Disability Discrimination

The Disability Discrimination Act 1992 (Cth) deals with discrimination on the grounds of disability and makes discrimination unlawful in employment, access to premises, education, the administration of Commonwealth laws and programs, and the provision of goods, services and facilities, and many other areas of activity. It covers relatives and associates of people with disabilities, who are also protected from discrimination, and prohibits disability harassment. It allows representative class actions to be taken.

In addition, it gives the Commonwealth power to make regulations establishing legally enforceable Disability Standards in relation to employment, education, accommodation and public transport.

The AHRC deals with complaints under the Disability Discrimination Act (DDA) in a way similar to that of complaints made under the Sex Discrimination Act 1984 (Cth) and the Racial Discrimination Act 1975 (Cth)  The Australian Human Rights Commission (AHRC) provides a comprehensive discussion of the Disability Discrimination Act.

Disability Standards

The DDA allows the Attorney-General to make ‘Disability Standards’.  Disability Standards clarify and further the rights and responsibilities people have under the DDA, in certain areas.

The following Commonwealth standards are currently in place:

• Disability (Access to Premises — Buildings) Standards 2010 (Cth)
• Disability Standards for Education 2005 (Cth)
• Disability Standards for Accessible Public Transport 2002 (Cth)

It is unlawful for a person to contravene a disability standard. The Human Rights Commission provides comprehensive information on Disability Standards.

What is a disability?

The definition of ‘disability’ under the DDA is broad. Disability includes temporary and permanent disabilities. Disabilities can be physical, intellectual, sensory, psychiatric, disease or illness based, a medical condition, a work related injury, and include past, present and future disabilities. It also includes “imputed” disability.

What is disability discrimination?

Disability discrimination can be, as with sex, race and age discrimination, direct or indirect. Under section 5(2) of the DDA, direct discrimination can include failure to make reasonable adjustments for a person with a disability, and failure to do so would result in less favourable treatment of that person compared with a person without a disability in those circumstances.

Indirect discrimination is defined in section 6(2) as where a person:

• requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
• because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
• the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

In effect, this provision prevents a person from setting conditions that would be impossible for a person with a disability from satisfying due to their disability.

Reasonable adjustments

Reasonable adjustments are changes made to minimise or eliminate the disadvantage experienced by a person with a disability. This could include such measures as installing a ramp in a workplace for wheelchair access, providing ergonomic chairs for people with back problems, specially designed chairs, keyboards and workstations for people with a disability that prevent use of standard equipment.

Unjustifiable hardship and other exemptions under the DDA

Numerous exemptions are allowed under the Act. This means that special measures to ensure people with a disability have their special needs met in employment, accommodation, education, etc. can be exempt. There are also exemptions in the areas of superannuation and insurance where discrimination is based on actuarial or statistical data. Exemptions also exist in relation to migration, the control of infectious diseases, combat duties, and other areas.

‘Unjustifiable hardship’ is a significant exemption under the DDA. ‘Unjustifiable hardship’ is set out in section 11 of the DDA. Section 11 of the DDA says that in considering unjustifiable hardship, all relevant circumstances of the case are to be taken into account, including:

• the nature of the benefit or detriment likely to accrue to, or be suffered by, any persons concerned; and
• the effect of the disability of a person concerned; and
• the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship;
• the availability of financial and other assistance to the first person; and
• any relevant action plans given to the Commission under section 64.

Other exemptions include annuities, insurance and superannuation under section 46(1)  For example, a person who was HIV positive was denied an insurance policy on the grounds that the insurance policy excluded ‘all claims made on the basis of the condition of HIV/AIDS’. This discrimination would be lawful if the insurance company could show that they based that discrimination on actuarial or statistical data and other relevant factors (s46(1)(f)).

Discrimination is also permissible in connection with employment, engagement or appointment in the defence force where it involves combat-related duties or peacekeeping services (s53(1)).

Compliance with a prescribed law is also an exemption category, although the prescribed law will be interpreted narrowly by courts to limit the effect of this exemption (s47(2)).

The final exemption is that of special measures. Special measures refer to measures implemented in an attempt to accommodate a person with a disability. It is necessary for special measures to be both ‘reasonably intended’ to achieve one of the designated purposes of the measure and that its discriminatory effect is ‘necessary for implementing the measure’.

Making a Complaint

See AHRC Complaint Process.