The Protection of Rights

People with a disability have many of the same rights as everyone else in our society. They can use the same legal and non-legal remedies if those rights are infringed. They (or their representatives) can take action in the usual way to protect their rights (for example, for privacy, sexual relationships, and marriage). They can also use the provisions of anti-discrimination laws to enforce their rights to housing, education, and employment. However, there are differences in their legal status, and the means by which they access legal remedies or other forms of advocacy to have their issues heard. For example, they are often not tenants entitled to exclusive possession of premises, but licensees, which limits their rights of exclusion.

Legal Action and Help

Where the rights of disabled people have been infringed, court action can be commenced to enforce them. Complaints can also be lodged with the Australian Human Rights Commissioner or the Tasmanian Anti-Discrimination Commissioner. Usually, another person referred to as a ‘next friend’ acts on their behalf during the court proceedings. This would normally be a relative or friend of the person with a disability. Where court proceedings are involved, it is important to choose a solicitor who is familiar with the area of intellectual disability.

Legal aid may be available to intellectually disabled people in the same way as to other people. They may be eligible for assistance from the Tasmanian Legal Aid depending on the nature of the legal matter and whether the person meets other eligibility criteria. Community legal centres have a particular interest in the legal problems of intellectually disabled people and provide advice and referral.

Anti-Discrimination Law

Anti-discrimination law aims to ensure that all people have an equal opportunity to get the things in life they need — a place to live, a job, health care, and a public education. Equal opportunity will often involve positive discrimination, which is a means of helping to level the playing field, and ensure equal opportunity through enabling people who are identified in legislation as being prone to discrimination. This includes intellectually disabled people.

Anti-discrimination law does not give a person with an intellectual disability (or anyone else) any special rights over other people. Rather, it tries to ensure that each person will have equal access to these things, and it makes it unlawful to discriminate by providing less favourable treatment because of disability.

Commonwealth legislation

The Commonwealth Government has enacted legislation dealing with discrimination generally. The Australian Human Rights Commission Act 1986 (Cth), which was previously the Human Rights and Equal Opportunity Commission Act 1986 (Cth), and the Disability Discrimination Act 1992. These Acts are also discussed in ‘Discrimination’.

Tasmanian legislation

The Anti-Discrimination Act 1998 and the Disability Services Act 2011 are central to the protection of the rights of intellectually disabled people in Tasmania. Sections 15 and 16 of the Anti-Discrimination Act prohibit indirect discrimination and discrimination on the ground of impairment. Persons who are employed by the State Government of Tasmania are covered by the Tasmanian State Service Act 2000.

The Disability Services Act covers the provision of funding for specialist disability services, and for the inspection and regulation of these services. This is particularly important in terms of discrimination, because it goes to maintaining standards of care and services for a vulnerable section of the community. ‘Specialist disability services’ covers accommodation all the way through to education, training, recreation, therapy, transport. These are many of the services provided to people with disabilities. The Act sets out the principles and standards that are to govern both the administration of the Act, and the assessment of specialist disability services providers. This includes respect for people with disabilities, working toward their best interests, and working toward the opportunity for full and effective participation and inclusion in society.