New ALRC Consultation on Equality, Capacity and Disability in Commonwealth Laws

The Australian Law Reform Commission (ALRC) has released its discussion paper, "Equality, Capacity and Disability in Commonwealth Laws." This is the second consultation document in the ALRC's Inquiry into Commonwealth laws and legal frameworks that deny or diminish the equal recognition of people with disability before the law, and their ability to exercise legal capacity.

Terms of Reference

According to the terms of reference, the ALRC should consider all relevant Commonwealth laws and legal frameworks that either directly, or indirectly, impact on the recognition of people with disability before the law and their exercise of legal capacity on an equal basis with others, including in the areas of:

• access to justice and legal assistance programs;

• administrative law;

• aged care;

• anti-discrimination law;

• board participation;

• competition and consumer law;

• contracts;

• disability services and supports;

• electoral matters;

• employment;

• federal offences;

• financial services, including insurance;

• giving evidence;

• holding public office;

• identification documents;

• jury service;

• marriage, partnerships, intimate relationships, parenthood and family law;

• medical treatment;

• privacy law;

• restrictive practices;

• social security;

• superannuation, and

• supported and substituted decision making.

 The review should also have particular regard for the ways Commonwealth laws and legal frameworks affect people with disability who are also children, women, Indigenous people, older people, people in rural, remote and regional areas, people from culturally and linguistically diverse backgrounds and lesbian, gay, bisexual, transgender and intersex people.

The purpose of this review is to ensure that Commonwealth laws and legal frameworks are responsive to the needs of people with disability and to advance, promote and respect their rights. In considering what if any changes to Commonwealth law could be made, the ALRC should consider:

• how laws and legal frameworks are implemented and operate in practice;

• the language used in laws and legal frameworks;

• how decision making by people with impairment that affects their decision making can be validly and effectively supported;

• presumptions about a person’s ability to exercise legal capacity and whether these discriminate against people with disability;

• use of appropriate communication to allow people with disability to exercise legal capacity, including alternative modes, means and formats of communication such as Easy English, sign language, Braille, and augmentative communications technology;

• how a person’s ability to independently make decisions is assessed, and mechanisms to review these decisions;

• the role of family members and carers and paid supports such as legal or non-legal advocates in supporting people with disability to exercise legal capacity for themselves – both in relation to formal and informal decisions and how this role should be recognised by laws and legal frameworks;

• safeguards – are the powers and duties of decision making supporters and substituted decision makers effective, appropriate and consistent with Australia’s international obligations;

• recognition of where a person’s legal capacity and/or need for supports to exercise legal capacity is evolving or fluctuating (where a person with disability may be able to independently make decisions at some times and circumstances but not others or where their ability to make decisions may grow with time and/or support), including the evolving capacity of children with disability, and

• how maximising individual autonomy and independence could be modelled in Commonwealth laws and legal frameworks.

Submissions

The discussion paper released by the ALRC covers National Decision Making Principles and Supported Decision Making; The National Disability Insurance Scheme and reviews comparative legislation in the States and Territories.

Final submissions are due in by 30 June 2014.

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ALRC Discussion Paper