Questioning Law's Capacity

Abstract

This article reflects upon the recommendations made by the Australian Law Reform Commission in its inquiry into equality, capacity and disability in Commonwealth laws in light of the right to legal capacity contained in Article 12 of the United Nations Convention on the Rights of Persons with Disabilities. Article 12 places obligations on States Parties to reform laws that deny legal capacity to people with disability. The article argues that the Australian Law Reform Commission’s recommendations do not go far enough in recognising the right to legal capacity, in particular because there is a lack of clarity about the way in which a shift to supported decision-making may be implemented and the recommendations do not explicitly address the problematic role of mental capacity and how it may continue to inform the implementation of any new laws developed.