The Law Handbook 2024

Chapter 8.1: Understanding disability and the law 779 At the time of publication the government has not yet responded to these recommendations, and it is unclear how many of them will be accepted and acted upon. The NDIS Review In October 2022 the Minister for the National Disability Insurance Scheme, the Hon Bill Shorten MP, announced a review of the National Disability Insurance Scheme (NDIS) . The terms of reference included: • the design, operations and sustainability of the NDIS covering issues outlined in the full scheme bilateral agreements between the Commonwealth and jurisdictions (part 1). • ways to build a more responsive, supportive and sustainable market and workforce (part 2). A final report was provided by the Independent Review Panel to Disability Ministers in November 2023, with indications that the recommendations are likely to include: • changes in eligibility for the scheme; and • recommendations about the responsibilities of the broader community and state based systems such as education. At the time of publication, the government has not yet responded to these recommendations, and it is unclear how many of them will be accepted and acted upon. Where the NDIS Review recommendations potentially impact this chapter, this is indicated with a note. The rights of people with disability 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 . Disability-related legislation and definitions 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) (‘EOAct’) and the DisabilityDiscrimination 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.