Disability and the Law

Contributed by Rosemary Budavari and Farzana Choudhury, Canberra Community Law and current to July 2021

Disability Overview

Defining Disability

Disability is defined in several ways in legislation and policy or program documents.

The Discrimination Act 1991 (ACT) ('Discrimination Act') defines disability as:

• total or partial loss of a bodily or mental function;
• total or partial loss of a part of the body;
• the presence in the body of organisms that cause disease or illness;
• the presence in the body of organisms that are capable of causing disease or illness;
• the malfunction, malformation or disfigurement of part of the body;
• a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction;
• a disorder, illness or disease that affects a person's thought processes, perceptions of reality, emotions or judgment or that results in disturbed behaviour; or
• any other condition prescribed by regulation.

The Disability Services Act 1991 (ACT) (‘Disability Services Act’) defines disability as a disability that:

• is attributable to an intellectual, psychiatric, sensory or physical impairment or a combination of those impairments; and
• is permanent or likely to be permanent; and
• results in—

  - a substantially reduced capacity of the person for communication, learning or mobility; and

  - the need for continuing support services; and

• may or may not be of a chronic episodic nature.

The Discrimination Act and Disability Services Act definitions are considered to represent a medical view of disability.

More recent definitions of disability such as the one in the 2006 United Nations Convention on the Rights of Persons with Disabilities ('UN Convention') use a social model of disability which sees it as the interaction between a person's condition and various barriers which hinder the person's full and effective participation in society on an equal basis with others. Australia ratified the UN Convention on 17 July 2008.

Relevant Commonwealth Legislation

Commonwealth legislation that relates to people with disability includes the following Acts and subordinate legislation:

Australian Human Rights Commission Act

The Australian Human Rights Commission Act 1986 (Cth) provides that the Australian Human Rights Commission may investigate and provide conciliation for discrimination complaints, including disability discrimination complaints. Conciliation is a process which involves a meeting between the person making the complaint and the person or organisation complained about, which tries to resolve the complaint with the assistance of a conciliator. If conciliation does not resolve the complaint, the person making the complaint may apply to the Federal Court or the Federal Circuit Court to determine the complaint.

Disability Discrimination Act and the Disability Standards

The Disability Discrimination Act 1992 (Cth) ('Disability Discrimination Act') provides that discrimination because of disability is unlawful in specified areas of public life such as: access to premises; education; employment; and the provision of goods and services. It also provides for some exceptions when discrimination is lawful, for example if it would involve unjustifiable hardship not to discriminate.

The Disability Discrimination Act provides that the relevant Commonwealth Minister may establish disability standards in specified areas of public life. The standards may deal with reasonable adjustments which can be made for people with disability in the particular area of public life; strategies and programs to prevent harassment and victimisation of people with disability; the unjustifiable hardship exception; and the granting of exemptions from the standards.

The Minister has made the following standards:

• the Disability (Access to Premises- buildings) Standards 2010 (Cth);
• The Disability Standards for Education 2005 (Cth); and
• the Disability Standards for Accessible Public Transport 2002 (Cth) ('the Accessible Transport Standards').

It is unlawful to breach a standard.

The standards include measures to reduce or eliminate discrimination over time. For example, the Accessible Transport Standards set certain dates by which bus services must provide specified percentages of accessible buses and bus stops. If a bus service acts in accordance with a standard, for example, if it meets the specified percentage of accessible buses by the set date, a person with a disability who was not able to catch an accessible bus on one or more occasions may not succeed in a discrimination complaint about those incidents.

The Disability Discrimination Act also establishes the office of the Commonwealth Disability Discrimination Commissioner.

Disability Services Act

The Disability Services Act 1986 (Cth) provides for the accreditation, certification and Commonwealth funding of services for people with disability including advocacy, employment and rehabilitation services.

Fair Work Act

The Fair Work Act 2009 (Cth) ('Fair Work Act') includes provisions that make it unlawful to take adverse action against an employee on specified grounds, including their disability. Adverse action includes dismissing an employee; detrimentally altering an employee's position; and discriminating because of an employee's disability. See Employment Law.

National Disability Insurance Scheme Act

The National Disability Insurance Scheme Act 2013 (Cth) ('NDIS Act') establishes the National Disability Insurance Scheme ('the NDIS'), the National Disability Insurance Agency ('NDIA') and the National Disability Insurance Scheme Quality and Safeguards Commission (‘the NDIS Commission’). See National Disability Insurance Scheme.

Relevant ACT Legislation

ACT legislation that relates to people with disability includes the following Acts:

Crimes Act

The Crimes Act 1900 (ACT) (‘Crimes Act’) makes it a criminal offence for:

• a person who is responsible for providing care to a vulnerable person to abuse or neglect a vulnerable person (see s 36A);
• a person in authority to fail to protect a vulnerable person in their care (see s 36B); and
• a person who is responsible for providing care to a vulnerable person to recklessly or negligently fail to provide the vulnerable person with the ‘necessities of life’ that are a necessary of the vulnerable person’s care that the person providing care is responsible for (see s 36C). ‘Necessities of life’ includes adequate food, clothing, shelter, hygiene and health care.

A vulnerable person includes (see s 36A(5), Crimes Act):

• an adult with disability within the meaning of the Disability Services Act 1991; or
• is at least 60 years old and:
• has a disability within the meaning of the Disability Services Act 1991; or

  - is at least 60 years old and—

  • has a disorder, illness or disease that affects the person's thought processes, perception of reality, emotions or judgement or otherwise results in disturbed behaviour; or
  • has an impairment that—
    • is intellectual, psychiatric, sensory or physical in nature; and
    • results in a substantially reduced capacity of the person for communication, learning or mobility; o
  • for any other reason is socially isolated or unable to participate in the life of the person's community.

Discrimination Act

The Discrimination Act 1991 (ACT) ('Discrimination Act') provides that discrimination is unlawful on various grounds, including disability, in specified areas of public life including but not limited to:

• access to premises;
• education;
• employment; and
• the provision of goods and services.

It operates alongside Commonwealth discrimination legislation, including the Disability Discrimination Act.

A person with disability who wants to make a discrimination complaint can choose to do so under the Discrimination Act if there is a relevant connection to the ACT. Alternatively, a person with a disability may choose to make a discrimination complaint under the Disability Discrimination Act because it operates in all parts of Australia.

Human Rights Commission Act

The Human Rights Commission Act 2005 (ACT) ('Human Rights Commission Act') provides that the ACT Human Rights Commission ('ACT Commission') may consider and provide conciliation for discrimination complaints, including disability discrimination complaints. Conciliation is a process which involves a meeting between the person making the complaint and the person or organisation complained about, which tries to resolve the complaint with the assistance of a conciliator.

The Human Rights Commission Act also provides that the ACT Commission may consider and provide conciliation for complaints about disability services, which include:

• accommodation;
• advocacy;
• case management;
• personal care;
• respite care;
• transport;
• education;
• recreation;
• rehabilitation; and
• employment services for people with disability.

The Human Rights Commission Act also provides that the ACT Commission may consider and provide conciliation for complaints about other services including health services and community services.

The Human Rights Commission Act also provides that the ACT Commission may consider and provide conciliation for complaints about an older person (over 60) or an adult with a disability is subject to, or at risk of neglect, abuse or exploitation.

If the ACT Commission cannot resolve a discrimination complaint through conciliation, the person making the complaint may ask the ACT Commission to refer the complaint to the ACT Civil and Administrative Tribunal ('ACAT') for determination. See Referral to ACAT in the Discrimination Chapter.

If the ACT Commission cannot resolve a community, disability or health services, or abuse, neglect or exploitation of vulnerable person complaint through conciliation, it will provide a report to the person making the complaint and the person or organisation complained about. It may also provide a 'third party report' to a relevant Minister; an employer; or a service provider.

The Human Rights Commission Act also establishes the office of the Health Services, Discrimination, Disability and Community Services Commissioner; and the office of the Public Advocate, which both provide various services for people with disability. See ACT Health Services, Discrimination, Disability and Community Services Commissioner, and ACT Public Advocate.

Human Rights Act

The Human Rights Act 2004 (ACT) provides for specified human rights to be considered in the formulation and interpretation of ACT laws; for public authorities to act consistently with human rights in decision-making; and for people to be able to take proceedings in the Supreme Court against public authorities for human rights breaches and to rely on human rights in other proceedings.

The human rights specified in the legislation include civil and political rights based on the International Covenant on Civil and Political Rights as well as the right to education based on the International Covenant on Economic, Social and Cultural Rights. See the ACT Human Rights Act chapter.

Disability Services Act

The Disability Services Act 1991 (ACT) ('Disability Services Act') provides for services for people with disability and for ACT funding of such services. It also provides standards for specialist disability services which incorporate relevant national standards. Specialist disability services include services providing accommodation support; case management; advocacy; personal care and respite services. Disability services which receive funding must observe human rights principles and service design and implementation requirements.

While the Disability Services Act provides that people with disabilities have the same right as other members of society to receive services in a manner that results in the least restriction of their rights and opportunities. Restriction of rights may include the use of seclusion; chemical, mechanical, physical, environmental restraints; and verbal directions, or gestural conduct, of a coercive nature.

The Disability Services Act also provides for an Official Visitor for Disability Services. See ACT Official Visitors.

Senior Practitioner Act

The Senior Practitioner Act 2018 (ACT) (‘Senior Practitioner Act’) provides a formal framework for the reduction and elimination of restrictive practices by service providers in the ACT. The Senior Practitioner Act applies to all disability service providers in the ACT, not just those who are providing services purchased through NDIS plans.

Guardianship and Management of Property Act

The Guardianship and Management of Property Act 1991 (ACT) provides for the appointment of guardians, financial managers and health attorneys in certain circumstances for people with disability who have impaired decision-making abilities. These people are known as 'protected persons'.

Guardians, financial managers and health attorneys must act in accordance with specified decision-making principles such as acting in accordance with the protected person's wishes as far as they can be worked out unless doing so would significantly adversely affect the protected person's interests. See Guardianship and Financial Management.

Public Trustee and Guardian Act

The Public Trustee and Guardian Act 1985 (ACT) establishes the office of the Public Trustee and Guardian, who may be appointed as a guardian and/or financial manager for a person with disability if an individual is unable to be appointed. See ACT Public Trustee and Guardian.

Mental Health Act

The Mental Health Act 2015 (ACT) ('Mental Health Act') provides for the treatment, care, support, rehabilitation and protection of people with a mental disorder or mental illness. It contains principles relating to the rights of people with a mental disorder or mental illness and corresponding obligations for services dealing with such people. See Mental Health Law.

The Mental Health Act also contains a definition of and principles relating to decision-making capacity for a person with a mental disorder or mental illness. The decision-making principles assume that a person has decision-making capacity and focus on the support they need to maximise their decision-making capacity for particular decisions. See Capacity and Supported Decision-Making.

The Mental Health Act also provides for an Official Visitor for mental health facilities and correctional centres where detainees receive treatment for mental disorders or mental illnesses. See ACT Official Visitors.

Powers of Attorney Act

The Powers of Attorney Act 2006 (ACT) provides that people can make general powers of attorney while they have decision-making capacity so that attorneys can act for them in certain matters, for example to sell a property while they are overseas.

It also provides for people to make enduring powers of attorney so that attorneys can act for them when they do not have decision-making capacity, for example if they suffer a severe brain injury.

It also sets out some principles for attorneys under enduring powers of attorney including that they should give a person support to take part in decisions about their life to the greatest extent practicable. See Enduring Powers of Attorney.

Medical Treatment (Health Directions) Act

The Medical Treatment (Health Directions) Act 2006 (ACT) provides that a person with decision-making capacity can make a health direction to refuse or require the withdrawal of medical treatment.

If a person who has made a heath direction no longer has decision-making capacity and has a guardian or a health attorney, the guardian or health attorney must act consistently with the health direction if it is reasonable to do so.

If a person makes a health direction and an enduring power of attorney, the attorney must comply with the health direction if it is consistent with the enduring power of attorney. If the health direction is not consistent with the enduring power of attorney, the attorney must comply with it if it was made after the power of attorney.

The Act also requires that health facilities, including residential disability care facilities must take reasonable steps to place a copy of any heath direction or revocation of such a direction with a patient's file.

Official Visitor Act

The Official Visitor Act 2012 (ACT) provides for Official Visitors under various Acts including the Disability Services Act and the Mental Health Act. An Official Visitor can inspect 'visitable places' and take complaints from 'entitled persons'.

A visitable place under the Disability Services Act includes respite or long-term accommodation for people with a disability and residential aged care facilities which accommodate people with disability under 65. An entitled person under the Disability Services Act is a person with a disability.

A visitable place under the Mental Health Act includes mental health facilities and correctional centres where detainees receive treatment for mental disorders or mental illnesses. An entitled person under the Mental Health Act is a person receiving treatment, care or support for a mental disorder or a mental illness at a visitable place or another place under an order made under the Mental Health Act.

An Official Visitor must report to the relevant Minister; relevant Director-General; the Public Advocate and the Official Visitors Board if they believe that: the care and services for; living conditions and activities of; or detention of entitled persons at visitable places are not in accordance with the relevant Act. The Official Visitor must also provide reports to these people every quarter on the complaints they receive. The relevant Minister must table an annual report from the Official Visitors in the ACT Legislative Assembly.

Relevant Commonwealth Policies

Commonwealth policies that relate to people with disability include the following:

National Disability Strategy

The National Disability Strategy 2010-2020 (NDS) sets out policy directions and actions for the Commonwealth, State and Territory Governments in the areas of: inclusive and accessible communities; rights protection, justice and legislation; economic security; personal and community support; learning and skills; and health and well-being. Governments have agreed to continue efforts under the National Disability Strategy to uphold the rights of people with disability between the expiry of the current Strategy at the end of 2020, and the finalisation of the new National Disability Strategy in 2021. An example of a specific action in the NDS is to ensure supported decision-making safeguards are in place for people with disability. See Capacity and Supported Decision-Making.

National Standards for Disability Services

The National Standards for Disability Services promote choice and control by people with disability and apply to disability employment service providers and advocacy services funded under the National Disability Advocacy Program.

National Standards for Public Guardians

The National Standards for Public Guardians require public guardians to:

• provide information to protected persons;
• give effect to their views where possible;
• advocate for the best services for them;
• take action if there is a reasonable suspicion that they have experienced abuse, exploitation or neglect;
• make decisions following relevant agency policies and procedures;
• record decisions;
• participate in guardianship reviews; and
• ensure privacy and confidentiality.

National Standards for Financial Managers

The National Standards for Financial Managers require financial managers to:

• provide information to protected persons;
• advocate for their financial entitlements;
• give effect to their views where possible;
• protect their money and assets;
• make decisions in their best interests;
• invest their money for their benefit;
• only use their money for their benefit;
• record information;
• ensure privacy and confidentiality;
• protect legal rights relating to their money and assets;
• act professionally; and,
• participate in financial management reviews.

National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector

The National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector (‘National Framework’) establishes a national approach to reducing and eliminating restrictive practices at the Commonwealth, State and Territory levels.

Restrictive practices are those which restrict the rights or freedom of movement of a person with disability so as to protect the person or others from harm. They may include the use of seclusion; chemical, mechanical, physical, psychosocial and environmental restraints; and the withdrawal of activities or items for people with disability.

The National Framework outlines high level guiding principles and core strategies for reducing or eliminating restrictive practices. The principles include the provision of decision support to people with disability and the core strategies include the availability of tools to assist people with disability to participate in decision making. See Capacity and Supported Decision-Making.

The National Framework applies to all services within the disability sector. Disability service providers who are registered providers with the NDIS Quality and Safeguards Commission and who develop behaviour support plans or use restrictive practices are required to also comply with the NDIS Quality and Safeguarding Framework.

NDIS Quality and Safeguarding Framework

The NDIS Quality and Safeguarding Framework provides a nationally consistent approach to help empower and support NDIS participants to exercise choice and control, while ensuring appropriate safeguards are in place and establishes expectations for providers and their staff to deliver high quality supports.

Relevant ACT Policies

ACT Government policies that relate to people with disability include the following:

ACT Public Sector Reasonable Adjustment Policy

The ACT Public Sector Reasonable Adjustment Policy provides that ACT Public Sector Directorates should make reasonable adjustments for people with disability who apply for jobs, are engaged by a recruitment company or are employed on a contract or permanent basis with the ACT public service.

ACT Disability Justice Strategy

The Disability Justice Strategy 2019–2029 aims to achieve equity and inclusion for people with disability in the justice system. It is a ten-year plan which aims to ensure people with disability in the ACT have equal access to justice, and provides guidance on how the justice system interacts with people with disability.