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  • 'Progress is incredibly slow': Australia lagging on disability rights
  • By Caitlin Fitzsimmons
  • 3/02/2019 Make a Comment
  • Contributed by: Greg ( 2 articles in 2019 )
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The current system of guardianship is "butchering a number of human rights" and it's taking too long to reform the system, the Disability Discrimination Commissioner says.

Alastair McEwin, the Disability Discrimination Commissioner at the Australian Human Rights Commission, said Australia was falling behind in its international obligations on the rights of people with disabilities, with the United Nations due to report on the nation's progress this year.


Disability Discrimination Commissioner Alastair McEwin.

Mr McEwin said there was a strong case for a review of the guardianship and financial administration regimes run by the states, but stopped short of calling for it to be included in the terms of reference for the upcoming royal commission into aged care.

"Guardianship is about making decisions on behalf of someone else and, when you substitute one person on behalf of someone else, you're completely butchering a number of human rights, including the right to make a decision based on your own will and preferences," Mr McEwin said.

"There's absolutely a role for supporting someone with disabilities to make decisions but the key word is 'supporting'."

There are tens of thousands of people around Australia under guardianship and/or financial management, including those with intellectual disabilities, mental illness, brain injuries and age-related dementia. The number of people in the system is growing because of the ageing population.

The state courts or civil and administrative tribunals can appoint a guardian for health and lifestyle decisions and/or a financial manager when a person is considered to lack the capacity to make decisions. The appointees can legally make decisions on the affected person's behalf.

This is at odds with the rights-based approach enshrined in the UN Convention on the Rights of Persons with Disabilities, which Australia ratified in 2008 and the states and territories adopted in 2010 through the National Disability Strategy.

The UN wrote in its 2013 report that Australia should take "immediate steps to replace substitute decision-making with supported decision-making" and expressed concern this might not happen.

More than five years later, the public guardians in various states and territories have introduced some supported decision-making measures, but the underlying legislation still grants substitute decision-making powers.

The UN Committee on the Rights of Persons with Disabilities was due to report on Australia in July last year, but Mr McEwin said it was now likely to be August or September this year.

Mr McEwin said he was "frustrated" by the lack of progress in implementing the National Disability Strategy, which the Commonwealth and states signed in 2010. It expires in 2020. The Department of Social Services has formed a steering committee to renew the strategy beyond 2020, he said.

"Progress has been incredibly slow," Mr McEwin said. "A lot of politicians have assumed, 'Oh we're great we've got the NDIS, we don't need to do that much more.' But we've got the issue of guardianship laws, the issues of physical access, and the issue of young people missing out on educational opportunities or not getting a job."

He criticised the lack of political leadership and co-ordination between the Commonwealth and states and territories, although he praised NSW and Victoria as "a bit more proactive".

A NSW Law Reform Commission report last year described substitute decision-making as "paternalistic" and "long past its use-by date" and recommended its replacement with supported decision-making. Similar recommendations were made by the Australian Law Reform Commission in 2013 and a number of other reports.

Often the threat of forced public guardianship is used as a means of enforcing silence and compliance.

Evidence to the 2015 Senate inquiry

A 2015 Senate inquiry heard evidence from around Australia that guardianship orders are often misused by service providers for their own convenience. Young people with disabilities and their families who make complaints to disability service providers about abuse and neglect are often ignored or ridiculed and labelled "troublemakers" and often the threat of forced public guardianship is used as a means of enforcing silence and compliance.

Mr McEwin said any supported decision-making regime should also be nationally consistent to make it easier to use. The support needed would vary but could include financial literacy training, additional time to process information, or access to specialised communication devices.

Supported decision-making reforms in NSW and Victoria

The Victorian Public Advocate Colleen Pearce said her office agreed with supported decision-making, had taken the lead to introduce supportive attorneys and support persons and was in the process of recruiting a supported decision-making co-ordinator.


Victorian Public Advocate Colleen Pearce.

"A guardian should only be appointed when there is not a less restrictive way for decisions to be made," Ms Pearce said. "If OPA [the Victorian Office of the Public Advocate] acts as guardian - then like all guardians - the requirement is to act in such a way as to encourage and assist the represented person to become capable of caring for herself and of making reasonable judgments in respect of matters relating to her person. Therefore within substitute decision-making there is always an element of supported decision-making."

A spokeswoman for the NSW Trustee and Guardian (NSWTG) said supported decision-making was a key priority. NSWTG had developed a Supported Decision Making Project, including developing and delivering training resources for disability service providers and had partnered with the South Australian Public Advocate to roll out training for the Lifetime Support Authority.

The NSWTG spokeswoman said the organisation supported the work of the NSW Law Reform commission and would work with the state government, which is considering the report, to implement appropriate reforms.

The number of people under the guardianship increased by 22.6 per cent over the past five years as a result of the ageing population, according to the 2018 annual report from the NSW Trustee and Guardian.

Source: https://www.smh.com.au/business/consumer-affairs/progress-is-incredibly-slow-australia-lagging-on-disability-rights-20190201-p50v78.html


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