I want to make sure that existing Commonwealth laws and legal frameworks do not create barriers to people with disability exercising their rights and legal capacity.
Most of us take for granted the independent decisions we make about our lives. People with disability deserve the same opportunity.
This inquiry is about maximising choice and autonomy for Australians with disability.Minister for Disability Reform Jenny Macklin said that "people with disability are entitled to the dignity that comes from being able to make choices over their own lives".
Ensuring that people with disability have access to the same rights and opportunities as Australians without disability is a hallmark of a just society.
As we celebrate the twentieth anniversary of the Disability Discrimination Act, it is fitting that we consider whether our laws are adequately supporting people with disability.
The announcement of this inquiry coincides with the upcoming launch of DisabilityCare Australia, the national disability insurance scheme, a significant reform that will transform the way people with disability are supported and put choice and control in the hands of people with disability.”The Draft Terms of Reference are
having regard to:
• the United Nations Convention on the Rights of Persons with Disabilities, to which Australia is a party and which sets out:
- rights for people with disability to recognition before the law, to legal capacity and to access to justice on an equal basis with others, and
- a general principle of respect for inherent dignity, individual autonomy, including freedom to make one’s own choices, and independence of persons, and
• Australian Governments’ commitment to the National Disability Strategy, which includes ‘rights protection, justice and legislation’ as a priority area for action.
the Australian Law Reform Commission [is to cover]
• the examination of laws and legal frameworks within the Commonwealth jurisdiction that deny or diminish the equal recognition of people with disability as persons before the law and their ability to exercise legal capacity, and
• what if any changes could be made to Commonwealth laws and legal frameworks to address these matters.
For the purposes of the inquiry, equal recognition before the law and legal capacity are to be understood as they are used in the Convention on the Rights of Persons with Disabilities: including to refer to the rights of people with disability to make decisions and act on their own behalf.
In undertaking this reference, the ALRC should consider all relevant Commonwealth laws and legal frameworks that either directly, or indirectly, impact on people with disability’s recognition before the law and exercise of legal capacity on an equal basis with others, including in the areas of:
• access to justice and legal assistance programs
• aged care
• anti-discrimination law
• board participation
• disability services
• electoral matters
• federal offences
• financial services
• giving evidence
• holding public office
• identification documents
• jury service
• marriage, partnerships, intimate relationships and parenthood
• medical treatment
• privacy law
• restrictive practices
• social security
• superannuation, and
• supported and substituted decision making.
The review should also have particular regard for the ways Commonwealth laws and legal frameworks affect children, Indigenous people, older people and women with disability. The purpose of this review is to ensure that Commonwealth laws and legal frameworks are responsive to the needs of people with disability and to advance, promote and respect their rights.
In considering what if any changes to Commonwealth law could be made, the ALRC should consider:
• how decision making by people with impairment that affects their decision making can be validly and effectively supported
• presumptions about a person’s ability to exercise legal capacity and whether these discriminate against people with disability
• use of appropriate communication to allow people with disability to exercise legal capacity, including alternative modes, means and formats of communication such as Easy English, sign language, Braille, and augmentative communications technology
• how a person’s ability to independently make decisions is assessed, and mechanisms to review these decisions
• legal or other recognition of supports for people with disability to make decisions for themselves (whether family/friends or paid supports) – both in relation to formal decisions and informal decisions
• safeguards – are the powers and duties of decision making supporters and substituted decision makers effective, appropriate and consistent with Australia’s international obligations
• recognition of where a person’s need for supports to exercise legal capacity is evolving or fluctuating (where a person with disability may be able to independently make decisions at some times but not others or where their ability to make decisions may grow with time), and
• how maximising individual autonomy and independence could be modelled in Commonwealth laws and legal frameworks.
In conducting this inquiry, the ALRC should also have regard to:
• initiatives under the National Disability Strategy, including the National Disability Insurance Scheme and other services available to people with disability, and how these should/could interact with the law to increase the realisation of people with disability’s recognition before the law and legal capacity
• how Commonwealth laws and legal frameworks interact with State and Territory laws in the areas under review, contemporaneous developments and best practice examples within the States and Territories, and
• international laws and legal frameworks that aim to ensure people with disability are accorded equal recognition before the law and legal capacity on an equal basis with others, including work to implement the Convention on the Rights of Persons with Disability in the United Kingdom and Canada.
In undertaking this reference, the ALRC should identify and consult with relevant stakeholders including people with disability and their representative, advocacy and legal organisations, the families and carers of people with disability, relevant Government departments and agencies, the Australian Human Rights Commission, and other key non-government stakeholders.