Submission No 24

SUPPORTED DECISION-MAKING IN NSW

Organisation: Intellectual Disability Rights Service Inc.

Date Received: 13 March 2026

SUBMISSION TO THE

NSW Parliamentary Inquiry into

Supported Decision Making

Joint Select Committee on Supported Decision Making

EXECUTIVE SUMMARY

Intellectual Disability Rights Service (IDRS) provides legal and advocacy services to people with cognitive disability in NSW. IDRS is the only service of its kind in Australia, with two key service functions. IDRS operates the Ability Rights Centre (ARC) which is a Community Legal Centre that provides free legal assistance to people with disability across NSW and supports on average 850 people per year. Secondly, IDRS Justice Advocacy Service (JAS) provides support across NSW to people with cognitive impairment who come in contact with the criminal legal system, whether as victims, defendants or witnesses. Each year, JAS supports on average 2,500 people including approximately 2,250 people recorded as offenders and 200 people recorded as victims of crime. JAS provides support 24/7 statewide to people in Police custody.

We welcome the opportunity to submit to the Joint Select Committee on Supported Decision Making and commend the Committee for its commitment to reforming the laws and practices that govern how people with disabilities make decisions about their own lives.

Our submission draws on decades of direct legal casework with people with cognitive, intellectual, and psychosocial disabilities; extensive community consultation; and engagement with the international human rights framework - in particular, the United Nations Convention on the Rights of Persons with Disabilities (CRPD). We argue that New South Wales must urgently transition from a substitute decision-making model to a genuine supported decision-making framework that respects the legal capacity of all people with disabilities.

This submission makes 14 recommendations for law reform, funding, implementation, and monitoring - each grounded in the lived experience of our clients and the requirements of the CRPD.

1. About Ability Rights Centre

Ability Rights Centre (ARC) is the peak community legal centre for people with disabilities in New South Wales. Under the Intellectual Disability Rights Service established in 1991, we provide free legal services including advice, casework, representation, community legal education, and systemic advocacy. Our work spans discrimination law, guardianship and financial management, the National Disability Insurance Scheme (NDIS), housing, employment, care and protection, and human rights.

ARC provides legal services to people with all types of disability, including intellectual disability, acquired brain injury, psychosocial disability, autism spectrum disorder, and other cognitive and neurological conditions. We operate across metropolitan and regional NSW, with a particular focus on reaching people who face multiple layers of disadvantage.

ARC engages in policy, advocacy, and represents the interests of people with disabilities before courts, tribunals, and parliamentary inquiries. This submission reflects:

• Direct casework experience with hundreds of clients who have been affected by guardianship and financial management orders in NSW;
• Consultations conducted with people with disabilities, their families, and support workers across NSW in 2024 and 2025;
• Engagement with academics, advocates, and international experts in supported decision making; and
• Analysis of domestic law and policy against international human rights obligations.

2. The Case for Fundamental Reform

2.1 The Current Framework Violates Human Rights

The existing guardianship and financial management system in NSW - established primarily under the Guardianship Act 1987 (NSW) and the NSW Trustee and Guardian Act 2009 (NSW)- is built on a substitute decision-making model. Under this model, a guardian or financial manager is legally authorised to make decisions on behalf of a person with a disability, often without any requirement to ascertain or act in accordance with the person’s will and preferences.

This model is fundamentally incompatible with Australia’s obligations under the CRPD. Article 12 of the CRPD recognises that all people with disabilities have legal capacity on an equal basis with others. The Committee on the Rights of Persons with Disabilities, in its General Comment No. 1 (2014), has made clear that substitute decision-making regimes - including guardianship, conservatorship, and mental health laws that permit forced treatment - must be abolished and replaced with supported decision-making alternatives.

UN Committee on the Rights of Persons with Disabilities - General Comment No. 1 (2014)

“Supported decision-making refers to various types of support through which a person with a disability can exercise their legal capacity. Support may include… assistance to communicate decisions… [and] recognition of informal support networks. Supported decision-making must replace substitute decision-making regimes.”

Australia ratified the CRPD in 2008. Despite this, NSW continues to operate one of the most expansive guardianship systems in the country. As of 2024, over 6,000 people in NSW are subject to full or partial guardianship orders, and more than 5,000 are subject to financial management orders. Many of these orders persist for years sometimes decades without meaningful review. For many of our clients, the experience of guardianship is one of profound loss: loss of voice, loss of dignity, and loss of control over the most intimate aspects of their lives.

2.2 Lived Experience of the Current System

IDRS’s casework reveals a consistent pattern of harm caused by the current system.

We document below key themes from our practice, drawing on de-identified client experiences.

Loss of autonomy in fundamental life decisions

Clients regularly report that they are excluded from decisions about where they live, who they live with, what medical treatment they receive, and how they manage their money, even where they have a clear view and the capacity to express it. Guardians and financial managers too often act as gatekeepers rather than as supporters, making decisions based on what they believe is in the person’s “best interests” rather than what the person themselves wants.

Case Study A (de-identified)

Jen is a 38-year-old woman with an intellectual disability. A guardianship order has been in place since she was 22. When Jen told her guardian she wanted to move into her own unit and work in a retail shop, she was told this was “not realistic.” Her wishes were never put before the Tribunal. ARC assisted Jen to have her order reviewed; the Tribunal ultimately agreed that a supported decision-making arrangement, including a support person and modified tenancy agreement, was preferable to guardianship.

Financial management as financial exclusion

People subject to financial management orders administered by the NSW Trustee and Guardian frequently report being unable to access their own money for basic purchases, travel, or gifts. Rigid rules and bureaucratic delays mean that the very system ostensibly protecting people from financial abuse can itself function as a form of financial exclusion. ARC has represented multiple clients who were denied access to their NDIS funds because of conflicts between NSW Trustee and Guardian policies and NDIS plan management requirements.

Lack of access to legal representation

People with disabilities subject to guardianship proceedings are rarely legally represented. The Guardianship Division of NCAT is largely inquisitorial, but its processes are often difficult to navigate without support. ARC consistently finds that our clients who are legally represented achieve substantially better outcomes - including having orders revoked or limited, than those who appear without representation. This inequality of access to justice is a critical systemic failure.

2.3 The Promise of Supported Decision Making

Supported decision making is not a single intervention, it is a spectrum of arrangements through which people with disabilities are assisted to understand information, communicate their choices, and give effect to their decisions. These arrangements can be informal (relying on trusted family members or friends) or formalised through legal instruments such as agreements, directives, or statutory frameworks.

Evidence from domestic and international experience demonstrates that supported decision-making arrangements can enable people who were previously thought to lack decision-making capacity to make complex, meaningful decisions about their own lives. Key elements of successful supported decision-making arrangements include:

• Access to trusted support people who act according to the person’s will and preferences, not their own or professionals’ views of the person’s best interests.
• Access to accessible information in formats that work for the individual (Easy Read, AUSLAN, visual tools).
• Ongoing, flexible arrangements that can evolve with the person’s needs and circumstances.
• Legal recognition of the decisions made through supported arrangements.
• Clear accountability mechanisms to prevent exploitation or undue influence.

3. Our Recommendations

3.1 Legislative Reform

IDRS calls for comprehensive reform of the legal framework governing decision making in NSW. This should include:

3.2 Reform of the NSW Trustee and Guardian

ARC is particularly concerned about the financial management jurisdiction exercised by the NSW Trustee and Guardian. This system operates with significant autonomy, limited external oversight, and inadequate mechanisms for complaint and review. We call for:

3.3 Access to Justice and Legal Representation

The right to supported decision making is meaningless without effective access to legal processes when disputes arise. ARC calls for significant investment in access to justice measures:

3.4 Implementation, Education and Awareness

Law reform alone will not change practice. IDRS calls for substantial investment in implementation infrastructure:

3.5 Monitoring and Accountability

4. Key Legal and Policy Considerations

4.1 International Human Rights Framework

Australia’s obligations under the CRPD are clear and non-negotiable. The CRPD Committee has repeatedly called on Australia to abolish substitute decision-making regimes and replace them with supported decision making. In its 2019 Concluding Observations on Australia, the Committee expressed concern about the continued prevalence of guardianship laws across Australian jurisdictions.

ARC notes that several Australian jurisdictions have begun or completed reforms in this direction. The Australian Capital Territory enacted the Supported Decision-Making Framework Act 2024. Victoria has undertaken extensive consultation on supported decision-making reform through the Disability Act review process. NSW risks falling behind not only its international obligations but also domestic best practice.

4.2 The interface with Legal and Justice Systems

Decisions are very often made for people with cognitive disability based on other people’s views about the person’s “best interests” rather than the person’s own wishes or preference.

People with cognitive disability are often assumed to lack capacity to make their own decision without that assumption being tested by making adjustments.

Many people with cognitive disability tell us that this can also be true when working with solicitors and that they often feel like they don’t get a fair chance to try to make their own decisions in their legal matters.

When people with intellectual disability receive decision support and adjustments in the decision-making process, they often can make decisions for themselves. Even though their disability might remain constant, the right supports and adjustments can significantly enhance an individual’s decision-making ability.

4.3 The NDIS Interface

The intersection between NSW guardianship law and the NDIS creates significant problems for participants. People subject to financial management orders frequently encounter difficulties in accessing NDIS funds, implementing NDIS plans, or engaging plan managers, because the NSW Trustee and Guardian’s policies are not aligned with NDIS frameworks. ARC has documented numerous cases where this interface caused material harm to clients including loss of NDIS funding due to missed deadlines and inability to engage support providers.

The Committee should consider recommending that the NSW Government engage directly with the NDIA to develop clear protocols governing the intersection of financial management orders and NDIS plan management, with a view to ensuring that financial management orders do not impede NDIS participation.

4.4 Children and Young People with Disabilities

IDRS draws particular attention to the situation of young people with disabilities who transition from child welfare systems - including out-of-home care - into adulthood without adequate supported decision-making arrangements. These young people often have guardianship orders imposed upon them at or shortly after their 18th birthday, without their genuine participation in the process and without exploration of supported alternatives.

A reformed framework must include specific provisions for young people transitioning to adulthood, including transition planning, peer mentoring, and presumptions against guardianship for young adults. Education and support for families managing this often-fraught transition phase is required access to correct information that facilitates informed decision making through access to correct information and upholds the rights of their family member, without the automatic presumption of a guardianship order.

4.5 People with Psychosocial Disability

People with psychosocial disability - including those with experiences of mental illness - face unique barriers within the current system. Mental health legislation in NSW can operate to further strip legal capacity from people who are already subject to supported decision-making challenges. IDRS calls for coherence between mental health law reform and supported decision-making reform, to ensure that a person’s experiences in the mental health system do not become a pathway to guardianship.

4.6 Supported Decision Making in the legal context

ARC undertook a 12 month project to investigate the application, barriers, and good practice for the utilisation of supported decision making in the legal context. The document “Introduction to Supported Decision Making — A practical guide for legal practitioners” is one outcome of this work. It is attached to this submission for your reference.

5. Conclusion

IDRS strongly supports the work of the Joint Select Committee on Supported Decision Making and urges the Committee to recommend bold, comprehensive law reform that genuinely embeds supported decision making as the norm for people with disabilities in New South Wales.

People with disabilities have the same inherent right to make decisions about their own lives as everyone else. This right does not diminish because a person needs support to exercise it. The current guardianship system routinely denies this right, often with the best of intentions, but with devastating consequences for the autonomy, dignity, and wellbeing of people with disabilities.

The reforms we recommend are not only legally required under international human rights law, they are practically achievable, evidenced by best practice domestically and internationally, and urgently needed. IDRS stands ready to assist the Committee, the NSW Government, and the broader community in achieving this vital reform.

Offer of Further Assistance

IDRS is available to provide further information, appear before the Committee to give evidence, facilitate consultations with people with disabilities and their supporters, or assist in any other way that would be of value to the Committee’s work. Please contact redacted: s47F - Personal privacy at redacted: s47F - Personal privacy

Appendix A: Summary of Recommendations

For ease of reference, the 14 recommendations of ARC are summarised below:

1. Amend the Ageing and Disability Commission Act to give the Ageing and Disability Commission responsibility to develop a NSW Government Supported Decision Making Framework consistent with Article 12 of CRPD.
2. Repeal the Guardianship Act 1987 and replace it with legislation that restricts substitute decision making to exceptional circumstances.
3. Require paramountcy of the person’s will and preferences in any residual substitute decision-making orders.
4. Legislate for the legal equivalence of decisions made through supported decision-making arrangements.
5. Conduct an independent review of the NSW Trustee and Guardian’s financial management function.
6. Establish an independent oversight body with power to review NSW Trustee and Guardian conduct.
7. Require annual reviews of financial management orders and quarterly accessible financial statements.
8. Provide dedicated funding to community legal centres for legal representation in NCAT proceedings.
9. Mandate independent advocacy for unrepresented persons in NCAT guardianship proceedings and ensure full accessibility.
10. Resource community-based advocacy services, including peer advocacy.
11. Develop and fund a comprehensive implementation strategy for supported decision-making transition.
12. NSW government agencies and disability service providers be required to report on the implementation and activities of supported decision making.
13. Establish an ongoing Supported Decision Making Monitoring and Evaluation Framework with meaningful involvement of people with disabilities.

Appendix B: Key Legal Instruments and References

The following key documents inform this submission:

• United Nations Convention on the Rights of Persons with Disabilities (CRPD), adopted 2006, entered into force 2008.
• UN Committee on the Rights of Persons with Disabilities, General Comment No. 1 (2014): Equal recognition before the law.
• UN Committee on the Rights of Persons with Disabilities, Concluding Observations on Australia (2019).
• Guardianship Act 1987 (NSW).
• NSW Trustee and Guardian Act 2009 (NSW).
• NSW Civil and Administrative Tribunal Act 2013 (NSW).
• National Disability Insurance Scheme Act 2013 (Cth).
• Australian Capital Territory, Supported Decision-Making Framework Act 2024 (ACT).
• Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124, 2014).
• NSW Law Reform Commission, Review of the Guardianship Act 1987 (NSWLRC Report 145, 2018).
• People with Disability Australia, Supported Decision Making: A Human Rights Approach (2020).
• Centre for Disability Law and Policy (NUI Galway), A Comparative Study of Supported Decision Making in Practice (2022).

This submission attached the following document: [Introduction to Supported Decision-Making in Legal Matters and People with Intellectual Disability](Introduction to Supported Decision-Making in Legal Matters and People with Intellectual Disability)