Ensuring Equality for Persons with Cognitive Disabilities in Consumer Contracting: An International Human Rights Law Perspective

This article explores the implications of the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’) for the exercise of consumer rights and consumer protection of persons with cognitive disabilities in Australia. It identifies several limitations of existing consumer protection laws and principles in realising the rights of persons with disabilities to equality and non-discrimination, to live independently and be included in the community, to accessibility of services and information and to equal recognition before the law. Most centrally, the emphasis in Australian consumer protection law on setting aside contracts where consent is invalid or vitiated has potentially discriminatory consequences and does not offer the means for contracting parties to exercise their legal capacity and enter contracts for goods and services on an equal basis with others. Models of ‘supported decision-making’ — which respect the legal capacity of the individual while providing support to exercise that capacity — are proposed as a necessary complement to the existing consumer protection regime. Drawing on the findings of a qualitative study, the article identifies existing barriers to consumer transactions for persons with cognitive disabilities and explores the role of supported decision-making in removing those barriers. The article concludes by proposing an approach to supporting persons with cognitive disabilities in the conduct of consumer transactions by prioritising accessibility of information, privacy and non-discrimination and supported decision-making