained by the nominee;[266] and

  • a combined payment/correspondence nominee which authorises a person or organisation to enquire, act, and make changes as well as receive payments on behalf of the client.[267]

210. The Guide to Social Security Law provides that where a question arises in relation to a principal’s capacity to consent to the appointment of a nominee, or any concerns arise in relation to an existing arrangement, DHS must ‘investigate the situation’.[268] The Guide goes on to provide:

There may be times where a principal is not capable, for example, due to an intellectual/physical constraint or in some cases because the principal is a young child, of consenting to the appointment of a nominee. In these cases, a delegate may appoint a nominee on behalf of the principal, with attention to supporting evidence, and where the delegate is fully satisfied that the nominee is required and will act in the principal’s best interests. The decision made by the delegate to appoint a nominee in these circumstances must be fully documented.

Where a principal has a psychiatric disability, a nominee can be appointed in these instances where there is a court-appointed arrangement such as a Guardianship Order.[269]

211. Nominees have a range of functions and responsibilities, including a duty to act in the best interests of the principal.[270] There are also a number of important safeguards around nominees. For example, nominees are required to advise DHS of any matter that affects their ability to act as a nominee,[271] and DHS may require provision of a statement from payment nominees outlining expenditure of the principal’s payments by the nominee.[272]

212. While there is a need to encourage people to act as nominees, given the vital role nominees play in assisting people with disability to engage with the social security system, some aspects of the nominee regime may leave people with disability vulnerable. For example, there does not appear to be legislative provision for a principal to request cancellation of a nominee arrangement.[273] Further, if a correspondence nominee fails to satisfy a particular requirement, the principal is taken to have failed to comply with the requirement which may then have adverse consequences in terms of compliance and payments.[274]

213. The other key issue in the social security context is the interaction of social security nominees with nominees under the NDIS, state and territory appointed guardians and administrators, or powers of attorney.[275]

214. The ALRC is interested in stakeholder comments on the operation of the nominee provisions, including whether there are sufficient and appropriate safeguards in place to protect people with disability from potential exploitation or abuse as well as in relation to the interaction issues highlighted above.

Question 27. What changes, if any, should be made to the nominee provisions under the Social Security (Administration) Act 1999 (Cth) to ensure people with disability are recognised as equal before the law and able to exercise legal capacity?

Banking

215. Article 12(5) of the CRPD requires States Parties to take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and to ensure that persons with disabilities are not arbitrarily deprived of their property.[276] In practice, a tension emerges between such rights to control and access with the need to protect people with disability from financial abuse and manipulation in conducting their banking and financial activities. There is also a need to ensure the legal validity of financial transactions.

216. The legislative and regulatory framework in relation to banking in Australia is complex and multifaceted.[277] The prudential regulator is the Australian Prudential Regulation Authority (APRA)[278] and the corporate regulator is ASIC.[279] The Financial Ombudsman Service provides independent dispute resolution for consumers and financial institutions.[280] There are also a range of non-binding industry guidelines that may be relevant to the ability of people with disability to engage with the banking industry and to exercise legal capacity in that context. For example, the Australian Bankers’ Association (ABA) has developed industry guidelines to assist banks and their employees to protect vulnerable customers from potential fraud or manipulation,[281] and to explain the operation of powers of attorney and administrator arrangements.[282]

217. One of the key issues emerging in this Inquiry in relation to banking is the refusal of some banks to allow people with disability to access or operate a bank account independently, and hesitancy in recognising informal supporters. Such refusal may reflect bank concerns about capacity or financial exploitation.[283] The ABA commented that

Financial exploitation of a vulnerable person is a deeply challenging area for banks. Every customer’s situation is unique and banks have an obligation to protect their customers’ privacy, maintain the bank’s duty of confidentiality, and to not unnecessarily intrude into their customers’ lives. To intervene or question a customer inappropriately, or without due consideration and sensitivity, may cause embarrassment for the customer, or possibly damage the customer-banker relationship, or even result in greater vulnerability for the customer. Consequently, in cases of suspected financial abuse, it’s important to be both vigilant and cautious.[284]

218. Some ABA industry guidelines provide assistance to banks in recognising financial abuse, advocate raising awareness among bank employees, and outline strategies for dealing with a situation of potential financial abuse.[285] Other industry guidelines note that where the capacity of a customer is at issue, it is not the role of the bank to determine capacity,[286] but outline the roles of administrators and guardians, how to recognise their authority, and consider the issue of inconsistency across jurisdictions.[287] The Australian Consumer Law also provides some avenues for protection of people with disability in these instances.[288]

219. Advancements in technology have significantly altered the banking landscape. While some electronic networks and authentication technologies may not be accessible to people with disability, similarly face-to-face services may also be inaccessible or inconvenient.[289]

220. The ALRC is seeking comments on changes to Commonwealth laws and legal frameworks that would address some of these concerns in the context of banking and give effect to article 12(5), while balancing the right of people with disability to exercise legal capacity with the concerns of financial institutions and others around financial abuse and manipulation.

Question 28. What issues arise in relation to banking for people with disability? What changes, if any, should be made to Commonwealth laws and legal frameworks to ensure people with disability control their own financial affairs and have equal access to bank loans, mortgages and other forms of financial credit?

Insurance

221. There are a number of issues of concern with respect to people with disability and insurance. These concerns primarily relate to the availability of insurance products for people with disability; the operation of the insurance exemption under the DDA; and the transparency and accessibility of the actuarial and statistical data upon which insurance underwriting and pricing occurs in relation to people with disability.

222. There are particular concerns relating to access to insurance products by people with psychosocial disability, including in relation to ‘life insurance, income protection and disability protection insurance’.[290] The ALRC is interested in submissions which address these potential concerns and ways in which Commonwealth laws or legal frameworks for insurance deny or diminish the equal recognition of people with disability before the law and their ability to exercise legal capacity.

223. There are a range of insurance exceptions under Commonwealth, state and territory anti-discrimination legislation. The exemption under s 46 of the DDA allows insurers, providing certain conditions are satisfied, to:

  • refuse to offer a person with disability an annuity or an insurance policy; and

  • discriminate on the terms and conditions on which any insurance policy is provided.

224. The conditions are satisfied if the discrimination is:

  • based upon actuarial or statistical data on which it is reasonable for the discriminator to rely; and

  • reasonable having regard to the matter of the data and other relevant factors; or

  • in a case where no such actuarial or statistical data is available, and cannot reasonably be obtained, reasonable having regard to any other relevant factors.[291]

225. The operation of the insurance exemption may potentially raise concerns for people with disability, in particular about:

  • the accuracy, relevance and currency of data relied upon by insurers in making decisions about insurance on the basis of disability; and

  • what constitutes ‘any other relevant factors’ for the purposes of the exemption, and the interpretation of this phrase with respect to reliance on the exemption.

226. In an insurance context, the difficulty arises in balancing mechanisms that might facilitate access to insurance for people with disability with the need to recognise the purpose and nature of insurance and for insurers to reasonably differentiate on the basis of risk. The ALRC welcomes stakeholder feedback on what changes, if any, should be made to the insurance exemption under the DDA and what additional guidance or supporting material in relation to the application and operation of the insurance exemption would assist people with disability.

Question 29. In what ways, if any, do Commonwealth laws or legal frameworks relating to insurance deny or diminish the equal recognition of people with disability before the law and their ability to exercise legal capacity?

Question 30. What changes, if any, should be made to the insurance exemption under the Disability Discrimination Act 1992 (Cth) to ensure people with disability are recognised as equal before the law and able to exercise legal capacity?

Question 31. What additional guidance or supporting material relating to the application and operation of the insurance exemption under the Disability Discrimination Act 1992 (Cth) would assist people with disability?

Superannuation

227. Superannuation, as a form of long-term saving for retirement, serves an important role and, for many Australians, is one of the most significant forms of wealth. The key areas of potential difficulty for people with disability with respect to superannuation, aside from adequacy of superannuation balances, relate to early access to superannuation and the superannuation exemption under the DDA.

228. Generally, superannuation funds cannot be accessed before the member reaches the required ‘preservation age’. However, s 79B of the Superannuation Act 1976 (Cth) provides limited grounds for the early release of preserved or restricted non-preserved benefits, on the basis of severe financial hardship or compassionate grounds. These grounds are defined in the Superannuation Industry (Supervision) Regulations 1994 (Cth).[292]

229. The grounds for early release are limited to reflect the policy balance sought: on the one hand, the overriding policy objective that superannuation benefits are to be preserved to provide income for retirement; and, on the other, the recognition that certain exceptional circumstances may justify the early release of benefits to a member.

230. The ALRC is interested in stakeholder comments on the early release provisions and their relevance and operation in practice for people with disability.

231. As outlined above, the DDA contains an exemption relating to insurance and superannuation. The exemption in s 46 allows superannuation funds, providing certain conditions are satisfied, to:

  • refuse to offer a person with disability membership of a superannuation or provident fund or scheme; and

  • discriminate on the terms and conditions on which membership of a superannuation or provident fund or scheme is provided or offered.[293]

232. The circumstances in which the conditions are satisfied are outlined above at paragraph 224.

233. The ALRC welcomes stakeholder feedback on what changes, if any, should be made to the superannuation exemption under the DDA or to the early release provisions of the Superannuation Act, as well as more broadly to Commonwealth laws and legal frameworks relating to superannuation, to ensure people with disability are recognised as equal before the law and able to exercise legal capacity.

Question 32. What changes, if any, should be made to the superannuation exemption under the Disability Discrimination Act 1992 (Cth) to ensure people with disability are recognised as equal before the law and able to exercise legal capacity?

Question 33. What issues arise in relation to superannuation for people with disability that may affect their equal recognition before the law or their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks to address these issues?

Health care and aged care

Health care

234. While people with disability have universal health care needs, they may require more specialised health care than others. As disability is ‘extremely diverse’,[294] some health conditions associated with disability demand extensive health care and others do not.[295]

235. For the purposes of this Inquiry, health care is broadly defined. It includes a range of health services provided either as a public or private service, such as:

  • services provided by registered health practitioners, including dental treatment;

  • hospital and ambulance services;

  • mental health services;

  • pharmaceutical services;

  • community health services;

  • health education and welfare services;

  • services provided by dietitians, masseurs, naturopaths, social workers, speech pathologists and audiologists; and

  • pathology services.[296]

236. Articles 25 and 26 of the CRPD oblige States Parties to provide health services, including rehabilitation, to people with disability without discrimination on the basis of disability. The Commonwealth Government provides funding for health services,[297] however, the management of health services through nationally set standards remains largely with the states and territories.[298] Disability services managed under the NDIS interact with the state and territory health systems, for example, in the provision of hospital treatment and psychiatric rehabilitation services.[299]

237. The National Health Reform Act 2011 (Cth) established the Australian Commission on Safety and Quality in Health Care (ACSQHC) as an independent statutory authority to implement the National Health Reform Agreement.[300][301] The ACSQHC monitors the National Safety and Quality Health Service (NSQHS) Standards that apply to all health service organisations. The ACSQHC reports to the COAG’s Standing Council on Health, which includes the Australian Health Ministers’ Advisory Council. Ten standards were endorsed by all Australian health ministers.[302] They cover, among others, governance arrangements for the safety and quality in health service organisations, medication safety and patient identification.[303]

238. The conduct of health practitioners is regulated under the Health Practitioner Regulation National Law 2009(Qld) (the National Law).[304]The National Law established a national agency to implement the law.[305] The Australian Health Practitioner Regulatory Authority also oversees 14 national boards, one for each health profession.[306]

239. Difficulties in health care experienced by people with disability largely relate to service delivery and consent to medical treatment. As this Inquiry is focused on laws and legal frameworks, service delivery issues will not be examined in depth, except where they affect the equal recognition before the law of people with disability and their ability to exercise legal capacity.

240. A significant legal issue for people with disability in relation to health care is involuntary treatment. Article 17 of the CRPD protects the physical and mental integrity of people with disability on an equal basis with others.[307] In common law, it is unlawful for any medical practitioner to treat an adult without their consent, ‘except in cases of emergency or necessity’.[308] In all states and territories, legislation supplements the common law rules about requiring consent to medical treatment, including for adults when they are unable to make their own decision.[309]

241. In relation to medical treatment for people with mental illness state and territory laws generally provide for the involuntary detention and treatment of people with severe mental illness if the person is in need of treatment and is likely to self-harm or harm others.[310] The criteria and processes for involuntary medical treatment are being reviewed in several jurisdictions.[311]

242. Another significant issue relating to consent to medical treatment is involuntary or coerced sterilisation of girls and women with disability, and of intersex people. It has been suggested that girls and women with disability in the care of families and in institutionalised settings have been subjected to sterilisation due to pregnancy risks related to sexual abuse.[312] The clinical reasons given in support of sterilisation for girls and women with a disability are usually linked to the avoidance of pregnancy[313] or the management of menstruation where it has an adverse impact on the health of the woman.[314] Sterilisation of intersex people is reportedly undertaken to ‘normalise’ them and to clinically treat ‘disorders of sexual development’.[315] However, this has raised significant concerns.[316]

243. The Senate Standing Committee for Community Affairs (the Senate Committee) Inquiry into Involuntary or Coerced Sterilisation of People with Disability in Australia made a number of recommendations. The first report in relation to girls and women with disability included recommendations that:

  • sterilisation should be banned unless undertaken with consent;[317] and

  • state and territory laws regulating the sterilisation of adults with disability be amended to state explicitly the presumption of capacity for people with disability to make their own decisions unless objectively assessed otherwise.[318]

244. Disability and human rights advocates have criticised the first report into the involuntary or coerced sterilisation of girls and women with disability on the grounds that it does not recommend a complete ban of the practice.[319]

245. In the second report of the Senate Committee on the involuntary or coerced sterilisation of intersex people, the Committee recommended that all medical treatment of intersex people take place under guidelines that support deferral of normalising treatment until the person can give fully informed consent.[320] The Senate Committee also recommended authorisation by a court or tribunal for the ‘complex and contentious’ medical treatment of intersex people who are unable to make decisions for their own treatment.[321]

246. The ALRC welcomes stakeholder comments on issues relating to consent to medical treatment and other health care-related issues affecting people with disability.

Question 34. What issues arise in relation to health care that may affect the equal recognition before the law of people with disability and their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks relating to health care to address these issues?

Aged care

247. More than 343,000 Australians receive some type of Australian Government subsidised aged care service.[322] This number is increasing every year as Australia’s population ages. The care needs of older people vary, but generally, low level community care is the initial step in the Australian aged care system.[323] A person may then receive respite care in a residential aged care facility, progressing to low level or high level care in a residential aged care facility, as a permanent resident.[324] Other than these aged care services, the Australian Government operates a broader system of health delivery, income support, and housing and community services.[325]

248. The aged care related issues for people with disability include:

  • negative attitudes towards ageing and the elderly resulting in age discrimination in the delivery of services;

  • physical neglect and abuse from the use of restrictive practices in aged care facilities; and

  • emotional or financial exploitation as older people with disability, especially dementia,[326] lose functional or decision-making capacity in relation to many aspects of their lives.

249. Policy and funding responsibility for aged care services shifted from states and territories to a national approach with the introduction of the Aged Care Act 1997 (Cth).[327] Residential and home care providers must be accredited by the Aged Care Standards and Accreditation Agency[328] and meet certain requirements prescribed in the Aged Care Act in order to receive an Australian Government subsidy.[329] There will be intersections of aged care with various Commonwealth, state or territory systems for the provision of NDIS, disability services and health services.[330]

250. The Living Longer Living Better aged care reform was announced on 20 April 2012 to create a nationally consistent system that provides older Australians with more choice and control over a full range of services.[331] Key aspects of the reform included a gateway to aged care services called My Aged Care,[332] the introduction of Consumer Directed Care and various supplements in recognition of additional costs involved in caring for people with dementia and people with mental health conditions.[333] Two new national strategies were developed to address the specific aged care needs of people from culturally and linguistically diverse backgrounds[334] and older people who are lesbian, gay, bisexual, transgender or intersex.[335]

251. Aged care providers are increasingly involved in the delivery of complex palliative and end of life care and there is a need to improve advanced care planning.[336] Guidelines for future substitute decision-making for health and medical care decisions and living arrangements are outlined in the National Framework for Advanced Care Directives as agreed by the Australian Health Ministers’ Advisory Council.[337]

252. The ALRC seeks submissions on the aspects of aged care outlined above and other issues that affect the legal recognition of people with disability and their ability to exercise legal capacity.

Question 35. What issues arise in relation to aged care that may affect the equal recognition before the law of people with disability and their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks relating to aged care to address these issues?

Restrictive practices

253. People with disability in the care of disability service providers and in a range of institutions who display ‘challenging behaviour’ or ‘behaviours of concern’[338] may be subjected to restrictive practices. While restrictive practices may be used in some circumstances in response to ‘challenging behaviour’, there are concerns that such practices can also be imposed as a ‘means of coercion, discipline, convenience, or retaliation by staff, family members or others providing support’.[339]

254. Restrictive practices involve the use of interventions and practices that have the effect of restricting the rights or freedom of movement of a person with disability. These primarily include restraint (chemical, mechanical, social or physical) and seclusion.[340] Such practices are used by disability services providers across jurisdictions, as well as in a range of institutional settings including in supported accommodation and group homes, residential aged care facilities, mental health facilities, schools, hospitals and prisons.[341] However, limited data is available on the prevalence or impact of restrictive practices on people with disability in Australia.

255. The use of restrictive practices may potentially involve breaches of a number of articles of the CRPD[342] and the CAT.[343] The UNCRPD has expressed its concern about the use of restrictive practices in Australia. In particular, it has recommended that Australia ‘take immediate steps to end such practices, including by establishing an independent national preventative mechanism to monitor places of detention’.[344]

Regulation of and responses to restrictive practices

256. The regulation of restrictive practices in Australia primarily arises under disability services and mental health legislation, as well as under a range of policy directives, statements and guidance materials. However, regulatory approaches to restrictive practices are inconsistent across these systems and Australian jurisdictions.

Disability services

257. Disability services regulation in jurisdictions such as Victoria, Queensland and Tasmania occurs through disability services legislation.[345] For example, the Disability Act 2006 (Vic) provides for the Office of the Senior Practitioner, the role of which is to protect the rights of people with disability who are subject to restrictive interventions. It includes monitoring, audit and investigation as well as power to set appropriate standards and guidelines. One of the key components of this approach involves the development of behaviour support plans.[346] There is also a Restrictive Intervention Data System in Victoria which records the use of restrictive practices.

258. The approach in other jurisdictions includes policy-based frameworks, voluntary codes of practice, as well as regulation through the guardianship framework.[347]

Mental health

259. In the context of the mental health system, jurisdictions such as Victoria and Queensland have detailed provisions relating to restrictive practices, combined with detailed minimum standard guidelines[348] and a policy statement.[349] Legislative provisions are less detailed in other jurisdictions.[350] In NSW, the use of restrictive practices is regulated by a lengthy and detailed policy directive.[351] However, this is an area of ongoing review and reform. For example, in Tasmania new mental health legislation is due to take effect from 1 January 2014 to regulate restrictive practices.[352] There are also several ongoing reviews of mental health legislation and bills before Parliament in a number of jurisdictions.[353]

260. There are also a range of other relevant guidelines, including guidelines released by the Royal Australian and New Zealand College of Psychiatrists and the Australian Psychological Association.[354]

261. At a national level, the Commonwealth, State and Territory Governments have developed a proposed National Framework for Reducing the Use of Restrictive Practices in the Disability Service Sector (National Framework). The aim of the proposed National Framework is to reduce the use of restrictive practices in the disability services sector. A range of concerns have been expressed about the proposed National Framework, including in relation to terminology; its limited coverage, being confined to disability services; and limited provision for reporting and monitoring of restrictive practices.[355] The National Framework has not yet been finalised.

262. The ALRC welcomes stakeholder feedback on whether the proposed National Framework, through its regulation of, and commitment to, reducing restrictive practices, is consistent with ensuring that people with disability are recognised as equal before the law and able to exercise legal capacity.

263. There are also a number of interaction points between state and territory systems and the NDIS in the context of restrictive practices. Regulation of service providers and the use of restrictive practices occurs at a state and territory level. Under the NDIS, people with disability who are participants will be able to choose their providers. This means restrictive practices authorised under a state or territory regime may occur in the context of service provision, which is funded by the NDIS.

264. In addition, the NDIS framework provides for the registration of providers. Where a participant has his or her plan funds managed by the NDIA, they will only be able to receive support from providers registered with the NDIA. Registered providers must satisfy a number of requirements in relation to qualifications, approvals, experience and capacity for the approved supports and are subject to certain reporting requirements.[356] This may mean, for example, that where a service provider has a complaint made against it arising from the use of restrictive practices and is the subject of action by the state and territory regulator, this may have flow-on effects for the purposes of remaining an NDIA registered provider.

265. In light of the inconsistency across jurisdictions with respect to restrictive practices, as well as potential interaction with the NDIS, the ALRC is interested in stakeholder comments on whether it might be appropriate to develop a national or nationally consistent regulatory or principles-based framework with respect to the regulation and reduction of restrictive practices.

Question 36. In what ways, if any, should the proposed National Framework for Reducing the Use of Restrictive Practices in the Disability Service Sector be improved?

Question 37. What is the most appropriate approach to the regulation, reduction and elimination of restrictive practices used on people with disability at a national or nationally consistent level? What are the key elements any such approach should include?

Marriage, intimate relationships, parenthood and family law

266. Article 23 of the CRPD recognises the right of people with disability to marry and found a family.[357] However, in Australia, many people with disability experience discrimination or difficulties in exercising their rights to marry, form intimate relationships, sexual expression, have a family and parent. In particular, many people with disability

experience paternalistic and moralistic attitudes from support staff and service providers and their needs for assistance in developing and maintaining relationships and friendships and their decisions to enter into marriage or partnerships receive little or no support at a policy or service delivery level.

Widespread discrimination against parents with disability occurs in relation to child protection agencies and their interface with the disability support system leading to much higher rates of children being removed from parents with disability than from parents who do not have a disability.[358]

267. Further, many of the key documents and frameworks, including the NDS, National Disability Services Standards, and National Framework for Protecting Australia’s Children 2009–2020 contain either no or limited recognition of the rights of people to marry, form intimate relationships, have a family or to parent.

268. While some of these issues arise in a service delivery context, or at a state and territory rather than a Commonwealth level, a number relate directly to issues of legal capacity and Commonwealth laws and legal frameworks.

Marriage

269. The Marriage Act 1961 (Cth) provides that a marriage will be void in a number of circumstances, including where the consent of either of the parties is not real because that party was mentally incapable of understanding the nature and effect of the marriage ceremony.[359]

270. As a result, before a marriage is entered into, it is important for the person solemnising the marriage to determine that the parties to the marriage are mentally capable of understanding the nature and effect of the marriage ceremony. It is an offence for a celebrant to solemnise a marriage where he or she has reason to believe that one of the parties does not meet this standard.[360]

271. A number of categories of people are authorised celebrants for the purposes of solemnising marriages under the Marriage Act.[361] Ministers of Religion are registered with states and territories to solemnise marriages for a recognised denomination. A range of state and territory officers are also entitled to solemnise marriages; for example, officers of the relevant Registry of Births, Deaths and Marriages. Marriage celebrants are registered under the Commonwealth Marriage Celebrants program.

272. Marriage celebrants must solemnise marriages under the Marriage Act and Marriage Regulations 1963 (Cth) and comply with the Code of Practice for Marriage Celebrants and ongoing professional development obligations.[362] There are a number of guidelines for celebrants;[363] and celebrants must undergo performance reviews by the Registrar of Marriage Celebrants.[364]

273. The Guidelines on the Marriage Act 1961 for Marriage Celebrants suggest that to determine whether a party’s consent is real, a celebrant should speak to the party in the absence of the other party, speak to third parties and keep relevant records.[365] The Guidelines state that

in cases of mental capacity to understand the nature and effect of the marriage ceremony, a very simple or general understanding will be sufficient. A high level of understanding is not required. The authorised celebrant should ask questions of the person about whom they have concerns in order to gauge the level of their understanding of the marriage ceremony and what it involves.[366]

274. The Guidelines also provide a list of questions to assist celebrants to identify situations where consent issues may arise.[367]

275. In some jurisdictions, under guardianship legislation, a guardian of a person with disability cannot consent or refuse to consent to a marriage, but may give an opinion as to whether the guardian thinks the marriage should proceed. Disability Rights Now has suggested this may give guardians ‘undue influence over the extent to which a person with disability can realise their right to freely marry’.[368]

276. More broadly, Disability Rights Now has expressed the view that these provisions effectively exclude ‘some people with disability, particularly those with cognitive impairments from entering into marriage’.[369] Such provisions reveal a key tension between the need to protect people with disability from exploitation or forced marriage, while ensuring that any person with disability who is able to understand and consent should be entitled to marry freely.

277. The ALRC is interested in stakeholder comments on what changes, if any, may need to be made to Commonwealth laws and legal frameworks in relation to marriage and celebrants to ensure people with disability are recognised as equal before the law and able to exercise legal capacity.

Question 38. What issues arise in relation to marriage that may affect the equal recognition before the law of people with a disability and their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks relating to marriage or marriage celebrants to address these issues?

Intimate relationships

278. Many people with disability may be denied the right to engage in intimate relationships, in part as a result of the

attitudes of support staff, agency policies that prohibit sexual relations and an aggressive risk management culture in many support agencies. There may also be a directive from parents or family members to the residential facility to prohibit this for their adult child regardless of the person’s wishes and their adult status.[370]

279. People with disability who live in group homes or institutions, and lesbian, gay, bisexual, transgender and intersex people with disability face particular difficulties.[371]

280. There are also legislative barriers in some jurisdictions, including provisions that make it an offence to have sexual intercourse with a person who, for example, does not have the capacity to consent to sexual intercourse because of ‘cognitive incapacity’.[372] Clearly, the meaning of capacity in this context, the relevant standard and means of assessing whether an individual meets the required standard will be vital in cases involving possible criminal behaviour under these provisions.

281. A related issue, which combines both service delivery and legislative aspects, relates to service provider facilitation of access to sexual services for people with disability. While in some jurisdictions service providers are prevented from facilitating access to sex workers, in other jurisdictions there are policy and procedural guides which contain policy principles and working guidelines concerning access to sexual services for people with disability.[373]

282. There is a key tension implicit in this area between the protective role of the state—as expressed through the negation of consent in circumstances of cognitive incapacity—to protect people with disability from possible exploitation or assault, with the autonomy of the individual with a disability and their rights to privacy and intimate relationships.[374]

283. The ALRC is interested in stakeholder comments on what, if any, changes should be made to Commonwealth law and legal frameworks to recognise the right of people with disability to form and engage in intimate relationships.

Question 39. What issues arise in relation to people with disability and intimate relationships that may affect their equal recognition before the law or ability to exercise legal capacity? What changes, if any, should be made to Commonwealth law and legal frameworks to address these issues?

Parenthood

284. People with disability experience a range of different types of discrimination and face difficulties in relation to parenting, including for example with respect to: adoption, sterilisation,[375] and child protection and removal. In particular, parents with disability are significantly over-represented in the child protection system. The children of people with disability are subject to removal from their parents at a higher rate than the general population.[376]

285. While many of the key issues in this area appear to arise in state and territory jurisdictions, the ALRC welcomes feedback in relation to parenting-related matters which may raise issues under Commonwealth laws and legal frameworks.

Family law

286. A range of potential issues that may affect people with disability being recognised as equal before the law, or exercising legal capacity, arise in the context of family law. The ALRC seeks stakeholder feedback on these issues which may, for example, relate to:

  • assessment of capacity where incapacity is either alleged by another party, or the court has concerns about the legal capacity of a party;

  • legal representation and issues around the giving of instructions, discussed above at paragraph 191;

  • case and litigation guardians, including issues of appointment, costs and exposure to liability;[377]

  • expert reports;[378]

  • primary and secondary considerations in parenting matters, including for example, assessment of capacity to provide for the needs of the child;[379]

  • spousal maintenance, including considerations of future need;[380] and

  • property orders.[381]

Question 40. What issues arise in relation to family law that may affect the equal recognition of people with disability before the law and their ability to exercise legal capacity? What changes, if any,should be made to Commonwealth laws and legal frameworks relating to family law to address these issues?