Understanding disability and the law

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 legally defines disability does so in relation to the following areas:

• Complaints of discrimination on the basis of disability: This includes the Equal Opportunity Act 2010 (Vic) – which is complemented by the Charter of Human Rights and Responsibilities Act 2006 (Vic) – and the Disability Discrimination Act 1992 (Cth).
• Services specifically provided to people who have a disability: This includes the Disability Services Act 1986 (Cth) and the Disability Act 2006 (Vic) (‘Disability Act’).
• Complaints about disability services and supports: This includes the Disability Act. The Victorian Disability Services Commissioner also provides an independent complaints process, in relation to complaints about disability services and supports, to participants of the National Disability Insurance Scheme (NDIS).
  Since 1 July 2019, the NDIS Quality and Safeguards Commission has overseen NDIS supports and services. The commission manages the registration and quality of NDIS providers, hears complaints from NDIS participants, and manages the reporting of incidents.
  Complaints about the National Disability Insurance Agency (NDIA) (which administers the NDIS) are managed internally by NDIA officers. Or, complaints can be escalated to the Commonwealth Complaints Resolution and Referral Service, or to the Commonwealth Ombudsman, or to the Administrative Appeals Tribunal for a review of a decision.
• Applications for guardianship and administration orders: This includes the Guardianship and Administration Act 2019 (Vic).
• Care, treatment and protection of ‘at risk’ persons, who cannot consent to such care, treatment and protection, whether within or outside the criminal justice system: This includes the Mental Health Act 2014 (Vic)(‘MH Act’), Human Services (Complex Needs) Act 2009 (Vic) and the Disability Act.
• Particular criminal offences/criminal justice system responses to disability: This includes the Crimes Act 1958 (Vic) (ss 50–52), Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), Sentencing Act 1991 (Vic) and the Human Services (Complex Needs) Act 2009 (Vic).
• Exemption of particular groups of people with disabilities from specific laws: This includes section 23 of the Residential Tenancies Act 1997 (Vic).

Disability Act 2006 (Vic)

The Disability Act (as amended by the Disability Amendment Act 2012 (Vic)) is one of the two main Victorian Acts relating to disability (see also ‘Equal Opportunity Act’, below). The Disability Act seeks to assist the implementation of Victoria’s state disability plan. This plan aims to enable Victorians who have a disability to be included in the community and to 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, regulates the disability service provider sector, and establishes a complaints mechanism through the Victorian Disability Services Commissioner. The Disability Act also provides for the supervision of restraint and seclusion, and – by establishing the Office of Professional Practice (formerly called the Office of the Senior Practit-ioner) and the position of Senior Practitioner (Disability) – the Act provides for the development and training in best practice in behaviour management of ‘behaviours of concern’. 

The Disability Act sets out its objectives and principles in sections 4 and 5. It also sets out the principles that apply specifically to people who have an intellectual disability in section 6. For further information about these principles, see Chapter 8.5: Intellectual disability and the law.

Disability is defined in the Disability Act (s 3) as:

disability in relation to a person means:

a. a sensory, physical or neurological1 impairment or acquired brain injury or any combination thereof, which

i. is, or is likely to be, permanent; and

ii. causes a substantially reduced capacity in at least one of the areas of self-care, self-management, mobility or communication; and

iii. requires significant ongoing or long-term episodic support; and

iv. is not related to ageing; or

b. an intellectual disability2; or

c. 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 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. Note that the diagnosis of Asperger’s Syndrome, formerly dealt with separately, has been subsumed under the heading of Autism Spectrum Disorder in the most recent update of the DSM-5 (the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders), which is the international bible of diagnostic criteria used by mental health professionals.
2 See the definition of ‘intellectual disability’ under ‘Types of disability’, below. Also see Chapter 8.5: Intellectual disability and the law.

Disability is not defined in the National Disability Insurance Scheme Act 2013 (Cth) (‘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:

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 substantially 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.

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

a. is attributable to a mental or physical impairment or a combination of mental and physical impairments; and

b. is manifested before the child attains the age of six years; and

c. results in substantial functional limitations in one or more of the following areas of major life activity:

i. self-care;

ii. receptive and expressive language;

iii. cognitive development;

iv. motor development; and

d. 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:

a. is attributable to a mental or physical impairment or a combination of mental and physical impairments; and

b. results in substantial reduction in functional capacity in one or more of the following areas of major life activity:

i. self-care;

ii. receptive and expressive language;

iii. cognitive development;

iv. motor development; and

c. 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.

Equal Opportunity Act 2020 (Vic)

The Equal Opportunity Act 2010 (Vic) (‘EO Act’) is the other main Victorian Act that relates to disability. The EO Act protects people against discrimination on the basis of their disability. The term ‘disability’ has a broad definition, and replaced the term ‘impairment’ in 2011, but the definition remains the same. 

In the EO Act, disability is defined as:

a. total or partial loss of bodily function (e.g. incontinence, hearing loss);

b. the presence in the body of an organism that may cause disease (e.g. bacteria causing blood poisoning, hepatitis or HIV/AIDS virus);

c. total or partial loss of a part of the body (e.g. loss of fingers on one hand, hysterectomy);

d. malfunction of part of the body, including:

i. a mental or psychological disease or disorder (e.g. schizophrenia); or

ii. 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); 

e. malformation or disfigurement of a part of the body (e.g. cleft palate, scarring).

The definition 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). The definition also includes an impairment that may exist in the future (due to a genetic predisposition to that impairment) and, to avoid doubt, behaviour that is a symptom or manifestation of an impairment.

Disability Discrimination Act 1992 (Cth)

Section 4 of the Disability Discrimination Act 1992 (Cth) (‘DD Act’) 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 medical or technical accuracy.

In the DD Act, disability is defined as:

disability, in relation to a person, means:

a. total or partial loss of the person’s bodily or mental functions; or

b. total or partial loss of a part of the body; or

c. the presence in the body of organisms causing disease or illness; or

d. the presence in the body of organisms capable of causing disease or illness; or

e. the malfunction, malformation or disfigurement of a part of the person’s body; or

f. a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

g. a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

and includes a disability that:

h. presently exists; or

i. previously existed but no longer exists; or

j. may exist in the future (including because of a genetic predisposition to that disability); or

k. 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 any-thing to do with the working, non-working or different way of working of any aspect of a person’s body or mind. For example, a person who has undergone gender re-assignment surgery, or who is dependent on a prohibited or regulated substance, may meet the criteria for making a discrimination complaint under section 4 of the DD Act.

Protection against discriminatory treatment may also extend to people with a defined relationship with a person who has a legally defined disability, who experience discrimination on the basis of the person’s disability.

Note that the DD Act and the Australian Human Rights Commission Act 1986 (Cth) were amended by the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth). The amendments:

• introduced a positive duty to make reasonable adjustments, but also broadened the ‘unjustifiable hardship’ defence (see ‘The rights of people who have a disability’, below);
• changed the Disability Standards to enable standards to be made in new areas;
• gave additional powers to the Australian Human Rights Commission (AHRC) under the Disability Convention; and
• extended the time for making an application – to the Federal Court or to the Federal Circuit and Family Court of Australia – from 28 days to 60 days after an AHRC complaint is terminated.

For information about making complaints about discrimination, see Chapter 11.1: Discrimination and human rights.