How the law defines disability, impairment and mental illness and the key laws a state and federal levels that protect people’s rights against discrimination and for employment, accommodation, education and other services are described. The types of disability, disability services, disability discrimination, advocacy and recent developments under the National Disability Insurance Scheme are covered, along with sexual offence cases and duty of care and negligence.

Government services for those with a disability

Last updated

1 July 2020

Recent developments

Funding for specialist services is provided under the National Disability Agreement (NDA) – an agreement between the Commonwealth and state governments as equal partners, which replaced the Commonwealth, States and Territories Disability Agreement on 1 January 2009 – with reference to the DSA (Cth) and the Disability Act

However, continued future funding for such services is not guaranteed and is subject to legislative and policy change at both Commonwealth and state levels. Some services are provided by government, while others are provided by non-government organisations, usually funded by government.

The pilot of the NDIS in Victoria’s Barwon region has now been added to this mix, as has the roll-out of the new system to the whole state, and to the rest of Australia. This roll-out is scheduled to be completed by July 2019.

The Disability Act is much broader in scope than the two Acts it replaced and provides for:

  • the creation of a Victorian Disability Services Com­­­missioner who accepts and investigates com­plaints about disability services and supports: the Disability Services Commissioner provides a complaints mechanism for people with complaints about service providers who live in the areas of Victoria in which the NDIS has been rolled-out; note that 2017 amendments to the Disability Act increased the Disability Services Commissioner’s powers; and
  • a Senior Practitioner (Disability) ‘generally responsible for ensuring that the rights of persons who are subject to restrictive interventions and compulsory treatment are protected and that appropriate standards in relation to restrictive interventions and compulsory treatment are complied with’.

The Disability Act also provides a statutory basis for the Victorian Disability Advisory Council, which advises the Minister, and it establishes a Disability Services Board. A Disability Services Commissioner and a Senior Practitioner were appointed in 2007. Disability services to be funded under the Disability Act and previously funded under the IDPS Act and the Disability Services Act 1991 (Vic) were auto­matically registered as services under the new legislation. Services are now subject to much greater accountability and quality standards than previously.

Disability advocacy services

Independent disability advocacy services are extremely important to people who have a disability and who are trying to get their rights. They are provided by several independent disability advocacy agencies federally funded by the Australian Government Department of Social Services under the National Disability Advocacy Program and also others that are state-funded. 

Disability Advocacy Victoria is the peak body representing independent disability advocacy agencies (for further information,

Advocacy and guardianship

The Office of the Public Advocate (OPA) (see ‘Contacts’ at the end of this chapter) is established under the Guardianship and Administration Act 1986 (Vic) (‘GA Act’) and has responsibility for promoting the rights and independence of people who have a disability (defined as intellectual impairment, mental disorder, brain injury, physical disability or dementia) of all ages.

OPA can provide advice and assistance, and can investigate and advocate on behalf of people with a disability (ss 15, 16 GA Act). OPA advocates in people’s ‘best interests’. It coordinates the Community Visitors Program (created under the MH Act 2014, Disability Act and Health Services Act 1988 (Vic)), and the independent third person (ITP) program (created under Police Operating Procedures). (For more information, see Chapter 8.2: Disability: Asserting your rights and Chapter 8.3: Disability and criminal justice.)

When people are unable, because of their disability, to make decisions for themselves, guardians and administrators may be appointed by the Guardianship List of the Victorian Civil and Administrative Tribunal (VCAT). A guardian makes ‘lifestyle’ decisions, such as those relating to health, accommodation or access to services. An administrator makes financial and legal decisions. For more information, see Chapter 8.6: Guardianship and medical treatment.

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Disability, mental illness and the law