Understanding disability and the law

The rights of people with disability are established in the United Nations Convention on the Rights of Persons with Disabilities (2006) (UNCRPD), adopted by the United Nations General Assembly in 2006 and signed by Australia in 2007.

The Australian Government ratified the convention on 17 July 2008 and on 30 July 2009 it announced that Australia would 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. Many of the rights referenced in Australian and Victorian laws flow from these international human rights obligations. Specifically, the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) states at s 3: (1) The objects of this Act are to: (a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12). Note that the Disability Royal Commission has made numerous recommendations to improve Australia’s compliance with the full range of rights under the UNCRPD, including a Disability Rights Act.

Article 1 of the UNCRPD states: “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” While this definition is broad and encompassing, legislation will generally provide further definition about the term, specific to the objectives of the relevant Act. The main laws relevant to disability include:

• programs which provide support to people with disability who meet certain criteria (including the Social Security Act 1991 (Cth) and National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’). These definitions are specific to the intended recipients of these programs.
• legislation to support human rights and prevent discrimination (including the Equal Opportunity Act 2010 (Vic) (‘EO Act’) and the Disability Discrimination Act 1992 (Cth) (‘DD Act’)). These definitions are broad, reflecting the diversity of disability and the human rights of all people with disability.
• legislation which in some ways limits the rights of disabled people, whether by compulsory treatment regimes (including the Mental Health and Wellbeing Act 2022 (Vic) (‘MHW Act’), and the Disability Act 2006 (Vic) (‘Disability Act’)) or substitute decision-making (including the Guardianship and Administration Act 2019 (Vic) (‘G&A Act’)). These definitions are specific to the reasons for the limitation on human rights.
• protections from abuse including those in the Family Violence Protection Act 2008 (Vic), Crimes Act 1958 (Vic), Evidence Act 2008 (Vic) (‘Evidence Act’) and Criminal Procedure Act 2009 (Vic) (‘CP Act’).
• particular criminal offences and criminal justice system responses to disability. This includes the Crimes Act 1958 (Vic), the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMIUT Act’), and the Sentencing Act 1991 (Vic).

The Social Security Act 1991 (Cth) does not define disability, but provides eligibility for the Disability Support Pension for people who have a physical, intellectual or psychiatric impairment and the person’s impairment is of 20 points or more under the Impairment Tables. For more Information about the Disability Support Pension see Section 5: Managing your money.

The National Disability Insurance Scheme was established by the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) to provide support to eligible people with disability. Specifically the NDIS aims to support the independence and social and economic participation of people with disability; provide reasonable and necessary supports, including early intervention supports, for NDIS participants; and enable people with disability to exercise choice and control in the pursuit of their goals. Eligibility for access to the NDIS is limited to people who meet all of the following criteria:

• Australian residents who hold Australian citizenship, permanent visa or special category protected visa
• who are under age 65 at the time of application
• meet the disability requirements The term ‘meet the disability requirements’ is defined in section 24 of the NDIS Act, as follows: Disability requirements 1 A person meets the disability requirements if: a 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 b the impairment or impairments are, or are likely to be, permanent; and c the impairment or impairments result in sub­ stantially reduced functional capacity to undertake, or psychosocial functioning in under­taking, one or more of the following activities: i communication; ii social interaction; iii learning; iv mobility; v self-care; vi self-management; and d the impairment or impairments affect the person’s capacity for social and economic participation; e 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. Once a person becomes a participant of the NDIS, they meet with a planner from the National Disability Insurance Agency (NDIA) to develop an individualised plan of supports. The ‘reasonable and necessary’ test outlined in section 34 requires that the funded supports:
• will assist the participant to pursue their stated goals, objectives and aspirations; and
• will facilitate the participant’s social and economic participation; and
• represent value for money; and
• are effective and beneficial for the participant, having regard to current good practice; and
• take account of what it is reasonable to expect families, carers, informal networks and the community to provide; and
• are most appropriately funded by the NDIS rather than other general systems (as part of a universal service obligation or as reasonable adjustments). An NDIS plan may include supports under any or all of the following categories:
• core supports which is direct support for the individual and includes support in the home and community, consumables such as continence products and minor assistive technology, and transport
• capacity building which is aimed at developing skills and includes therapies and NDIS-specific roles such as support coordination (to find and coordinate services), and plan management (to manage the funding). For some people with their first NDIS plan, this category may be the most important as it contains the funding for occupational therapists and other allied health professionals to conduct assessments of need and make recommendations about the supports to be funded in future.
• capital supports such as home modifications, specialist disability accommodation and significant assistive technology (such as wheelchairs or vehicle modifications) For more information see www.ndis.gov.au/ participants/using-your-plan/managing-your-plan/ support-budgets-your-plan If a participant does not agree with the decision about the supports the NDIS will fund, they can seek an internal review of this decision, wherein a different employee of the NDIA will reconsider the decision. If they do not agree with the outcome of the internal review, they can request the Administrative Appeals Tribunal (AAT) conduct an external review (or appeal) of the decision. NDIS Appeals advocates are free independent services to assist people with AAT appeals. See the Contacts List at the end of this chapter for details.

Free, independent advocacy is available for people with disability who need support to assert their rights or resolve issues. These services are funded by both Commonwealth and state governments.

Commonwealth-funded advocacy services are listed here: www.dss.gov.au/disability-and-carers-programs- services-for-people-with-disability-national-disability- advocacy-program-ndap-operational-guidelines/ list-of-agencies-funded-under-the-national-disability- advocacy-program

State-funded advocacy services are listed here: www.providers.dffh.vic.gov.au/disability-advocacy- organisations

There are two types of parking permits available for people with disabilities:

• Australian Disability Parking permit (ADP)
• Double Time permit (DT) Eligibility for the ADP requires evidence that:
• The person has a significant mobility impairment requiring the use of a mobility aid and a larger than standard parking bay; or
• The person has a significant medical condition which makes it difficult to walk 100 metres safely, or
• The person has a significant cognitive or other impairment which requires continuous support. Holders of an ADP can park in accessible parking spaces, or park for double the signed time in a standard parking bay. Victorian ADP permits are recognised in other states. Eligibility for the DT requires evidence of a significant impairment that affects the ability to walk more than 100 metres and requires regular breaks. Holders of a DT can park for double the signed time in a standard parking bay. DT permits are not recognised outside of Victoria. For more information see www.accessibleparking. vic.gov.au/permits/