Reality and Choice versus Ideology and Confusion -
A Challenge to the Australian Law Reform Commission
“Ideology and confusion are the hallmarks of the Australian Law Reform Commission’s discussion paper about decision-making and the law,” say Max Jackson and Margaret Ryan, who have made a submission to the Commission’s current review of equal recognition before the law and legal capacity for people with disability.
“The Commission’s discussion paper represents a biased commentary in supporting the establishment, in law, of supported decision-making and the exclusion, from law, of substitute decision-making,” contend Mr Jackson and Ms Ryan. “By presenting the discussion paper in the way they have, the Commission has in effect not only pre-empted possible responses to the paper but has sought to influence those responses.”
“The Commission appears to have uncritically accepted the General Comment of the United Nations Committee about article 12 concerning Equal Recognition Before the Law of the UN Convention on the Rights of Persons with Disabilities. This General Comment promotes the abolition of substitute decision-making and the development of supported decision-making. However, a number of nations, including New Zealand, Norway, Denmark and Germany, have challenged such comments.”
Mr Jackson and Ms Ryan contend that confusion would occur if the Commission‘s conceptualisation of ‘fully supported’ decision-making were to become law. “What the Commission is proposing is that there should be those they call supporters to support persons whose decision-making ability requires support, and there should be representatives to support persons whose decision-making ability is such that it needs to be “fully supported”. In fact, what this means is that there is another person who actually makes the decision for the ‘supported’ person.”
“Given the current laws provide for substitute decision-making in the form of guardianship, financial administration and Power of Attorney, we question the necessity to override the existing appropriate terminology and processes that already allow for ‘fully supported’ decision-making,” they stated. Jackson and Ryan warn that all Australians should be wary of the changes to the law being promoted by the Commission. They argue that such changes represent the ‘thin edge of the wedge’ whereby changes to the law are driven by ideology and symbolism rather than acknowledging that there are individuals who do not have the capacity or ability to make their own determinations, no matter what level of support is provided.
“The Terms of Reference for this review require the Commission to address a range of complex legal and associated issues and as such the discussion paper provides a detailed and at times complex set of information,” said Mr Jackson and Ms Ryan. “Nonetheless, the platform issue to be addressed is that of whether substitute decision-making - such as guardianship and Power of Attorney - should be retained as a separate legal concept.”
2 July 2014
Contact: Max Jackson, Mobile 0413 040 654. Margaret Ryan, Mobile 0412 409 610.