ulatory Framework

 Equality, Capacity and Disability in Commonwealth Laws IP 44

 Terms of Reference
 Questions
 Equality, Capacity and Disability in Commonwealth Laws
o The Inquiry
o Defining the scope of the Inquiry
o Legislative and regulatory framework
o Key concepts
o Framing principles
o Capacity and decision-making
o The role of family, carers and supporters
o Accountability, safeguards, review and complaint
o The National Disability Insurance Scheme
o Specific legislative areas
o Particular disability communities

12.11.2013

Legislative and regulatory framework

Last modified on 12 November, 2013.
United Nations Convention on the Rights of Persons with Disabilities
19. The United Nations Convention on the Rights of Persons with
Disabilities (CRPD) is the first binding international human rights instrument
to explicitly address disability. The CRPD and its Optional Protocol opened
[7]

for signature on 30 March 2007 and Australia became one of the original
signatories. Australia ratified the CRPD in July 2008 and the Optional
Protocol in 2009. The CRPD entered into force for Australia on 16 August
2008, and the Optional Protocol in 2009. [8]

20. The purpose of the CRPD is to ‘promote, protect and ensure the full and
equal enjoyment of all human rights and fundamental freedoms by all
persons with disabilities, and to promote respect for their inherent
dignity’. The CRPD consolidates existing international human rights
[9]

obligations and clarifies their application to people with disabilities, rather

than creating ‘new’ rights.
21. In addition to the general principles and obligations contained in the
CRPD, Article 12 underpins the ability of people with disability to achieve
[10]

many of the other rights under the Convention. It recognises the right of
people with disability to enjoy legal capacity ‘on an equal basis with others in
all aspects of life’.[11]

22. By ratifying the CRPD, Australia accepts the obligation to recognise that
people with disability enjoy legal capacity on an equal basis with others in all
aspects of life and to take appropriate measures to provide people with
disability access to the support they may require in exercising their legal
capacity. It also requires that all measures relating to the exercise of legal
capacity provide for appropriate and effective safeguards to prevent abuse. [12]

23. Australia has made a number of Interpretative Declarations in relation to

the CRPD. Upon ratifying the Convention, Australia made the following
declaration in respect of Article 12:
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.
[13]

24. The Interpretative Declaration is intended to outline the Government’s

understanding of its obligations under the Article.
25. There are differing views about the effect of Australia’s Interpretative
Declaration, particularly in relation to the role of substitute decision-making.
Some stakeholders and commentators suggest that the Article does not
allow for substitute decision-making under any circumstances. Others argue
it allows for substitute decision-making, but only in specific circumstances,
as a measure of last resort, subject to safeguards, and when in the best
interests of the person with disability. Some stakeholders have suggested
that the Interpretative Declaration may potentially be limiting discussion and
examination of supported decision-making models.
26. In September 2013, Australia appeared before the 10th session of the
CRPD. In its concluding observations, the Committee recommended that
[14]

Australia review its Interpretative Declarations in order to withdraw

them. The Committee also made a number of comments and
[15]

recommendations with respect to women and children with disability,

supported decision-making, access to justice, medical intervention and
restrictive practices, education, work, voting and data collection. Many of
these observations are discussed in more detail later in this Issues Paper. [16]

Question 1. Australia has an Interpretative Declaration in relation to Article 12

of the United Nations Convention on the Rights of Persons with Disabilities. What
impact does this have in Australia on:
(a) provision for supported or substitute decision-making arrangements; and
(b) the recognition of people with disability before the law and their ability to
exercise legal capacity?