C H A P T E R O B J E C T I V E S
In this chapter, we aim to:
› consider how law attempts to promote the rights and interests of
vulnerable people and groups within society
› canvas the law relevant to specif c areas such as discrimination,
guardianship, elder abuse, disability and mental health
› examine connections between human rights law, domestic legal
reform and social change for members of minority groups and
other vulnerable adults in Australia
› address some of the major ways in which law attempts to
restrain, enable or protect people who are perceived to be
‘different’ or vulnerable in some way or at signif cant risk to
themselves or others.
Diversity and
11 Vulnerability
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Rights, needs and protections
Life itself is attended by risk and all members of society may be the cause or victim of
its consequential disadvantages and difculties to varying degrees. A trafc collision,
a theft, an unfair consumer transaction, or prejudice may affect anyone. Moreover,
some members of society—for example, children—are seen as being more at risk
of disadvantage than others. In all of these areas there is law designed to inhibit,
protect, punish, or otherwise constrain the behaviour of citizens in order to address
this. While some attention in this book has already been paid to children and
young people, vulnerable adults, inclusive of those who have just reached their legal
majority, and their rights have not hitherto fgured largely. This chapter focuses on
matters particularly relevant to these adults and the human services. Discrimination
and disability law is outlined along with guardianship and mental health law. Refugee
law and asylum seekers are briefly touched upon as are emerging areas of law relevant
to vulnerability and difference.
How does this seemingly strange collection of topics ft together? The unifying
theme is difference, disadvantage or vulnerability and the law’s approach to these
issues. The substantive law has many functions in this area—for instance, it may
endorse, or enable, protect; it may legalise behaviour or proscribe it.
It is arguable that work with people in situations of risk or vulnerability is a
staple of the human services. Workers may be disability advocates, case workers,
support workers, may be involved in policy development or rehabilitation
counselling. They may work in roles funded by the National Disability Insurance
Scheme (NDIS), or have clients who are participants. They may work with
young adults transitioning from care, many of whom face particular vulnerability
(Baidawi, Mendes & Snow 2014a, Murray and Goddard, 2014; Malvaso and
Delfabbro 2015). They may themselves experience some form of discrimination,
or encounter clients who have.
The following scenarios illustrate the parameters of the chapter and set the scene
for it.
• What is the legal position when a person in a psychotic state refuses medication,
has profound communication difculties, and does not eat, sleep, or attend to
personal hygiene?
• What happens when a state ward who has limited capacity to function independently and safely turns 18 years of age?
• Does the law have any way of responding to a confused and frightened older
man who seems to be fnancing an adult son’s gambling habit, and whose house
is being sold by that son?
• Are the resource problems faced by some people with disability living independently in the community anything to do with the law or simply questions of
individual choice?
• If an adult with brain damage and serious health problems is drinking excessively,
requiring regular hospitalisation and facing death, is there any role for the law?
What if, when drunk, that person threatens to harm others?
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• What about the person who loses a job or is refused a service because they are
pregnant, or Indigenous, or old, or Muslim, or male, or have a criminal record?
Does the law get involved in any way?
• When a family flees persecution in another country and comes to Australia, how
does the law respond? What if the family pays people smugglers to get here?
What if they come for a holiday and stay on?
Human service readers may perhaps begin to feel uneasy about these questions.
Words such as ‘self­determination’, ‘free choice’ and ‘paternalism’ may come to
mind. These responses may in turn be countered with concerns about protection
and human rights. These contradictory reactions to the questions are healthy and
predictable because the questions mask profound philosophical and jurisprudential
debates that are played out around the intent, shape, and amendment of the law at
any given time. Parliaments making law in these areas are constantly attempting to
balance competing interests as they both follow and promote social change. Human
rights and the laws that affect them are increasingly part of the discourse in areas
relating to vulnerability, especially of people with disability. One resultant effect is
that Commonwealth legislative involvement is on the rise in these areas, given that
compliance with obligations at international law involves federal responsibility and
jurisdiction. Commonwealth law has long been central in the overarching area of
discrimination; however it is increasingly seen now in disability, mental health and
guardianship. How should notions of universal human rights be weighed against
concepts such as incapacity, welfare, and need (Jones and Basser Marks (eds 2000)?
To what extent is law part of the problem or part of the solution in questions of
capacity, disability and vulnerability (McSherry 2015; Carney and Beaupert 2013;
Kirby 2013)? What does the word ‘disability’ mean or imply? What values and
models do and should underpin legal responses to disability (McSherry 2015)? How
are autonomy and paternalism to be balanced (Kirby 2013; Chesterman 2014)? How
can impairment and citizenship be integrated (Carney 2000)? What do competence
and capacity mean and how are they assessed? How is individual freedom to be
weighed against community protection? How are rights to treatment and to refuse
treatment to be reconciled? What are the rights of those who do not receive needed
services (Freckelton 2005; Scott 2013)? These and other questions lie behind the
relatively descriptive overview of law in this chapter.
Discrimination
Discrimination, in the sense of treating people differently on the grounds of their
attributes, is a familiar phenomenon to human service workers. Many people are
discriminated against, harassed, or vilifed for the very things that bring them into
the human service sphere—for example, physical or intellectual disability, mental
illness, sexual orientation, gender identity, or a criminal record. Others experience
similar reactions in relation to these and other characteristics that may be incidental
to or co­existent with their human service client status. While most agencies and
workers will at some time have to respond to discrimination or harassment against
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their clients or even themselves, others have a specifc mandate to campaign against
or work with discrimination issues. Yet others will work in agencies that consciously
discriminate positively—for example, in their staff selection processes or in their
target service population. These agencies may have exemptions under relevant Acts
that allow them, for instance, to appoint people with a particular racial background
or to deliver services only to women.
‘Discrimination’ can be something of a buzz word, but it has a precise legal
meaning. Not all actions or attitudes which may seem ‘discriminatory’ or morally
reprehensible will fall within the legal defnitions of discrimination. For that reason
all agencies and workers need to know the general architecture of discrimination law.
It both prohibits and permits discriminatory and afrmative actions. For example,
it allows afrmative action in some areas such as employment (for example, s 45
Disability Discrimination Act 1992 (Cth)) while at the same time broadly prohibiting
discrimination in relation to employment on a number of grounds. It is not unlawful
to discriminate against someone who has an infectious disease if public health is at
issue under s 48 of the Disability Discrimination Act 1992 (Cth)—but the same Act
makes it unlawful to discriminate against someone, in a range of situations, on the
grounds of their mental illness.
Exemptions can be sought to allow certain types of discriminatory behaviour.
Discrimination law is largely concerned with illegal discrimination and essentially
provides remedies or rights of redress, in civil law, against behaviours that are
specifed as unlawful (Ronalds and Raper 2012). Discrimination law does not so
much ‘address underlying structural problems’ as focus on the ‘aggrieved individual
complainant’ (Bailey and Devereux 1998, p. 292).
The law in this area is largely statutory as parliaments have responded to United
Nations declarations that recognise social justice principles and the detrimental
effects of discrimination. Australia ratifed the United Nations Convention on
the Rights of Persons with Disabilities (CRPD) in 2008 (Australian Government
Attorney­General’s Department, 2011b) and acceded to its Optional Protocol in
2009 (Council of Australian Governments (COAG) 2011). Law reform in relation
to disability services provision and to address discrimination and other injustices
against people with disabilities has followed (Gooding 2013; Carney and Beaupert
2013) and is discussed further below. Other examples of UN declarations of
relevance are the International Covenant on Civil and Political Rights (ICCPR),
Convention on the Elimination of all Forms of Racial Discrimination (CERD) and
the Convention on the Elimination of all Forms of Discrimination against Women
(CEDAW).
There are Commonwealth and state and territory discrimination laws. These laws
coexist and apply in each non­Commonwealth jurisdiction to the extent that they do
not conflict. In chronological order of enactment, the main Commonwealth Acts are:
• Racial Discrimination Act 1975 (Cth): makes direct and indirect discrimination
on the grounds of race, colour, and ethnic origin unlawful
• Sex Discrimination Act 1984 (Cth): covers discrimination on the grounds of sex,
family responsibilities, marital status, pregnancy, and sexual harassment
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• Australian Human Rights Commission Act 1986 (Cth): established the Australian
Human Rights Commission (AHRC) (formerly the Human Rights and Equal
opportunity Commission (HREOC))
• Disability Discrimination Act 1992 (Cth): covers discrimination on the grounds
of disability that did, does, or might exist or is imputed
• Age Discrimination Act 2004 (Cth): disallows age discrimination in work,
accommodation, education, and access to goods and services among other
areas. It also provides for positive discrimination where bona fde benefts for
a particular age group are involved, or measures to service age­related needs or
reduce disadvantage.
The major relevant state and territory legislation is shown in Table 11.1.
MYTHS AND REALITIES
Myth: Discrimination is always illegal.
Reality: Some discrimination is lawful. Discrimination may be lawful because an antidiscrimination law does not cover the area or because there are legal provisions to
allow for it. Positive discrimination may be entirely consistent with many of the social
justice provisions in professional codes of ethics. For instance the Australian Association
of Social Workers (AASW) Code of Ethics section 3.2, which emphasises, among other
things, the realisation of potential for those who are disadvantaged, oppressed or have
exceptional needs.
Not all different treatment is necessarily categorised as ‘discriminatory’ in law.
Some grounds of discrimination are covered in both state/territory and federal
TABLE 11.1 ANTI-DISCRIMINATION LEGISLATION

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legislation, and some are not. Different grounds may be covered under separate
Acts, as occurs with Commonwealth legislation, or under one compendium Act, as
with most states and territories. Defnitions may differ across the jurisdictions. For
example, the Disability Discrimination Act 1992 (Cth) applies an inclusive defnition
of ‘disability’. Discrimination may be permitted by one Act and qualifed by Acts in
other and unrelated areas (for example, eligibility provisions and so on) Regardless,
the general nature and intent of the laws remain similar.
Discrimination law specifes grounds on which discrimination is unlawful, and in
which areas of activity or which ‘ambit[s] of operation’ (Thornton 1990, p. 102). So,
for example, it may be unlawful to discriminate on the grounds of race in housing, on
age in education, or on marital status in employment. People who believe that they
or perhaps their associates have experienced discrimination may lodge a complaint.
Ronalds and Raper (2012, pp. 6–7) provide a checklist for thinking through the
legal dimensions of a discrimination issue, for which the burden of proof falls on the
complainant. Their main points are elaborated here.
• Is the particular ground of discrimination identifed as unlawful? For example,
superannuation, taxation, migration and citizenship and youth wages, among
other things, are not grounds protected by the Age Discrimination Act 2004
(Cth). Gender identity or history is specifed as a ground by the legislation in
ACT, NSW, Queensland, SA, Victoria, Tasmania and WA but not in NT. It is not
unlawful in any jurisdiction to discriminate on the grounds of low income (Slatter,
Adkins & Baulderstone 2005). In Tasmania and NT, discrimination on the
grounds of an ‘irrelevant criminal record’ or ‘irrelevant medical record’ is unlawful.
Victoria and WA do not have a broad ground relating to criminal convictions, but
Victoria’s Act covers discrimination on the ground of an ‘expunged homosexual
conviction’, and WA’s covers discrimination on the ground of ‘publication of
relevant details on the Fines Enforcement Registrar’s website’.
• Has there been an act of direct or indirect discrimination or harassment? Direct
discrimination is determined by comparing the treatment of the person who
alleges unfavourable treatment on the grounds of an attribute and treatment of
other people who do not have that attribute. For instance, if a person of colour
receives different treatment from that received by a white person, then direct
discrimination may be operating. When requirements that appear to provide
equal treatment in fact have a disproportionately unfair impact on some people,
indirect discrimination may be present. This is more complex than direct
discrimination and it exercises the courts. In bare outline, it disadvantages a
particular group whose members cannot or cannot easily comply, while those
outside that group can more easily comply. For example, while a requirement that
a job be flled by a full­time person only may appear to have neutral impact, it is
likely to affect women and men differently.
• Did the discrimination occur in an area provided for in the legislation? For
example, discrimination in employment is covered by the law in all jurisdictions,
and all but the Racial Discrimination Act 1975 (Cth) cover education providers
(Ronalds and Raper 2012). Across jurisdictions there are a range of other areas
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that are commonly covered—for example, advertisements and access to premises,
trade unions, clubs, goods and services.
• Does the action fall within one of the specifed exceptions? For example, under
the Age Discrimination Act 2004 (Cth) inherent job requirements may permit
positive discrimination on the grounds of older age.
A Victorian mental health program provider applied for an exemption under s 83 of the Equal
Opportunity Act 1995 (Vic) from various sections under the Act which proscribe discrimination
in employment. This was done to enable the provider to advertise for, and employ, a Director
of Consumer and Care Relations who had a lived experience of mental illness. The Victorian
Civil and Administrative Tribunal granted the application on the basis that it was within the
spirit of several of the exception provisions including to redress disadvantage of persons
with a particular attribute by enhancing service provision to the users of the program. It
was also consistent with one of the objects of the Act, namely the recognition of equality of
opportunity, by providing better opportunities to users of the program.
Southern Health (Anti-Discrimination Exemption) [2005] VCAT 2258
An aggrieved person may lodge a written complaint with the relevant body if they
believe they have been discriminated against directly or indirectly or harassed on
the basis of a ground, and in an area covered by relevant legislation. In the case
of Commonwealth legislation, the body is likely to be the AHRC. Under state and
territory legislation there are different bodies. For example, there is a New South
Wales Anti­Discrimination Board, in South Australia an Equal Opportunity
Commission, and in Tasmania an Anti­Discrimination Commission. These bodies
generally take a conciliatory approach to disputes but cases do go before the relevant
administrative review tribunals if they cannot be resolved earlier. Employers may be
found vicariously liable for the discriminatory, harassing, or vilifying actions of their
employees or agents unless they have taken all reasonable steps to ensure that this
behaviour does not occur, such as policies, procedures, and training.
There may be a choice of state/territory or Commonwealth jurisdiction due to
overlaps in grounds and areas of discrimination. If so, questions of access, cost,
range of eligible complainants, and remedy are worth consideration. Access to
justice is relevant here, as individuals are responsible to pursue any legal action,
requiring time, energy and risk of a costs order if unsuccessful. This is prohibitive for
some and can paradoxically add to the marginalisation experienced, particularly for
people with disability who are at times reliant on the organisations with which they
have a complaint (see Wallace 2014). Some complainants may also seek redress
through tort or employment law. For example, s 351 of the Fair Work Act 2009
(Cth) prohibits ‘adverse action’ against employees or prospective employees where
such action is due to ‘race, colour, sex, sexual orientation, age, physical or mental
disability, marital status, family or carer’s responsibilities, pregnancy, religion,
LAW IN
PRACTICE
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political opinion, national extraction or social origin’. Workers impacted by this sort
of discrimination may wish to seek redress under the general protections provisions
of the Fair Work Act.
Refl ect
The above is intended to highlight that not all discrimination is unlawful. Leaving aside the situation
of ‘positive discrimination’, consider which areas of discrimination you feel most strongly about,
and how you might best take action if those are not protected by law. How would you decide
whether to take action or not? What kinds of factors would assist you to determine whether or not
to take legal action (if that is an option)? Think back to the decision making imperatives discussed
in Chapter 3. Many commentators would agree that the current legal protections for those unfairly
discriminated against are unsatisfactory (see, for example, Ronalds and Raper 2012). How can
you act for maximum effect despite limitations in the protection offered by law?
There are some signs that a more generic and rights­orientated approach may
be evolving in the area of discrimination and harassment as newer human rights
legislation is proclaimed and applied in the courts. For example, the Victorian
Charter of Human Rights and Responsibilities 2006 has been applied in a number
of signif cant mental health cases (see Freckelton and McGregor 2010; Freckelton
2011; Bradf eld 2011) and in other areas of disability (for example, see French,
Chan & Carracher 2010).
The Victorian Civil and Administrative Tribunal appointed an administrator over the
estate of the appellant, a mentally ill man who had been involuntarily detained in
hospital for many years, in order to facilitate the sale of his home. The man was noncompliant with medication and would cease involvement with mental health services
if he returned to live at his home. The man appealed the appointment to the Supreme
Court of Victoria, arguing it was unlawful as it breached the Victorian Charter of Human
Rights and Responsibilities 2006. The Supreme Court set aside the Tribunal’s order
and dismissed the Hospital’s application for the appointment of an administrator. The
Court found the appointment engaged s 13(a) of the Charter—the right to ‘privacy
and home’, which was still held by the appellant despite not residing in his home
due to his disability. The Court interpreted the Guardianship and Administration Act
1986 in light of the Charter, but also the Convention on the Rights of Persons with
Disabilities and the International Covenant on Civil and Political Rights. It held the
Tribunal made an error of law in appointing the administrator because the appellant
was capable of managing his own financial affairs, and so the criteria for appointment
were not met. These requirements were interpreted strictly and in a way which was
least invasive of the appellant’s human rights, in accordance with the Charter and also
common law principles of interpretation. The appellant’s refusal to take medication or
accept mental health treatment was not relevant to his capacity to control his own
finances. The Court also held that even if the appellant had required an administrator
to be appointed, the ‘least restrictive approach’ required under the Guardianship and
LAW IN
PRACTICE
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Administration Act 1986 had not been taken. The Court held that the purpose of the
order was to prevent the appellant from returning to his home in the future and this
was an unlawful purpose.
PJB v Melbourne Health [2011] VSC 327(Patrick’s Case)
At the federal level, Australia took part in its frst Universal Periodic Review
by the United Nations Human Rights Council in 2011 (Australian Government
Attorney­General’s Department 2011c) and developed the National Human Rights
Action Plan as a response (Australian Government Attorney­General’s Department
2011d). The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) requires that
all Commonwealth legislation must be accompanied by a Statement of Compatibility,
which assesses whether or not the legislation is ‘compatible with the rights and freedoms
recognised in the seven core international human rights treaties which Australia has
ratifed’ (Australian Government Attorney­General’s Department 2011a). However,
sub­ss (4) and (5) of ss 8 and 9 of the Act provide that statements of compatibility are
not binding on any court or tribunal, and failure to comply with the requirement of a
Statement of Compatibility will not render the primary legislation invalid.
Despite these measures, Australia remained under international human rights
scrutiny and condemnation at its second Universal Periodic Review in November 2015.
While moves towards Constitutional recognition for Indigenous Australians and the
implementation of the NDIS were seen as important positives in Australia’s human
rights record since 2011, the UN High Commissioner for Human Rights Report on
Australia noted numerous breaches of international law. The Report noted a rise in
Islamophobia (2015, p.6). Criticism was levelled at Australia’s treatment of Indigenous
people and people with disability in relation to equality and non­discrimination, life,
liberty and security, the rule of law and justice, health and standard of living as well
as in areas uniquely affecting them (UNHCHR 2015, pp. 6–12). Condemnation was
also levelled at Australia’s record on asylum seekers and refugees (United Nations High
Commissioner for Human Rights (UNHCHR) 2015, pp. 12–14). These are discussed
further below. The AHRC Report noted that the majority of the recommendations
from Australia’s frst Universal Periodic Review had not been acted upon, with many
of these relating to areas covered by the UN High Commissioner for Human Rights
Report (AHRC 2015b). Australia’s Report emphasised progress made in areas such as
violence against women and the NDIS (Australian Government 2015).
Facilitating social well-being
through law
There are two main ways in which the law specifcally addresses disability. One
is through rights of redress and remedy under discrimination law. The other is
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through legislation aimed to enhance the wellbeing of people with disability, reduce
disadvantage, and provide specifc services.
The Commonwealth Disability Services Act 1986 (Cth) has been the major piece
of enabling or funding legislation in Australia. The principles and objectives of the
Act stress quality of life, choice, actualisation, and participation for disabled people,
and concomitant requirements on disability services. For example, services should
provide advocacy support, respect rights of privacy and confdentiality, involve
consumers in service planning, and so on. However, criticisms highlighted that the
Act is more service­ than consumer­focused, and that its defnition of disability is too
limited (Rose 1998). From these criticisms came recommendations that it should
be more rights based. Partly as a result, COAG launched the National Disability
Strategy 2010–2020, which explicitly recognised among others, a ‘human rights
imperative’ (COAG 2011). Central to this strategy is the development of the NDIS
which is being rolled out nationally over several years under the National Disability
Insurance Scheme Act 2013 (Cth).
The Commonwealth provides considerable funding for disability services
particularly under the NDIS, although much of the administration and most of the
service delivery is managed at state and territory level. The NDIS requires bilateral
funding agreements between individual states/territories and the Commonwealth,
and the practical implementation of individual funding packages to scheme
participants requires consideration of contextual limitations such as program
capacity and service options (Purcal, Fisher & Laragy 2014). In South Australia
concerns remain that funding provision is inadequate due to an underestimation of
the numbers of potential child participants (Vincent 2015) and there is uncertainty
in relation to the trials and rollouts of the Scheme (Haxton 2015). The ‘disability
requirement’ is narrower than that found in the CRPD. Further, it largely follows
the medical model of disability and therefore focuses on diagnoses and functional
impairment (Productivity Commission 2011). This requirement at once impacts the
question of eligibility for services and what supports will be considered (and thus
funded) as ‘necessary and reasonable’ (McIlwraith 2014).
Each state and territory enacted its own Disability Services Act in the early
1990s, largely to enable funding and service contracts. However, some of these
Acts have been amended to give greater practical application to human rights
objectives through minimum service standards, complaints mechanisms, and service
coordination. The Disability Services Act 2006 in both Queensland and Victoria
were products of signifcant reviews of this kind. These reforms are reflective of
greater recognition of the interrelationship between service provision and human
rights, agency and access for people with disability (Carney and Beaupert 2013;
Chesterman 2014; McSherry 2015).
More recently, reform has centred on the implementation of the NDIS, which
is aimed at providing personal support and specialist service needs for participants
through individualised funding. This contrasts with the previous model of block
funding (Productivity Commission 2011). Within the broader National Disability
Strategy, it, too, is seen as more consistent with the rights, dignity and agency of people
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with disability, and a more appropriate model given Australia’s responsibilities under
the CRPD (Hallahan 2015; Wallace 2014). While welcomed as an improvement,
cautions have sounded that the NDIS is only one part of a whole change process: ‘it
is likely to mean little without deep cultural, structural, economic, legal and attitudinal
change for people with disability in this country. We are at the end of the beginning,
not the beginning of the end’ (Wallace 2014, p. 40).
A focus on individualised funding also risks conflating service provision with
inclusion and wellbeing, and overemphasising the neediness of people with disability
at the expense of addressing other problem formulations ‘such as the profle of
impairment, community attitudes and discrimination’ the consideration of which may
allow for broader solutions to be explored (Hallahan 2015, p. 200). On a practical
level, provider oversight and quality assurance have been highlighted as signifcant
needs as the system rolls out (Windholz 2014). Some providers will be covered by
Commonwealth legislation, and others by that of states/territories, depending on the
nature of the goods or services delivered, and increased privatisation is anticipated.
Disability, access, and redressing vulnerability
People with disability potentially experience multilayered disadvantage and
vulnerability in society. For some, this is due to living with more than one characteristic
which exposes them to those risks. People with disability are represented across
the community. They are female, male, LBGQTI, Indigenous, young, elderly. They
may have mental illness (increasingly recognised as a form of disability itself), or
experience religious or racial discrimination. People with disability experience poverty
at around twice the OECD rate (Wallace 2014), and experience signifcantly higher
rates of family violence and other sexual and physical violence and institutional
abuse (Harpur and Douglas 2014; Senate Community Affairs Reference Committee
2015). Additionally, they are at once overrepresented in the criminal justice system
(Steele and Thomas 2014) and experience signifcant barriers in access to justice
(AHRC 2014; Victorian Law Reform Committee (2013)). Many of the law reform
measures outlined in this chapter are aimed at redressing this multifaceted level
of vulnerability as a human rights imperative. The 2015 Senate Committee report
into institutional abuse noted the need for all levels of solution to these kinds of
vulnerability to involve the participation of people with disability:
In fxing the disability service sector, and the legal frameworks that should protect all people
regardless of disability status, people with disability must be put at the centre. This entails
going beyond considering the rights of people with disability, it means putting people with
disability at the centre of decision making not just in their own lives, but also in amending
policies and laws (Senate Committee Affairs Reference Committee 2015a, p. xxvi).
This is itself reflective of the sociological discourse of participation and citizenship
which may have ‘greater transformative potential’ than models involving inter alia
less agency (Hallahan 2015 p. 202). There has also been suggestion that some
aspects of the NDIS may enable violence towards and abuse of young adults and
children with disability to be better addressed (Robinson 2015).
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Guardianship and administration
Guardianship and administration is not a discrete area of law. It operates within
the context of other disability rights and services legislation. As such, very many of
the issues which impact the development of law in this area are refl ective of those
discussed in relation to discrimination, mental health, disability and human rights.
Nonetheless, it is a specif c area of human service practice.
Several types of guardianship?
The word ‘guardian’ has several past or present legal meanings that can confuse
human service workers.
• The term may arise when parental rights and responsibilities concerning
children and young people up to 18 years are being referred to. This is correct
for parents who are the legal guardians of their children. But it is not appropriate
terminology under the current Family Law Act 1975 (Cth). As explained in
Chapter 9, the language of guardianship has been replaced in that Act by
‘parental responsibility’.
• The term may arise when minors are for some reason placed by law under the
control of the state or individuals other than their parents, as discussed in Chapter 9.
• The term may arise in relation to the rights of children in general and especially
the interests and well­being of those children who are vulnerable and or in care.
Several state jurisdictions have now legislated a body whose job it is to oversee
various aspects of these matters, For instance, there is a Public Guardian in
Queensland, a Children’s Guardian in NSW and a Guardian for Children and
Young People in SA.
• The term may arise correctly when the legal competence of an adult is being
addressed, and it is this topic which is covered here.
Impaired decision-making capacity in adults
It was recognised earlier in this chapter that the capacity of some adults to make
important personal decisions is impaired. They may not be able to consent to medical
treatment, manage their f nances, or live safely alone. They may be subject to abuse
and exploitation. Any number of long­ or short­term conditions may contribute to
these dif culties—for example, acquired or birth brain damage, dementia, a comatose
state, mental illness, and so on.
Refl ect
• A person with dementia may refuse to eat, wash, or use a toilet. They have no family
connections. Who could intervene here?
• A person with brain damage may refuse an essential medical procedure. Can anyone else
consent for them? Who? How should that be determined?
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• A person with an intellectual disability is subject to sexual advances. In what circumstances
should they be protected? Does it make a difference if those advances are welcomed?
• A homeless person with a mental illness is assaulted and does not want to make a police report.
Can anyone intervene here against the person’s will?
The people mentioned in these examples may or may not need assistance in dealing with
these situations. Everything will depend on their decision-making capacity, as opposed to the mere
existence of their disability.
MYTHS AND REALITIES
Myth: No one can or should make a decision for another adult.
Reality: Some adults have impaired decision-making capacity, yet decisions about all
sorts of matters affecting their lives need to be made. The law can appoint people to
make certain sorts of decisions for them. Professional codes of ethics commonly accommodate the reality of a person appointed by law to make decisions on behalf of another
and require that such appointed persons give informed consent for professional actions
(for example, see AASW Code of Ethics 5.2.3(c) and APS Code of Ethics A.3.6).
All states and territories have a legal regime for protecting the interests of people
whose decision­making capacity is impaired. In general, these regimes involve a suite
of legislation that aims to protect people’s f nances and chosen lifestyles, educate the
community, and appoint and monitor adult guardians who may be empowered to
make decisions on their behalf. Again there is increasing evidence of the emergence
of more explicit human rights thinking in relation to those who are vulnerable or
potentially discriminated against or exploited. For example, the Queensland Of ce of
the Public Advocate has adopted a ‘Systems Advocacy Context’ which recognises the
need to promote the human rights of those with impaired decision making capacity
(Queensland Government n.d.). There is also increasing emphasis on supported rather
than ‘substituted’ decision making, due in part to the focus on meeting international
obligations under the CRPD and the maximising of individual choice and autonomy
which this involves (see Carney and Beaupert 2013; Then 2013; Gooding 2013;
Chesterman 2013; McSherry 2015). This shift of focus towards supported decision
making necessarily involves reform of guardianship legislation which has traditionally
been structured around substitute decision making (Chesterman 2014; Moore 2013,
McSherry 2015). Part 7 of the new Powers of Attorney Act 2014 (Vic) is one example.
It is one consequence of the Australian Law Reform Commission’s (ALRC’s) 2013–
14 comprehensive review of law relating to the legal capacity of adults with disabilities
involving intellectual or mental impairment (ALRC 2014). The Report recommended
the adoption of National Decision Making Principles:
to ensure that:
• supported decision­making is encouraged;
• representative decision­makers are appointed only as a last resort; and
• the will, preferences and rights of persons direct decisions that aff ect their lives
(ALRC 2014, p. 19).
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An emphasis on the realisation of the human right of choice brings with it
issues of risk management and protections for people with intellectual disabilities
and mental illness, as supported decision making provides for the individual to
make their own choices to a greater extent than substitute decision making. This is
particularly so given that making choices includes making a choice to accept the risk
of unsatisfactory outcomes (Chesterman 2013). A nominee may still be appointed
to make decisions on behalf of an individual, but the circumstances in which that
would occur are generally more limited than in substituted decision making. The
NDIS incorporates supported decision making and the maximisation of a person
with disability exercising choice and control within the s 4 General Principles and
also s 5, which sets out further general principles for people who act on behalf of a
person with disability. Supported decision making is additionally consistent with its
emphasis on consumer choice rather than block funding (see generally Chesterton
2013). The Charter of Human Rights and Responsibilities 2006 (Vic) applies to
administrative decisions of the Victorian Civil and Administrative Tribunal including
giving consent to ‘special procedures’ such as sterilisation under s 42E of the
Guardianship and Administration Act 1986 (Vic).
The Tribunal considered that a tubal ligation proposed for a woman with an intellectual
disability ‘could not be justified in terms of the Charter’ [para. 54] and was not in her
‘best interests’ under s 42E. The woman’s wishes were a key factor in the decision
notwithstanding her lack of capacity, under both the Charter and the Guardianship and
Administration Act 1986. The Tribunal also held that the procedure was not the least
invasive course of treatment available.
ZEH (Guardianship) [2015] VCAT 2051
McSherry (2015) notes that the emphasis on supported decision making in
both the CRPD and guardianship law brings into sharp relief the question of the
precise legal meaning of ‘supported’ and ‘support’ in the CRPD. These concepts are
given broad meaning within the CRPD, but seem to have been translated into a
focus on supported decision making only (2015, p. 740). She queries whether a
wider understanding of what it means to support a person’s legal capacity may better
enable the requirements of the CRPD to be given effect to. Legal regimes vary a
little between jurisdictions—for example, their coverage may start at 16 years (as in
New South Wales) or 18 years (as in the Northern Territory), and their terminology
differs, but they have similar objectives and structures (for example, see Kerridge,
Lowe & Stewart 2013). In general they provide for:
• enduring guardians to be selected by a person before they lose capacity
• fnancial and legal affairs (frequently called administration), lifestyle
(guardianship), and consent to medical treatment decisions to be considered
separately, because people often have partial decision­making capacity
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• a state body or tribunal to hear guardianship and administration applications
and appoint or vary guardians or administrators (for example, the Guardianship
and Administration Board in Tasmania, and the VCAT Administration List in
Victoria)
• a state body to advocate for those with decision­making impairment, investigate
orders and applications, and educate the community (for example, the Public
Advocate in Western Australia, Queensland, and the Australian Capital Territory)
• a state body to administer peoples’ fnancial and legal affairs if there are no
appropriate private alternatives (for example, the NSW Trustee and Guardian
and the Public Trustee in South Australia)
• private guardians (for example, family members) to be appointed by the
guardianship body if appropriate
• a guardian of last resort—that is, a state ofcer or body, to be appointed by the
guardianship body, if there are no private alternatives (for example, the Public
Guardian in the Northern Territory Tasmania, Adult Guardian in Queensland,
and Public Advocate in Western Australia).
• In terms of declared principles, these legal regimes also generally attempt to
ensure that impaired decision­making capacity rather than impairment per se
is the only justifcation for any form of substitute or supported decision making.
This is also consistent with the National Decision­Making Principles (ALRC
2014, pp. 63–89).
• The rights and integrity of the individual are to be paramount.
• The least restrictive and intrusive arrangements are to prevail.
• Decisions made should be consistent with the person’s own wishes if they were
not incapacitated.
• The wishes of the person are to be sought if possible.
• Informal arrangements are to prevail if at all possible.
Relevant legislation in different jurisdictions is shown in Table 11.2.
TABLE 11.2 ADULT GUARDIANSHIP LEGISLATION

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A man and his mother lodged a complaint with the Equal Opportunity Tribunal against
a home loan provider which had refused a second interview to assess their eligibility
for a home loan on the basis of the man’s intellectual disability. The Tribunal upheld
the complaint, finding that the provider discriminated against the man based on his
disability by assuming that he was not capable of understanding the terms of their
home loan contract. The Tribunal also found the man’s mother, who lived with him as his
carer, had been discriminated against by being treated unfavourably due to her status as
a relative of a person with the attribute (in this case, an intellectual disability). The man
required assistance with some aspects of his daily life but had the capacity to manage
his own finances. Medical information had been provided to the home loan provider,
which then provided the loan to the complainants after a second application was made,
but the man may have been able to obtain a higher level of first home owner’s grant
had the earlier home loan application been granted. On that basis, the Tribunal awarded
the man compensation towards the difference between those two amounts, along with
a payment for humiliation and hurt feelings for both complainants.
Jackson v Homestart Finance [2013] SAEOT13
Roles of human service workers in adult
guardianship and administration
Human service workers enter the adult guardianship and administration arena in
different ways. Some of them sit on the bodies or tribunals that make the orders,
or work in the related public advocacy ofces. In the latter capacity, they might be
engaged in public education, investigating applications, orders, and complaints, or
actually carrying out some of the delegated functions of the guardian of last resort.
More commonly they work with individuals and families where guardianship or
administration orders exist or are sought, and in these capacities they are generally
precluded from flling the role of legal guardian because they would have a conflict of
interest. These workers may support family members seeking orders or advice from
the relevant tribunals (Moore 2013), or themselves make applications for orders for
individual clients. This latter job can be particularly taxing for them. It is usually prompted
by a complex set of circumstances in which ethical issues around self­determination
are fnely balanced against urgent practical or risk considerations. In addition it puts
the worker and their report before a quasi­legal body with all the attendant tensions
mentioned in Chapter 6. The task will require the worker to present and argue an
evidence­based case, consistent with the principles and objects of the relevant Act.
Human service workers also have a role in helping justice administration personnel,
such as police and legal practitioners, recognise vulnerability and exploitation in
situations where all these workers may be involved. Not many lawyers specialise
in the rights of older people or have extensive knowledge of intellectual and other
disabilities that are relevant to mental capacity (for example, see McGillivray and
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Waterman 2003). They, like many justice personnel, often need to be educated and
advised about the physical, mental, and life problems experienced by people with
impaired decision­making capacity. With this sort of support from human service
workers, their own legal work with such people is likely to be more informed and
effective.
Mental illness
Mental health: In crisis and critical
In any 12­month period, mental illness affects approximately 20 per cent of adults
in Australia (National Mental Health Commission 2014a). Many more people,
inclusive of children and young people will be collaterally affected by mental illness
in their family. The mental health system in Australia has long been described as in
crisis (Mental Health Council of Australia 2006; Senate Select Committee on Mental
Health 2006). ‘[H]igh levels of need’ were identifed in the 2010 National Mental
Health Report (Department of Health and Ageing 2010, p. 3) and there is increased
activity at policy and service level in relation to mental health in recent years. What
was once entirely the purview of the states and territories now has a more signifcant
federal profle and the Commonwealth has taken a leadership role in relation to mental
health through COAG. Through joint government policy making, National Mental
Health Plans and funding programs, the Commonwealth is attempting to influence
and monitor state and territory compliance with UN principles on mental health.
The Commonwealth Standing Committee on Education and Employment’s ‘Inquiry
into Mental Health and Workforce Participation’ in 2011–12 noted continuing
‘entrenched stigma’ surrounding the employment of people with mental illness and
its key recommendation was for the Commonwealth Government to provide an
education campaign to address discrimination and stigma regarding mental illness
(Commonwealth of Australia 2012, p. 239). Ironically the Commonwealth’s own
record in relation to mental health services in immigration detention centres under its
jurisdiction is poor (Freckelton 2005; Coffey 2006; UNHCHR 2015). The National
Mental Health Commission Report into mental health service provision across
Australia made 25 recommendations for wide­ranging reform of Australia’s mental
health system (National Mental Health Commission 2014b). These were reflective of
the ‘person centred’ approach seen in recent human rights and domestic law reforms,
and included recommendations to implement changes in architecture and funding
structures that place ‘upstream services and supports’ (National Mental Health
Commission 2014b, p. 5). The Federal Government responded positively to all 25
recommendations relating to 9 Strategic Directions and committed to implementing
immediate reform and restructure (Department of Health 2015).
Many, if not most, areas of human service work will involve clients and/or situations
where mental health is either the predominant or a confounding issue. Large numbers
of people with mental illness have shifted into the criminal justice system through
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lack of adequate community services post­deinstitutionalisation (see, for example,
Mullens 2001; Sharples et al. 2003; Spivakovsky 2014). Nowadays, most aspects of
justice administration will have mental health dimensions, and criminal law is being
amended to accommodate the numbers of people charged with offences who have a
mental illness, as discussed in Chapter 8. Similarly, homelessness, substance abuse,
youth and aged care, and immigration—to name just a few human service areas of
work—are inextricably linked with mental illness.
Mental health and law
This topic overlaps with guardianship in that individuals whose decision­making
capacity is impaired by mental illness may be subject to guardianship applications
or orders. Like guardianship and administration, mental health law is still largely
primarily a matter of state or territory legislation.
MYTHS AND REALITIES
Myth: People can never be locked up against their will unless they have committed an
offence.
Reality: The law does allow in certain circumstances for detention of people against their
will if their mental illness results in serious risk to themselves or others. Professional codes
of ethics often acknowledge that some people have limited capacity to comprehend or
grant informed consent for themselves. In such cases they should still be provided with
as much information and choice as is possible given their level of understanding (for
example, see AASW Code of Ethics 5.2.3). This position is consistent with a supported
decision-making framework. However, Australia has attracted criticism from the UN
for its ‘unwarranted use of prisons for the management of unconvicted persons with
disabilities’ and indefnite detention of Indigenous people with intellectual disability
(UNHCHR 2015, p. 7).
Mental health and the law intersect in a number of arenas. For example, guardianship
has just been mentioned, and criminal law provisions were outlined in Chapter 8.
The most signifcant piece of legislation for most people with a mental illness, and
mental health workers, is still the relevant state or territory mental health Act. These
Acts are shown in Table 11.3.
As with adult guardianship legislation, these Acts incorporate basic human rights
principles into their objects. For example, they emphasise best possible care in the
least restrictive circumstances and respect for individuals’ rights, dignity, and selfrespect. But, as has already been seen, these objects may be inadequately realised in
practice, more often through inadequate or absent care than through active breaches
of patients’ civil liberties. In addition, the operationalisation of these objects involves
very difcult and often contested decisions that must balance competing individual
and community interests (Peay 2003), and the scope of the duty of care owed to
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patients in need of involuntary treatment raises complex issues of practice (Scott
2013). These Acts are commonly amended in response to signifcant and high
profle incidents in which those with mental illness are harmed or harm others. This
area of law provides a particularly good illustration of the effect of the social and
political context on legislative and funding activity.
There are jurisdictional variations in mental health legal regimes (for example,
see Carney, Tait & Beaupert 2008; Kerridge, Lowe & Stewart 2013). There are
differences in how mental health is defned, which treatments are prohibited,
the conditions under which different treatments must be approved, the right to
refuse treatment, and the regimes for voluntary and involuntary treatment and
detention.
Involuntary detention
Detention is unlikely to be a consideration for most people with mental illness.
Involuntary detention is only based on imminent risk or danger to self or others and
not on grounds of mental illness per se. Initial involuntary detention must be brief,
and both detention and treatment decisions must be founded on comprehensive
assessments, preferably by more than one person. Criteria for involuntary detention
vary across jurisdictions. Yet again, there are signs of the use of human­rights­based
legal actions to challenge the restrictive application of these detention provisions in
Victoria at least (for example, see Freckelton 2011). The increasing incorporation
of rights into guardianship decision making generally is also impacting the area of
mental health decision making (Carney and Beaupert 2013). However, human rights
of freedom of movement and choice relating to medical care are balanced against the
need to ensure the safety of individuals and others.
TABLE 11.3 MENTAL HEALTH LEGISLATION

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The applicant, a man with a diagnosis of chronic paranoid schizophrenia was the
subject of an involuntary treatment order made by his treating psychiatrist under
s 12 of the Mental Health Act 1986 (Vic). He challenged it at the Mental Health Review
Board, which upheld the treatment order. He then appealed that decision, on the
basis that he did not have a mental illness and his detention was therefore unlawful.
The Victorian Civil and Administrative Tribunal (VCAT) affirmed the Board’s decision to
uphold the order. This was on the basis that the man’s lack of insight into his mental
health meant that he was completely opposed to voluntary treatment, and would
therefore not consent to treatment and not receive treatment without the order being
made. Without his medication he was likely to become almost immediately violent
towards himself and others. Finally, given his non-compliance he would be unable
to receive treatment in ‘circumstances that were less restrictive of his freedom of
decision or action’. Therefore all criteria for making the order were satisfied under s 8
of the Act. For that reason the Tribunal held that the applicant’s detention under the
order was ‘reasonable and justified’ under s 7.2 of the Charter of Human Rights and
Responsibilities 2006 (Vic).
MH1 v Mental Health Review Board (Human Rights) [2013] VCAT 466
Compulsory treatment
In all Australian jurisdictions there is provision for involuntary treatment of people
with a mental illness. This treatment, assessed to be in the person’s best interests, even
if against their wishes, may involve psychotropic drugs, electroconvulsive therapy and
very occasionally psychosurgery in those jurisdictions that still permit it (for example,
Qld, SA, WA). The treatment may take place in psychiatric facilities or in the community.
It may or may not go hand in hand with involuntary detention. There is variation
between jurisdictions about the role of authorised psychiatrists and/or tribunals in
decision making about these treatments. For example, in Qld and WA, psychosurgery
requires the consent of the patient along with approval from the Mental Health
Tribunal. In SA, neurosurgery requires approval from two psychiatrists, and consent
of either the patient, or the Civil and Administrative Tribunal if the patient is not able
to give consent. Not surprisingly, given the signifcance of imposed treatment from
a human rights perspective, there is critique about the grounds for deciding on the
necessity of treatment and its allowable duration (for example, see Ryan 2010; Ryan,
Callaghan & Large 2010; Brophy and McDermott 2013). The place of compulsory
treatment within a rights based system of mental health has also been questioned (see
Callaghan and Ryan 2014). Social workers and social work theory are seen as having
much to offer in relation to engaging with clients undergoing involuntary treatment,
and further developing treatment frameworks (Brophy, Campbell & Healy 2003;
Brophy and McDermott 2013). This remains so in relation to supported decision
making, as such a model can be developed and implemented as a matter of practice or
policy by service providers (Carney 2013; Gooding 2013).
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A multidisciplinary body or tribunal with determinative
and review powers
There is a legislatively mandated mental health decision making and review body in
each of the states and territories. These bodies generally have legal, psychiatric and
community members or other members, many of whom will be psychologists, social
workers or others with experience in mental health services. Again the powers, roles
and functions of these bodies vary across jurisdictions (Carney and Law and Justice
Foundation of NSW 2011; Carney, Tait & Beaupert 2008). In many jurisdictions,
such as Tasmania, WA, NT and NSW, they can make orders about treatment. Victoria
aside, many of them can overrule a doctor’s decision to use electroconvulsive therapy
and can consider decisions about voluntary patients. None can make orders about
restraint or seclusion, but the Tasmanian and Western Australian bodies do have a
monitoring or reporting role in this area. They conduct initial and periodic reviews
at different intervals. They have varying approaches to patient access to documents,
representation, second opinions, attendance at hearings, and rights of access to judicial
review. There is some dispute about the extent to which their role or authority allows
them to address resource issues, approach to service delivery, and quality in mental
health as adjuncts to their primary roles (Carney and Law and Justice Foundation of
NSW 2011). In this respect, much may depend on the broad thinking and influence
of individual tribunal members, some of whom could be human service workers.
Roles of human service workers in mental health
Human service workers’ activity in relation to mental health law mirrors that of
guardianship law. For instance, they may sit as members on mental health tribunals;
engage in advocacy for people with mental illness; take on project or policy roles in
both mental illness and mental health; and work with clients and families, where orders
are being sought or in place (Moore 2013). In mental health direct service work, they
are likely to experience all of the tensions of guardianship work such as balancing
the rights of clients with those of their families and carers (Lesser 2004) and of the
community (Brophy, Campbell & Healy 2003; Scott 2013). They have much to offer
in traversing areas of law and practice which involve engaging with clients and families
experiencing vulnerability, exclusion or struggling to engage in their communities
(Herz 2015). The focus on danger to self and others inherent in decisions around
compulsory treatment and detention risks conflating legal categories with medical
ones, and human service workers are well placed to assist lawyers in navigating through
applications in which these concerns overlap (Spivakovsky 2014). Case managers may
also be able to provide information directly to a Tribunal at a hearing.
Refugees and asylum seekers
Political and human rights context
The law relating to refugees and asylum seekers is currently one of the most
contentious and highly politicised areas of law in Australia and internationally.
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It involves complex issues of administrative, constitutional and international law,
particularly the place of the latter in Australia’s domestic law (see Vrachnas et al.
2011; Saul 2013). Immigration law­making rests with the Commonwealth and
the central piece of legislation in this area is the Migration Act 1958 (Cth) and its
regulations.
Many changes to Australia’s policies and legislation in this area have occurred
in the last fve years but the law has been constantly changing since the September
11 attacks in 2001. More recent and contentious changes have occurred with the
emergence of Daesh (ISIL/ISIS), as issues in this area are reframed around notions
of border protection, terrorism and national interest (Vogl 2015). Many of the
changes and policies have attracted signifcant national and international criticism,
notably the plight of children in detention (AHRC 2015b), off shore processing of
some asylum seekers (see Dechent 2014; Saul 2013; AHRC 2015a; Schloenhardt
and Craig 2015) and the refusal to permit asylum seekers arriving by boat from
applying for visas, for which Australia was condemned in November 2015 at the
second cycle of Universal Periodic Review (UNHCHR 2015, p.12). A litany of
human rights concerns is evident from that review. Conditions in off shore detention
are considered by the Special Rapporteur to breach the Convention against Torture
(which Australia has not yet ratifed), mandatory detention and indefnite detention
of children has again been criticised, and Australia’s more recent policy of turning
back the boats was condemned:
Even recognized refugees in urgent need of protection were not permitted to enter
Australia, which had set up relocation arrangements with countries that might be
ill­prepared to offer those refugees any durable solution. Such policies should not be
considered a model by any country (UNHCHR 2015, p 12).
A full discussion of these changes and policies is outside the scope of this
book. One consequence of the breadth and speed of the changes, as well as
the political sentiments that accompany them, is the tendency to view certain
concepts as associated or interchangeable. Asylum seekers have been portrayed
at times in a negative, inaccurate, and stereotypical light in the media, and
in the political sphere, in which Australia has again been ‘urged … to break
the ingrained political habit of demonizing asylum seekers’ (UNHCHR 2015,
p. 13). This portrayal risks obscuring the domestic and international legal issues
involved in the processing and management of asylum seekers and refugees. At
worst, this in turn risks Australia’s legal obligations going unmet and refugees
being refouled; that is, returned to a place of persecution (Dechent 2014;
UNHCHR 2015).
Community perceptions of asylum seekers in Australia are fraught with
misinformation and half­truths, especially as terms such as ‘unauthorised’ and
‘unlawful’ have very specifc legal meanings under the relevant legislation. Many
people see the terms ‘boat people’ or ‘asylum seekers’ as synonymous with the term
‘illegal immigrants’. Some people equate them with ‘terrorists’. Others see the term
‘asylum seekers’ as synonymous with the term ‘refugees’. None of these associations
is correct, as these terms have precise and important legal defnitions. Asylum seekers
may or may not be aware of their legal rights and the legal obligations Australia has
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towards them. Many refugees face ongoing social and legal challenges, for example
discrimination or vilifcation, subsequent to being granted visas.
Domestic law relating to asylum seekers
The practical operation of law regarding asylum seekers is a complex web of migration,
administrative, international, and constitutional law, which constrains the functions
and options of decision makers and courts (see, generally, Saul 2012; Vrachnas et al.
2011; Saul 2013; Chia 2015). The types and criteria for visas are changing rapidly
and becoming more and more restrictive. Advice on visas needs to be sought from
lawyers and migration agents with up to date knowledge in the area. The architecture
of the law in this area has a signifcant flow­on effect to the resolution of any given
case and the power of courts to resolve disputes. While some cases demonstrate a
tendency on the part of the courts to have ‘faced down attempts to restrict judicial
oversight of immigration decision making’ (Crock and Ghezelbash 2011, p. 101),
legislative amendments have restricted the jurisdiction of courts to review some
decisions (Chia 2015). Decisions made regarding a person’s refugee status can be
reviewed by the Migration and Refugee Division of the Administrative Appeals
Tribunal (AAT), and depending on the circumstances and grounds, AAT decisions
may be reviewed by the Federal Circuit Court, Federal Court, or the High Court on
questions of law. These reviews and the decisions that found them are governed by
the principles of administrative law discussed in Chapter 3. In most administrative
reviews the role of the court is simply to ascertain whether or not procedural
fairness was followed in the decision making process, rather than substituting its
own determination as to the status of an applicant (see Churches 2005). This can
cause difculty when there is a paucity of documentary evidence to support what
might be genuine claims of persecution (McDonald 2014). The High Court can
also determine any issues of constitutional validity, and this is one of few options for
some applicants (Chia 2015). Challenges to decisions regarding a person’s refugee
status, and to aspects of the decision making process are common, due in part to the
signifcant efforts of lawyers and human service workers (see Susskind 2011; Caton
and Francis 2011).
Who are asylum seekers?
An ‘asylum seeker’ is someone claiming refugee status under the International
Convention Relating to the Status of Refugees 1951 (amended by the 1967 Protocol
Relating to the Status of Refugees). Australia is a party to the Refugee Convention, and
thus has obligations under it. The precise defnition of a refugee in Article 1 of the
Refugee Convention is a person who has a: ‘well­founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particular social group or political
opinion’ and who has fled their country of origin for that reason. ‘It is a status that
arises independently of any recognition of that status… recognition of that status serves
a declaratory and not a constitutive purpose’ (Emerton and O’Sullivan 2015, fn. 1).
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The term ‘asylum seeker’ covers applicants who seek asylum from persecution but
have not yet been recognised as refugees under the Refugee Convention (see Emerton
and O’Sullivan 2015, fn. 1). Whatever their method of arrival, the right of a non­citizen
to apply for a protection visa as a refugee under the Refugee Convention is a statutory
right contained in the Migration Act 1958 (Cth), and the Australian Government
has consistently maintained that it is meeting its international obligations under the
Refugee Convention (Australian Government 2015, pp.19–20). Under the Refugee
Convention, it is not legally possible to determine the refugee status of any asylum
seeker arbitrarily. Their applications must be processed, under Articles 31–33. This
is one reason for the UN condemnation of the ‘stop the boats’ policy (UNHCHR
2015). The other is that the processing of ‘Unauthorised Maritime Arrivals’ offshore
risks other breaches of international law (UNHCHR 2015; Reilly and LaForgia 2013;
Reilly, Appleby & LaForgia 2014; Emerton and O’Sullivan 2015).
Human service work with asylum seekers
This area, as indicated in Chapter 2, is one in which human service workers and
lawyers often work closely. Many members of both domains provide signifcant
pro bono services to asylum seekers in detention. Some human service workers are
employed by the Department of Immigration and Border Protection in various roles
including processing applications and assessing individuals for various classes of
visas. This work involves traversing a difcult landscape of competing ethical and
policy issues, with decisions often made on a discretionary basis (Reilly and LaForgia
2013) involving applicants who have difculty in providing ‘plausible’ evidence of
their circumstances and fears (McDonald 2014; O’Sullivan 2014). Others work
with refugees who have been granted some form of visa in resettlement and support
programs. Yet others work in detention centres. The emotive nature of these issues at
a policy and local level heightens the need for workers to have a clear focus for their
work and an equally clear appreciation of their mandate and its constraints (see, for
example, Westoby and Ingamells 2010).
Ethical dilemmas are an ever present reality in human service work, as seen
throughout this book. At the fore of human service work with asylum seekers and
refugees are legislative measures to restrict the public dissemination of information
as to conditions in detention centres in particular. The Australian Border Force Act
2015 (Cth) s 42 prohibits an ‘entrusted person’ (including health and human service
workers) from disclosing information obtained while engaged in paid work with
asylum seekers. The Act itself is highly controversial, not least due to its emphasis
on border protection, and s 42 has raised signifcant concern and defance amongst
the medical profession and other workers engaged with asylum seekers (see Hoang
2015; Newhouse and Barnes 2015) as mentioned in Chapter 5. Section 42(2)(c)
provides that disclosure of information is permitted where: ‘the making of the record
or disclosure is required or authorised by or under a law of the Commonwealth, a
State or a Territory’. This would ostensibly mean that workers are not prohibited by
s 42 from making mandatory notifcations of abuse or neglect.
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Emerging matters of vulnerability,
difference and the law
As parliaments and courts respond to changing social circumstances and concerns,
new law designed to protect, enable, and sometimes contain evolves. As demonstrated
by the recent legal developments outlined in this chapter, protective and enabling law
is dynamic as parliaments vary, extend, and restrict the range of grounds, areas of
activity, and remedies covered in accordance with changes in society, in community
attitudes and in policy. There was no specifc anti­discrimination legislation in
Australia before 1984; now there is legislation in every jurisdiction and the range
of grounds and areas covered in the laws have expanded over time. Generic human
rights legislation is appearing, as discussed above and in Chapter 3.
In other areas, new laws which balance rights, freedoms and protections are
emerging or being considered. The Commonwealth Government introduced a series
of legislative reforms in 2009 designed to address discrimination against persons
in same sex relationships in areas inclusive of tax, superannuation, veterans’ affairs,
aged care and child care (Australian Government Attorney­General’s Department
2011e). There is an on­going debate about the desirability or otherwise of laws that
mandate reporting of elder abuse (for example, see Lacey 2014) beyond a current
limited requirement under the Aged Care Act 1997 (Cth). There is debate about
the desirability of laws to protect gamblers from themselves, particularly with the
rise of online gambling opportunities. As Royal Commissions at federal and state
level report on failures in care systems for children and young people, there will be
ongoing debates about how to balance the rights of applicants against protections
for children, in the legislative regimes addressing screening requirements for those
who wish to work with children. There is debate about if and how young people
transitioning out of state care with mental illness or disability should be more
deliberately caught by adult protective and treatment law (for example, see Broadley
2015, Baidawi, Mendes & Snow 2014b).These are just a few examples of law that
changes to reflect changing social conditions. As many of these recent and potential
changes to the law concern social issues central to human service felds of practice,
human service agencies and workers can expect to experience a fluid legal context
for their work.
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Key points for practice
• Whenever an issue of competence, difference, or disability arises in Australia,
there is likely to be at least one applicable legal regime. All human service workers
require some sense of the objects and structure of these regimes.
• The law is clear that disability or limited capacity per se do not remove a person’s
rights to make decisions and to be treated with dignity and respect.
• There are both federal and state or territory legal regimes in Australia for dealing
with discrimination and harassment. Profcient human service workers are familiar
with the shape of both regimes because they may offer different possibilities in the
face of different circumstances.
• In all Australian state or territory jurisdictions, there is a legal regime for managing
supported adult decision making. The regime generally has an infrastructure in
which there are resources and bodies to assist workers dealing with questions of
adult competence to make decisions.
• In all Australian state or territory jurisdictions, there is a legal regime that provides
for involuntary detention and treatment for mental illness. All human service workers
need some basic familiarity with the mental health legislation in their jurisdiction
because whether or not they are employed in the mental health area, they will come
across people with mental illness in their work.
• If working in or speaking about the area, human service workers have a particular
responsibility to ensure they are accurately informed about the law and relevant
issues surrounding refugees and asylum seekers.
• There have been criticisms of the effectiveness of many of the regimes covered in this
chapter. However, most of the main pieces of legislation do articulate fundamental
human rights principles in their objects. Human service workers would do well
to read these objects occasionally. Not only does this process expand their legal
literacy given the increasing interrelationship between human rights and domestic
law, but it can also provide an ideological booster.
• When dealing with questions of competence, difference, or disability, adept
human service workers engage with and utilise the relevant legal regimes in a
discriminating and strategic way to achieve their goals. They may join forces
with the law on occasions when a powerful formal approach is appropriate. At
other times, they may determine that less formal interventions may produce better
outcomes.
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Some useful websites
Mental health
https://mhaustralia.org
www.communitylaw.org.au/mhlc/
cb_pages/the_legal_centre.php
www.health.nt.gov.au/Mental_Health/
Information_for_Consumers_and_Carer
s/#MentalHealthReviewTribunal
www.mentalhealthcommission.gov.au
www.mentalhealthtribunal.tas.gov.au
www.mentalhealthvic.org.au
www.mhima.org.au
www.mhlcwa.org.au
www.mhrt.nsw.gov.au/the-tribunal
www.mhrt.qld.gov.au
www.mht.vic.gov.au
www.mifa.org.au
www.sacat.sa.gov.au
Guardianship
www.health.nt.gov.au/Aged_and_
Disability/Adult_Guardianship
www.justice.qld.gov.au/public-advocate
www.opa.sa.gov.au
www.publicadvocate.act.gov.au
www.publicadvocate.vic.gov.au
www.publicadvocate.wa.gov.au
www.publicguardian.justice.nsw.gov.au
www.publicguardian.tas.gov.au
www.sacat.sa.gov.au
www.vcat.vic.gov.au/adv/disputes/
guardians-administrators
Discrimination, disability, and social justice
http://equalopportunity.tas.gov.au/home

Home

www.adc.nt.gov.au
www.adcq.qld.gov.au
www.ag.gov.au/RightsAndProtections/
HumanRights/Pages/default.aspx
www.antidiscrimination.justice.nsw.gov.au
www.eoc.sa.gov.au
www.eoc.wa.gov.au
www.humanrights.gov.au/human-rightshomepage
www.humanrightscommission.vic.
gov.au
Asylum seekers and refugees
www.aat.gov.au
www.ajustaustralia.com
www.border.gov.au/Trav/Refu
www.humanrights.gov.au/our-work/
asylum-seekers-and-refugees
www.iarc.asn.au
www.refugeecouncil.org.au
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Australian Association of Social Workers
(AASW) (2010). ‘Code of Ethics.’
Retrieved 23 November 2014, from
www.aasw.asn.au/document/item/1201
Australian Government (2015). National
Report of Australia: Universal Periodic
Review Second Cycle—2015.
Retrieved 3 December 2015,
from http://daccess­dds­ny.un.org/
doc/UNDOC/GEN/G15/175/09/
PDF/G1517509.pdf?
OpenElement
Australian Government Attorney­General’s
Department (2011a). Australia’s
Human Rights Framework—
Parliamentary Scrutiny. Retrieved 6
January 2012, from www.ag.gov.au/
www/agd/agd.nsf/Page/Human_rights_
and_anti­discriminationHuman_
Rights_Scrutiny
Australian Government Attorney­General’s
Department (2011b). Human Rights and
Anti- Discrimination: United Nations
Convention on the Rights of Persons with
Disabilities. Retrieved 28 December
2011, from www.ag.gov.au/
Australian Government Attorney­General’s
Department (2011c). Human Rights
and Anti-Discrimination: Australia’s
Universal Periodic Review. Retrieved 28
December 2011, from www.ag.gov.au/
www/agd/agd.nsf/Page/Human_rights_
and_anti­discriminationInternational_
Human_Rights
Australian Government Attorney­General’s
Department (2011d). Human Rights
and Anti-Discrimination: Australia’s
Human Rights Framework. Retrieved
28 December 2011, from www.
ag.gov.au/www/agd/agd.nsf/Page/
Humanrightsandanti­discrimination_
AustraliasHumanRightsFramework_
ConsolidationofCommonwealthAntiDiscriminationLaws
Australian Government Attorney­General’s
Department (2011e). Human Rights and
Anti-Discrimination: Same-Sex Reforms.
Retrieved 28 December 2011, from
www.ag.gov.au/www/agd/agd.nsf/Page/
Humanrightsandanti­discrimination_
SameSexReform
Australian Human Rights Commission
(AHRC) (2014). Equal Before the
Law: Towards Disability Justice Strategies
February 2014 Sydney NSW.
Australian Human Rights Commission
(AHRC) (2015a). Australia’s Second
Universal Periodic Review: Submission
by the Australian Human Rights
Commission under the Universal Periodic
Review Process. Retrieved 3 December
2015, from www.humanrights.gov.au/
sites/default/fles/WEB_Australias_
Second_UPR_Review_2015.pdf
Australian Human Rights Commission
(AHRC) (2015b). The Forgotten
Children: National Inquiry into Children
in Immigration Detention 2014. 11
February 2015. Retrieved 3 December
2015, from www.humanrights.gov.au/
our­work/asylum­seekers­and­refugees/
publications/forgotten­children­nationalinquiry­children
Australian Law Reform Commission
(ALRC) (2014). Equality, Capacity and
Disability in Australian Laws: Final
Report. No. 124 August 2014. Canberra,
Commonwealth Government.
Baidawi, S., Mendes, P. & Snow, P. (2014a).
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Baidawi, S., Mendes., P. & Snow, P. (2014b).
‘Young people in, and transitioning from,
out­of­home care and their mental health
issues: A call for evidence.’ Children
Australia 39(4): 200–5.
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