Category Archives: Disability Law

Children – Intellectual disability – Sterilisation – 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.

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

On 1 February 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

Lawyers

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.

Lawyers

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.

Lawyers

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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