Introduction

This chapter examines the development of mental capacity law (which is usually referred to as guardianship law) in Australian jurisdictions. It begins with a description of Australian constitutional arrangements and the sources of guardianship laws that, due to the number of legislatures, are quite varied. It then examines the historical development of Australian guardianship laws and describes how those laws can be defined by three generations of change.

After reviewing this history, the chapter then interrogates these legislative regimes to uncover the values that are embedded within statutory principles. Particular attention is given to the question of how a patient's will and preferences are identified and implemented and how, if at all, the laws provide for participation of the person under guardianship in the decisions that affect their personal and financial affairs. The chapter will argue that, while the eight Australian guardianship jurisdictions vary broadly in how they both enshrine a person's values into decision-making and require their participation, much work has been done in Australia to improve the way that decision-makers assess and incorporate the will and preferences of people into decision-making in line with international law. The chapter will track differences between the Australian jurisdictions and examine how national policies are being employed to create some consistency in governance, where there is none in the different pieces of legislation.

A short introduction to Australian federalism

Australia is landmass which is home to the oldest human cultures on the planet. The landmass is divided between over 500 First Nations, none of whom ever surrendered their sovereignty. The Commonwealth of Australia is a constitutional monarchy made up of a federation of six former British colonies on the land of those First Nations: New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia. In addition to the states of Australia, there are two significant Territories, which have selfgovernment: the Australian Capital Territory and the Northern Territory. The Commonwealth of Australia has never entered into any treaty with First Nations. Of the states, only Western Australia has entered into treaty with its First Nations (the Noongar Peoples). Victoria is undergoing a treaty process at present. Currently the Australian population sits at around 26 million people, with most of the population living in the eastern states of Australia, New South Wales (8 million), Victoria (6.5 million) and Queensland (5 million).