Specific guardianship legislation exists in each jurisdiction in Australia. However, legislation in some Australian jurisdictions gives minimal guidance to tribunals in making determinations about restrictions to a person’s autonomy. In Victoria for example, little guidance is given to guardians or administrators when determining the ‘best interests’ of the person as the Victorian legislation fails to define the terms ‘least restrictive’ or ‘best interests’ and fails to incorporate a well-defined notion of capacity.162 The Victorian Supreme Court has commented on the need to:
re-examine the exercise of Victoria’s guardianship and administration jurisdiction generally to determine whether the balance has swung too far in favour of paternalism or protection as against individual autonomy.163
