With the recent international push for renewed recognition of rights of people with disabilities and Australia’s recent ratification of the United Nations Convention on the Rights of Persons with Disabilities 2006, the instigation of the Law Reform Commission’s review of Victorian guardianship and administration legislation has been quite timely.
Being the surrogate decision-making tools that they are, the concepts of guardianship and administration seek to assist people with disabilities in making decisions they are unable to make themselves; or, as the libertarian might say, as a means to legitimise the law’s encroachment into the private lives of people with disabilities, for better and, regardless of intention, for worse.
The Victorian Guardianship and Administration Act, which was enacted 23 years ago, has become dangerously lacklustre in guiding VCAT’s determinations in this area. It seems incomplete at its most central points, offering no more than nebulous criteria and guidance. In sum, for a guardianship or administration order to be granted, the Act requires there to be a ‘need for a guardian’ and the person proposed to be represented to have a disability which makes them unable to make ‘reasonable judgments’.
What is more, the Act offers little by way of guidance to the guardian or administrator’s assessment of the ‘best interests’ of the person when making a decision for the represented party. It does not include a clear definition of ‘least restrictive’ means or ‘best interests’, nor does it adopt a well-defined notion of capacity.
Such wording barely promotes the importance of the dignity, humanity, identity, autonomy and privacy of people with disabilities as the Convention does. Although the right of protection from exploitation is a significant consideration for VCAT, the practice of its Guardianship List, which is responsible for matters under the Act, has also lacked a strong overarching direction to protect such basic rights.
In XYZ v State Trustees Ltd&Anor, the Supreme Court case which exposed some problems with VCAT’s guardianship and administration jurisdiction, Cavanough J emphasised the need for VCAT to ‘re-examine the exercise of its guardianship and administration jurisdiction generally to determine whether the balance has swung too far in favour of paternalism or protection as against individual autonomy’.
Be it the Act or the practice, something has to change. More direction and safeguards need to be put in place to reflect the seriousness of the civil liberties at stake or the practice has to be tightened up. If, as Bill Deane once said, ‘the ultimate test of our decency and our worth as a democratic community is how we treat the most disadvantaged and vulnerable of our people’, then we need a hard rethink about how we are currently going about guardianship and administration.
Ergun Cakal is a Liberty volunteer.