The rights of people who have a disability are set out in a range of international human rights instruments, including the United Nations Declaration on the Rights of Disabled Persons (1975), Declaration on the Rights of Mentally Retarded Persons (1971), Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (1991), and Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1993), to which the Australian Commonwealth and state governments are signatory.
Most recently, the United Nations developed a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities. The United Nations Convention on the Rights of Persons with Disabilities (2006) was adopted by the United Nations General Assembly in 2006 and was signed by Australia in 2007.
The Australian Government ratified the convention on 17 July 2008 and on 30 July 2009 it announced that Australia A document that sets out what a person wants to happen to their money and other property after they die. become a A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. 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.
The convention, which came into force on 4 April 2008, has now been signed by 160 signatories and ratified by 174. Its Optional Protocol has been signed by 92 signatories and ratified by 92. It provides a disability specific international human rights A formal document, in writing or digitally authorised, which has a legal effect. For example, a transfer of land is an instrument that has the effect of changing ownership from one person to another. with the same status as other conventions.
Many of the rights referenced in Australian and Victorian statutes flow from these international human rights obligations, despite the fact that Australia’s legal system is not generally rights-based (although the Victorian Government adopted the Charter of Human Rights and Responsibilities A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 2006 (Vic)). The Australian Government recently considered the possibility of a national Bill of Rights for Australia but decided, instead, to adopt a national Human Rights Framework.
The DD Act is the main Commonwealth Act dealing with the rights of Australian people with disabilities; it aims to:
a eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
i work, accommodation, education, access to premises, clubs and sport;
ii provision of goods, facilities, services and land;
iii existing laws; and
iv the administration of Commonwealth laws and programs;
b ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community;
c promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.
Many people who have a disability work in specific employment settings called supported employment services, while others work in mainstream employment settings. Under the DD Act an employer or prospective employer cannot lawfully discriminate against a person on the grounds of a disability (from advertising vacancies to Something of value, such as money, given by one person to another person as part of a contract. for promotion) unless the person with a disability is unable to perform the ‘inherent requirements’ or the core components of the job. There is a requirement to make ‘reasonable adjustments’ under both the DD Act and the EO Act.
In addition, when ‘providing adjustments’ in the workplace to remedy discrimination and meet the needs of an employee with a disability, the DD Act considers whether the The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs. of such adjustments present an ‘unjustifiable hardship’ to the employer, having regard to the employee’s specific needs, the cost of the adjustment when compared to the overall assets of the employer, and the impact of the adjustment on others.
Under the DSA (Cth), ‘supported employment services’ means services to support the paid employment of persons with disabilities:
- for whom competitive employment at or above the relevant (1) A standard set of working conditions, including pay rates, for a particular industry. (2) A court decision that a party receive compensation, such as an award of damages to compensate them for physical injuries. wage is unlikely; and
- who, because of their disabilities, need substantial ongoing support to obtain or retain paid employment.
In June 1994 the Australian Industrial Relations Commission agreed to insert into awards a model clause that provides for pro rata award rates of pay for people with a disability based on their assessed skills. This is known as the ‘supported wages system’. Wage assessment tools are used to decide how much each worker is paid. A landmark Federal An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. case brought by AED Legal Centre on behalf of employees discriminated against because of the use of these assessment tools was decided in May 2013, when the High Court dismissed the Commonwealth’s application to The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision. the Federal Court decision that rules that the Business Services Wage Assessment Tool discriminated against people with intellectual disabilities.
For more information, contact the AED Legal Centre. The AED Legal Centre is run by the Association of Employees with Disability. (See ‘Contacts’ at the end of this chapter.)
It is unlawful for providers of accommodation to discriminate against a person on the grounds of a disability under the DD Act or EO Act by refusing or deferring an application for accommodation, denying or limiting benefits associated with the accommodation, or evicting a person from accommodation on the basis of the person’s disability.
Private premises, including rental premises, are not subject to discrimination complaints relating to access to the built environment under the DD Act. However, the EO Act provides for complaints regarding any refusal to allow alterations (including their restoration) at the cost of the person with the disability. Other complaints about disability discrimination in accommodation are subject to the ‘unjustifiable hardship’ test (see ‘Employment’, above) under the DD Act. For more information about making complaints regarding discrimination, see Chapter 11.1: Discrimination and human rights.
Under section 23 of the Residential Tenancies Act 1997 (Vic) (‘RT Act’) any person with a disability or mental illness receiving residential support services or found to be an involuntary inpatient, is denied the right to a The agreement between a landlord and a tenant for the rental of a property. agreement subject to the provisions of the RT Act. For more information, see ‘Tenancy’, below, and ‘Rights of residents’ in Chapter 8.5: Intellectual disability and the law.
Disability is not defined within the RT Act; however, section 23 states that the RT Act does not apply to ‘a tenancy agreement or room if the rented premises is a health or residential service’ or an ancillary building used to house staff or ‘users’. Given that the RT Act’s definition of ‘health or residential’ and ‘support’ services includes services within the meaning of the MH Act and the Disability Act, the definitions of intellectual disability and mental illness are implied to be the same as within those Acts.
In effect, any person with a disability or mental illness receiving residential support services, or found to be an involuntary inpatient, is denied the right to a tenancy agreement subject to the provisions of the RT Act.
Section 56(2) of the Disability Act states that, ‘the Residential Tenancies Act 1997 (Vic) does not apply in respect of residential services’. The Disability Act does, however, make provision for a Residential Statement, certain conditions for administration and limited rights for residents to make applications to VCAT, which are similar to those relating to agreements under the RT Act.
Importantly, the Disability Act contains provisions that require no reasons for issuing residents notice to vacate (s 76) when 120 days’ notice is given, and compliance with ‘behaviour management plans’ is allowable as a Required by law to be done; a law that must be strictly complied with. Under mandatory reporting, people in particular jobs to tell a government agency if they know an offence is being committed – for example, doctors and teachers must report child abuse. Mandatory sentencing requires judges to give an automatic jail term for certain offences. condition of the agreement. Further, there are no ‘quiet enjoyment’ provisions. Grounds for notice to vacate are extremely broad, ranging from ‘for the residents safety or wellbeing’ to an increase in the needs of the client in relation to the level and kind of services provided within the community residential unit. A Notice of Temporary Relocation (s 74) can be issued for similar reasons but is effective immediately; however, it requires that the residential Formal delivery of legal documents to a person to tell them there are court proceedings against them which they must defend, or to make sure a witness in a case knows when they have to go to court to give evidence. provider arrange suitable accommodation and services.
It is unlawful for providers of education services to discriminate against a student or prospective student with a disability. This includes all public and private educational institutions, primary and secondary schools, and tertiary institutions such as TAFE, private colleges and universities. Educators must The first step in agreeing to make a legally binding agreement. An offer must be accepted before there can be a legally enforceable contract. For example, a person can offer to sell their car for $5000 and a buyer can accept the offer and pay that purchase price. a person with a disability the same educational opportunities as everyone else, including with regards to enrolment, if the entry requirements of a school or college are met.
Under the Victorian EO Act, education providers must not discriminate against a student with a disability unless the necessary facilities cannot be reasonably provided; there is a requirement to make ‘reasonable adjustments’. The DD Act specifies discrimination in admission, access and staff harassment as unlawful. It requires education providers to make ‘reasonable adjustments’ to their programs to ensure that students with a disability can access these on the same basis as other students, unless doing so would present an ‘unjustifiable hardship’ to the provider; the DD Act applies a more stringent test than the EO Act to determine this.
Education services for people with an intellectual disability, including special schools and adult day training centres, were, until 30 June 2007, provided for under the IDPS Act (now revoked), which stated that people with an intellectual disability have ‘a right to individualised educational and developmental opportunities’. The Disability Act, which replaced the IDPS Act, does not provide specifically for education services but refers in more general terms to the right of people with disabilities to similar opportunities in all area of life to those of people without disabilities.
Children with disabilities in Victorian schools have many difficulties receiving an education and are often subject to restrictive practices, isolation and restraint. In 2012, the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) published a report on this subject called, Held back: the experiences of children with disabilities in schools. VEOHRC has also published a range of related factsheets.
The Victorian Government Department of Education and Training recently established the position of Principal Practice Leader (Education) as part of the Special Needs Plan for Victorian Schools; this person reports to the Senior Practitioner (Disability) in the Office of Professional Practice. Their brief includes working with schools to observe, review and recommend appropriate responses to children with behavioural issues; develop guidelines and resources for schools; seek to foster best practice and to reduce the use of restrictive practices; work with schools to ensure that physical restraint and isolation are only used when immediately required to protect the safety of a student or other person; study current practices and help build The ability to understand and be held responsible by the law for your actions. It also refers to a person’s ability to understand and agree to something, such as to undergo medical treatment. Full legal capacity is reached at 18 years of age, when a child becomes an adult. and expertise of school staff, and improve data collection systems.
Access to premises
Under the DD Act, it is unlawful for public places to be inaccessible to people with a disability. Indeed, every area open to the public should be open to people with a disability, who should expect to be able to enter and make use of places used by the public if people without a disability can do so. This means being accessible at the entrance and inside buildings including facilities in these places (e.g. wheelchair-accessible toilets, lift buttons within reach, tactile and audible lift signals for people with vision impairments) and seating arrangements that are not second rate or segregated. This applies to existing places as well as those under construction.
Building access issues also arise under other DD Act provisions, including in relation to employment, access to services, and accommodation. The Building Code of Australia (BCA) and Australian Standard 1428 (AS 1428) regulate access to buildings and establish minimum requirements in relation to access. These requirements form the Access to Premises Standard. For more information, see ‘Disability Standards’, below.
Clubs and sport
The DD Act (ss 27, 28) and the EO Act (ss 64, 65, 70, 71) make it unlawful for clubs and associations to discriminate against a person because of their disability, including in participation in sporting activities. A person with a disability has a right to be a member of any club or association that a person without a disability is allowed to join. This includes sporting or social groups, licensed clubs, art, drama or music groups, political parties, business and professional associations, and Under the Australian Consumer Law, a person who buys goods or services for less than $40 000 or for personal or home use. and self-help groups.
Exemptions are allowed:
- under the EO Act for groups whose membership is specifically for a particular disadvantaged group or minority culture or has benefits to a particular age group or gender; and
- under the DD Act for disability specific groups.
Sporting activities are exempted where they are for a specific group of people with a disability or are competitive in nature and cannot be reasonably performed by the person with the disability. Where a club or association provides a service, these are subject to the goods and services provisions of both the EO Act and the DD Act. For more information, see Chapter 11.1: Discrimination and human rights.
Provision of goods, facilities and services
A person with a disability has a right to obtain goods and use services and facilities that a person without a disability can obtain. The DD Act and EO Act make it unlawful for providers of goods, services and facilities to discriminate against a person because of a disability. They cannot refuse to provide, or provide on less favourable terms and conditions or in an unfair manner, goods, services and facilities. Under the EO Act, there is a requirement to make ‘reasonable adjustments’ for a person with a disability.
Complaints under the DD Act may consider whether the provider has suffered an ‘unjustifiable hardship’ in providing goods, services or facilities to the A person who begins a criminal prosecution against another in the Magistrates’ Court, or formally starts an action in a court or tribunal or makes a complaint to a complaint-handling body. In a civil action they could also be referred to as a plaintiff or an applicant. with a disability. A person with a disability also has a right to enter the premises of providers of goods, services and facilities if people without a disability can do so. For more information, see Chapter 11.1: Discrimination and human rights.
Under Australia’s system of compulsory voting, people with disabilities are liable to be fined if they do not enrol to vote or cast their vote. However, many people with disabilities experience difficulties in accessing polling booths and voting information such as ballot papers.
Sections 234 and 235 of the Commonwealth Electoral Act 1918 (Cth) provide for certain persons with disabilities to seek assistance to cast their vote or to vote outside of a polling booth. The DD Act An order made by the Supreme Court of Victoria or the High Court of Australia prohibiting a body from acting outside its authority. See also jurisdiction; prerogative writ; ultra vires. of discrimination in relation to access to services (s 24), access to premises (s 23) and the administration of Commonwealth laws and programs (s 29) may be relevant to the conduct of federal elections; the EO Act provisions against discrimination in these areas may be relevant to the conduct of state and local government elections.
Section 31 of the DD Act authorises the Commonwealth Attorney-General to formulate ‘standards’ to be known as Disability Standards in relation to employment, education, accommodation, provision of public transportation services and facilities, and administration of Commonwealth laws and programs.
Standards are compulsory and are designed to promote minimum compliance with disability access requirements. For more information contact the Australian Human Rights Commission (see ‘Contacts’ at the end of this chapter).
People with disabilities who receive services provided for in Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute. may have rights in relation to a range of matters involving eligibility, placement, assessment, critical dates, service or treatment plans, use of regulated/restricted treatments, involuntary treatment/care, financial matters, and how such services are provided. For example, the DSA (Cth) has ‘standards’ that service providers must meet in order to continue to receive funding under the Act.
The MH Act and the Disability Act both provide for written information regarding clients’ rights to be presented to the client on commencement of the service, and allow for the review of a range of decisions. For more information, see Chapter 8.4: Mental illness.
The Crimes Act 1958 (Vic) (‘Crimes Act (Vic)’) – as amended by the Crimes (Sexual Offences) Act 2006 (Vic) (‘CSO Act’) – seeks to improve access to justice for people with ‘cognitive’ impairment who are complainants of sexual assault. The Crimes Act (Vic) includes definitions of offences.
In the Crimes Act (Vic) (s 50), the definition of ‘cognitive impairment’ includes mental illness, intellectual disability, dementia and brain injury. For more information, see Chapter 3.3: Sexual offences.
The definition of intellectual disability within the Disability Act is reflected in amendments to relevant sections of the Crimes Act (Vic).
Complaints of sexual assault
The CSO Act – which legislated amendments to various Acts, including the Crimes Act (Vic) – aimed, in part, at further providing for the protection of children and people with a cognitive impairment from sexual assault. The Crimes Act (Vic) (s 51) now includes a broader A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). that captures sexual acts between a person who is a provider of medical or therapeutic services and a person with a cognitive impairment irrespective of whether those services are related to the person’s cognitive impairment.
The Crimes Act (Vic) redefines the terms:
- facility: to mean a service that provides programs specially designed to meet the developmental or educational needs of persons with a cognitive impairment, irrespective of whether it is a residential facility;
- worker: to mean a person at a facility who delivers or assists in delivering any program specially designed to meet the developmental or educational needs of persons with cognitive impairment attending or residing at the facility.
The Crimes Act (Vic) also broadens offences under section 52 to encompass sexual conduct on the part of employees, volunteers and others involved in the delivery of programs at both residential and non-residential facilities that are designed to meet the developmental and educational needs of people with a cognitive impairment.
Rules of Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. affecting sexual offences complainants
The CSO Act amendments to relevant legislation aimed to improve the experience of complainants who are people with cognitive impairment in the The party presenting evidence in court on behalf of the state or Commonwealth government against a person accused of committing a crime. Also called the Crown. of sexual offences. This includes improving the rules of evidence to provide a better balance of fairness between the A person who has been charged with a criminal offence or against whom a civil action has been brought. and the complainant.
Guiding principles in sexual offences cases
The CSO Act amendments introduced guiding principles designed to assist courts in interpreting and applying relevant sections of the Evidence Act 2008 (Vic) (‘Evidence Act’). They state the social problem that sexual offence laws and procedures, including those in the legislation, aim to address. They provide further guidance where ambiguity may exist in interpretation during admission and administration of evidence in sexual offence proceedings, and include (now incorporated as section 37B of the Crimes Act (Vic)) that courts are to have regard to the fact that:
- there is a high incidence of sexual violence within society;
- sexual offences are significantly under-reported;
- a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment;
- offenders are commonly known to their victims;
- sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred.
Assessing competence of witnesses in sexual offences cases
The Evidence Act (s 13(1)–(8)) provides requirements for assessing the competency of witnesses who have a cognitive impairment (and children), including the presumption of competence to give evidence. People with a cognitive impairment, who are not competent to give unsworn evidence, can be considered competent to give evidence about another fact to which a question relates, that the A person who can provide direct information based on their own knowledge about a relevant fact, and appears in court to give evidence about it. In some cases a witness may provide an affidavit or deposition setting out their evidence if they are not able to attend court. can understand and to which their answer can be understood. Sections 30 and 31 give examples of assistance that may be provided to enable witnesses to overcome disabilities. (See also Chapter 3.3: Sexual offences.)
The CSO Act requires the court to explain to a person with a cognitive impairment considered competent to give evidence:
- the importance of telling the truth;
- that they may not be able to answer a question asked of them; and
- that they should say so if this occurs and they should feel free to disagree with statements they consider untrue and should agree with statements that are true.
The CSO Act also provides for the admission of expert evidence to assess the competence of a child or person with a cognitive impairment to give evidence. This makes it easier for courts to assess the competence of people with a cognitive impairment to give sworn or unsworn evidence.
Giving evidence in sexual offences cases
The CSO Act provides a special procedure for the An opposing party’s questioning of a witness in a court case. Questioning of your own side’s witness is called examination in chief. of complainants and their family members (referred to as ‘protected witnesses’) in the prosecution of sexual offences in which the A person who has been charged with a crime. Also known as a defendant. is not legally represented. The section prohibits cross-examination of protected witnesses in person by the accused. It sets out a special procedure where an accused person, who has not obtained legal representation after being given a reasonable opportunity to do so, must have a legal practitioner appointed to them by Victoria Legal Aid for the purpose of cross-examining the protected witness.
Other amendments legislated by the CSO Act include:
- amendments relating to witnesses who are children or people with a cognitive impairment;
- provision for the admission of expert evidence in sexual offence cases for the purpose of assessing the competence of a child or a person with a cognitive impairment to give evidence;
- provision for a complainant who is a child or a person with a cognitive impairment to give evidence through alternative arrangements that include the giving of evidence from outside the court room, via CCTV, giving evidence in the court room through the use of screens and the giving of evidence in the presence of a support person of the complainant’s choice. These alternative arrangements must be utilised unless the complainant is aware of their right to give evidence in this way but wishes, and is able, to give evidence in the courtroom and the prosecution makes an application for the alternative arrangements not to be utilised. The section deems any place outside the courtroom where a complainant gives evidence via an alternative arrangement to be part of the courtroom;
- provision for greater protection from ‘improper questioning’ of witnesses who are children or persons with a cognitive impairment. An improper question is a question that is confusing or misleading, is phrased in inappropriate language, is annoying, harassing, intimidating, offensive, oppressive or unduly repetitive, whether because of its content, or the manner in which it is structured or sequenced, or the tone in which it is put, having regard to matters such as any relevant condition of the witness (including their age, cultural background, personality, education and level of understanding) and any cognitive impairment that the witness is, or appears to be, subject to. Such questions must be disallowed by the court or the complainant must be told that they do not have to answer the question;
- creation of a presumption in favour of pre-recording the evidence of a child or a person with a cognitive impairment who is a complainant in a sexual offence case. The section requires that such evidence be recorded at a special The time and place at which a court or tribunal hears the parties argue their case and makes a decision. within 21 days of the accused being committed to stand trial. This time-limit may be extended by the court in limited circumstances. The accused and their legal representative must be present in the courtroom at the special hearing. Evidence recorded at the special hearing must be video recorded and presented to the court and the A panel of people selected from the general public to decide whether an accused in a criminal case is guilty or not guilty, or to decide questions of fact and the amount to be awarded as damages in civil cases. in the form of that recording. The court may direct that the complainant give direct testimony before the jury where the prosecution makes an application for this to occur and where the court is satisfied that the complainant is aware of their right to utilise the special procedure and wishes (and is able) to, give direct testimony;
- provision governing the use of the pre-recorded evidence. Evidence is to be treated as if it were given through direct testimony and that it may be admitted in subsequent proceedings such as a retrial, appeal or in proceedings for other charges arising out of the same circumstances. The section provides that all or any part of the recorded evidence may be ruled Something that is not allowed as evidence in a court hearing. For example, the fact that someone has been convicted of theft in the past is inadmissible to show that they stole something this time. and that, in such instance, the court may order that the recorded evidence be edited accordingly;
- provision that the complainant will not have to attend the trial unless required to do so by the court for the purposes of giving further evidence. Any such requirement is limited to circumstances where the accused is seeking leave on the basis of a matter of which they could not reasonably have been aware at the time the evidence was recorded, or where the giving of further evidence by the complainant is in the interests of justice.
Criminal justice system
The criminal justice system often has difficulty in dealing with people who have disabilities, particularly where those disabilities involve some form of cognitive impairment. Despite this there is a range of actual and implied rights within the criminal justice system that relate to people with a disability. These include:
- the right to legal advice, assistance and representation for victims, witnesses, Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it. offenders, offenders and prison inmates at all levels of the criminal justice system;
- the right to treatment at all levels within the criminal justice system (including by police, courts, corrections) that is free from discrimination on the basis of disability (EO Act; DD Act) and that meets the specific disability related needs of the person;
- the right to report a crime and to have such assistance as is necessary to do so (Police Operating Procedures, ITPs);
- the right to full consideration of their disability/cognitive impairment in court or A body set up to hear and decide disputes, usually with less formality and less strict rules of evidence than in a court proceeding. proceedings including appropriate legal and practical advice, assistance and representation in such proceedings (EO Act; DD Act);
- upon their alleged criminal behaviour (CMIUT Act, diversionary programs);
- upon their sentencing were found guilty of a crime (Sentencing Act 1991 (Vic) (‘Sentencing Act’), CMIUT Act; MH Act; Disability Act);
- in the nature of their correctional placement, services, employment and education (Sentencing Act; Disability Act; MH Act); and
- equality of opportunity with other prisoners who do not have a disability (EO Act; DD Act).
Assessment and Referral Court List
The Assessment and Referral Court List (ARC List) at Melbourne Magistrates’ Court provides appropriate treatment of people who have mental health issue and/or cognitive impairment. For more information about the ARC List and disability issues in the criminal justice system, see Chapter 8.3: Disability and criminal justice.
Correctional facilities and programs
Correctional facilities and programs are subject to the provisions of the EO Act and the DD Act relating to the provision of services. Also, the Corrections Act 1986 (Vic) (s 47(1)) states the rights of prisoners:
g If intellectually disabled or mentally ill, the right to have reasonable access within the prison or, with the governor’s approval, outside a prison to such special care and treatment as the medical officer considers necessary or desirable in the circumstances.
For more information, see Chapter 3.8: Imprisonment, supervision and prisoner rights.
People with a disability may have the right to a disability support pension if their ‘impairment’ is permanent and is measured at 20 points or more under the impairment tables set out in the Social Money or property promised to be handed over as a guarantee for repayment of a loan, or as a guarantee that a defendant will meet their bail conditions. Act 1991 (Cth) (‘SS Act’) (ss 7, 94, 95).
People who have a temporary impairment or sickness may be eligible for sickness allowance under the SS Act (ss 7, 666).
Carers of people with disabilities may also be eligible for allowances and benefits. For more information, see ‘Allowances and payments’ in Chapter 5.1: Dealing with social security.
Under the NDIS, disability services are provided to eligible people. The NDIS is administered by the National Disability Insurance Agency and operates separately from Centrelink, which continues to provide the disability support pension to eligible people.
A person with a disability is entitled to handle their own financial affairs unless an (1) (wills) Someone who takes legal responsibility for the possessions of a person who has died without making a will, or who is still alive but cannot manage their own possessions. For example, an administrator may be appointed to manage the money, house or other possessions of a person who has a severe mental disability. (2) (companies) A manager appointed by the directors of a company that is in financial difficulty. This may give creditors a better chance of getting their money back because the company can keep trading under supervised management instead of being wound up. has been appointed under the GA Act (see Chapter 8.6: Guardianship and medical treatment) or unless a Legally binding or effective. Written authority given to a person to make decisions on behalf of another person. The authority remains valid even when that person is no longer mentally competent. The power can be restricted to personal or financial matters. See also power of attorney; supportive attorney.A formal, written legal document in which one person gives another person power to make decisions or take actions for them in certain situations. See also enduring power; supportive attorney. has been activated due to the person losing capacity. The Guardianship List of VCAT can revoke a legally made Enduring Power of Attorney if it considers this appropriate. Even where an administrator has been appointed, the GA Act states that in acting in the best interests of the A person whose financial affairs are controlled by an administrator because they are not capable of managing their own affairs due to disability, mental illness, injury or other incapacitating circumstances. State Trustees Limited is the administrator , an administrator should support the person with the disability to manage their own finances and develop their own financial skills (s 49).
State Trustees, the administrator for many people with disabilities, has a Financial Independence Program. The program can assist State Trustees’s clients to:
- be more involved in managing income;
- receive advice and assistance about budgeting;
- work towards gaining more independence; and
- initiate a review of their administration order.
For more information contact State Trustees (see ‘Contacts’ at the end of this chapter). There are also other alternatives, including family members and other independent organisations that may be appointed administrators.
Financial counsellors may be useful in assisting a person with a disability to plan and manage their own finances (to find a financial counsellor, see Chapter 5.4: Financial counselling services).
There is a general right to privacy of personal information under both Commonwealth and state laws. The Health Records Act 2001 (Vic), Information Privacy Act 2000 (Vic) and the Privacy Act 1988 (Cth) allow a person to take action if their privacy is breached (see Chapter 12.4: Privacy and your rights).
However, some of the laws relating to services for people with disabilities contain exceptions to the laws of The principle that private information told to a person must not be revealed to others. Some professionals must keep information confidential, for example doctor–patient and lawyer–client relationships., where information is needed for the care of a patient, or required by government departments or other authorities (see Chapter 8.4: Mental illness, and ‘Privacy and confidentiality’ in Chapter 8.5: Intellectual disability and the law). For general information, see ‘Privacy and confidentiality’ in Chapter 9.1: Health and the law.
Duty of care and negligence
Under (1) The system of law developed by the English courts through precedent and adopted in ‘common law countries’ in the British Commonwealth (as opposed to Roman law (civil law) or ecclesiastical law). (2) The case law made by judges in that system. (3) Case law that is not part of the law of equity. (4) Historically, the rules of law common to all people in England, as distinct from local or customary laws. principles of An act that breaches a duty to take reasonable care and results in loss or damage to another person. See also tort. and the Wrongs Act 1958 (Vic), as amended by the Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic), care providers have a An obligation to take reasonable care to avoid harming other people or their property. Breach of a duty of care that causes damage or loss to another may give rise to an action in tort. to prevent service users and others from foreseeable injury. Employees may be liable to penalties under the Crimes Act (Vic) if found to be negligent.
Some care providers may feel concern about the degree of risk involved if service users who have a disability are allowed to make decisions for themselves. It is important to remember that duty of care and the right to a lifestyle that is as close as possible to ‘normal’ are not contradictory. Indeed, the Victorian Government’s State Disability Plan specifically states that people who have a disability must be given the same opportunities and choices, and be included in the community in the same way, as people who do not have a disability. The Victorian Charter of Human Rights and Responsibilities further reinforces this.
The task of supporting people who have certain vulnerabilities – but who also have the same rights as anyone else to take risks and make mistakes – is a complex one that frequently entails difficult decisions. There are many different views of what is ‘reasonable’ and ‘unreasonable’, but current disability legislation is based on the principle that it is ‘unreasonable to unnecessarily restrict a person’s right to independence’. People who have a disability are entitled to the dignity of risk; where appropriate risk management policies and procedures are put in place and common sense is applied in their implementation, this is realisable. For more information, see Chapter 8.5: Intellectual disability and the law.