Submission
No 16
SUPPORTED DECISION-MAKING IN NSW
Name: Justine O’Neill
Date Received: 13 March 2026
Submission to the NSW Parliament Committee on Ageing and Disability inquiry into supported decision making
Justine O’Neill, March 2026
This personal submission is informed by my experience working within the NSW guardianship system, with colleagues in substitute and supported decision making across Australia, as an advocate and collaborator with people with intellectual disability and my experience running pilot and explorative supported decision making projects in government and non-government agencies. I am a former Ageing and Disability Commission advisory board member.
The opportunity to evolve should be celebrated. The Guardianship Act 1987 was developed in collaboration with the disability advocacy sector, and it was a significant step forward for people with cognitive disability in NSW, particularly those people living in institutions which severely curtailed their rights. The Act’s principles championed the right of people to be involved in their own decision making and for decisions about them to be focused on their welfare and interests. The fact that time has moved on and that our expectations around human rights have expanded should be celebrated. The Guardianship Act helped NSW move further away from hideous practices. It hasn’t eradicated discriminatory and limiting attitudes, but it has moved us forward. Government should recognise that we are at another point in history, where our community has different expectations. It is a privilege to be able to take another step forward through reform.
Community expectation is increasingly that people and communities have the right to support to exercise their autonomy – that guardianship is problematic and out of date. I have been to any number of conferences, roundtables, meetings and formal reviews where the limitations of substitute decision making are explored and made explicit. I have worked closely with people with disability who are worried, sometimes fearful, about being at risk of substitute decision making. In my experience talking with social work students, they are sometimes horrified to discover they will have to be, as they see it, complicit in taking away rights. I believe our safeguarded system of guardianship remains important for people without sufficient decision making support, but while the Guardianship Act remains in its unreformed state it continues to grow in size and influence and limits innovation in decision making support.
The last resort comes too soon. Guardianship is said to be a last resort, but this idea is only meaningful if other options are available first. Currently the need for guardianship may be felt in part because of an absence of supported decision making tools and practice leadership, but also because the familiar institution of guardianship offers a sense of security and risk avoidance over unfamiliar and unfunded ideas. The strength of the status quo is such that the ‘last resort’ is reached too soon.
Practice leadership is required to help ensure other options are identified and explored before a last resort is sought. Leadership is needed so that further knowledge and tools are developed and made available to community and government services. The Ageing and Disability Commission (ADC), in collaboration with community advocates and other groups, is well placed to take on this leadership role. The ADC cemented supported decision making principles
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into its own practice early in its creation. The ADC takes steps to identify, understand and act on the will and preference of the person at the heart of a report and, crucially, reports whether outcomes are in line with those preferences. This practice is rare, if not unique, in government and non-government service provision. The ADC’s independence and existing practice puts it in a strong position to lead the development of supported decision making in NSW.
Co-development and delivery should be in collaboration with community. Organisations within the disability and ageing advocacy sector have experience in leading conversations about supported decision making and developing tools with and for people with decision making support needs, including organisations such as Council for Intellectual Disability (CID), the
Intellectual Disability Rights Service (IDRS), the Older Persons Advocacy Network (OPAN) and
the Mental Health Coordinating Council (MHCC). The ADC has experience working alongside community based services and groups. Avoiding positioning itself as ‘the expert government agency’, the ADC is well placed to lead genuinely collaborative work to extend existing knowledge and trusted relationships within the community.
First Nations and culturally diverse communities hold experience and expertise in supporting people within communities in ways that could inform supported decision making practice and make models relevant to more people. This knowledge is largely excluded, despite over representation of First Nations people within substitute decision making regimes, and change will not happen without action and resourcing. Again, the ADC is well placed to collaborate in the development of culturally safe practice for people needing decision making support.
Nothing will happen without resources. To be effective the development and delivery of supported decision making in NSW be funded. The ADC must be resourced for its activities, including genuine collaboration with community.
After similar recommendations from the Commonwealth and NSW Law Reform Commission, the Disability Royal Commission, and after government and non-government pilots programs, research and efforts, all calling for action, the primary barrier to implementing models for supported decision making is essentially a lack of will and interest by government. Change requires action, investment and leadership and without it we will be having these same conversations in another 10 years, as the number of people under guardianship and administration continues to grow and the resources required to run substitute decision making agencies continues to demand attention.
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