The Australian Law Reform Commission's issues paper [
PDF] regarding
Equality, Capacity and Disability in Commonwealth Laws reflects
movement from viewing persons with disabilities as ‘objects’ of charity, medical treatment and social protection towards viewing persons with disabilities as ‘subjects’ with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of society.
The issues paper asks the following questions -
United Nations Convention on the Rights of Persons with Disabilities
Q1. 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?
National Disability Strategy 2010–2020
Q2. 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?
Framing principles
Q3. The ALRC has identified as framing principles: dignity; equality; autonomy; inclusion and participation; and accountability. Are there other key principles that should inform the ALRC’s work in this area?
A uniform approach to legal capacity?
Q4. Should there be a Commonwealth or nationally consistent approach to defining capacity and assessing a person’s ability to exercise their legal capacity? If so, what is the most appropriate mechanism and what are the key elements?
The role of family, carers and supporters
Q5. How should the role of family members, carers and others in supporting people with disability to exercise legal capacity be recognised by Commonwealth laws and legal frameworks?
Anti-discrimination law
Q6. What issues arise in relation to Commonwealth anti-discrimination 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 the Disability Discrimination Act 1992 (Cth) to address these issues?
General protections provisions
Q7. In what ways, if any, should the general protections provisions under the Fair Work Act 2009 (Cth) be amended to ensure people with disability are recognised as equal before the law and able to exercise legal capacity?
Q8. There is substantial overlap between the general protections provisions under the Fair Work Act 2009 (Cth) and Commonwealth anti-discrimination legislation. In what ways, if any, should this legislation be amended to improve or clarify their interaction in circumstances of disability discrimination?
Administrative law
Q9. What issues arise in relation to review of government decisions 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 administrative law to address these issues?
Competition and consumer law
Q10. What issues arise in relation to competition and consumer 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 competition and consumer law to address these issues?
Privacy
Q11. What issues arise in relation to privacy 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 privacy to address these issues?
The National Disability Insurance Scheme
Q12. What changes, if any, should be made to the National Disability Insurance Scheme Act 2013 (Cth) and NDIS Rules, or disability services, to ensure people with disability are recognised as equal before the law and able to exercise legal capacity?
Q13. What changes, if any, should be made to the nominee or child’s representative provisions under the National Disability Insurance Scheme Act 2013 (Cth) or NDIS Rules to ensure people with disability are recognised as equal before the law and able to exercise legal capacity?
Q14. What changes, if any, should be made to the nominee provisions or appointment processes under the following laws or legal frameworks to ensure they interact effectively:
(a) the National Disability Insurance Scheme Act 2013 (Cth) and NDIS Rules;
(b) social security legislation; and
(c) state and territory systems for guardians and administrators?
Employment
Q15. 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
Q16. 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?
Q17. 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?
Q18. 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?
Q19. 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?
Q20. 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?
Q21. 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?
Q22. 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
Q23. 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?
Q24. 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?
Q25. 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
Q26. 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?
Q27. 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?
Q28. 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?
Q29. 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?
Q30. 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?
Q31. 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?
Q32. 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?
Q33. 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
Q34. 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?
Q35. 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
Q36. In what ways, if any, should the proposed National Framework for Reducing the Use of Restrictive Practices in the Disability Service Sector be improved?
Q37. 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
Q38. 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?
Q39. 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?
Q40. 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?
Particular disability communities
Q41. How do Commonwealth laws and legal frameworks relating to equal recognition before the law and capacity affect people with disability who are:
(a) children;
(b) women;
(c) Aboriginal and Torres Strait Islander;
(d) from culturally and linguistically diverse backgrounds;
(e) older;
(f) lesbian, gay, bisexual, transgender or intersex; or
(g) living in rural, remote and regional areas.
In discussing "five interlinking principles" of dignity, equality, autonomy, inclusion & participation, and accountability the issues paper states
Dignity
The theme of ‘dignity’ emerges clearly in recent literature regarding people with disability. Importantly, it is seen as a ‘relational concept’ as it comes into play in transactions between individuals and between individuals and the State. In the international context, dignity is one of the guiding principles of the CRPD.
The first paragraph in the Preamble recalls ‘the principles proclaimed in the Charter of the United Nations which recognize the inherent dignity and worth’ of ‘all members of the human family’. Dignity is also recognised in a number of other international human rights instruments.
In the domestic context, the NDS prioritises the concept of dignity in its principles. Similarly, the P[roductivity] C[ommission] identified human dignity as ‘an inherent right’ of persons with disability and suggested that dignity as a human being is linked to self-determination, decision-making and choice.
Equality
The UNCRPD commenced its Draft General Comment on article 12 of the CRPD in September 2013 by saying that ‘[e]quality before the law is a basic and general principle of human rights protection and is indispensable for the exercise of other human rights’. Similarly, article 5 prohibits all discrimination on the basis of disability and requires States to promote equality; and articles 6 and 7 emphasise equality for women and children.
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In the domestic context, the NDS principles emphasise equality of opportunity. A range of Commonwealth laws also protect the equality of people and proscribe discrimination on the basis of disability — for example, the DDA. Similarly, in the ACT and Victoria, specific human rights legislation reinforces the ‘right to recognition and equality before the law’.
The concept of equality is also considered above at paragraphs 48 to 51 in the discussion of equal recognition before the law.
Autonomy
Autonomy is a significant principle underlying the ability of persons with disabilities to exercise legal capacity. The principle of autonomy is enshrined in the general principles of the CRPD79 and is a key principle of the NDS. The objects and principles of the NDIS also reflect the notion of autonomy.
Autonomy can be understood in two distinct senses. A focus on the individual emphasises ideas of self-agency. A focus on the individual in relation to others is expressed in the concept of ‘relational autonomy’. This understanding of autonomy connects to respect for the family as the ‘natural and fundamental unit group unit of society’ that is entitled to protection by States Parties. Such a view sits comfortably with the social model of disability and a shift in emphasis towards supported decision-making, which ‘acknowledges that individuals rely to a greater or lesser extent on others to help them make and give effect to decisions’.
At times, tensions may arise between the role of the family in providing support to people with disability to build their capacity for autonomy and their often protective role, which may limit the individual autonomy of a person with disability.
Inclusion and participation
Closely related to the principles of dignity and equality, the principles of inclusion and participation are central to many contemporary perspectives on disability, particularly to the social model. This essentially suggests that ‘whilst a person might have an impairment, their disability comes from the way society treats them, or fails to support them’. It has been suggested that promoting inclusion, through legal and social mechanisms, is a significant way of reducing these social barriers.
The inclusion and participation of people with disability is a commitment that is grounded in both international law and in Australia’s domestic policy aims. One of the principles of the CRPD is ‘full and effective participation and inclusion in society’. At a domestic level, the Australian Government’s social inclusion agenda specifically prioritised people with disability in the goal of reducing disadvantage. An emphasis on inclusion has important consequences for education, workforce participation and economic security, as people with disability are seen as ‘citizens with rights, not objects of charity’. Further, one of the objects of the NDIS Act is to facilitate greater community inclusion of people with a disability.
In the NDS, inclusion is seen to involve a consultative and collaborative approach to law reform and policy development. As it is ‘the principle that we are all entitled to participate fully in all aspects of society ... that we all have something to contribute’, the NDS recognises the need to include people with disability and their carers in consultation with government to develop a ‘shared agenda’. Thus, inclusion is also linked with civic participation, voting and public office.
The concept of inclusion refers both to the inclusion of persons with disability in social and public life and inclusion within the community of people with disability. Accordingly, the NDS expressly notes the importance of recognising diversity within the community of persons with disability, particularly due to the intersection of multiple disadvantage. Age, sex, sexuality, ethnicity, socio-economic status and location are all factors that also shape a person’s lived experience. Therefore, particular emphasis is placed on the need to address the variety of needs and perspectives that exist.
Accountability
The concept of accountability has a number of key components. The first is the need for systemic and specific accountability mechanisms and safeguards associated with measures that relate to arrangements for the exercise of legal capacity.
One important consequence of the shift towards empowering persons with disability to exercise their full legal capacity, is the need to ensure that any ‘supporters’ who fulfil a supportive or assisted decision-making role are properly accountable. Article 16(1) of the CRPD stresses the need for States Parties to take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects.
Consequently, an important focus of any reform relating to decision-making schemes is to ensure the inclusion of effective accountability mechanisms, both at a systemic and practical level.
Another important component is the accountability and responsibility of people with disability for their decisions, recognising that with rights come responsibilities.
