The rights of people who have a disability are set out in a range of international human rights instruments, including United Nations Declaration on the Rights of Disabled Persons 1975, and Declaration on the Rights of Mentally Retarded Persons 1971, Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care 1991, and Standard Rules on the Equalization of Opportunities for Persons with Disabilities 1993, to which the Australian Commonwealth and state governments are signatory.
Most recently, the United Nations developed a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities. The United Nations Convention on the Rights of Persons with Disabilities was adopted by the General Assembly in December 2006 and was signed by Australia on 30 March 2007. The Australian Government ratified the convention on 17 July 2008 and on 30 July 2009 it announced that Australia will become a party to the Optional Protocol, which allows individuals and groups to petition the United Nations’ Committee on the Rights of Persons with Disabilities, once all national procedures have been exhausted. The convention, which came into force on 4 April 2008, has now been signed by 159 signatories and ratified by 157. Its Optional Protocol has been signed by 92 signatories and ratified by 87. It will provide a disability specific international human rights instrument with the same status as other conventions.
Many of the rights referenced in Australian and Victorian statutes flow from these international human rights obligations, despite the fact that Australia’s legal system is not generally rights-based (although the Victorian Government adopted the Charter of Human Rights and Responsibilities Act 2006 (Vic)). The Australian Government recently considered the possibility of a national Bill of Rights for Australia but decided, instead, to adopt a national Human Rights Framework.
The Disability Discrimination Act 1992 (“DDA”) is the main Commonwealth Act dealing with the rights of Australian people with disabilities; it aims to:
a eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
i work, accommodation, education, access to premises, clubs and sport;
ii provision of goods, facilities, services and land;
iii existing laws; and
iv the administration of Commonwealth laws and programs;
b ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
c promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.
Many people who have a disability work in specific employment settings called supported employment services, while others work in mainstream employment settings. Under the DDA an employer or prospective employer cannot lawfully discriminate against a person on the grounds of a disability (from advertising vacancies to consideration for promotion) unless the person with a disability is unable to perform the “inherent requirements” or the core components of the job.
In addition, when “providing adjustments” in the workplace to remedy discrimination and meet the needs of an employee with a disability, the DDA considers whether the costs of such adjustments present an “unjustifiable hardship” to the employer, having regard to the employee’s specific needs, the cost of the adjustment when compared to the overall assets of the employer, and the impact of the adjustment on others. For more information, see “Unjustifiable hardship” in Physical disability.
Under the DSA (Cth), “supported employment services” means services to support the paid employment of persons with disabilities:
a for whom competitive employment at or above the relevant award wage is unlikely; and
b who, because of their disabilities, need substantial ongoing support to obtain or retain paid employment.
In June 1994 the Australian Industrial Relations Commission agreed to insert into awards a model clause that provides for pro rata award rates of pay for people with a disability based on their assessed skills. This is known as the “supported wages system”. Wage assessment tools are used to decide how much each worker is paid. A landmark Federal Court case brought by AED Legal Centre on behalf of employees discriminated against because of the use of these assessment tools was decided in May 2013, when the High Court of Australia dismissed the Commonwealth’s application to appeal the Federal Court decision that rules that the Business Services Wage Assessment Tool discriminated against people with intellectual disabilities.
For more information, contact the AED Legal Centre. The AED Legal Centre is run by the Association of Employees with Disability. See “Contacts”.
It is unlawful for providers of accommodation to discriminate against a person on the grounds of a disability under the DDA (or impairment under the EO Act) by refusing or deferring an application for accommodation, denying or limiting benefits associated with the accommodation, or evicting a person from accommodation on the basis of the person’s disability.
Private premises, including rental premises, are not subject to discrimination complaints relating to access to the built environment under the DDA. However, the Victorian EO Act provides for complaints regarding any refusal to allow alterations (including their restoration) at the cost of the person with the disability. Other complaints about disability discrimination in accommodation are subject to the “unjustifiable hardship” test (see “Employment”) under the DDA. For more information about making complaints regarding discrimination, see Discrimination and human rights.
Under section 23 of the Residential Tenancies Act 1997 (Vic) (“RTA”) any person with a disability or mental illness receiving residential support services or found to be an involuntary inpatient, is denied the right to a tenancy agreement subject to the provisions of the RTA. For more information, see “Tenancy”, and “Rights of residents” in Intellectual disability.
Disability is not defined within the RTA; however, section 23 states that the RTA does not apply to “a tenancy agreement or room if the rented premises is a health or residential service” or an ancillary building used to house staff or “users”. Given that the RTA’s definition of “health or residential” and “support” services includes services within the meaning of the MHA and the Disability Act, the definitions of intellectual disability and mental illness are implied to be the same as within those Acts.
In effect, any person with a disability or mental illness receiving residential support services, or found to be an involuntary inpatient, is denied the right to a tenancy agreement subject to the provisions of the RTA.
Section 56(2) of the Disability Act states that, “the Residential Tenancies Act 1997 does not apply in respect of residential services”. The Disability Act does, however, make provision for a Residential Statement, certain conditions for administration and limited rights for residents to make applications to VCAT, which are similar to those relating to agreements under the RTA.
Importantly, the Disability Act contains provisions that require no reasons for issuing residents notice to vacate (s 76) when 120 days notice is given, and compliance with “behaviour management plans” is allowable as a mandatory condition of the agreement. Further, there are no “quiet enjoyment” provisions. Grounds for notice to vacate are extremely broad, ranging from “for the residents safety or wellbeing” to an increase in the needs of the client in relation to the level and kind of services provided within the community residential unit. A Notice of Temporary Relocation (s 74) can be issued for similar reasons but is effective immediately; however, it requires that the residential service provider arrange suitable accommodation and services.
It is unlawful for providers of education services to discriminate against a student or prospective student with a disability. This includes all public and private educational institutions, primary and secondary schools, and tertiary institutions such as TAFE, private colleges and universities. Educators must offer a person with a disability the same educational opportunities as everyone else, including with regards to enrolment, if the entry requirements of a school or college are met.
Under the Victorian EO Act, education providers must not discriminate against a student with a disability unless the necessary facilities cannot be reasonably provided. The DDA specifies discrimination in admission, access and staff harassment as unlawful. It requires education providers to make “reasonable adjustments” to their programs to ensure that students with a disability can access these on the same basis as other students, unless doing so would present an “unjustifiable hardship” to the provider; the DDA applies a more stringent test than the EO Act to determine this.
Education services for people with an intellectual disability, including special schools and adult day training centres, were, until 30 June 2007, provided for under the IDPSA (now revoked), which stated that people with an intellectual disability have “a right to individualised educational and developmental opportunities”. The Disability Act, which replaced the IDPSA, does not provide specifically for education services but refers in more general terms to the right of people with disabilities to similar opportunities in all area of life to those of people without disabilities.
Under the DDA, it is unlawful for public places to be inaccessible to people with a disability. Indeed, every area open to the public should be open to people with a disability, who should expect to be able to enter and make use of places used by the public if people without a disability can do so. This means being accessible at the entrance and inside buildings including facilities in these places (for example, wheelchair-accessible toilets, lift buttons within reach, tactile and audible lift signals for people with vision impairments) and seating arrangements that are not second rate or segregated. This applies to existing places as well as those under construction.
Building access issues also arise under other DDA provisions, including in relation to employment, access to services, and accommodation. The Building Code of Australia (BCA) and Australian Standard 1428 (AS 1428) regulate access to buildings and establish minimum requirements in relation to access. These requirements form the Access to Premises Standard. For more information, see Physical disability, and “DDA Disability Standards”.
The DDA (ss 27, 28) and the EO Act (ss 64, 65, 70, 71) make it unlawful for clubs and associations to discriminate against a person because of their disability, including in participation in sporting activities. A person with a disability has a right to be a member of any club or association that a person without a disability is allowed to join. This includes sporting or social groups, licensed clubs, art, drama or music groups, political parties, business and professional associations, and consumer and self-help groups.
Exemptions are allowed:
•under the EO Act for groups whose membership is specifically for a particular disadvantaged group or minority culture or has benefits to a particular age group or gender; and
•under the DDA for disability specific groups.
Sporting activities are exempted where they are for a specific group of people with a disability or are competitive in nature and cannot be reasonably performed by the person with the disability. Where a club or association provides a service, these are subject to the goods and services provisions of both the EO Act and the DDA. For more information, see Discrimination and human rights.
Provision of goods, facilities and services
A person with a disability has a right to obtain goods and use services and facilities that a person without a disability can obtain. The DDA and EO Act make it unlawful for providers of goods, services and facilities to discriminate against a person because of a disability. They cannot refuse to provide, or provide on less favourable terms and conditions or in an unfair manner, goods, services and facilities.
Complaints under the DDA may consider whether the provider has suffered an “unjustifiable hardship” in providing goods, services or facilities to the complainant with a disability. A person with a disability also has a right to enter the premises of providers of goods, services and facilities if people without a disability can do so. For more information, see Discrimination and human rights.
Under Australia’s system of compulsory voting, people with disabilities are liable to be fined if they do not enrol to vote or cast their vote. However, many people with disabilities experience difficulties in accessing polling booths and voting information such as ballot papers.
Sections 234 and 235 of the Commonwealth Electoral Act 1918 (Cth) provide for certain persons with disabilities to seek assistance to cast their vote or to vote outside of a polling booth. The DDA prohibition of discrimination in relation to access to services (s 24), access to premises (s 23) and the administration of Commonwealth laws and programs (s 29) may be relevant to the conduct of federal elections; the EO Act provisions against discrimination in these areas may be relevant to the conduct of state and local government elections.
Section 31 of the DDA authorises the Commonwealth Attorney-General to formulate “standards” to be known as Disability Standards in relation to employment, education, accommodation, provision of public transportation services and facilities, and administration of Commonwealth laws and programs.
Standards are compulsory and are designed to promote minimum compliance with disability access requirements. For more information see Physical disability, or contact the Australian Human Rights Commission (see “Contacts”).
People with disabilities who receive services provided for in legislation may have rights in relation to a range of matters involving eligibility, placement, assessment, critical dates, service or treatment plans, use of regulated/restricted treatments, involuntary treatment/care, financial matters, and the manner in which such services are provided. For example, the DSA (Cth) has “standards” that service providers must meet in order to continue to receive funding under the Act.
The MHA and the Disability Act both provide for written information regarding clients’ rights to be presented to the client on commencement of the service, and allow for the review of a range of decisions. For more information, see Mental illness, and Intellectual disability.
The Crimes (Sexual Offences) Act 2006 (Vic) (“CSO Act”) seeks to improve access to justice for people with “cognitive” impairment who are complainants of sexual assault. It includes the definition of offences and the giving of evidence in legal proceedings that relate to a charge for a sexual offence.
The CSO Act became operational in December 2006. It is now incorporated into the Crimes Act 1958 (Vic) (“Crimes Act (Vic)”). Importantly, the CSO Act repeals the definition of “mental impairment” and provides one of “cognitive impairment” to include mental illness, intellectual disability, dementia and brain injury” (s 50). For more information, see Sexual offences.
The definition of intellectual disability within the Disability Act is reflected in amendments to relevant sections of the Crimes Act (Vic).
The CSO Act, which is now incorporated into the Crimes Act (Vic), aims, in part, to further provide for the protection of children and persons with a cognitive impairment from sexual assault. It creates a broader offence that captures sexual acts between a person who is a provider of medical or therapeutic services and a person with a cognitive impairment irrespective of whether those services are related to the person’s cognitive impairment (s 51).
The CSO Act redefines the following terms:
•facility: to mean a service that provides programs specially designed to meet the developmental or educational needs of persons with a cognitive impairment, irrespective of whether it is a residential facility; and
•worker: to mean a person at a facility who delivers or assists in delivering any program specially designed to meet the developmental or educational needs of persons with cognitive impairment attending or residing at the facility.
The CSO Act also broadens offences under section 52 to encompass sexual conduct on the part of employees, volunteers and others involved in the delivery of programs at both residential and non-residential facilities that are designed to meet the developmental and educational needs of people with a cognitive impairment.
The CSO Act amended the Crimes (Criminal Trials) Act 1999 (Vic) (since repealed by the Criminal Procedure Act 2009 (Vic); see pt 8.2 Witnesses, divs 5, 6), the Evidence Act 2008 (Vic) (“Evidence Act”) and the Magistrates’ Court Act 1989 (Vic) to improve the experience of complainants who are persons with cognitive impairment in the prosecution of sexual offences. This includes improving the rules of evidence to provide a better balance of fairness between the defendant and the complainant.
The CSO Act contains principles designed to assist courts in interpreting and applying divisions 3 and 3AA of part II of the Evidence Act. They state the social problem that sexual offence laws and procedures, including those in the legislation, aim to address. They provide further guidance where ambiguity may exist in interpretation during admission and administration of evidence in sexual offence proceedings, and include that courts are to have regard to the fact that:
a there is a high incidence of sexual violence within society;
b sexual offences are significantly under-reported;
c a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment;
d offenders are commonly known to their victims; and
e sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred.
Amendments to section 23 of the Evidence Act provide requirements for assessing the competency of a witness who is a person with a cognitive impairment (and children), including the presumption of competence to give evidence. It allows for persons with a cognitive impairment, who are not competent to give unsworn evidence, to be considered competent to give evidence about another fact to which a question relates, that the witness can understand and to which their answer can be understood. (See also Sexual offences.)
Amendments to the Evidence Act will require the court to explain to a person with a cognitive impairment considered competent to give evidence under section 23:
•the importance of telling the truth;
•that they may not be able to answer a question asked of them; and
•that they should say so if this occurs and they should feel free to disagree with statements they consider untrue and should agree with statements that are true.
The admission of expert evidence in cases, for the purpose of assessing the competence of a child or a person with a cognitive impairment to give evidence under section 23 of the Evidence Act, makes it easier for courts to assess the competence of people with a cognitive impairment to give sworn or unsworn evidence.
Section 37CA of the Evidence Act provides for a special procedure for the cross-examination of complainants and their family members (referred to as “protected witnesses”) in the prosecution of sexual offences in which the accused is not legally represented. The section prohibits cross-examination of protected witnesses in person by the accused. It sets out a special procedure where an accused person, who has not obtained legal representation after being given a reasonable opportunity to do so, must have a legal practitioner appointed to them by Victoria Legal Aid for the purpose of cross-examining the protected witness.
Clause 38 of the CSO Act inserts a new division 3AA into part II of the Evidence Act relating to witnesses who are children or persons with a cognitive impairment.
Section 41C of the Evidence Act provides for the admission of expert evidence in sexual offence cases for the purpose of assessing the competence of a child or a person with a cognitive impairment to give evidence under section 23 of the Evidence Act.
Section 41E of the Evidence Act provides for a complainant who is a child or a person with a cognitive impairment to give evidence through alternative arrangements that include the giving of evidence from outside the court room, via CCTV, giving evidence in the court room through the use of screens and the giving of evidence in the presence of a support person of the complainant’s choice.
These alternative arrangements must be utilised unless the complainant is aware of their right to give evidence in this way but wishes, and is able, to give evidence in the courtroom and the prosecution makes an application for the alternative arrangements not to be utilised. The section deems any place outside the courtroom where a complainant gives evidence via an alternative arrangement to be part of the courtroom.
Section 41F of the Evidence Act provides for greater protection from “improper questioning” of witnesses who are children or persons with a cognitive impairment. An improper question is a question that is confusing or misleading, is phrased in inappropriate language, is annoying, harassing, intimidating, offensive, oppressive or unduly repetitive, whether because of its content, or the manner in which it is structured or sequenced, or the tone in which it is put, having regard to matters such as any relevant condition of the witness (including their age, cultural background, personality, education and level of understanding) and any cognitive impairment that the witness is, or appears to be, subject to. Such questions must be disallowed by the court or the complainant must be told that they do not have to answer the question.
Section 41G of the Evidence Act creates a presumption in favour of pre-recording the evidence of a child or a person with a cognitive impairment who is a complainant in a sexual offence case. The section requires that such evidence be recorded at a special hearing within 21 days of the accused being committed to stand trial. This time-limit may be extended by the court in limited circumstances. The accused and their legal representative must be present in the courtroom at the special hearing.
Evidence recorded at the special hearing must be video recorded and presented to the court and the jury in the form of that recording. The court may direct that the complainant give direct testimony before the jury where the prosecution makes an application for this to occur and where the court is satisfied that the complainant is aware of their right to utilise the special procedure and wishes (and is able) to, give direct testimony.
Section 41H of the Evidence Act governs the use of the pre-recorded evidence referred to in section 41G. It provides that this evidence is to be treated as if it were given through direct testimony and that it may be admitted in subsequent proceedings such as a retrial, appeal or in proceedings for other charges arising out of the same circumstances. The section provides that all or any part of the recorded evidence may be ruled inadmissible and that, in such instance, the court may order that the recorded evidence be edited accordingly.
The complainant will not have to attend the trial unless required to do so by the court for the purposes of giving further evidence. Any such requirement is limited to circumstances where the accused is seeking leave on the basis of a matter of which they could not reasonably have been aware at the time the evidence was recorded, or where the giving of further evidence by the complainant is in the interests of justice.
The criminal justice system often has difficulty in dealing with people who have disabilities, particularly where those disabilities involve some form of cognitive impairment. Despite this there is a range of actual and implied rights within the criminal justice system that relate to people with a disability. These include:
•the right to legal advice, assistance and representation for victims, witnesses, alleged offenders, offenders and prison inmates at all levels of the criminal justice system;
•the right to treatment at all levels within the criminal justice system (including by police, courts, corrections) that is free from discrimination on the basis of disability (EO Act, DDA) and that meets the specific disability related needs of the person;
•the right to report a crime and to have such assistance as is necessary to do so (Police Operating Procedures, ITPs);
•the right to full consideration of their disability/cognitive impairment in court or tribunal proceedings including appropriate legal and practical advice, assistance and representation in such proceedings (EO Act, DDA);
•upon their alleged criminal behaviour (CMIUTA, diversionary programs);
•upon their sentencing where found guilty of a crime (Sentencing Act 1991 (Vic) (“Sentencing Act”), CMIUTA, MHA 2014, Disability Act);
•in the nature of their correctional placement, services, employment and education (Sentencing Act, Disability Act, MHA 2014); and
•equality of opportunity with other correctional services clients who do not have a disability (EO Act, DDA).
The Assessment and Referral Court List (ARC List) has recently been established at the Melbourne Magistrates’ Court to provide for appropriate treatment of people who have mental health issue and /or cognitive impairment. For further information regarding the ARC List and more information on disability issues in the criminal justice system in general, see Disability and criminal justice.
Correctional facilities and programs are subject to the provisions of the EO Act and the DDA relating to the provision of services. In addition, section 47(1) of the Corrections Act 1986 (Vic) states the rights of prisoners, which includes:
g If intellectually disabled or mentally ill, the right to have reasonable access within the prison or, with the governor’s approval, outside a prison to such special care and treatment as the medical officer considers necessary or desirable in the circumstances.
For more information on rights of prisoners, see Imprisonment and prisoner rights.
People with a disability may have the right to a Disability Support Pension if their “impairment” is permanent and is measured at 20 points or more under the Impairment Tables set out in the Social Security Act 1991 (Cth) (“SSA”) (ss 7, 94, 95).
People who have a temporary impairment or sickness may be eligible for Sickness Allowance under the SSA (ss 7, 666).
Carers of people with disabilities may also be eligible for allowances and benefits. For more information, see “Allowances and payments” in Dealing with social security.
Under the NDIS, disability services are provided to eligible persons. This system is administered by the National Disability Insurance Agency and operates separately from Centrelink, which continues to provide the DSP to eligible persons.
A person with a disability is entitled to handle their own financial affairs unless an administrator has been appointed under the GAA (see Understanding guardianship) or unless a valid Enduring Power of Attorney has been activated due to the person losing capacity. The Guardianship List of VCAT can revoke a legally made Enduring Power of Attorney if it considers this appropriate. Even where an administrator has been appointed, the GAA states that in acting in the best interests of the represented person, an administrator should support the person with the disability to manage their own finances and develop their own financial skills (s 49).
State Trustees, the administrator for many people with disabilities, has a Financial Independence Program. The program can assist State Trustees’s clients to:
•be more involved in managing income;
•receive advice and assistance in keeping to a budget;
•work towards gaining more independence; and
•initiate a review of their Administration Order.
For more information contact State Trustees (see “Contacts”). There are also other alternatives, including family members and other independent organisations that may be appointed administrators.
Financial counsellors may be useful in assisting a person with a disability to plan and manage their own finances (to find a financial counsellor, see Financial counselling services).
There is a general right to privacy of personal information under both Commonwealth and state laws. The Health Records Act 2001 (Vic), Information Privacy Act 2000 (Vic) and the Privacy Act 1988 (Cth) allow a person to take action if their privacy is breached (see Privacy and your rights).
However, some of the laws relating to services for people with disabilities contain exceptions to the laws of confidentiality, where information is needed for the care of a patient, or required by government departments or other authorities (see Mental illness, and “Privacy and confidentiality” in Intellectual disability). For general information, see “Privacy and confidentiality” in Health and the law.
Under common law principles of negligence and the Wrongs Act 1958 (Vic), as amended by the Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic), care providers have a duty of care to prevent service users and others from foreseeable injury. Employees may be liable to penalties under the Crimes Act (Vic) if found to be negligent.
Some care providers may feel concern about the degree of risk involved if service users who have a disability are allowed to make decisions for themselves. It is important to remember that duty of care and the right to a lifestyle that is as close as possible to “normal” are not contradictory. Indeed, the Victorian Government’s State Disability Plan specifically states that people who have a disability must be given the same opportunities and choices, and be included in the community in the same way, as people who do not have a disability. The Victorian Charter of Human Rights and Responsibilities further reinforces this.
The task of supporting people who have certain vulnerabilities – but who also have the same rights as anyone else to take risks and make mistakes – is a complex one that frequently entails difficult decisions. There are many different views of what is “reasonable” and “unreasonable”, but current disability legislation is based on the principle that it is “unreasonable to unnecessarily restrict a person’s right to independence”. People who have a disability are entitled to the dignity of risk; where appropriate, risk management policies and procedures are put in place and common sense is applied in their implementation, this is realisable. For more information, see Intellectual disability.