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.
