Category Archives: Disability Law

Children – Intellectual disability – Sterilization – Family Law

Department of Health & Community Services v JWB & SMB (“Marion’s Case”) [1992] HCA 15; (1992) 175 CLR 218 (6 May 1992).

“Children – Intellectual disability – Sterilization – Power of parents to consent – Assault – Parens patriae jurisdiction of court – Criminal Code Act 1983 (N.T.), ss 1, 26, 181, 187 188.

Family Law (Cth) – Family Court – Jurisdiction – Welfare – Parens patriae – Intellectually disabled child – Sterilization – Power of Court to authorize operation – Effect of authorization on criminal law – Family Law Act 1975 (Cth), ss. 63, 64, 64E – Criminal Code Act 1983 (N.T.), ss 1, 26, 181, 187, 188.”

The court held that the parents of a 14 year old mentally retarded girl from the Northern Territory could not lawfully authorize a sterilization procedure on their child without an order of a court.

The court held that the Family Court of Australia has the jurisdiction  to authorize the carrying out of a sterilization procedure but could not approve consent being given to the parents unless the court authorizes the procedure.

Whilst parents or guardians may authorize or consent to the carrying out of a therapeutic treatment of their child, they have no such power regarding non-therapeutic treatment.

Sterilization of an intellectuallly disabled minor falls outside of the ordinary scope of parenal powers if the procedure is not obviously necessary.

Children have the right to personal integrity under domestic and international law. Procedures, such as sterilization, are “invasive, irreversible and major surgery”. It is up to the court, not the parents or guardians, to decide the appropriate circumstances that are in the best interests of the child.

http://www.austlii.edu.au/au/cases/cth/HCA/1992/15.html

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Innes v Rail Corporation of NSW (No 2) [2013] FMCA 36

ON THIS DAY IN 2013, the Federal Magistrates Court delivered Innes v Rail Corporation of NSW (No 2) [2013] FMCA 36 (1 February 2013).

http://www.austlii.edu.au/au/cases/cth/FMCA/2013/36.html

The Commonwealth Disability Discrimination Commissioner successfully sued the Rail Corporation of NSW on the grounds that it failed to provide audible train announcements for the hearing impaired.

Lawyers

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International Day of Persons with a Disability

DECEMBER 3 is the United Nations International Day of Persons with a Disability.

For more information visit http://www.idpwd.com.au/3-december/ and https://www.humanrights.gov.au/news/events/international-day-persons-disability

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Sydney, Australia

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Capacity Toolkit

THE NSW DEPARTMENT OF ATTORNEY GENERAL & JUSTICE publishes the Capacity Toolkit, which is a guide to assessing one’s ability to make legal, medical, financial and personal decisions.

The ability to make their own decisions is known as “capacity”. If one is concerned of another’s capacity to make a decision for themselves, they must do a capacity assessment. Capacity assessments are often performed by family members, friends, carers, doctors, health care works, government workers, lawyers, bank managers or any person who provides services.

Capacity Assessment Principles are as follows:

  1. Start by assuming the person has capacity to make decisions.
  2. Capacity is decision specific. If one can’t make a decision about one thing they may still be able to make other decisions.
  3. Never assume a person lacks capacity because of appearances.
  4. Assess the person’s decision making capacity, not the decision they make.
  5. Respect a person’s privacy.
  6. Substitute-decision making is a last resort.

A person who is assessed as not being able to make a decision may need a “substitute decision maker”.

Disputes about capacity may be taken to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) of Level 3, 2a Rowntree Street, Balmain NSW 2041, tel 1800463928.

Further information can be found at the Aged Care Rights Service and NSW Government Diversity Services.

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Sydney, Australia

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Disability Inclusion Act 2014 (NSW)

ON 26 AUGUST 2014, the NSW Parliament enacted the Disability Inclusion Act 2014 (NSW).

The Act is described as: “An Act relating to the accessibility of mainstream services and facilities, the promotion of community inclusion and the provision of funding, support and services for people with disability; and for other purposes”.

The Act will commence on a day or days to be proclaimed.

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Sydney, Australia

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Protecting people with dementia from financial abuse

Alzheimer’s Australia has produced Is it Dementia – a resource for recognising the signs of dementia. For additional information about Dementia go to http://isitdementia.com.au/information.html.

Lawyers

Sydney, Australia

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NSW Civil and Administrative Tribunal

The NSW Civil and Administrative Tribunal (NCAT)http://www.ncat.nsw.gov.au/ncat/index.html commenced on 1 January 2014 pursuant to the NSW Civil and Administrative Act 2013 and Civil and Administrative Regulation 2013.

The NCAT takes over the functions of 22 former state tribunals, including:

  • Aboriginal and Torres Strait Islander Health Practice Tribunal
  • Aboriginal Land Councils Pecuniary Interest and Disciplinary Tribunal
  • Administrative Decisions Tribunal
  • Charity Referees
  • Consumer, Trader and Tenancy Tribunal
  • Dental Tribunal
  • Guardianship Tribunal
  • Chinese Medicine Tribunal
  • Chiropractic Tribunal
  • Medical Radiation Practice Tribunal
  • Medical Tribunal
  • Nursing and Midwifery Tribunal
  • Occupational Therapy Tribunal
  • Optometry Tribunal
  • Osteopathy Tribunal
  • Pharmacy Tribunal
  • Physiotherapy Tribunal
  • Podiatry Tribunal
  • Psychology Tribunal
  • Local Government Pecuniary Interest and Disciplinary Tribunal
  • Local Land Boards
  • Victims Compensation Tribunal (transferred into the ADT in June 2013)
  • Vocational Training Appeals Panel.

The NCAT is constituted by a President (a Supreme Court judge), Deputy Presidents of each of the four divisions, a Principal Registrars and Members including Principal Member, Senior Members and General Members.

The NCAT has four divisions:

  • Administrative and Equal Opportunity, which deals with review of administrative decisions of government agencies and resolution of discrimination matters.
  • Consumer and Commercial, which deals with a broad number of disputes about the supply of goods and services, including agent commissions and fees; agricultural tenancies; boarding houses; consumer claims; conveyancing costs; dividing fences; holiday parks (long-term occupancy); home building; motor vehicles; pawnbrokers and second-hand dealers; residential parks; retail leases; retirement villages; social housing; strata and community schemes; tenancy; travel compensation fund appeals.
  • Guardianship, which has jurisdiction over people who live in NSW or hold property or financial assets in NSW: to make guardianship orders for the appointment of a private or public guardian; make financial orders for a private or public financial manager; provide consent for medical or dental treatment; review enduring powers of attorney; review an enduring guardianship appointment; approve a clinical trial involving people with decision-making disabilities.
  • Occupational, including: administrative review of licensing decisions with respect to transport drivers/operators, security guards, builders, real estate agents, motor dealers and repairers, pawnbrokers and second hand dealers, stock and station agents, business agents, travel agents, valuers and licenced conveyancers; professional discipline of occupations governed by a statutory council, board, panel or authority.

The current President is Justice Robertson Wright SC and the Deputy-Presidents are Magistrate Nancy Hennessy, Mr M D Schyvens, Mr Stuart Westgarth, The Hon. Wayne Haylen QC and Judge Kevin O’Connor AM.

The principal registry is located at Level 9, John Maddison Tower, 86-90 Goulburn Street, Sydney NSW 2000, tel 1300 006 228.

The divisional registries are:

  • Administrative and Equal Opportunity: Level 10, John Maddison Tower, 86-90 Goulburn Street, Sydney NSW 2000.
  • Consumer and Commercial: Level 12, 175 Castlereagh Street, Sydney NSW 2000 (also at Liverpool, Hurstville, Newcastle, Penrith, Tamworth and Wollongong).
  • Guardianship: Level 3, 2a Rowntree Street Balmain NSW 2041.
  • Occupational: Level 10, John Maddison Tower, 86-90 Goulburn Street, Sydney NSW 2000.

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Lafiatis BHT NSW Trustee & Guardian v Australian-Greek Investments Pty Ltd [2014] NSWSC 884

ON 1 JULY 2014, the Supreme Court of NSW delivered Lafiatis BHT NSW Trustee & Guardian v Australian-Greek Investments Pty Ltd [2014] NSWSC 884.

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172455

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Sydney, Australia

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Oliver (Deceased) & Oliver [2014] FamCA 57

IN AN UNUSUAL CASE, the Family Court of Australia in Oliver (Deceased) & Oliver [2014] FamCA 57 (12 February 2014) declared a marriage to be void owing to the husband’s dementia which caused him to be incapable of entering into the marriage.

http://www.austlii.edu.au/au/cases/cth/FamCA/2014/57.html

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Sydney, Australia

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National Disability Insurance Act 2013 (Cth)

ON THIS DAY in 2013, the National Disability Insurance Act 2013 (Cth) received assent.

http://www.austlii.edu.au/au/legis/cth/consol_act/ndisa2013341

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