Responsibility: State and territory governments
Response:
ACT, QLD, NT: Accept in principle
NSW, SA, VIC, TAS, WA: Subject to further consideration
Australian Capital Territory
Response: Accept in Principle
Status: In progress
What has been achieved to date
The ACT Government is developing a community consultation plan on further reforms to guardianship and other legislation to facilitate Supported Decision Making, which will include discussion of relevant recommendations from the Disability Royal Commission.
ACT government response July 2024
In 2022, the ACT Government made amendments to the Guardianship and Management of Property Act 1991 (ACT) that explicitly introduced the concept of supported decision-making. The Act now requires the ACT Civil and Administrative Tribunal, when determining whether to appoint a guardian or manager, to consider whether a person could instead make their own decisions with support. The Act also requires guardians and managers to provide or facilitate necessary supports for decision-making, as far as practicable. This is included in its decision-making principles. The ACT Government will consider further legislative reforms to address systemic barriers to supported decision-making and to improve the lives of people with impaired decision-making.
This next stage of reform will require a genuine and inclusive process of consultation with the ACT community. The consultation will be informed by the recommendations of the Disability Royal Commission relating to supported decision-making and the United Nation’s Convention of the Rights of People with Disability (UNCRPD). This next stage of reform will include consideration of changes to terminology to better reflect the role of representatives and supported decision-making.
New South Wales
Response: Subject to further consideration
Status: Subject to further consideration
What has been achieved to date
The NSW Government is considering the recommendations about supported decision-making and guardianship reform and the advice from the NSW Guardianship Working Group.
NSW government response July 2024
The NSW Disability Inclusion Plan 2021–2025 (DIP) is intended to align with Australia’s Disability Strategy (ADS).
The NSW Government will undertake a strategic review of the NSW DIP. This review will examine further opportunities for alignment between the next DIP and the ADS, including the outcomes of recommendation 5.2.
Following this review, the NSW Government is expecting to launch a refreshed NSW DIP which will incorporate commitments of the NSW Government in response to the Disability Royal Commission. The NSW Government will partner with people with disability and their representative organisations, including the Disability Council NSW, to prepare the refreshed NSW DIP and Disability Inclusion Action Plans (DIAPs).
NSW Government departments and prescribed entities will prepare new or remade DIAPs by mid-2025.
Northern Territory
Response: Accept in principle
Status: Further work required
What has been achieved to date
The Attorney-General’s Department in the Northern Territory is working with the Northern Territory Public Guardian and Trustee in consideration of a review of legislation.
NT government response July 2024
Guardianship and administration is intended as a last resort position for persons with decision-making impairments and should be built on a human rights and person centric framework. This means that the represented person lies at the heart of the decision-making process and that any order or substitute decision made must be done in a least restrictive manner and where possible in line with the views and wishes of the represented person.
There is a shift nationally and internationally towards legislation and models that recognise and embrace supported decision making that empowers represented persons to make their own decisions with the assistance of informal supporters, the legal recognition of decision supporters and as a last resort formal supports, such as guardianship. It is recognised that self-advocacy and decision-making skills can be continually developed to further increase independence of people with impaired capacity/disability. The Northern Territory will consider a review of the Guardianship of Adults Act 2016 to determine legislative amendments required for the adoption of recommendations relating to guardianship and administration legislation.
Queensland
Response: Accept in principle
Status: Subject to further consideration
What has been achieved to date
The Queensland Government is carefully considering recommendations 6.4 to 6.18, which call for significant change to state and territory guardianship systems and legislation.
QLD government response
The Queensland Government remains committed to implementing the recommendations of the Disability Royal Commission. The Queensland Government has updated its responses to a range of Disability Royal Commission recommendations to reflect contemporary Queensland Government policy and commitments.
2025 Response
The Queensland Government recognises all people with disability and is committed to ongoing work to strengthen its already robust guardianship framework.
The Queensland Government notes that recommendations 6.4 to 6.18 may require changes to Queensland's guardianship and administration framework. In consultation with key stakeholders, the Queensland Government will explore options to implement these recommendations.
South Australia
Response: Subject to further consideration
Status: Subject to further consideration
What has been achieved to date
The South Australian Government remains committed to considering this recommendation further, and will provide a response in due course.
SA government response July 2024
The South Australian government acknowledges the need to ensure legislation uses simple and accessible language to reflect a more contemporary and human rights-based approach to disability and decision-making. Further consideration of all the reform proposals to the Guardianship and Administration Act 1993 is required to ensure a coordinated approach to any amendments, and to understand any policy, operational and budgetary impacts for South Australia.
Tasmania
Response: Subject to further consideration
Status: Subject to further consideration
What has been achieved to date
The Tasmanian Department of Justice has already undertaken two of a planned three rounds of reform to the operation of the guardianship and administration system with a focus on reflecting human rights-based processes. This recommendation will be further considered as part of a third round of reforms.
TAS government response July 2024
The Tasmanian Government needs to further consider what this recommendation means for Tasmania.
The Tasmanian Government understands that inclusive language is important, and through changes to the Guardianship and Administration Act, the Tasmanian Government is working to contemporise Tasmania's guardianship laws.
A staged approach to reform these laws is being undertaken, and as part of further review the Tasmanian Government will consider how these terms and definitions may be included.
Victoria
Response: Subject to further consideration
Status: Subject to further consideration
What has been achieved to date
As stated in the Victorian Government response, the Victorian Government will consider this recommendation further as additional analysis is required to determine if reform is desirable or necessary.
Victoria is also involved with national efforts to reform powers of attorney laws.
VIC government response July 2024
We will consider this recommendation further.
We accept in principle the need for national consistency.
However, we need to look at the impacts of implementing some elements of this recommendation.
In particular, the Guardianship and Administration Act 2019 (Vic) has only been in effect for a short time.
We are also involved with national efforts to reform powers of attorney laws.
Western Australia
Response: Subject to further consideration
Status: Subject to further consideration
What has been achieved to date
The Guardianship and Administration Act 1990 (GAA) is currently being reviewed by the Law Reform Commission of Western Australia (LRCWA), for reporting to Government in late 2025. The LRCWA will provide advice and make recommendations on new legislation to enhance and update the GAA. The Government’s response to the findings and recommendations of the LRCWA report will then inform the final position on these Disability Royal Commission recommendations.
WA government response July 2024
The WA Government is giving further consideration to this recommendation and has referred the matters arising out of this recommendation to the Law Reform Commission of Western Australia. The Law Reform Commission will conduct an extensive consultation process and review of the Guardianship and Administration Act 1990 (WA) and will provide a final report which will enable Government to establish a position with regard to the potential introduction of supported decision-making and other matters relating to this legislation.
What the Disability Royal Commission said in the final report
- States and territories should amend their guardianship and administration legislation to:
- include the terms ‘support order’, ‘support agreement’ and ‘supported persons’
- remove the terms ‘guardianship order’ and ‘administration order’ or ‘financial management order’, and replace these with ‘representative order’
- remove the terms ‘guardian’ and ‘administrator’ or ‘financial manager’, and replace these with ‘representative’
- remove the term ‘enduring guardian’ and replace this with ‘enduring representative’
- remove the terms ‘enduring guardianship’ and ‘enduring power of attorney’, and replace these with ‘enduring representation agreement’
- remove the terms ‘decision-making capacity’, ‘capacity’ and ‘mental incapacity’, and replace these with ‘decision-making ability’.
- The new and replacement terms should be defined consistently with the definitions provided in Table 6.2.11.
- States and territories should amend the title of their guardianship and administration legislation to refer to decision-making. For example, ‘Supported and represented decision-making Act’ or ‘Decision-making Act’.
More recommendations
View progress on other recommendations made by the Royal Commission.