Questioning Law's Capacity
Alternative Law Journal
The past ten years have witnessed an increased public awareness of the marginalisation and discrimination experienced by people with disability in the Australian legal system, and an associated proliferation of law reform reports on disability law. The past ten years have witnessed an increased public awareness of the marginalisation and discrimination experienced by people with disability in the Australian legal system, and an associated proliferation of law reform reports on disability law. 1
... A particular focus has been legal schemes applicable to people with disability found lacking legal capacity. A recent example is the 2014 report of the Australian Law Reform Commission ('ALRC') in its inquiry into equality, capacity and disability in Commonwealth laws. 2 Running parallel to these domestic law reform recommendations, the Convention on the Rights of Persons with Disabilities 3 ('CRPD') has brought about paradigm shifts in legal understandings of disability and the appropriate treatment of people with disability. In particular, Article 12 establishes that people with disability are entitled to legal capacity and places obligations on States Parties to repeal laws that deny legal capacity. Legal capacity has been recast as an international human rights issue, central to recognising the equality of people with disability under domestic legal systems. Bringing these two trajectories in disability law together, in this article we consider how the ALRC's recommendations fare by reference to the human rights advancements reflected in the CRPD, and in particular the approach to capacity. The article argues that the ALRC's recommendations do not go far enough in recognising the right to legal capacity, in particular due to a lack of clarity about how a shift to supported decision-making may be implemented and a failure to explicitly address the problematic role of mental capacity and how it may continue to inform the implementation of any new laws developed. It also considers the need for policy and cultural change to ensure that any new laws developed are not implemented in a manner that contravenes the CRPD.