Senate debates

Monday, 24 November 2014


Australian Law Reform Commission Report

6:19 pm

Photo of Rachel SiewertRachel Siewert (WA, Australian Greens) Share this | | Hansard source

I rise to take note of the following document: Australian Law Reform Commission—Equality, Capacity and Disability in Commonwealth Laws—Final Report 124 and Summary Report—August 2014. This report is one that a number of people have been eagerly awaiting, and I am pleased to see that it has finally been tabled. It makes some very important points. It is a very thorough report. I have not had time to consider all of those points. But there are some important points that jump out to me straight away. It says in the report:

This Inquiry is about ensuring people with disability have an equal right to make decisions for themselves. It is about respecting people's dignity, autonomy and independence, while supporting them to make their own decisions, where such support is needed.

What more important day could there be to be talking about this when we have been talking about the BSWAT legislation this morning, that talks about support in decision-making. It goes on to say:

The ALRC recommends that the reform of relevant Commonwealth, state and territory laws should be consistent with the following National Decision-Making Principles:

Principle 1: The equal right to make decisions

All adults have an equal right to make decisions that affect their lives and to have those decisions respected.

Principle 2: Support

Persons who require support in decision-making must be provided with access to the support necessary for them to make, communicate and participate in decisions that affect their lives.

Principle 3: Will, preferences and rights

The will, preferences and rights of persons who may require decision-making support must direct decisions that affect their lives.

Principle 4: Safeguards

Laws and legal frameworks must contain appropriate and effective safeguards in relation to interventions for persons who may require decision-making support, including to prevent abuse and undue influence.

I would also make that point with regard to what we will be viewing on Four Corners tonight. These are absolutely essential principles.

The report goes on to make a series of recommendations, all of which I cannot do justice to in the time I have. But under 'Supported Decision-Making in Commonwealth Laws' it says that a Commonwealth decision-making model that encourages supported decision-making must be introduced into relevant Commonwealth laws and legal frameworks in a form consistent with the principles I have just been articulating. It also talks about needing to change the National Disability Insurance Scheme to ensure that the principles and objects in the National Disability Insurance Scheme Act 2013 should be amended to ensure consistency with these principles.

And, very importantly, it talks about the Social Security Act needing to be amended to incorporate those principles, and access to justice. This is particularly important when talking about people with disability—and I am thinking of people with cognitive impairment who have been in incarceration for indeterminate periods of time. It says that the Crime Act 1914 should be amended to provide that a person cannot stand trial if that person cannot be supported to understand the information relevant to the decisions that they will have to make in the course of proceedings, retain the information to the extent necessary to make the decisions in the course of the proceedings, use or weigh that information as part of the process of making decisions, and communicate the decisions in some way. It also says that state and territory laws governing the consequences of a determination that a person is ineligible to stand trial should provide for (a) limits on the period of detention that can be imposed and (b) regular periodic review of these detention orders.

This is absolutely critical information. For everybody who has an interest in access to justice, in the rights of people with disability, and in, as the opening says, the dignity, autonomy and independence of people with disability, this makes essential reading. I have only had time to dip into these recommendations now, but it is a very thorough report, and it is going to have an impact on all our laws, both Commonwealth and state or territory, across the range of people's lives. Please, I urge the government to take these recommendations onboard and look at how they are going to start implementing them. I seek leave to continue my remarks later.

Leave granted.