Student Data and Corporate Bankruptcy

US 'edutech' group ConnectEDU - in chapter 11 after shedding a reported 55 of its 65 staff - is facing criticism from the Federal Trade Commission over plans to sell personal information collected from around 20 million high school and college students in the US and elsewhere. That data includes names, email addresses and birth dates.

In a letter to the bankruptcy judge [PDF] the FTC argues that a sale would potentially be deceptive because it would violate ConnectEDU’s privacy policy.

ConnectEDU must comply with Section 363(b)(1)(A) of the Bankruptcy Code, which states that a debtor may not sell personally identifiable information about an individual covered by a privacy policy prohibiting the transfer of that information to a third party, unless the sale is consistent with the policy.

The FTC refers to the Snapchat consent agreement and notes

The Commission has brought many cases alleging that the failure to adhere to promises about information privacy constitute a deceptive practice under the FTC Act.1 These cases include FTC v. Toysmart in which the Commission sued an online toy retailer that had filed for bankruptcy and sought to auction the personal information it collected from its customers. The Commission alleged that the offer for sale constituted a deceptive practice because the company had represented in its privacy policy that such information would never be shared with third parties.

There's no indication on the ConnectEDU site of anything amiss. The site continues to promote the business as one that

prepares and transitions 21st Century Learners on their pathways from school to college to career, helping them realize their potential, achieve a secure financial future, and ultimately connect to life's possibilities.

One of life's undisclosed possibilities is being data-mined as an outcome of corporate bankruptcy

The ConnectEDU privacy policy states that in the event of sale or intended sale of the Company its users will be given

reasonable notice and an opportunity to remove personally identifiable data from the service. In any event, any purchaser of ConnectEDU’s assets will abide by the terms of this Privacy Policy in the form effective as of any transfer.

ConnectEDU, which apparently has some activity in Australia, is reported to have 200 creditors, estimated assets of US$1m to US$10m and liabilities of between US$10mn to US$50m.

The FTC notes that ConnectEDU indicates that

the personally identifiable data you submit to ConnectEDU (or that ConnectEDU obtains from your school) is not made available or distributed to third parties, except with your express consent and at your direction,

In particular, the Company will not give, sell or provide access to your personal information to any company, individual or organization for its use in marketing or commercial solicitation or for any other purpose, except as is necessary for the operation of this site.

The FTC states that

Information about teens is particularly sensitive and may warrant even greater privacy protections than those accorded to adults. These users, as well as their parents, would likely be concerned if their information transferred without restriction to a purchaser for unknown uses.

The FTC has recommended either that ConnectEDU give each student who had registered for its sites the choice to remove personal records from company databases in advance of a sale or that the company destroy the entirety of the personal details it had collected.

Archives and memories

Intellectual property students have a short reminder of copyright in letters in the current controversy over correspondence from Jacqueline Kennedy to a Vincentian priest.

Under Australian, UK, US and Irish law the recipient of a letter gains legal ownership of the medium - ink, paper, envelope, stamp (even sealing wax, if you are lucky) - but the author of the letter retains copyright. The recipient can legally read, destroy or sell the medium but typically does not have authority to publish what was written.

Some recipients have sold correspondence at auction or sold a cache of letters to a collecting institution, in some instances for over US$1 million. On occasion they or biographers and other scholars have been restrained from reproducing the correspondence as a whole or from extensive quotation. A much cited example is action by JD Salinger to block quotation of intimate correspondence. Henry James, just as famously, retrieved letters from recipients and burnt them - along with manuscripts of novels and short stories - in a regrettable bonfire in his garden at Rye.

In the US there has been interest in what the New York Times describes as "an unlikely friendship" and "an extraordinary correspondence" in which Jacqueline Bouvier (later Jacqueline Kennedy) "revealed her private thoughts" during courtship and marriage with John F. Kennedy. Her letters were addressed to Vincentian priest Joseph Leonard, whom she met in Ireland in 1950. The published snippets - including characterisation of JFK as consumed with ambition “like Macbeth” - reinforce perceptions that she was more acute than the charismatic, golden-haired and somewhat empty-headed President.

The Times reports that

The letters were uncovered in April at a financially strapped college in Ireland, which had planned to sell them at auction as part of a plan to raise money. But earlier this week, the auction was called off, and on Friday, officials at the college, All Hallows in Dublin, said they had learned that the institution did not own the letters after all, and announced that it was closing its doors.

It seems doubtful that the Kennedy family, which stepped in to object to the auction, even knew of the letters’ existence until excerpts were published earlier this month in newspapers on both sides of the Atlantic. ... Phillip Sheppard, the head of the auction house that planned to conduct the sale, told news outlets that a “private source,” whom he has not identified, had brought the letters forward.

Mr. Sheppard estimated that the letters from the famously private former first lady might fetch as much as $5 million. ... 

On Wednesday, the auction was abruptly called off, and the college said that the Kennedy family had stepped in. A further twist emerged Friday, when the college announced that Father Leonard had bequeathed the letters in a will to his religious order, the Vincentian Fathers. The will, which had been presumed lost, had been discovered in recent days, the college said. ...

Whether the letters will ever become public remains unclear. The revelation of candid thoughts written to a priest, with the likely expectation that they would remain confidential, has roiled an age-old debate over privacy and the obligations of public figures to illuminate the historical record.

'Ae Fond Kiss: A Private Matter?' by Hector Lewis MacQueen in Burrows, Johnston and Zimmermann (eds), Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry (Oxford University Press, 2013) 473-488 discusses the 1804 case of Cadell & Davies v Stewart, in which the existence of rights to publish or to prevent publication of private letters between poet Robert Burns and his close friend Agnes McLehose was ventilated at length by the advocates and judges. MacQueen assesses the evidence for what really happened between Burns and Agnes, and discusses the contemporary significance of the court's decision to prevent publication.

MacQueen comments

On 16 May 1804, the Court of Session decided to prohibit the continued publication of 25 passionate personal letters written by Robert Burns to “Clarinda”, the love of his life (at least between December 1787 and February 1788, when most of the letters were written). The letters had been published in a slim pocket-sized volume in spring 1802, whereupon proceedings were commenced in November by the holders of Burns’ copyrights and, subsequently, his family. The Court’s decision came even though Burns had been dead for eight years, and his physical relationship with Clarinda, so far as could be told from the letters, had involved only heavy breathing and perhaps, late at night, the occasional fond kiss and cuddle (of which more anon). But Clarinda was still very much alive at the time of the case and living in Edinburgh; she was in possession of the originals of the letters in question; and, averred the publisher of the book, Mr Thomas Stewart, bookseller of Glasgow, she had consented to their publication. 

Not being a party to the case, however, Clarinda (whose real name was Agnes McLehose, and who was usually known to her friends as Nancy) was in no position to deny Stewart's allegation before the court. Nor did she really want to "go public" about her affair with Burns. At the most intense period of their relationship, they were each married to someone else: Burns in his irregular relationship with Jean Armour,4 who had already borne him twins in 1786 and was again pregnant by him back in Ayrshire; Clarinda to a dissolute Glasgow lawyer, James McLehose, from whom, however, she had been estranged and living apart since 1782. In itself this was scandalous by contemporary standards, since quite apart from the disgrace of leaving her husband, how she managed to survive thereafter was unclear unless it was on immoral earnings or with the covert support of a rich lover. … Robert Burns spent the winter of 1787-88 in Edinburgh, where he was seeking to follow up the success of the Kilmarnock edition of his poetry published in 1786, obtain money and patronage, and widen his experience and influence. At the beginning of December 1787 he went to a tea-party and there met the attractive, yet religiose and bookish, Agnes McLehose. Like Burns, she was 28 years old, and lived with her two surviving children and her servant Jenny Clow at General’s Entry just off Potterrow on the south side of Edinburgh – not the best part of town in those days, but not the worst either. 

After the tea-party, Burns and Nancy began a high-flown but increasingly amorous correspondence which lasted for the next three months, addressing each other and signing themselves as "Sylvander" and "Clarinda" respectively. They wrote initially because Burns had managed to fall out of a carriage (possibly due more to the coachman’s than Burns’ consumption of alcohol) and was consequently laid up at home with a dislocated knee, unable to get about on foot or, indeed, at all. So the two communicated via the hourly penny postal service, sometimes also using Jenny Clow as a private courier. The pseudonyms provided at least a fig-leaf of protection for their identities should letters delivered by third hands miscarry in some way. Burns’ womanising reputation was already well established and well justified, so it was a great risk to any female’s good name to be seen alone with him. Email, texting and tweeting, had they existed in the late eighteenth century, would have been useful to the couple, although their words would have had to be fewer and shorter, if not abbreviated. 

When Burns' knee recovered in January 1788, he began paying visits to Nancy late at night in Potterrow as well as continuing to write between visits. Nancy urged him to walk to her house rather than come conspicuously in a sedan chair, or even worse a coach: “A chair is so uncommon a thing in our neighbourhood, it is apt to raise speculation.” But he could go home in a chair, since the neighbours were "all asleep by ten". 

Burns died in Dumfries on 21 July 1796, leaving behind him his wife Jean and their surviving children. Friends and admirers of the dead poet concocted a plan to support the family by publication of all his writings, including his letters. They wanted initially to include in this project Burns' letters to Clarinda, which presumably they knew about because Burns had kept at least some of Clarinda's letters to him. She however refused permission for this, and on her own account asked for the return of the letters she had written to Burns. This was eventually achieved in 1797. Three years later, the first edition of James Currie’s four-volume Works of Robert Burns was published by Cadell and Davies of London (the current members of a long-established and very successful firm of booksellers or publishers, later to be the raisers of the action that came to its culmination in May 180419). The second volume included the full text of a number of Burns’ letters recovered from some of his correspondents, but there was no hint anywhere in the book of his exchanges with Agnes McLehose. … 

Currie’s quasi-apology for publishing private letters in his preface to the second volume is indicative of contemporary attitudes, at least among the letter-writing classes:

It is impossible to dismiss this volume of the correspondence of our Bard, without some anxiety as to the reception it may meet with. The experiment we are making has not often been tried; perhaps on no occasion, has so large a portion of the recent and unpremeditated effusions of a man of genius been committed to the press.

Currie emphasized the fact that the publication was generally with permission from both the family of Burns and those to whom he had written, and also that it had been “found necessary to mutilate many of the individual letters, and sometimes to examine parts of great delicacy - the unbridled effusions of panegyrics and regard",  to make them fit for public viewing. 

Despite, or perhaps because of this, Currie’s book caught the in-coming tsunami of Burns mania. Bardolatry was already manifesting itself, not only in the spread of annual suppers on the anniversary of his birth (the very first was held in the birthplace, Alloway, in January 1797), but also in projects for the creation of monuments around the country. Currie’s Works enjoyed three further editions in 1801, 1802, and 1803, and the book’s immediate success was, as we shall see, an important part of the background to the litigation in 1804. 

While Clarinda might successfully prevent her letters from Burns going into print, she did allow visitors to her house in Edinburgh to see them. She authorised someone called Finlay to quote from Sylvander’s letters when she let him have possession of them for a period. But, as she wrote in 1834, "Besides making this use of the letters, Mr Finlay gave permission to a bookseller to publish all the letters which had been intrusted to him, and added, most falsely, in an advertisement prefixed to them, that this was done with my permission (‘condescension’, as he termed it) ... Nothing could be more contrary to truth."

Meanwhile in Germany it is reported that the Oberlandesgerichte Koblenz (Higher Regional Court of Koblenz) in case reference 3 U 1288/13 has apparently ordered the deletion of intimate photos and videos after a personal relationship came to an end. (Commentary relies on the Court's media release rather than the judgment, which has not yet appeared.)

The defendant and then partner had made a range of images during the relationship; some were intimate (including nude photographs, unsurprising given that the defendant is a professional photographer), others were not. After the relationship ended the partner demanded destruction of both intimate and 'everyday' images in which she appeared. Off to court, after the defendant resisted.

In the District Court the defendant agreed not to publish the images (e.g. place them on the web) or otherwise provide them to third parties. However, he did not agree to delete all electronic images, which we might regard as equivalent to pulling photos of a formerly happy couple out of a personal photo album. So much for the memories.

On appeal the Court appears to have decided that the complainant had some rather than comprehensive personality rights regarding unpublished images. Intimate images were associated with the personal relationship and when that relationship ceased the complainant could accordingly require deletion of those images (presumably by the photographer expunging files from hard drives and cards). That destruction reflects Articles 1(1) and 2(1) of the federal Constitution. The defendant's professional freedom (protected as a human right under Article 12) would not be affected, as the images were made on a personal rather than professional basis.

The 'everyday' images should be treated differently, as exposure would not lower the claimant's reputation in the eyes of third parties. The court noted that it was common practice for the production of still images and video at "celebrations, festivals and on vacation", with people legitimately possessing those images and using them (on a non-commercial basis) in perpetuity.

Traditional Freedoms and Privileges

The national Attorney-General has released Terms of Reference for the 'Traditional Freedoms Inquiry' by the ALRC noted - most irreverently - last year

The ALRC is to inquire and report regarding

• the identification of Commonwealth laws that encroach upon traditional rights, freedoms and privileges; and 
• a critical examination of those laws to determine whether the encroachment upon those traditional rights, freedoms and privileges is appropriately justified. 

Alas, no specific reference to traditional duties.

For the purpose of the exercise the "laws that encroach upon traditional rights, freedoms and privileges"are to be understood as laws that:

•  reverse or shift the burden of proof; 
• deny procedural fairness to persons affected by the exercise of public power; 
• exclude the right to claim the privilege against self-incrimination; 
• abrogate client legal privilege; 
• apply strict or absolute liability to all physical elements of a criminal offence; 
• interfere with freedom of speech; 
• interfere with freedom on religion; 
• interfere with vested property rights; 
• interfere with freedom of association; 
• interfere with freedom of movement; 
• disregard common law protection of personal reputation; 
• authorise the commission of a tort; 
• inappropriately delegate legislative power to the Executive; 
• give executive immunities a wide application; 
• retrospectively change legal rights and obligations; 
• create offences with retrospective application; 
• alter criminal law practices based on the principle of a fair trial; 
• permit an appeal from an acquittal; 
• restrict access to the courts; and
• interfere with any other similar legal right, freedom or privilege. 

The ALRC is to include consideration of Commonwealth laws in the areas of, but not limited to commercial and corporate regulation, environmental regulation and workplace relations.

In considering what, if any, changes to Commonwealth law should be made, the ALRC should consider: how laws are drafted, implemented and operate in practice; and any safeguards provided in the laws, such as rights of review or other accountability mechanisms.

The ALRC should also have regard to other inquiries and reviews that it considers relevant.

Anonymous

A media release from the Australian Federal Police states that

A long-term Australian Federal Police (AFP) investigation has resulted in the arrest of two men in two states allegedly involved in a campaign targeting Australian and international websites. 

The AFP will allege in court that the two men claimed to be members of the online issue motivated group 'Anonymous'. 

Since 2012, people who claim to be members of 'Anonymous' have targeted a number of Australian government and corporate networks. These attacks have resulted in theft of personal data, defacement of websites and Distributed Denial of Service (DDOS) attacks causing websites to drop offline.

The release notes that

AFP officers last night conducted search warrants at residential addresses in Penrith, NSW and Scarborough, WA. 

A number of computer hard drives and other equipment were seized during the warrants. It is anticipated that it will take several months to analyse these items due to the amount of information stored on them. 

It will be alleged in court that these two men were known to each other online and targeted organisations including a large internet service provider and web servers hosting Australian and Indonesian government websites. 

A 40-year-old Scarborough (Western Australia) man was charged with:

• Aid the unauthorised modification of Melbourne IT Limited computer network located in Brisbane, Queensland to cause impairment, contrary to Section 477.2 of the Criminal Code Act 1995 pursuant to Section 11.2 of the Criminal Code Act 1995; and 

• Unauthorised modification of Indonesian Government web servers, to cause impairment, contrary to Section 477.2 of the Criminal Code Act 1995.

An 18-year-old Penrith (New South Wales) man was charged with the following offences:   

• Unauthorised modification of data to Netspeed ISP located in Canberra, ACT, to cause impairment, contrary to Section 477.2 of the Criminal Code Act 1995 

• Unauthorised access to and modification of restricted data belonging to the ACT Long Service Leave Board, Canberra, ACT, contrary to 478.1 of the Criminal Code Act 1995.

Privacy and the ALRC Disability & Equality Inquiry

In the Equality, Capacity & Disability discussion paper highlighted here the Australian Law Reform Commission has discussed information privacy and the PCEHR.

The comments on information privacy are -

The Privacy Act is Australia’s key information privacy law. The Act is concerned with the protection of personal information held by certain entities, rather than with privacy more generally. Personal information is defined in s 6(1) of the Act as information or opinion about an identified individual, or an individual who is reasonably identifiable, whether or not true and whether or not in material form. 

The Privacy Act provides 13 ‘Australian Privacy Principles’ (APPs) that set out the broad requirements on collection, use, disclosure and other handling of personal information. The APPs bind only ‘APP entities’—primarily Australian Government agencies and large private sector organisations with a turnover of more than $3 million. Certain small businesses are also bound, such as those that provide health services and those that disclose personal information to anyone else for a benefit, service or advantage. Generally, individuals are not bound by the Privacy Act. 

Privacy of health information may be a special concern for people with disability. Health and genetic information is ‘sensitive information’ that is subject to stronger protection under the APPs. Separate Commonwealth legislation protects healthcare identifiers and eHealth records. 

The major issue for stakeholders was to ensure that personal information is able to be shared appropriately in order to support people with disability. National Disability Services, for example, stated: 

The key challenge is often to transfer sufficient personal information (such as medication requirements or worker safety issues) that will enable the provision of high quality, tailored and safe support, while also protecting the right to privacy. 

There is a public interest in families and friends being involved in the care and treatment of people with a mental illness, for example, and this clearly involves the sharing of information. The NSWCID observed that, for a person with an intellectual disability, there may be ‘numerous times in a month when an agency needs to obtain information about the person from a range of sources and provide information to a range of agencies or individuals’. The ACT Disability, Aged & Carer Advocacy Service noted:

If [supported decision-making] frameworks are to reduce or replace the use of guardianship, consideration needs to be given to how relevant information can be shared with decision supporters while balancing the right of people with disability to privacy. 

Individual decision-making and the Privacy Act 

The Privacy Act makes no express provision for supporters or representatives to be recognised as acting on behalf of an individual in relation to decisions about the handling of personal information held by APP entities. 

Some state privacy legislation does provide for representatives. The Health Records and Information Privacy Act 2002 (NSW), for example, provides for the position of an ‘authorised representative’ to act on behalf of an individual who is ‘incapable of doing an act authorised, permitted or required’ by the Act. 

An authorised representative may not do an act on behalf of an individual who is capable of doing that act, unless the individual expressly authorises the authorised representative to do that act. 

An ‘authorised representative’ for these purposes means a person appointed under an enduring power of attorney, a guardian, a person having parental responsibility (if the individual is a child), or person who is ‘otherwise empowered under law to exercise any functions as an agent of or in the best interests of the individual’. Essentially, therefore, the Health Records and Information Privacy Act 2002 provides recognition for representatives, but not for supporters, as those terms are used in this Discussion Paper. 

The ALRC has considered previously whether the Privacy Act should include provision for representatives. In its 2008 report, For Your Information: Australian Privacy Law and Practice, the ALRC recommended that the Privacy Act should be amended to include the concept of a ‘nominee’. An agency or organisation would be able to establish nominee arrangements and then ‘deal with an individual’s nominee as if the nominee were the individual’. The ALRC recommended that nominee arrangements should include, at a minimum, the following elements:

(a) a nomination can be made by an individual or a substitute decision maker authorised by a federal, state or territory law; (b) the nominee can be an individual or an entity; (c) the nominee has a duty to act at all times in the best interests of the individual; and (d) the nomination can be revoked by the individual, the nominee or the agency or organisation. 

The ALRC concluded that establishing nominee arrangements would ‘provide flexibility for individuals to decide who can act as their “agent” for the purposes of the Privacy Act, and also operate as a useful mechanism in situations where an individual has limited, intermittent or declining capacity’. 

The rationale for the original ALRC recommendations was to address problems faced by individuals and their representatives in gaining access to benefits and services due to perceived or real conflicts with the Privacy Act. That is, organisations refusing to provide information or deal with supporters ‘because of the Privacy Act’. Similar concerns were expressed in this Inquiry. 

The ALRC’s 2008 recommendations would have provided recognition for both supporters and representatives. 

The ALRC envisaged that a nominee could be either nominated by the individual or a substitute decision-maker appointed under some other law. While it would not be necessary for an authorised substitute decision-maker to be registered as a nominee for the agency or organisation to recognise that person, the nominee arrangements were seen as a convenient way for the decision-maker to be recognised for ongoing dealings with the agency or organisation. 

The Commonwealth model and the Privacy Act Proposal 6–4 

The Privacy Act 1988 (Cth) should be amended to include supporter and representative provisions consistent with the Commonwealth decision-making model. 

Successive Australian Governments have not responded to the ALRC’s recommendations concerning decision-making arrangements under the Privacy Act. There seems good reason to revisit this issue in the context of the present Inquiry. 

The Privacy Act does not prevent a supporter from providing assistance to the individual where this is done with the consent of the individual. Where the assistance requires the supporter to have access to the personal information of the individual, the individual can provide consent for the agency or organisation to disclose the information to the supporter. Sometimes it should be quite clear, for example, that a requested disclosure of personal information would be covered by APP 6. 

There are concerns, however, that such arrangements are not implemented consistently, or recognised by agencies and organisations. 

The NSWCID submitted:

So far as possible, people with intellectual disability should be given the support that they need to make their own privacy decisions. If this is not adequate, there needs to be a legislative system of substitute consent and/or administrative safeguards that provides reasonable safeguards on the privacy of the individual whilst also recognising that other rights of the individual may be imperilled if personal information cannot be gathered and promptly used as occasions arise.

If the privacy rules covering this sort of information exchange are ‘cumbersome or complex’, then optimal support of people with intellectual disabilities will not occur. Other stakeholders referred to the desirability of uniform Commonwealth, state and territory privacy regulation. 

The advantages of recognising supporters in Commonwealth laws are discussed in Chapter 4. In particular, formalisation of support is likely to create greater certainty for third parties about the role of supporters, and facilitate the provision of support to people who need it. In the context of information privacy, this is likely to allow third parties to interact with supporters with greater confidence, allowing for timely collection, use and disclosure of information. 

There is a downside to this approach, in that legislative arrangements may work against flexible practices by encouraging the perception that a supporter must be formally appointed in order to be recognised. However, more informal arrangements may not be implemented consistently or recognised by APP entities. Some form of legislative underpinning may be more effective in establishing recognition of supporters. 

In the ALRC’s view, the Privacy Act should be amended to include supporter and representative provisions consistent with the Commonwealth decision-making model. The new provisions would apply potentially to an individual’s relationships with the full range of APP entities—Commonwealth government agencies and private sector organisations. 

The Privacy Act should permit APP entities to establish a supporters and representatives scheme, but this should not be mandatory. APP entities need to retain the flexibility to develop practices and procedures consistent with their broader operations. Agencies and organisations also may be subject to other obligations—such as the bankers’ duty of confidentiality or particular legislative provisions—which place limits on decision-making by supporters. Each agency and organisation must consider the extent to which it is able to recognise and act upon decisions made by a supporter. 

Incorporating the Commonwealth decision-making model within the Privacy Act may facilitate assistance for people in making and communicating decisions concerning control of their personal information by recognising supporters, including family and carers, as being able to act on their behalf. At the least, supporters should be recognised and be made subject to a duty to support an individual’s will and preferences in relation to the handling of their personal information. 

However, some circumstances will require a more rigorous process for appointment and verification than others, due to the potential consequences of the disclosure of personal information or the transaction involved. For example, a bank or other financial institution might establish an arrangement that has effect for the purposes of disclosing account balances and banking transactions, but does not extend to a supporter withdrawing funds from an account on behalf of the individual, without putting further integrity measures in place.

ALRC Disability and Equality discussion paper

The Australian Law Reform Commission has released a 253 page discussion paper [PDF] on Equality, Capacity and Disability in Commonwealth Laws, for public comment by the end of June.

The document is a significant advance on the earlier issues paper, which in places perplexed legal readers.

As with any academic, I'm delighted to see extensive quotation from Arnold & Bonython.

The paper comments

Reform of Commonwealth, state and territory laws and legal frameworks concerning decision-making by persons who may require support in making decisions should be guided by the National Decision-Making Principles and Guidelines, set out in Proposals 3–2 to 3–9. 

The National Decision-Making Principles are four general principles that reflect the key ideas and values upon which the ALRC’s approach in relation to legal capacity is based. They are distinct from the framing principles for the Inquiry as a whole (dignity, equality, autonomy, inclusion and participation, and accountability), but reflect and are informed by those principles. 

The National Decision-Making Principles provide a conceptual overlay at a high level. They are drawn from the CRPD, other international models, stakeholder submissions and the work of other bodies and individuals. They are not prescriptive, and are of general application. The Principles are supported by four sets of Guidelines, with more specific detail in each area. 

The Terms of Reference require the ALRC to consider ‘how maximising individual autonomy and independence could be modelled in Commonwealth laws and legal frameworks’. The focus of the Inquiry is on the ‘ability to exercise legal capacity’ and equal recognition before the law of people with disability. The ALRC considers this can best be achieved by setting up an overall framework of principles and guidelines that can then be used as the template for specific reforms—both in Commonwealth areas of responsibility included in the Terms of Reference; and at state and territory level, in reviews of guardianship and related regimes. Application of the National Decision-Making Principles and Guidelines is then considered in a number of the areas set out in the Terms of Reference. 

The National Decision-Making Principles identify the essential ideas in all recent law reform work on capacity. The tendency to suggest lengthy lists of principles may, however, distract from these four key ideas. The ALRC considers that identifying these four central ideas gives greater sharpness and clarity—and power—to the National Decision-Making Principles as reflecting the paradigm shift towards supported decision-making. 

There is also a significant shift in the way these principles are expressed, starting with a right to make decisions, rather than a presumption of capacity.

In discussing National Decision-Making Principle 1, i.e. Every adult has the right to make decisions that affect their life and to have those decisions respected, the paper states -

The principal idea in any discussion of legal capacity is that adults have the right to make decisions for themselves. This is frequently expressed in terms of a presumption of legal capacity, which may be rebutted if circumstances demonstrate that the requisite level of capacity is lacking in that context.

In this Inquiry, the ALRC seeks to reflect the paradigm shift evident in the language of, and discourse around, the CRPD, and considers that it is necessary to place the emphasis on the right of citizens to make decisions, rather than the qualification intrinsic to a presumption. The conceptual difficulty in starting with a presumption of legal capacity as an overarching principle is that it already contains a binary classification—of those who have legal capacity, and those who do not. 

This is not to suggest that legal capacity may never be lacking. Rather, it is better considered, in principles of general application, as a matter going to the question of what support is required and the threshold of appointment of others as supporters or representatives in a decision-making process. 

In terms of who has the right expressed in this principle, the ALRC considered whether it should be expressed more generally than applicable to adults. The Queensland Law Reform Commission (QLRC) used ‘adult’, but the Victorian Law Reform Commission (VLRC) considered the principle could have application to young people who are able to satisfy the Gillick ‘mature minor’ test endorsed by the High Court in Marion’s case.  The ALRC has sought to avoid confusion in the first general principle by confining it to adults. The principles dealing with children involve a ‘best interests’ standard—a standard deliberately not used in this Inquiry. 

This does not mean that the National Decision-Making Principles could not have a broader application, but only that for the purposes of this Inquiry the ALRC has limited the expression to adults—at least as a starting point of reform. The remaining Principles are expressed in terms of ‘persons’.

National Decision-Making Principle 2 is that "Persons who may require support in decision-making must be provided with the support necessary for them to make, communicate and participate in decisions that affect their lives".

The paper states that

Support is the central theme in the CRPD. The Terms of Reference require the ALRC to consider: ‘how decision making by people with impairment that affects their decision making can be validly and effectively supported’; and ‘the role of family members and carers and paid supports ... in supporting people with disability ... and how this role should be recognised by law and legal frameworks’. 

There are two elements: how a person can be supported in his or her decision-making; and how the law can give recognition to those who are providing the support. The ALRC’s approach is to place the person who may require decision-making support at the forefront—as the decision-maker—and to include recognition in law for the position of ‘supporters’, both through a mechanism of appointment set out in relevant Commonwealth laws, and through including supporters in ‘information loops’ in certain situations. The ‘supporter’ model is considered in Chapter 4. 

National Decision-Making Principle 2 and the Support Guidelines, set out in Proposal 3–4, reflect the ALRC’s model of a spectrum of decision-making, from fully independent to supported decision-making, including where a person needs to be fully supported. They are underpinned by a conceptualisation of autonomy as empowerment, as noted in Chapter 1. 

This Principle expresses the concept of support at a high level. The ALRC seeks to place the emphasis on the person as decision-maker not as a person with an impairment affecting their decision-making, but rather as a person who may require support in making decisions. Such language reflects art 12(3) of the CRPD: States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. 

The ALRC considers that the emphasis on support should be strong, so the word ‘must’ is used in National Decision-Making Principle 2. It is not prescriptive by whom, and how, the support may be given. The Principle reflects, as remarked by the Office of the Public Advocate (Qld), a general recognition that the focus must now move from the challenges facing a person with disability to the supports that should be provided to enable them to make decisions and exercise their legal capacity.

National Decision-Making Principle 2 includes the recognition of communication support. It also reflects some of the general principles contained in the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), that ‘[p]eople with disability should be supported to participate in and contribute to social and economic life to the extent of their ability’.  

Support Guidelines (Proposal 3–4)

Support Guidelines 

(a) Persons who may require decision-making support should be supported to participate in and contribute to all aspects of life. 

(b) Persons who may require decision-making support should be supported in making decisions. 

c) The role of families, carers and other significant persons in supporting persons who may require decision-making support should be acknowledged and respected. 

The purpose of support is to enhance the ability of people to make decisions and exercise choice and control—as the decision-maker. The Support Guidelines concern the support that should be provided to persons with disability, who may need support in making decisions. 

The ALRC’s model includes provision for formal recognition of supporters in Commonwealth laws and legal frameworks. This is considered in relation to Commonwealth supporters and representatives, discussed separately in Chapter 4. 

The ALRC’s approach is to provide recognition of supported decision-making. This goes beyond general statements about the importance of support in the lives of people with disability, to the proposal for a model for individual decision-making at Commonwealth level in which supporters can be nominated and recognised. As discussed in Chapter 2, there is very strong support for models that reflect supported decision-making norms and aspirations. 

The Support Guidelines reflect the Inquiry’s framing principles of dignity, autonomy, and inclusion and participation. They are consistent with the general principles of the NDIS Act, that people with disability should be supported to: exercise choice, including in relation to taking reasonable risks; and receive reasonable and necessary supports, including early intervention supports. 

The Support Guidelines reflects the ALRC’s approach that assumptions about ability—and the extent of support—should not be based on a person’s disability. As one stakeholder commented, ‘[a]ssumptions should ... not be made that a person with physical disability will require supported decision-making or substitute decision making assistance’. 

Stakeholders endorsed the recognition of family as supporters. For example, the Mental Health Coordinating Council submitted:

The role of family members and carers should be recognised in Commonwealth laws. The supporting policy frameworks must reflect that those assessing capacity and supporting decision-making must listen to, learn from and act upon communications from the individual and their carers about what is important to each individual. This involves acknowledging each individual is an expert on their own life and that their ‘recovery’ and care involves working in partnership with individuals and their carers to provide support in a way that makes sense to them and that assists them realise their own hopes, goals and aspirations. 

Paragraph (c) of the Support Guidelines is consistent with the NDIS Act principle that: ‘The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected’.

National Decision-Making Principle 3 is that "The will, preferences and rights of persons who may require decision-making support must direct decisions that affect their lives". The paper states -

The Terms of Reference direct the ALRC to consider ‘how maximising individual autonomy and independence’ can be modelled in Commonwealth laws and legal frameworks. The ALRC considers that a principle of general application needs to embody this emphasis. 

The emphasis on the will and preferences of a person who may require support in making decisions is at the heart of the paradigm shift away from ‘best interests’ standards—as discussed in Chapter 2. Given that the focus on will and preferences is such a key idea in all the discussions, the ALRC considers that it needs to be identified as a general principle. It reflects the framing principles of dignity, equality, autonomy, and inclusion and participation. 

There is a range of formulations of this idea, including those of the VLRC and the QLRC in their reports on guardianship. In its list of ‘new general principles’, the VLRC included the principle that ‘people with impaired decision-making ability ... have wishes and preferences that should inform decisions made in their lives’. The QLRC recommended that emphasis should be placed on promoting and safeguarding ‘the adult’s rights, interests and opportunities’ and ‘the importance of preserving, to the greatest extent practicable, the adult’s right to make his or her decisions’. 

The ALRC has chosen ‘must’ in the formulation of National Decision-Making Principle 3, to signal that this general principle has an important role in modelling Commonwealth laws. The word ‘direct’ should also be used, rather than a word like ‘inform’, as ‘direct’ attaches more weight to their will than does ‘inform’. The ALRC also considers that the principle should not be qualified by words such as ‘to the greatest extent practicable’, which is contained, for example, in the QLRC formulation. 

CRPD art 12(4) uses the formulation ‘rights, will and preferences’. The ALRC formulation follows the logic of the spectrum of decision-making from the will and preferences of a person, underpinned by a human rights focus in circumstances where the will and preferences of a person cannot be determined. 

By placing the emphasis on ‘will and preferences’, the emphasis is clearly shifted from ‘best interests’ approaches. Even in those examples of approaches where ‘best interests’ is defined by giving priority to ‘will and preferences’, the standard of ‘best interests’ is still anchored conceptually in regimes that the ALRC is seeking to distinguish clearly in the National Decision-Making Principles. 

The inclusion of ‘rights’ is the crucial backdrop. In cases where it is not possible to determine the will and preferences of the person, the default position must be to consider the human rights relevant to the situation as the guide for the particular decision to be made. 

Will, Preferences and Rights Guidelines (Proposal 3–6) 

Will, Preferences and Rights Guidelines 

(a) Threshold: The appointment of a representative decision-maker should be a last resort and not as a substitute for appropriate support. 

(b) Appointment: The appointment of a representative decision-maker should be limited in scope, be proportionate, and apply for the minimum time. 

(c) Supporting decision-making: (i) a person’s will and preferences, so far as they can be determined, must be given effect; (ii) where the person’s will and preferences are not known, the representative must give effect to what the person would likely want, based on all the information available, including communicating with supporters; and (iii) if it is not possible to determine what the person would likely want, the representative must act to promote and safeguard the person’s human rights and act in the way least restrictive of those rights.

The Will, Preferences and Rights Guidelines address the determination of will and preferences and what happens when the ‘will and preferences’ of a person who needs decision-making support cannot, or no longer can, be ascertained. 

These Guidelines provide detail around the limits on the appointment and mode of operation of representative decision-makers that are consistent with the CRPD. Any supported decision-making model should reflect the Guidelines. 

Representative Decision-Making Guidelines 

Paragraph (a) of the Wills, Preferences and Rights Guidelines contains several elements. First, there is an acknowledgment that a person may need to be appointed to act for another when that other does not have legal capacity to make decisions for themselves. Secondly, the person who is appointed is described as a ‘representative decision-maker’. Thirdly, the appointment is expressed in limited terms. 

By including such a threshold the ALRC acknowledges that there are times when a person may need to be appointed to act for another, beyond supporting a person who remains as the primary decision-maker. The ALRC has chosen a new term to reflect the role of the person appointed, to embody the model being proposed in this Discussion Paper. By choosing the word ‘representative’ the ALRC seeks to signal that the role is not as a ‘substitute’ for the person who requires support. Whatever the understanding of the concept of ‘substitute decision-maker’, the ALRC considers that it is better to create some distance from any controversy surrounding this usage and to find a new term.[20] 

The limitation of the appointment of a representative decision-maker reflects the safeguards provision in art 12(4) of the CRPD. 

The Terms of Reference require the ALRC to consider ‘presumptions about a person’s ability to exercise legal capacity’ and ‘how a person’s ability to independently make decisions is assessed’. The ALRC considers that the threshold needs to be defined in terms which emphasise the ability of a person and proposes Representative Decision-Making Guidelines reflecting this approach. 

 Representative Decision-Making Guidelines (Proposal 3–7)

Any determinations about a person’s decision-making ability and any appointment of a representative decision-maker should be informed by the following guidelines: 

(a) An adult must be presumed to have ability to make decisions that affect their life. 

(b) A person has ability to make a decision if they are able to: (i) understand the information relevant to the decision and the effect of the decision; (ii) retain that information to the extent necessary to make the decision; (iii) use or weigh that information as part of the process of making the decision; and (iv) communicate the decision. 

(c) A person must not be assumed to lack decision-making ability on the basis of having a disability. 

(d) A person’s decision-making ability is to be assessed, not the outcome of the decision they wish to make. 

(e) A person’s decision-making ability will depend on the kinds of decision to be made. 

(f) A person’s decision-making ability may evolve or fluctuate over time. 

(g) A person’s decision-making ability must be considered in the context of available supports. 

(h) In communicating decisions, a person is entitled to: (i) communicate by any means that enables them to be understood; and (ii) have their cultural and linguistic circumstances recognised and respected.

The Representative Decision-Making Guidelines sit within the Wills, Preferences and Rights Guidelines. They are set at a fairly high, general, level. They should guide the assessment of decision-making ability, although the exact definition of ability and the way in which it is assessed will vary depending on the particular context in which the assessment is being made. More fine-grained assessments will depend on the kinds of decision to be made. As one stakeholder commented, a tool is needed to assess capacity and it should include clear legal definitions to determine capacity, and appropriate training on how to use the tool, to reduce the risk of incorrect conclusions relating to an individual’s capacity. 

The ALRC acknowledges that capacity assessments are part of a process of ‘gatekeeping’—and a complement to respect for autonomy. As Dr Mary Donnelly explains, Where the right of autonomy is recognised, the law has relied on the requirement for capacity to act as gatekeeper for the application of the right. Thus, while respect for autonomy provides the principled foundation for the law’s approach to decision-making, the question of whether or not each individual’s decision will actually be respected is dependent on whether she meets the legal standard for capacity in respect of the decision in question.

Because assessments of capacity have served this gatekeeping role, they ‘sort’ people: People with capacity represent the norm. Those who do not are defined in contrast to this norm; they are, in this sense, the ‘other’. 

Although this sorting has negative connotations, the ALRC recognises that some form of ‘sorting’ is inescapable in a number of cases. As Donnelly acknowledged, ‘[w]hile capacity is a flawed gatekeeper, it is nonetheless probably the best way of sorting decisions’. What the ALRC proposes is, however, that the place of such assessments be reconsidered—and, in particular, that it is not a starting point in an expression of principle. The starting point, as National Decision-Making Principle 1, is the right to make decisions. Any assessment should be seen as much further along a spectrum, with the focus being squarely on supporting decisions, rather than assessing whether or not a person can make a decision. 

By proposing Representative Decision-Making Guidelines, the ALRC seeks to foster a nationally consistent approach. In the Issues Paper the ALRC asked whether there should be a nationally consistent approach to defining capacity and assessing a person’s ability to exercise their legal capacity; and, if so, what was the most appropriate mechanism and what should the key elements be? Stakeholders supported strongly the idea of a nationally consistent approach. For example, the Mental Health Coordinating Council said that it agreed with the Law Council of Australia that a nationally consistent approach to the assessment of capacity in the context of substitute decision-making ‘is highly desirable in order to promote greater clarity and ultimately, to more effectively provide protection and foster individual autonomy as circumstances require’. 

The Representative Decision-Making Guidelines reflect an approach to ability that is functional (ability to make the particular decision in question), not outcome-based (the result or wisdom of the decision), or status-based (because of a condition). A functional approach of this kind ‘seeks to maximise the circumstances in which the right of autonomy is protected’. As the Law Commission of England and Wales concluded in a review of ‘mental incapacity’ in 1995, status-based assessments should be rejected as being ‘quite out of tune with the policy aim of enabling and encouraging people to take for themselves any decision which they have capacity to take’.  In that inquiry, the Law Commission received a ‘ringing endorsement’ of the functional approach. 

In its extensive inquiry on Queensland’s guardianship laws, the QLRC commented that the functional approach is a ‘widely accepted modern capacity model’: It has been suggested that one of the advantages of the functional approach is that it ‘best accommodates the reality that decision-making capacity is a continuum rather than an endpoint which can be neatly characterised as present or absent’. In contrast to the status model, there is no requirement for the presence of a particular type of disability or condition. The relevant question is whether the adult lacks capacity for making a decision about a given matter, for whatever cause and for whatever reason. 

The ALRC notes some criticism by the UNCRPD of what it described as a functional approach in its General Comment on art 12:

The functional approach attempts to assess mental capacity and deny legal capacity accordingly. ... This functional approach is flawed for two key reasons. The first is that it is discriminatorily applied to people with disabilities. The second is that it presumes to be able to accurately assess the inner-workings of the human mind and to then deny a core human right—the right to equal recognition before the law—when an individual does not pass the assessment. In all these approaches, a person’s disability and or decision-making skills are taken as legitimate grounds for denying his or her legal capacity and lowering his or her status as a person before the law. Article 12 does not permit such discriminatory denial of legal capacity, but rather requires that support be provided in the exercise of legal capacity. 

When the General Comment was in draft form, the emphasis in this paragraph was softened by a later comment that ‘functional tests of mental capacity, or outcome-based approaches that lead to denials of legal capacity violate Article 12 if they are either discriminatory or disproportionately affect the right of persons with disabilities to equality before the law’ (emphasis added).  However, the final form of the General Comment dropped these words. The ALRC considers that, with appropriate safeguards, and a rights emphasis, there is no ‘discriminatory denial of legal capacity’. 

The starting point of any list of Representative Decision-Making Guidelines needs to include a presumption of ability. It reflects the object of CRPD art 12(2)—‘that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of their lives’. It also reflects the ALRC’s framing principles, particularly of equality and autonomy. A presumption of capacity is also the starting point of the common law as discussed above. It places the onus on those who wish to contest that a person has decision-making ability with respect to a particular transaction, or generally. 

Legislative statements of this presumption often use the word ‘capacity’ and include the rider ‘unless it is established that he or she lacks capacity’. The ALRC proposes keeping the rider out of the Guidelines, reflecting the rights emphasis of the CRPD, rather than its qualification. 

Paragraph (b) of the Representative Decision-Making Guidelines focuses on having ability, rather than not having it: (b) A person has ability to make a decision if they are able to: (i) understand the information relevant to the decision and the effect of the decision; (ii) retain that information to the extent necessary to make the decision; (iii) use or weigh that information as part of the process of making the decision; and (iv) communicate the decision. 

There are many other comparable provisions. The VLRC, for example, includes both ‘Defining Capacity’ and ‘Defining Incapacity’, which are mirror images of each other. The ALRC proposes to keep the focus on the affirmation of ability, rather than its converse. 

The formulation in paragraph (c) of the Representative Decision-Making Guidelines is suggested to get away from status-based assessments: (c) A person must not be assumed to lack decision-making ability on the basis of having a disability. 

It reflects comments by the UNCRPD in its General Comment on Art 12, and its criticism of conflating legal and mental capacity:

Legal capacity and mental capacity are distinct concepts. Legal capacity is the ability to hold rights and duties (legal standing) and to exercise these rights and duties (legal agency). It is the key to accessing meaningful participation in society. Mental capacity refers to the decision-making skills of a person, which naturally vary from one person to another and may be different for a given person depending on many factors, including environmental and social factors. ... Under article 12 of the Convention, perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity. 

The ALRC has deliberately omitted any qualification, such as ‘solely on the basis of disability’ in the proposed guideline. 

Arnold and Bonython submitted that stereotyping detracts from equality, and prevents the ‘flourishing’ of people with disability:

Ultimately equality is a pernicious abstraction unless it fosters flourishing. Equality is significant because inequality is associated with discrimination, in particular the non-recognition of capabilities on the basis of stereotypes and the retention of barriers to the fulfilment of both people with disabilities and people around them.

Paragraphs (e)–(f) of the Representative Decision-Making Guidelines reflect a functional assessment of ability: (e) A person’s decision-making ability will depend on the kinds of decision to be made. (f) A person’s decision-making ability may evolve or fluctuate over time. 

These Guidelines may apply to a decision, or types of decision, depending on the circumstances. As NCOSS submitted: Determinations about capacity must be made not only on a person-by-person basis, but also about every separate decision for each person, because people may have different capacity to make different decisions at different times. 

Other law reform bodies have reached similar conclusions. The New South Wales Legislative Council Standing Committee on Social Issues recommended, for example, that the legislative definition in NSW should define ‘capacity’ with reference to the ability to understand, retain, utilise and communicate information relating to the particular decision that has to be made, at the particular time the decision is required to be made, to foresee the consequences of making or not making the decision and to separate the concepts of ‘incapacity’ and ‘disability’. 

Paragraph (d) of the Representative Decision-Making Guidelines rejects an outcomes-based approach: (d) A person’s decision-making ability is to be assessed, not the outcome of the decision they wish to make. 

Paragraph (d) captures what is described as ‘the dignity of risk’, which is underpinned by the framing principle of autonomy. As Donnelly explains, Respect for the liberal principle of autonomy requires that external factors, including the outcome of the decision reached and the degree of risk assumed, are irrelevant to the determination of capacity. ... [R]espect for autonomy is premised on allowing each individual to determine for herself what is good. Therefore, whether or not a person’s decision complies with other people’s perception of ‘the good’ is irrelevant to whether the person has capacity. In the words of the Law Commission, according a role to the nature of the decision reached is inappropriate because it ‘penalises individuality and demands conformity at the expense of personal autonomy’. 

Paragraph (g) of the Representative Decision-Making Guidelines reflects the second of the National Decision-Making Principles concerning support: (g) Decision-making ability must be assessed in the context of available supports. 

The VLRC recommended, similarly, that a person ‘should not be considered to lack the capacity to make a decision if it is possible for them to make that decision with appropriate support’. An assessment of ability in terms of support incorporates the encouragement of supporting—and thereby enhancing—a person’s ability. The Mental Capacity Act 2005 (UK) s 1(3) provides, for example, that ‘[a] person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success’. Donnelly describes this provision as ‘one of the most striking innovations’ in the UK Act. 

Paragraph (h) of the Representative Decision-Making Guidelines focuses on communication: (h) In communicating decisions, a person is entitled: (i) to communicate by any means that enables him or her to be understood; and (ii) to have his or her cultural and linguistic circumstances recognised and respected. 

The Terms of Reference require the ALRC to consider ‘the use of appropriate communication to allow people with disability to exercise legal capacity’. Comparable examples include: for (i), the QLRC recommendation that ‘a person is not to be regarded as unable to understand the information relevant to a decision if he or she is able to understand an explanation of it given to the person in a way that is appropriate to his or her circumstances (using simple language, visual aids or any other means)’; and for (ii), the VLRC recommendation that ‘[p]eople with impaired decision-making ability ... ‘should have their cultural and linguistic circumstances recognised and respected by others’. 

Appointment 

Paragraph (b) of the Will, Preferences and Rights Guidelines provides that: The appointment of a representative decision-maker should be limited in scope, be proportionate, and apply for the minimum time 

This proposed guideline reflects CRPD art 12(4)—a safeguards provision stipulating that ‘all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law’. The measures referred to relate to decision-making support, and can apply to appointment of representative decision-makers, who must be ‘free of conflict of interest and undue influence’. The appointments covered by art 12(4) must also be ‘proportional and tailored to the person’s circumstances, apply for the shortest time possible’. A further aspect of art 12(4) is the provision that the ‘measures’ should be ‘subject to regular review by a competent, independent and impartial authority or judicial body’. The ALRC includes this aspect of art 12(4) in the Safeguards Guideline, considered below. 

The Guideline also reflects that, in some circumstances, another person may be needed to act for a person who requires full decision-making support. 

Supporting decisions 

Paragraph (c) of the Will, Preferences and Rights Guidelines provides: (c) Supporting decision-making: (i) a person’s will and preferences, so far as they can be determined, must be given effect; (ii) where the person’s will and preferences are not known, the representative must give effect to what the person would likely want, based on all the information available, including communicating with supporters; (iii) if it is not possible to determine what the person would likely want, the representative must act to promote and safeguard the person’s human rights and act in the way least restrictive of those rights. 

This Guideline is a key element in the National Decision-Making Principles and reflects the importance of the autonomy of the individual. Decisions for those who may require support in making decisions must be directed by the will and preferences of the individual. The Office of Public Advocate (Qld) submitted: Regardless of views about the compatibility of guardianship laws with the Convention, there is general recognition that the focus must now move from the challenges facing a person with disability to the supports that should be provided to enable them to make decisions and exercise their legal capacity. This means that the appointment of a substitute decision-maker should not preclude efforts to support a person to make their own decisions. 

The challenge in advancing a supported decision-making approach is, as Donnelly suggests, ‘to provide meaningful protection for autonomy notwithstanding incapacity’. She wrote that there are two broad ways ‘to protect the autonomy of a person lacking capacity’: The first involves the preservation of the autonomy of the once capable person (sometimes described as precedent autonomy), either through formal advance decision-making mechanisms or the less formal means of taking account of past views, preferences and opinions in the decision-making proves. The second involves supporting people lacking capacity so as to enable them to participate to the maximum degree possible in decision-making. The first of these is most consistent with the traditional liberal approach to decision-making for people lacking capacity while the second is more in line with the approach favoured by the CRPD. 

The starting point in paragraph (c)(i) of the Will, Preferences and Rights Guidelines is necessarily the ability to ascertain the will and preferences of the person being supported. Ascertaining the will and preferences of a person is central to the paradigm shift signalled in the CRPD. It involves an emphasis on participation and communication. In practice, however, there will be a limit: cases where it is not possible to determine a person’s will and preferences. In practice there may also be situations where the will and preferences of a person are known but are likely to cause harm to the person or others. Cases of possible harm are considered under the Safeguards Guidelines, Proposal 3–9. 

Paragraph (c)(ii) of the Will, Preferences and Rights Guidelines provides the standard for how a representative should act, in circumstances where the supported person’s will and preferences are not known. The representative must seek to ascertain what the person would likely have wanted in the particular circumstances. This requires a consideration of past information about decision-making choices. A key source of such information is likely to be the person’s supporters. For example, the Mental Capacity Act 2005 (UK) includes a list of those who could provide such information. Similar lists have been included in, for example, the Mental Health Act 2014 (Vic); and the Mental Health Bill 2013 (WA).

Paragraph (c)(iii) of the Will, Preferences and Rights Guidelines is intended to embody a ‘human rights’ approach, where the will and preferences cannot be determined by any means: (iii) if it is not possible to determine what the person would likely want, the representative must act to promote and safeguard the person’s human rights and act in the way least restrictive of those rights. 

The underlying idea in this guideline is that the default position should not be expressed in terms of a ‘best interests’ standard. There are different ways that this could be expressed. The VLRC, for example, recommended the ‘promotion of the personal and social wellbeing of the person’ to replace ‘best interests’.  The QLRC recommended that powers in the amended legislation should be used in a way that ‘promotes and safeguards’ and is ‘least restrictive’ of the adult’s ‘rights, interests and opportunities’. 

The kinds of human rights embraced by this guideline include the various matters set out in the CRPD, including: respect for inherent dignity—preamble and art 3; non-discrimination—art 5; liberty and security—art 14; freedom from torture or cruel, inhuman or degrading treatment or punishment—art 15; physical and mental integrity—art 17; liberty of movement—art 18; independent living—art 19; respect for privacy—art 22; respect for home and family—art 23; and participation in political and public life—art 29. 

Hence where a representative decision-maker is appointed, the standard to be applied in decision-making is to give priority to the will and preferences of the person—these must direct the decision or types of decision to be made—but if these cannot be determined, decision-making must emphasise the human rights of the person, particularly as articulated in the CRPD. Decisions must also be made on the basis of the least restrictive option—a point that is also included specifically in the Safeguards Principle. 

While autonomy is a key principle of the CRPD, a human rights approach places autonomy in a much wider context. As Donnelly suggests, a human rights framework ‘provides a mechanism within which to deal with questions of limitations on the right of autonomy’: The contribution of the CRPD is likely to be most significant in providing human rights support for the development of legal obligations to empower patients, in the context of capacity assessment, decision-making on behalf of people lacking capacity and treatment for a mental disorder.

National Decision-Making Principle 4 is "Decisions, arrangements and interventions for persons who may require decision-making support must respect their human rights".  The paper indicates that

The Terms of Reference require the ALRC to consider safeguards in asking: ‘are the powers and duties of decision-making supporters and substituted decision-makers effective, appropriate and consistent with Australia’s international obligations’. The Terms of Reference also ask the ALRC to consider mechanisms to review decisions about the assessment of a person’s ability ‘to independently make decisions’. Both these matters are included within the Safeguards Guidelines. 

The Safeguards Guidelines build upon the requirements of art 12(4) of the CRPD and reflects the Inquiry’s framing principle of ‘accountability’. As the Caxton Legal Centre submitted, Key factors in considering models should include monitoring of arrangements, provisions for accountability and regular and unscheduled review as safeguards against exploitation and abuse. 

Safeguards Guidelines (Proposal 3–9)

Safeguards Guidelines 

Laws and legal frameworks must contain appropriate safeguards in relation to decisions and interventions in relation to persons who may require decision-making support to ensure that such decisions and interventions are: 

(a) the least restrictive of the person’s human rights; 

(b) subject to appeal; and (c) subject to regular, independent and impartial monitoring and review. 

These Guidelines are expressed in very general terms. They capture the essential elements of safeguards that should be incorporated in Commonwealth laws and legal frameworks about decision-making support. 

Paragraph (a) reflects the fact that some decisions and interventions may be made contrary to what a person wants—particularly if the wishes and preferences of a person may cause harm to themselves or to others. A limitation based on harm puts a ‘hard edge’ on giving effect to a person’s wishes and preferences. It also tests the limits of autonomy, where the limitation concerns harm to oneself. Examples of limitations of this kind are seen usually in the context of mental health legislation: to save a patient’s life, or to prevent a patient from seriously injuring themselves or others. Safeguards may be included in terms of ensuring that the course of action proposed is the ‘least restrictive’ option.[ 

Whenever a limit is included, considerable care will be needed in translating it into practice. A provision that a person’s will and preferences may be overridden, based on the outcome of that decision—in this case, harm—runs contrary to a focus on ability that is not outcomes-based. But it is not necessarily inconsistent with a principle of autonomy. 

Autonomy is not an absolute. The classical conceptualisation of autonomy, by John Stuart Mill, recognised some limit—that it may be limited in order ‘to prevent harm to others’. He gave the example of a wayfarer, summarised by Donnelly as follows:

Mill describes a wayfarer approaching a dangerous bridge in circumstances in which it is uncertain whether she is aware of the danger. He states that it is permissible to stop the wayfarer and warn her of the dangers ahead but if, following the warning, the wayfarer still wishes to proceed, she should be permitted to do so. Mill also recognised that interference with individual freedom could be justified in order ‘to prevent harm to others’. However, this justification does not allow a wholesale overriding of individual freedom. While acknowledging that ‘no person is an entirely isolated being’, Mill argued that a person can be stopped from doing something only if, in doing that thing, she would ‘violate a distinct and assignable obligation’ to others.

Arnold and Bonython defended the need to make decisions on behalf of people in some contexts and suggested that this is consistent with human rights law and with ‘accepted bioethical standards and with the practicalities of both health care and social activity’: 

It is axiomatic that all Australians, with or without disabilities, may experience life-threatening circumstances in which a decision should be made by a medical practitioner or other recognised decision-maker within a coherent and transparent legal framework to preserve the life of the individual. From a human rights perspective it is also axiomatic that interventions that are contrary to the will of some individuals will be necessary in order to both preserve the life of those individuals and the lives of the intimates or other associates of those individuals. 

One of the challenging areas in practice, for applying a limitation based on harm, is in the context of restrictive practices, particularly for people with mental disorders. Restrictive practices are discussed in Chapter 8. At a principle-based level, some limitation is appropriate, and is broadly consistent with the framing principles for this Inquiry. The challenge in practice, however, is the development of appropriate assessment and monitoring tools that are also consistent with the principles on an ongoing basis.

Charisma and Cambodia

In an echo of the debunking of Greg Mortenson we are seeing another round of questions about exaggeration (or outright fabrication) by activist Somaly Mam and associates.

Newsweek has published a sobering piece on Ms Mam, author of The Road Of Lost Innocence: The True Story Of A Cambodian Heroine, building on claims that appeared in 2012 and 2013.

The article claims Mam has been creative in statements regarding her supposed past as a victim of abuse and has encouraged others affiliated with her organisation to engage in fabrication. Two women for example who have appeared publicly on the organisation's behalf to speak about their past as child sex slaves were reportedly never sex workers. Much of Mam's personal history - recounted in the book, video, interviews and speeches - seems at best to have been enhanced and in places to have been wholly invented.

Charisma, a worthy cause and a solution that engages the audience - in this instance gung ho rescue missions rather than less exciting job creation - goes a long way.

Trafficking

'Human trafficking involving marriage and partner migration to Australia' (Australian Institute of Criminology Research and Public Policy Series no.124, 2014) [PDF] by Samantha Lyneham and Kelly Richards is based on interviews with eight victim/survivors (aged between 18 and 49 years at the time of entering their exploitative situations and originated from a range of countries within Asia, the Pacific, the Middle East and Eastern Europe).

The report

confirms what some stakeholders in the human trafficking area have long suspected — that marriage and partner migration have been used to facilitate the trafficking of people into Australia. While the issue of forced marriage has received some government and academic attention, this research reveals that marriage relates to human trafficking in another critical way — it can be used as a means to traffic women into Australia for exploitation. This suggests that although human trafficking is usually categorised as being for the purpose of labour or sexual exploitation (ILO 2005), the problem of human trafficking is broader than this. Although some of the cases examined in this report could be classified as trafficking for the purpose of labour or sexual exploitation, in many cases, the experiences of victim/survivors would be better understood if framed as a different form of human trafficking.

The authors comment that their findings

suggest that a separate category of human trafficking exists, one in which the ‘exploitation’ element is neither considered sexual exploitation nor labour exploitation but the exploitation of the very personhood of the victim/survivor. This distinct form of human trafficking involves the exploitation of the victim/survivor’s:

• labour (in the form of domestic servitude, forced labour outside the home, or both); 

• body (in the form of sexual servitude to their intimate partner and/or lack of control over childbearing); and 

• self (in the form of loss of freedom and psychological bondage).

The interviewed people

met their partners in a variety of ways, including through arranged marriages, family connections and online introductory or dating services. The victim/survivors had complex motivations for migrating to Australia for marriage. While the literature often depicts women from developing countries marrying Western men to improve their economic situation, those interviewed for this research reported more varied and complex motivations, including:

• the desire to travel and experience other cultures; 

• to start a family; 

• to escape war; and 

• to honour the marriage that was arranged for them by their family.

Importantly, some of the victim/survivors in this study were motivated to leave their home country after meeting their husbands through chance occurrences. The range of motivations and circumstances that led to the women’s migration challenges the limited construction of migrant women as motivated to migrate primarily by their economic situation, which has important repercussions for the measures used to identify and respond to victim/survivors of human trafficking involving marriage. 

All of the victim/survivors interviewed for this study consented to their marriages. While this may be at odds with the traditional view of passive human trafficking victims being forced or coerced into situations of exploitation, it does not mean that the women were not trafficked, as consent to the crime of human trafficking is irrelevant where coercion, threat and/or deception has been used to obtain consent (Article 3(b) Trafficking Protocol). As Vijeyarasa (2010) has argued, understanding the processes by which trafficked people reach consent is critical to understanding the drivers of human trafficking and what can be done to prevent it. The women in this research were deceived about the men they were to marry, the nature of their marriages and what was expected of them once in Australia. 

No particular ‘type’ of marriage (eg arranged marriages, ‘choice’ marriages, marriages formed over the internet) emerged as particularly vulnerable to human trafficking in this study. Rather, each of these ‘types’ of marriage featured in the research. However, not all the marriages examined were genuine; the research highlights the use of ‘sham’ or fraudulent marriages being used to facilitate trafficking and related crimes. Further, the research indicated that human trafficking could occur regardless of whether the migrating ‘partner’ was complicit in the fraudulent marriage or had been duped into believing the marriage is genuine. 

In addition to a wide range of abusive behaviours that characterise violent relationships (eg violence or threats of violence if the woman considers leaving the relationship; sexual, physical, psychological and financial abuse; surveillance; and isolation from family and friends), the exploitation described by stakeholders and experienced by victim/survivors interviewed for this study included a number of human trafficking indicators (see ILO 2009). These included: assertions of ownership; debt bondage; deprivation of liberty; threat of deportation; labour exploitation (commercial and domestic); confiscation of passports and identifying documentation; and domestic servitude. While in some cases extreme violence occurred, in others, victim/survivors were controlled through psychological bondage, whereby the level of control by their husbands or his extended family, coupled with their own heightened vulnerability as migrants (eg due to limited English and extreme isolation) appeared to render physical violence redundant. 

Sexual violence was also found to be a common feature of the small number of marriages examined for this study and commonly involved sexual assault, indecent assault, forced exposure to pornography and coerced pregnancy. The research therefore confirmed the use of sexual violence as a control tactic in human trafficking scenarios, including those involving exploitation outside of the sex industry (see IOM 2007). 

Victim/survivors also reported the serious abuse and exploitation of their children (both children of a previous relationship who migrated to Australia with their mother, as well as children of the exploitative marriage that were born in Australia). It is therefore important that appropriate assistance and support not only be provided to victim/survivors, but also to children who witness and experience abusive and exploitative behaviours. 

The victim/survivors who participated in the study were more likely to seek help from informal sources, such as neighbours and people in the community, than from formal sources, such as the police. Most commonly, mainstream and migrant community organisations and education providers played a primary role in assisting women to leave their exploitative or violent situations. These help-seeking behaviours illustrate the importance of community and educational centres in assisting migrant women experiencing abusive and exploitative marriages. It further highlights the need for these sources to be aware of the indicators of human trafficking and related exploitation involving marriage to assist with correctly identifying victim/survivors and referring them to the appropriate services and authorities. 

In responding to the help-seeking behaviours of victim/survivors, both formal and informal sources of help reported that they often misidentified the situation as domestic violence. However, even when cases were identified correctly as human trafficking, they were most likely to still be treated as cases of domestic violence for a number of reasons, including that: it is unlikely that police will be able to gather evidence to begin an investigation and to pursue a prosecution; the victim/survivors may not wish to prosecute members of their family; support services may be more accessible to victims of domestic violence than to victims of human trafficking; and the victim/survivor may obtain a better criminal justice outcome as a victim of assault, domestic violence or other violent offence, with a greater chance of successful prosecution and incarceration of the perpetrator. 

This study has shown that in many instances, cases of human trafficking are misidentified as domestic violence and are responded to as such. Victim/survivors of human trafficking are, however, likely to have needs beyond those that domestic violence service providers are equipped to address (eg if an individual has experienced labour exploitation). Correctly identifying trafficked people is also the first step toward protecting their human rights and ‘[f]ailing to identify a trafficked person correctly “is likely to result in a further denial of that person’s rights”’ (UN Office of the High Commissioner for Human Rights cited in Simmons & Burn 2010: 714). Further, correctly identifying human trafficking incidents, offenders and victim/survivors has important implications for detection, enforcement and monitoring. 

A number of recommendations have emerged from the research and should be considered when developing strategies to prevent and effectively respond to human trafficking involving marriage and partner migration:

• Improve provision and delivery of information to migrating partners by: enhancing the content of the Beginning a Life in Australia booklet produced by DIBP to include information on intimate partner violence in the Family section and reference to the Family Violence Provisions; enhancing the content of Partner and Prospective Marriage visa grant letters to include information about the availability and content of the Beginning a Life in Australia booklet; improving the dissemination of information by distributing the Beginning a Life in Australia booklet and other important information at key places visited by migrant partners, for example Centrelink, educational institutions and migrant community centres. 

• Improve community awareness of human trafficking and slavery through government and non-government initiatives as part of existing community education campaigns on domestic violence. Awareness campaigns should include information on what human trafficking and slavery are, how to report these crimes, who can provide assistance and how to contact them, and the role of government, non-government organisations (NGOs), law enforcement and immigration authorities. All community awareness campaigns should be evaluated to examine their impact on improving community knowledge, reducing the incidence of human trafficking, improving victim detection and improving access to victim support. 

• Educate government, law enforcement and domestic violence service providers about human trafficking and slavery to improve detection and correct identification. This can be achieved through enhanced training for immigration officers and state/territory policing agencies, and presentations to domestic violence and refuge annual meetings. Enhance education and training for migration agents by including a component on human trafficking in their professional development and training program. This component should identify indicators of human trafficking and provide information about how to report suspected cases. 

• Enhance immigration policy by: interviewing migrant visa applicants separately from their sponsoring partner before a visa is granted; conducting welfare checks several months after arrival; mandating that eligible newly arrived migrants attend the Adult Migrant English Program (AMEP) with the requirement to report course completion to DIBP; limiting a person’s eligibility to sponsor a migrant partner if they have been convicted of a serious violent offence, in addition to registrable offences against children; amending the Family Violence Provisions to allow Prospective Marriage visa applicants to remain in Australia after the breakdown of their relationship due to family violence; and amending the Migration Regulations 1994 to limit Partner visas being granted to spouses who have been married without first meeting in person as adults. 

• Regulate international marriage brokering agencies and online dating websites, and consider broadening prevention measures that address romance scams to assist in the prevention of exploitative relationships. 

• Respond using a multiagency approach as best practice that involves the development of multiagency guidelines to respond to cases of trafficking involving marriage, including how to identify cases, how to respond to cases and appropriate referral pathways. 

• Undertake further research that enhances knowledge of the nature and extent of human trafficking and slavery in Australia.