Disability-related legislation and definitions
Disability is a part of normal human diversity, and for many people with disability, an important feature of their personal identity.
While legal definitions are generally deficit-based, the social model of disability says that people are disabled by barriers in society. These can include physical barriers such as buildings having no ramps or accessible toilets. They can also include behavioural barriers such as negative stereotypes and assumptions about disabled people.
Section 8 comprises six chapters. This chapter introduces legal issues that are unique to people with disability and organisations that promote, and advocate for, their human rights and life outcomes. The remaining chapters deal with critical areas of law affecting Victorians with disability.
Disability-related legislation and definitions
The rights of people with disability are established in the Convention on the Rights of Persons with Disabilities (UNCRPD), adopted by the United Nations General Assembly in 2006 and signed by Australia in 2007. 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 of the term, specific to the objectives of the relevant Act.
The main laws relevant to disability include:
programs that 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). 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 that in some ways limit 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) (‘D Act’)) or substitute decision-making (including the Guardianship and Administration Act 2019 (Vic) (‘GA 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) (‘FVP Act’), Crimes Act 1958 (Vic) (‘Crimes Act’), Evidence Act 2008 (Vic) (‘Evidence Act’) and Criminal Procedure Act 2009 (Vic) (‘CP Act’); and
particular criminal offences and criminal justice system responses to disability. This includes the Crimes Act, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMIUT Act’), and the Sentencing Act 1991 (Vic) (‘Sentencing Act’).
Disability-related legislation and definitions
Chapter: 8.1: Understanding disability and the law
Contributor: Philip Grano, Former Principal Lawyer, Office of the Public Advocate; Naomi Anderson, Legal Practice Manager, Villamanta Disability Rights Legal Service
Current as of: 1 September 2024
Law Handbook Page: 696
Next Section: Disability, mental capacity, legal capacity
