Article 12 and the NSW guardianship framework: a case study highlighting barriers for people with intellectual disability regarding legal capacity and autonomy of decision-making

Ms Jenna Macnab1, Professor  Christine Bigby1, Professor  Jacinta Douglas1

1Living with Disability Research Centre, La Trobe University, Melbourne, Australia

Over ten years after Australia  signed the UN Convention on the Rights of Persons with Disabilities (CRPD) there is still debate about the guardianship framework in NSW and conformity with Article 12’s mandate for equal legal capacity, paramountcy of a person’s rights, will and preferences in decision-making, and supported decision-making. But, with the advent of the National Disability Insurance Scheme (NDIS), the NSW Law Reform Commission’s 2018 Guardianship Report, and the recent announcement of a Disability Royal Commission, the spotlight is on NSW to genuinely embrace Article 12 and autonomy of decision-making for people with intellectual disability.

So what’s taking so long? And what are the issues???

With reference to relevant academic and other literature, an examination of the NSW Law Reform Commission’s recommendations, a critical analysis of the current NSW guardianship framework, and a review of numerous Australian supported decision-making trials, this presentation will use a case study to reflect on where the tensions exist surrounding Article 12’s implementation in NSW.

Currently, in NSW, people with intellectual disability face a myriad of potential barriers in exercising their legal capacity and enjoying decision-making autonomy. These barriers start with ambiguities within Article 12, are compounded by the current guardianship framework, complicated due to uncertainty around implementation of supported decision-making, and underscored by societal norms.

Unless NSW genuinely embraces Article 12 by radically changing the guardianship framework, including a major education and resource campaign, barriers will still prevent people with intellectual disability from enjoying full legal capacity and autonomy of decision-making.


Jenna Macnab is a PhD student supervised by Professor Christine Bigby and Professor Jacinta Douglas from the Living with Disability Research Centre at La Trobe University. Her PhD aims to examine the current decision-making practices of  guardians and financial managers in NSW.

Jenna has an LLB (Hons)/BA, a Diploma of Legal Practice (College of Law), and in 2013 completed a Masters of Public Administration at Sydney University. She has worked with the NSW Government in ageing and disability for over 20 years across both law and policy, and is currently a Principal Policy Advisor with the NSW Department of Justice in Diversity Services. Jenna authored the popular ‘NSW Capacity Toolkit’ in 2007, for which she won an Attorney General’s innovation award and was nominated for both a Premier’s and Law Society award. She was on the advisory committee for the Financial Supported Decision-Making Trial in NSW, and more recently developed a Capacity and Decision-making e-learning for NSW Justice. Jenna continues to work on decision-making issues and is currently part of the NSW Government’s internal Working Group advising on the recommendations of NSW Law Reform Commission’s.

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