Vol 35, No 2 (2017): Disability, Rights and Law Reform in Australia

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In July 2013, the Australian Law Reform Commission (ALRC) was given Terms of Reference to consider the recognition of people with disability before the law and their exercise of legal capacity on an equal basis. In considering what, if any, changes to Commonwealth law could be made, the ALRC was directed to consider, among other things, ‘the language used in laws and legal frameworks’.

In 2014, a set of National Decision-Making Principles (the Principles) was recommended by the
Australian Law Reform Commission as a legal policy guide for reform of Commonwealth, State and Territory laws. The Principles were aimed to encourage supported decision-making; make the appointment of representatives only a last resort; and to ensure that the will, preferences and rights of individuals direct decisions affecting their lives. This article discusses the sources of the Principles and their relationship to Art 12 of the Convention on the Rights of Persons with Disabilities. The article then examines the steps that are needed to give the Principles full effect in Australian laws to regulate decision-making by individuals who require support. A major focus in implementing a paradigm shift towards supported decision-making is reform of State and Territory guardianship and administration laws. The article examines how guardianship laws should be reformed consistently with the Principles - to ensure that guardianship is invoked only as a last resort and after considering the availability of support to assist people in decision-making. Further, guardianship should be as confined in scope and duration as is reasonably possible; subject to accessible mechanisms for review; and decision-making should respect the will, preferences and rights of the individual. At Commonwealth level, the National Disability Insurance Scheme legislation incorporates some elements of supported decision-making. However, these should also be augmented by providing legal recognition for supporters, and associated safeguards. The author suggests that the Principles can be a catalyst for facilitating important law reform over following decades. The article examines how the Principles may be used by communities, policy-makers and governments to promote world-leading legal changes to ensure that individuals with disability have an equal right to make decisions for themselves.

Supported decision-making models are widely commended, but legislation is scant; and, while various programs of decision-making support have been tried, evaluations are few and methodological rigor is largely absent. This article reviews Australian law and practice, law reform proposals, and trials of decision support programs, to assess what has been achieved so far in realising the aspirations of the Convention on the Rights of Persons with Disabilities of providing 'support' with 'safeguards'. Taking the example of a current control group evaluation of impacts of experientially derived training materials for supporters, the article discusses the role of evidence-based approaches to transitioning from substitute to supported decision-making through capacitybuilding programs for supporters of people with cognitive impairments.

In the 10 years since Australia has ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD), the issue of the indefinite detention of persons with cognitive disabilities found unfit to stand trial has received considerable attention. Concerns have been raised by national media, law reform bodies and United Nations human rights agencies. Yet there remain few examples of formal change to unfitness to stand trial laws in Australia. This article focuses on the role of procedural accommodations in meeting CRPD requirements, and other accessibility measures to ensure accused persons with cognitive disabilities are able to take part in criminal proceedings on an equal basis with others. It examines support measures that appear in existing statute and case law within Australia and considers the need to develop new forms of support.

article examines the place of the Convention on the Rights of Persons with Disabilities in relation to reform of Western Australian law governing fitness to stand trial, with a particular focus on Indigenous youth with Foetal Alcohol Spectrum Disorders (FASD). This article considers whether and how the Convention might be relied upon to improve outcomes for Indigenous youth with FASD, particularly through its promotion of a social model of disability. We argue that the social model of disability embodied in the Convention can only take us so far, and that many of the aspirations of the Convention regarding disability neutrality may, in fact, be counterproductive for Indigenous youth, rendering culture invisible and denying the colonial underpinnings of the disability in Indigenous communities. The Convention must be read 'in tension' with the United Nations Declaration on the Rights of Indigenous Peoples and with Indigenous knowledge. We argue that an appropriate response requires decolonising the justice system to break down the barriers that prevent Indigenous young people with FASD from participating on an equal basis. To do so, the role of colonisation in the production of

impairment and disability must be acknowledged, and law reform must facilitate community-owned solutions - placing Indigenous organisations and practices at the centre, rather than the periphery, of intervention.

Disability discrimination law has been of limited benefit to people with atypical and challenging behaviour. The role that law might play in upholding the equality rights of people with challenging behaviour is potentially expanded by changing medical and scientific knowledge about such behaviour, which brings more people within the definition of 'disability' and the protective ambit of the law. Yet this protective promise has not translated into legal gains, with few successful equality law cases decided in Australian courts and tribunals. This article critically examines the role of law, particularly anti-discrimination law, in regulating (or protecting) divergent behaviour, using a case study of students with challenging behaviour in Australian schools. It considers the lack of successful discrimination law cases in the education context, and asks whether, given this seeming legislative failure, disability discrimination laws have anything left to offer school students in terms of protecting their equality rights. The article gives an overview of anti-discrimination complaints and cases brought by students with challenging behaviour. It includes interview data from State and federal anti-discrimination bodies, legal practitioners and disability activists to complement case law and other public reports of discrimination. Using this background data, the article considers whether current discrimination law models do enough to protect the rights of students with challenging behaviour to education and inclusion in public life or whether new legal and policy measures are needed. It specifically examines changes to the regulatory landscape, including the Convention on the Rights of Persons with Disability, and whether there are any real prospects for law reform.

Communications and media are now recognised as a vital area of disability, especially when it comes to digital technology. In this article, I discuss the way that rights to communication, articulated in the Convention on the Rights of Persons with Disabilities (CRPD), played out in the 2006-2016 period. I trace the evolution of communications as a part of human rights internationally, and then how these rights are considerably advanced with a new formulation in the CRPD. I also analyse the interplay between these communications rights in the CRPD with the law, policy, and regulation at the national level, using the case of Australia. In particular, I discuss a key element of communications rights - universal service (or the entitlement of everyone to telecommunications, and in the present conjuncture, mobile phones and broadband internet). I find that while the CRPD is a useful tool, it has fallen well short in terms of force in the Australian context. In particular, a key obstacle is a striking lack of a comprehensive, overarching legal and policy framework on communications rights. In this situation, I suggest it is imperative to build a comprehensive national legal framework, underpinned by contemporary understandings of disability, and the CRPD, to achieve communications rights for people with disabilities and everyone.