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According to merit?/Diversity: New Act brings dignity

According to merit?/Diversity: New Act brings dignity

By Oriana Torcasio and Naomi Hickey-Humble

Guardianship Women's Rights 


A human rights approach to guardianship and administration law is a better outcome for Victorian women.

Important reforms to guardianship and administration laws with the recent passing of the Guardianship and Administration Bill 2018 promote the autonomy of some of the most vulnerable people in Victorian society.

The Guardianship and Administration Act (the Act) will take effect on or before 1 March 2020. The Act governs the appointment of a guardian or administrator for a person with impaired decision-making capacity. Existing legislation in this area was introduced more than 30 years ago and is out of touch with present day views on disability and impairment. The incoming legislation champions the rights and dignity of adults living with a disability or impairment, including but not limited to the elderly, by implementing additional safeguards to protect their interests.

Importantly, the Act establishes a modern statutory view on disability having regard to the United Nations Convention on the Rights of Persons with Disabilities. It enshrines the presumption that a person has decision-making capacity unless there is evidence to the contrary. This recognises the importance of supporting people with impaired decision-making capacity to make and participate in their own legal, financial and medical decisions to ensure that their wishes are respected and enforced as far as possible. The Act also recognises that a person can have decision-making capacity if they require practicable support to make a decision (ie, via assistive technology).

Women with disabilities are known to disproportionately experience breaches of their legal and human rights as they are subject to intersectional discrimination by way of disability and gender.1 For example, women are generally more likely to be coerced into violations of their sexual and reproductive autonomy, such as through forced sterilisation or abortion.2 While laws surrounding substitute decision-making arrangements for medical procedures like these already exist, they are complex and operate under different legislative schemes.3

The new Act goes some way to clarifying this area in the context of guardianship and administration arrangements by setting out rigorous requirements for VCAT in hearing, considering and consenting to applications for “special medical procedures”.4 This includes “any procedure that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out” or “a termination of pregnancy”.5 The incoming laws will offer women better protection against unlawful interference with their bodily autonomy and other forms of abuse and harm. 

Additionally, the Act improves the rights of our ageing, predominately female population. Women are expected to live longer than men and so face greater discrimination as they age. The average life expectancy of Australians is almost 84 years for women and 79 years for men. In 2010, about 800,000 Australians, or 3.7 per cent of the total population were aged 80 or more. Nearly two-thirds of those were female.6

The Act also creates new offences for guardians or administrators who act dishonestly, punishable by fines or up to five years imprisonment. Individuals can also seek compensation for losses caused by guardians or administrators who breach their duties.

Accordingly, by bolstering the rights and liberties of those with impaired decision-making capacity, the Act provides long-overdue statutory recognition to some of the most vulnerable people in society.

Victorian Womens Lawyers (VWL) remains committed to supporting diversity and inclusion and promoting women’s legal and human rights. Its newly formed Diversity and Inclusion Committee champions issues including accessibility as well as the rights of First Nations people, culture and religion, and LGBTIQ matters.

Contact if you would like to become involved with projects of VWL’s Diversity & Inclusion Committee.

Oriana Torcasio and Naomi Hickey-Humble are co-chairs of the VWL Diversity and Inclusion Committee.

1. Women With Disabilities Australia, “Dehumanised: The forced sterilisation of women and girls with disabilities in Australia”, (2013) 23.

2. Frohmader, C and Ortolev, S,”The Sexual and Reproductive Rights of Women and Girls with Disabilities”, (2013) 4.

3. Victorian Law Reform Commission, “Guardianship: Final Report” (2012) 276.

4. Guardianship and Administration Act 2019 (Vic), Division 5, Part 6.

5. Note 4 above, s140.

6. Australian Institute of Health and Welfare, “Australia’s Health 2010”, (2010) 5.

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