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.
