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Law in Context

Abstract from Volume 35 No 2 (2017) Disability, Rights and Law Reform in Australia

Towards Supported Decision-Making: Article 12 of the Convention on the Rights of Persons with Disabilities and Guardianship Law Reform

Bruce Alston is a Principal Legal Officer at the Australian Law Reform Commission, where since 1995 he has worked on a range of inquiries, including the 2013-2014 ALRC disability inquiry, which culminated in the report Equality, Capacity and Disability in Commonwealth Laws.

In 2014, a set of National Decision-Making Principles (the Principles) was recommended by the Australian Law Reform Commission as a legal policy guide for reform of Commonwealth, State and Territory laws. The Principles were aimed to encourage supported decision-making; make the appointment of representatives only a last resort; and to ensure that the will, preferences and rights of individuals direct decisions affecting their lives. This article discusses the sources of the Principles and their relationship to Art 12 of the Convention on the Rights of Persons with Disabilities. The article then examines the steps that are needed to give the Principles full effect in Australian laws to regulate decision-making by individuals who require support. A major focus in implementing a paradigm shift towards supported decision-making is reform of State and Territory guardianship and administration laws. The article examines how guardianship laws should be reformed consistently with the Principles – to ensure that guardianship is invoked only as a last resort and after considering the availability of support to assist people in decision-making. Further, guardianship should be as con ned in scope and duration as is reasonably possible; subject to accessible mechanisms for review; and decision-making should respect the will, preferences and rights of the individual. At Commonwealth level, the National Disability Insurance Scheme legislation incorporates some elements of supported decision-making. However, these should also be augmented by providing legal recognition for supporters, and associated safeguards. The author suggests that the Principles can be a catalyst for facilitating important law reform over following decades. The article examines how the Principles may be used by communities, policy-makers and governments to promote world-leading legal changes to ensure that individuals with disability have an equal right to make decisions for themselves.

(2017) 35(2) Law in Context p21

   
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