Understanding disability and the law

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 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; 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.

Independent disability advocacy services are extre-mely important to people who have a disability and are trying to get their rights. These services are provided by several independent disability advocacy agencies that are funded by the Australian Government Department of Social Services under the National Disability Advocacy Program. There are other services that are funded by state governments. 

Disability Advocacy Victoria is the peak body representing independent disability advocacy agencies (see www.disabilityadvocacyvic.org.au).

The Office of the Public Advocate (OPA) (see ‘Contacts’ at the end of this chapter) was established under the old Guardianship and Administration Act 1986 (Vic) and is continued by the new Guardianship and Administration Act 2019 (Vic) (‘GA Act’). Some of the OPA’s most important functions are to promote the human rights of people with disabilities, to undertake advocacy on a systemic or personal basis, and to protect people with disabilities from abuse, neglect and exploitation (s 15 GA Act)

The OPA also coordinates the Community Visitors Program (see https://www.publicadvocate.vic.gov.au/opa-volunteers/community-visitors), and the Independent Third Persons Program (see https://www.publicadvocate.vic.gov.au/opa-volunteers/independent-third-persons).

The Office of the Public Advocate (OPA) can be appointed to be a person’s guardian by the Victorian Civil and Administrative Tribunal (VCAT) (s 16 GA Act). 

The new GA Act enables VCAT to make sup-portive guardianship orders. A supportive guardian assists the supported person to make decisions about which the order relates. Supportive guardianship orders are less restrictive than guardianship orders and represent a shift away from substituted decision-making towards supported decision-making.

A supportive guardianship order can be made where:

• the proposed supported person consents to the order; and
• the proposed supported person is capable of making their own decisions when given support; and
• the order promotes the proposed supported person’s personal and social wellbeing (s 87(2) GA Act).

For more information about guardianship, see Chapter 8.6: Guardianship and medical treatment.