Australia: Lessons from a Reformist Path to Supported Decision-Making

Gooding, P., Carney, T., ‘Australia: Lessons from a reformist path to supported decision-making’ In Michael Bach and Nicolás Espejo Yaksic (eds) Legal capacity, disability and human rights: Towards a comprehensive approach. Supreme Court of Mexico, Human Rights Division 2021

29 Pages Posted: 16 Nov 2021

See all articles by Piers M. Gooding

Piers M. Gooding

Melbourne Social Equity Institute; University of Melbourne - Melbourne Law School

Terry Carney AO

The University of Sydney Law School

Date Written: September 22, 2021

Abstract

This chapter reviews Australia’s gradualist approach to implementing the ‘supported decision-making regime’ called for by article 12 of the UN Convention on the Rights of Persons with Disabilities. It critically evaluates statutory and non-statutory supported decision-making developments, the growing stock of conceptual and empirical research on the topic, and policy developments that challenge the ‘best interests’ principle behind substituted decision-making laws. While legislative reforms are modest and mainly confined to adult guardianship and mental health laws, the accumulated body of contributions is found to be extensive by global standards. The chapter shows that these efforts have proceeded – some more successful than others – to guarantee the legal capacity of persons with disabilities, expand the duties of third parties to recognise legal capacity, and adjust decision-making processes. It argues that Australia’s federal system of government enabled multiple ‘incrementalist’ reform initiatives to be developed, which time may or may not demonstrate to be effective in advancing the CRPD reform agenda regarding legal capacity, equality and disability.

Keywords: CRPD, supported decision-making, cognitive impairment, law reform, policy development

JEL Classification: K33, K36, Z18

Suggested Citation

Gooding, Piers Michael and Carney AO, Terry, Australia: Lessons from a Reformist Path to Supported Decision-Making (September 22, 2021). Gooding, P., Carney, T., ‘Australia: Lessons from a reformist path to supported decision-making’ In Michael Bach and Nicolás Espejo Yaksic (eds) Legal capacity, disability and human rights: Towards a comprehensive approach. Supreme Court of Mexico, Human Rights Division 2021, Available at SSRN: https://ssrn.com/abstract=3928342 or http://dx.doi.org/10.2139/ssrn.3928342

Piers Michael Gooding (Contact Author)

Melbourne Social Equity Institute ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia
+6183440910 (Phone)

HOME PAGE: http://https://www.findanexpert.unimelb.edu.au/display/person26598

University of Melbourne - Melbourne Law School ( email )

185 Pelham Street
Melbourne, VIC 3010
Australia

Terry Carney AO

The University of Sydney Law School ( email )

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

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