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Legislation and definitions

The definition of disability in the law varies according to the objectives of the relevant Act, ranging from very broad, all-encompassing definitions, to very narrow ones that focus on one type of disability only.

Most legislation that defines disability does so in relation to:

Disability services

Disability Act 2006

The Disability Act 2006 (Vic) (as amended by the Disability Amendment Act 2012 (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 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:

disability in relation to a person means:

  1. a sensory, physical or neurological1 impairment or acquired brain injury or any combination thereof, which
    1. is, or is likely to be, permanent; and
    2. causes a substantially reduced capacity in at least one of the areas of self-care, self-management, mobility or communication; and
    3. requires significant ongoing or long-term episodic support; and
    4. is not related to ageing; or
  2. an intellectual disability2; or
  3. a developmental delay (see definition below).
  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.

Disability is not defined in the NDIS Act, but the term “meets the disability requirements” is defined in section 24 of the NDIS Act, as follows:

Disability requirements

  1. A person meets the disability requirements if:
    1. the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and
    2. the impairment or impairments are, or are likely to be, permanent; and
    3. the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
      1. communication;
      2. social interaction;
      3. learning;
      4. mobility;
      5. self-care;
      6. self-management; and
    4. the impairment or impairments affect the person's capacity for social and economic participation; and
    5. the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime.
  2. For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation.

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 six years, which

  1. is attributable to a mental or physical impairment or a combination of mental and physical impairments; and
  2. is manifested before the child attains the age of 6 years; and
  3. results in substantial functional limitations in one or more of the following areas of major life activity:
    1. self-care;
    2. receptive and expressive language;
    3. cognitive development;
    4. motor development; and
  4. reflects the child's need for a combination and sequence of special interdisciplinary, or generic care, treatment or other services which are of extended duration and are individually planned and coordinated.

Developmental delay is defined in section 9 of the NDIS Act as follows:

developmental delay ” means a delay in the development of a child under six years of age that:

  1. is attributable to a mental or physical impairment or a combination of mental and physical impairments; and
  2. results in substantial reduction in functional capacity in one or more of the following areas of major life activity:
    1. self-care;
    2. receptive and expressive language;
    3. cognitive development;
    4. motor development; and
  3. results in the need for a combination and sequence of special interdisciplinary or generic care, treatment or other services that are of extended duration and are individually planned and coordinated.

Section 25 of the NDIS Act outlines early intervention requirements.

Discrimination

Equal Opportunity Act

The Equal Opportunity Act 2010 (Vic) (“EO Act”), as amended by the Equal Opportunity Amendment Act 2011 (Vic), is the other main Victorian Act that relates to disability.

The Act uses the term “impairment” rather than “disability” (however, the Equal Opportunity Amendment Act 2011 replaced the protected attribute “impairment” in the Equal Opportunity Act 2010 (Vic) with the term “disability”, but retains the same definition) and section 4 defines this term much more broadly than in everyday usage, as:

  1. total or partial loss of bodily function (e.g. incontinence, hearing loss);
  2. the presence in the body of an organism that may cause disease (e.g. bacteria causing blood poisoning, hepatitis or HIV/AIDS virus);
  3. total or partial loss of a part of the body (e.g. loss of fingers on one hand, hysterectomy);
  4. malfunction of part of the body, including:
    1. a mental or psychological disease or disorder (e.g. schizophrenia); or
    2. a condition or disorder that results in a person learning more slowly than people who do not have the condition or disorder (e.g. Down syndrome); or
  5. malformation or disfigurement of a part of the body; (e.g. cleft palate, scarring).

The definition also includes present disability, past disability and imputed disability (where a person is perceived to have, for example, an intellectual disability or an acquired brain injury, because they speak slowly) and includes an impairment that may exist in the future (because of a genetic predisposition to that impairment) and, to avoid doubt, behaviour that is a symptom or manifestation of an impairment.

Disability Discrimination Act

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.

disability, in relation to a person, means:

and includes a disability that:

  1. total or partial loss of the person’s bodily or mental functions; or
  2. total or partial loss of a part of the body; or
  3. the presence in the body of organisms causing disease or illness; or
  4. the presence in the body of organisms capable of causing disease or illness; or
  5. the malfunction, malformation or disfigurement of a part of the person’s body; or
  6. a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
  7. a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
  8. presently exists; or
  9. previously existed but no longer exists; or
  10. may exist in the future (including because of a genetic predisposition to that disability); or
  11. is imputed to a person.

To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the 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.

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

  • a positive duty to make reasonable adjustments, but a broadening of the unjustifiable hardship defence;
  • changes in relation to the Disability Standards, enabling standards to be made in new areas;
  • some powers to the Australian Human Rights Commission under the Disability Convention; and
  • the extension of lodgement time limits from 28 to 60 days.

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

Types of disability

Physical disability

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) (pt 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

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 they have 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 12A). For more information, see Chapter 16.4: Psychiatric Disability.

Intellectual 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 Chapter 3.1: Disability and Criminal Justice, and Chapter 16.5: Intellectual Disability.

Compulsory care and treatment: people who have an intellectual disability

The Victoria Law Reform Commission report, People with Intellectual Disabilities at Risk: A Legal Framework for Compulsory Care, released in November 2003, recommended the creation of statutory terms for the detention of people with an intellectual disability assessed to be at risk of harm to themselves or others. In response to this and other submissions considered during the review of disability legislation, the Disability Act repealed the IDPSA and DSA (Vic) and provided:

  • new definitions for disability, and therefore service eligibility;
  • compulsory treatment provisions for persons with an intellectual disability who cannot or will not consent to treatment or are considered “at risk” of harm to themselves or others;
  • for the establishment of a Senior Practitioner responsible for safeguarding the rights of those subject to compulsory treatment; and
  • transitionary arrangements for IDPSA provisions. The IDPSA assumed all people with intellectual disability to have consented to services and/or treatment, whereas the Disability Act clearly creates two categories of clients with an intellectual disability:
    • those able to consent to services and/or treatment; and
    • those considered candidates for compulsory treatment.
Voluntary care and treatment: multiple and complex needs

The HSCNA provides a legislative framework for provision of voluntary treatment and care services to those people defined as having “multiple and complex needs”.

Eligibility under the HSCNA for care plans providing support and stabilisation is currently limited to people who:

  • are 16 years and over;
  • have exhibited violent and aggressive behaviour that has caused or is likely to cause serious harm to themselves and/or others;
  • are in need of intensive supervision and support; and
  • would derive benefit from receiving a care plan under the Act (s 15).
  • In addition, the person must appear to have two or more of the following:
  • a mental disorder (within the meaning of the MHA);
  • an intellectual impairment (this is not defined, but differs from intellectual disability within the meaning of the Disability Act, which must be manifest by the age of 18);
  • an acquired brain injury; and/or
  • an alcohol or drug dependence (as defined by the Alcoholics and Drug-Dependent Persons Act 1968 (Vic)) (s 15).

The HSCNA also establishes a service delivery model and a Multiple and Complex Needs Panel for assessment and review, and authorises the collection, use and disclosure of client information necessary for a comprehensive assessment of need.

Specific provisions regarding the consent of people eligible for services to a care plan require that, where the person is under 18 years of age but over 16 years of age, only their parent or guardian may consent to or refuse treatment under the care plan. Similarly, where a guardian has been appointed for any person eligible for services and subject to a care plan, only the guardian may consent to or refuse treatment.

Note: Many people covered by the legislation may be subject to care plans without their consent due to the appointment of guardians, the nature of their prior contact with the criminal justice system, or being under 18 years of age but over 16 years of age.

Government services

Funding for specialist services, including advocacy for people with a wide range of disabilities, is provided under the “National Disability Agreement” (NDA) (an agreement between the Commonwealth and state governments as equal partners, which replaced the “Commonwealth, States and Territories Disability Agreement” (CSTDA) on 1 January 2009), with reference to the DSA (Cth) and the Disability Act. However, continued future funding for such services is not guaranteed and is subject to legislative and policy change at both Commonwealth and state levels. Some services are provided by government, while others are provided by non-government organisations, usually funded by government. The pilot of the NDIS/DisabilityCare Australia, in the Barwon Region of Victoria, has now been added to this mix and a transition of the new system to the whole state, and the rest of Australia, is expected to follow over several years.

The Disability Act is much broader in scope than the two Acts it replaced and provides for:

  • the creation of a Disability Services Commissioner (DSC) to accept and investigate complaints regarding disability services and supports (The DSC will continue to provide a complaints mechanism for people living in the NDIS/DCA Barwon Region launch site during the pilot of DCA); and
  • a Senior Practitioner “generally responsible for ensuring that the rights of persons who are subject to restrictive interventions and compulsory treatment are protected and that appropriate standards in relation to restrictive interventions and compulsory treatment are complied with”.

The Disability Act also provides a statutory basis for the Victorian Disability Advisory Council, which advises the minister, and it establishes a Disability Services Board. A Disability Services Commissioner and a Senior Practitioner were appointed in 2007. Disability services to be funded under the Disability Act and previously funded under the IDPSA and the DSA (Vic) were automatically registered as services under the new legislation. They are now subject to much greater accountability and quality standards than previously.

Disability advocacy services

Disability advocacy services are extremely important to people who have a disability and who are trying to get their rights. They are provided by several independent disability advocacy agencies federally funded by the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) under the National Disability Advocacy Program (NDAP) and also others that are state-funded. Disability Advocacy Victoria (DAV) is the peak body representing independent disability advocacy agencies (for further information, see www.disabilityadvocacyvictoria.org.au). The recent Review of National Disability Advocacy Services recommended 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 funding to disability advocacy services funded under the DSA (Cth) until 30 June 2015.

Advocacy and guardianship

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 Chapter 16.2: Advocacy and Chapter 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.

Sexual offences

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 Chapter 4.3: Sexual Offences.

Note: The definition of intellectual disability within the Disability Act is reflected in amendments to relevant sections of the Crimes Act (Vic).

Tenancy

Disability is not defined within the Residential Tenancies Act 1997 (Vic) (“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.

Note: 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 well-being” 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.

Legislation and definitions :: Last updated: Sun Jun 30th 2013