That Australia establishes nationally consistent emergency management standards in consultation with people with disability through their representative and advocacy organisations that are implemented across all three levels of government; that are inclusive across the diversity of impairments and that cover all phases of emergency management preparation, early warning, evacuation, interim housing and support and recovery and building.
That Australia establishes policies and guidelines to coordinate the work of emergency and disability support agencies and that ensure a continuity of support systems for people with disability during an emergency and in the recovery phase.
Article 12 — Equal recognition before the law
STATUS IN AUSTRALIA
Australia’s Interpretative Declaration on Article 12
Australia made an Interpretative Declaration in respect of Article 12 upon ratifying the CRPD:
Australia declares its understanding that the CRPD allows for fully supported or substituted decision-making arrangements, which provide for decisions to be made on behalf of a person, only where such arrangements are necessary, as a last resort and subject to safeguards …109
Representative organisations of people with disability and disability advocacy and legal groups in Australia have different views about the role of substitute decision-making in relation to Article 12,110 with some arguing that Article 12 does not allow for substitute decision-making in any circumstances and others arguing that it does, but only in specific restricted circumstances, as a measure of last resort and subject to stringent safeguards, when in the best interests of the person to achieve their human rights and as a means for the person to exercise their legal capacity.111
Despite these differences, there is agreement among representative organisations of people with disability and disability advocacy and legal groups that Article 12 underpins the ability of people with disability to achieve many of the rights contained in the CRPD and that it requires fundamental reform in the current legal, administrative and service arrangements that regulate legal capacity for people with disability so that supported decision making measures can be recognised, developed and promoted.
Issues in Australian legislative and policy frameworks, including estate management, guardianship and mental health laws, mean that people with disability experience serious breaches of their human rights, including widespread abuse, neglect and exploitation both because of the lack of appropriate arrangements to support their capacity to manage their affairs, to give informed consent, to make important decisions,112 and as a result of poorly designed, delivered and monitored supported and substitute decision-making arrangements.113
However, Australia has confined discussions of the rights contained in Article 12 to descriptions of current State and Territory substitute decision-making regimes and associated reviews,114 rather than addressing the fundamental requirement to establish alternatives to substitute decision-making. The Interpretative Declaration supports the status quo in Australia.
Discriminatory Laws, Policies and Practice
There are many Australian laws, policies and practices that do not provide a presumption of legal capacity for people with disability. A number of law, policies and practice deny or diminish recognition of people with disability as persons before the law, or deny or diminish a person’s ability to exercise legal capacity. This is clearly demonstrated in the following areas:115
Financial services — People with disability may be refused access to a bank account, or if they have a bank account, the financial institution may refuse to allow them to operate it independently. Banks also frequently refuse to recognise informal support people, such as family members from whom a person may wish to receive assistance to operate a bank account.
Voting — Federal, State and Territory legislation disqualifies a person from voting if they are found to be incapable of understanding the nature and significance of enrolling and voting, due to ‘being of unsound mind’. (See also Article 29)
Public Office — A person can be removed from public office, such as serving as a judge or politician if it is decided that the person cannot, or may not be able to fulfil responsibilities because they have a ‘disability’, such as psychosocial disability.
Board participation — Under Australian corporations and associations law, a person with disability, such as a person with psychosocial or intellectual disability can be automatically disqualified from holding the office of a director or committee member.
Access to Justice — people with disability may be unable to obtain equal benefit and protection of the law because they do not receive supports to enable them to take action to protect their interests and no one else may do so on their behalf. For example, some people with disability cannot obtain a personal violence order unless supported to do so.116 (See also Article 13)
Will making and disposition —People with disability may require support that is proportional to their needs and that is without undue influence and conflicts of interest to ensure that they can exercise their right to make a will on an equal basis with all other persons.117
The capacity of people with cognitive impairments to participate as witnesses in court proceedings is not supported and this has led to serious assault, sexual assault and abuse crimes going unprosecuted. (See also Article 13)
Case Study
In 2011, the Judicial Commission of New South Wales recommended to the New South Wales Parliament that a magistrate be removed from his judicial office on the basis that he may in future become incapacitated by his mental health condition. The Judicial Commission of New South Wales made this recommendation following investigation of complaints of inappropriate behaviour by the magistrate, even though it found that the magistrate had sought treatment for a mental health condition which now effectively allowed him to successfully undertake the responsibilities of his position.
State and territory guardianship, estate management and mental health laws regulate the area of legal capacity, financial management and substitute decision-making. While State and territory laws in this area vary, they all breach, are inconsistent with or fail to fulfil obligations under CRPD.
Key issues include the following:
These laws only apply to people with disability; they are not laws that apply generally to everyone. Under international human rights law, any permissible limitations to human rights must be ‘prescribed by law’ and any law prescribing a limitation to a human right must be of general application. Consequently, to the extent that guardianship, estate management and mental health laws limit the autonomy-related rights of persons with impairment and disability as a specific population group, they are arbitrary and in violation of the right to equality before the law.
They provide different and inconsistent tests for assessing a person’s ability to exercise legal capacity, which leads to uncertainty, confusion and inappropriate application of legal principles beyond the specific context in which they were formulated — there is no nationally consistent legislation that outlines the principles and provisions for assessing a person’s ability to exercise their legal capacity.118.
They focus on a person’s capacity to manage their affairs or make decisions, rather than on measures that would enable or support a person to manage their affairs or make decisions.
They do not mandate or actively promote alternatives to substitute decision-making.
Inadequacy of Administrative Arrangements
The significant law and policy reform required to meet obligations under CRPD Article 12 needs to be supported by significant changes to current administrative arrangements in terms of their strategic profile, role, functions and powers.119
Currently, people with disability cannot expect support to effectively assert and exercise legal capacity and to have safeguards against abuse and exploitation in both informal and formal supported decision making arrangements.
Little or no effort is made to ensure that environmental barriers are addressed and supports and processes tailored to maximise a person’s chance to exercise their legal capacity without unnecessary resort to substitute decision-making.
The lack of formal communication assessments to assess a person’s capacity to communicate and inadequate efforts to ensure that alternate communication methods and augmented communication technology are available and supported with appropriate expertise significantly diminishes or denies a person legal capacity.
