Australian Guardianship Tribunals: An Adequate Response to CRPD Disability Rights Recognition and Protection of the Vulnerable over the Lifecourse?

Journal of Ethics in Mental Health, Vol. 10, No. 3, 2017

18 Pages Posted: 1 Aug 2017

See all articles by Terry Carney AO

Terry Carney AO

The University of Sydney Law School

Date Written: July 30, 2017

Abstract

Australia’s path-breaking experiment in the 1980s of a tribunal model of substitute decision-making may well have been a major advance over traditional adult guardianship courts or other reforms on offer at the time, as suggested by socio-legal studies. However, resource constraints, demographic pressures, the passage of time, and the development of new models designed to advance the principle of supported decision-making enshrined by the UN Convention on the Rights of Persons with Disabilities (‘CRPD’) raise new questions about its contemporary suitability and its possible replacement or reform. This paper reviews three decades of experience with the Australian model in various states of the federation and new models advanced in recent law reform commission reports by both the Victorian and Australian commissions. It assesses how well these models reflect CRPD values and principles of access to justice, while providing safeguards protecting the vulnerable against abuse. These debates are placed within emerging international trends, including legislative and non-legislative supported decision-making models, other adult guardianship reform proposals, and other cognate tribunals (such as mental health).

Keywords: Guardianship, tribunals, law reform, supported decision-making, ethics

JEL Classification: K10, K23, K30, K32

Suggested Citation

Carney AO, Terry, Australian Guardianship Tribunals: An Adequate Response to CRPD Disability Rights Recognition and Protection of the Vulnerable over the Lifecourse? (July 30, 2017). Journal of Ethics in Mental Health, Vol. 10, No. 3, 2017, Available at SSRN: https://ssrn.com/abstract=3011089

Terry Carney AO (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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