The Disability Act 2006 (Vic) (referred to from this point forward as the Disability Act) is one of the two main Victorian Acts relating to disability (also see: "Equal Opportunity Act", below). It seeks to assist the implementation of the Victorian "State Disability Plan", which aims to enable Victorian people who have a disability to be included in the community and have the same rights and opportunities as people who do not have a disability.

The Disability Act provides for services for people who have a disability and regulates the disability service provider sector. It also provides for the supervision of restraint and seclusion and the development and training in best practice in the provision of behaviour management of behaviours of concern, through to the establishment of the Office of the Senior Practitioner. It also establishes a complaints mechanism, through the Disability Services Commissioner.

The Disability Act sets out its objectives and principles in sections 4 and 5. It also sets out the principles applying specifically to people who have an intellectual disability in section 6. (Also see: Chapter 16*5 Intellectual Disability, for further information about these principles).

Disability is defined in section 3 of the Disability Act as follows:

^1.Until 2009, Autism Spectrum Disorders (ASDs), also known as "autism", were excluded from the Disability Act. In 2009 they were finally acknowledged and included as a "neurological impairment", which means that all people who have an ASD can now be considered for disability services. ASDs include Asperger's Syndrome.

^2. See the definition of "intellectual disability" under "Types of disability", below. Also see: Chapter 16*5 Intellectual Disability.

Developmental delay is defined in section 3 of the Disability Act as follows:

developmental delay means a delay in the development of a child under the age of 6 years which–

The Equal Opportunity Act 1995 (Vic) ("EO Act")  is the other main Victorian Act in relation to disability. It uses the term "impairment" rather than "disability", and section 4 defines it much more broadly than in everyday usage, as:

The definition also includes present disability, past disability or imputed disability, where a person is perceived to have, for example, an intellectual disability or an acquired brain injury, perhaps because they speak slowly.

Section 4 of the Disability Discrimination Act 1992 (Cth) ("DDA") provides a similar, but even broader, definition of disability than the EO Act. It includes many conditions that are not commonly considered to be disabilities and, as with the EO Act, is more concerned about unfair and discriminatory treatment than with the medical or technical accuracy of a disability.

This broad legal definition of disability is intended to provide for the widest possible range of complaints against unlawful discrimination on the basis of anything to do with the working or non-working of a person's body or mind. For example, a person who has undergone gender re-assignment surgery, or who is dependent upon a prohibited or regulated substance, may meet the criteria for making a discrimination complaint under section 4 of the DDA.

Note: The Disability Discrimination Amendment Bill 2003 (Cth), introduced into Parliament in November 2003, sought to remove "addiction" from the DDA definition of disability. At the time of writing (1 July 2009) the Bill had not been reintroduced into the Senate for a final vote.

Protection against discriminatory treatment may also extend to people with a defined relationship with the person who has a legally defined disability, who experience discrimination on the basis of the person's disability.

Note: The DDA was amended in 2009 by the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth). Amendments include:

For information on making complaints about discrimination, see: Chapter 17 Discrimination.

Physical disability is a broad category of disability that may not always be visible and covers much more than the need to use a wheelchair. It usually involves significant problems with muscle control, skeletal development or joint function.

A range of standards, specialist programs and services arising from law or policy are provided to meet the varying needs of people with physical disabilities, including access to the built environment and public transport (e.g. the DDA Access to Premises Standard, DDA Transport Standard), rehabilitation from injury (Disability Services Act 1986 (Cth) (Part III) ("DSA (Cth)")), and the provision of specialised aids and equipment (Victorian Aids and Equipment Program). For more information see: Chapter 16*3 Physical Disability.

Psychiatric disability, commonly referred to as mental illness, also involves a wide range of conditions including, for example, depression, anxiety disorders and schizophrenia. According to the Mental Health Act 1986 (Vic) ("MHA"), "a person is mentally ill if he or she has a mental illness, being a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory" (s.8(1A)).

The MHA provides no definition of "mental disorder" (commonly referred to as personality disorder) but does provide for the involuntary detention of persons with a mental disorder in certain circumstances (s.12.A). For more information, see: Chapter 16*4 Psychiatric Disability.

Intellectual disability, as defined within the Disability Act, refers to a person over the age of five years who has both significant sub-average general intellectual functioning and significant deficits in adaptive behaviour, both of which must manifest before the age of 18 years (s.3).

The Disability Act gives the Victorian Department of Human Services (DHS) responsibility for providing specifically for people who have an intellectual disability (see: sections 6 and 55 and throughout the Disability Act).

In contrast to the involuntary care and treatment provisions of the MHA (ss.8, 9 & 12), individual consent to receive services is assumed and there is no legislative provision mandating services, with the exception of "security" and "forensic" residents (see notes 1 and 2 below for definitions of these terms).

However, some people who have an intellectual disability over the age of 16 may be subject to the provisions of the Human Services (Complex Needs) Act 2009 (Vic) ("HSCNA") (see below).

1. "Security residents" are prison inmates with an intellectual disability (who are eligible for services under the Disability Act) transferred from a prison or other correctional facility to a residential institution for custody under a security order by the Secretary of the Department of Justice (s.166 Disability Act).

2. "Forensic residents" are detainees with an intellectual disability (who are eligible for services under the Disability Act) detained under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ("CMIUTA"), transferred from a prison or other correctional facility to a residential institution for assessment and potential custody under a security order by the Secretary of the Department of Justice (s.180 Disability Act).

For more information, see: Chapters 3*1 Disability and Criminal Justice, and 16*5 Intellectual Disability.

The Review of National Disability Advocacy Services (disability advocacy services funded by the Australian Government under the DSA (Cth) through the National Disability Advocacy Program (NDAP), which is administered by the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA)), has been completed.

The resulting report and recommendations foreshadowed changes to the program, including service provision and eligibility, and full details of these changes are still being developed. The Australian Government has most recently guaranteed disability advocacy services funded under the DSA (Cth) until 31 December 2010.

The Office of the Public Advocate (OPA) is established under the Guardianship and Administration Act 1986 (Vic) ("GAA") and has responsibility for promoting the rights and independence of people who have a disability (defined as intellectual impairment, mental disorder, brain injury, physical disability or dementia) of all ages.

OPA also has powers to provide advice and assistance, to investigate and to advocate on behalf of people who have a disability (ss.15 & 16 GAA). It advocates in "best interests". It coordinates the Community Visitors Program (created under the MHA, the Disability Act and the Health Services Act 1988 (Vic)), and the Independent Third Person Program (ITP) (created under Police Operating Procedures). For more information see: Chapters 16*2 Advocacy and 3*1 Disability and Criminal Justice.

When people are unable, because of their disability, to make decisions for themselves, guardians and administrators may be appointed by the Guardianship List of the Victorian Civil and Administrative Tribunal (VCAT). A guardian makes "lifestyle" decisions, such as those relating to health, accommodation or access to services. An administrator makes financial and legal decisions. For more information, see: Chapter 16*6 Guardianship and Administration.

Note: The statutory basis for the Community Visitors Program lies within the Disability Act.