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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Disability Discrimination


The Disability Discrimination Act 1992 makes it unlawful to discriminate against someone on the basis of their disability in many facets of life, including employment, education, government services, housing, sport and access to facilities and services.

Definition

Disability under the Act is a current, assumed, past or future impairment. It means:

  • total or partial loss of bodily or mental functions;
  • total or partial loss of a body part;
  • the presence of organisms in the body causing disease or illness;
  • the presence of organisms in the body that can cause disease or illness;
  • malfunction, malformation or disfigurement of part of the body;
  • a learning disorder or malfunction;
  • a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

Direct and indirect discrimination

Discrimination can be direct or indirect. Direct discrimination occurs when a person treats or aims to treat another person with a disability less favourably because of the disability than they would someone without the disability in circumstances that are not materially different. Direct discrimination also occurs when a person does not make, or proposes not to make, reasonable adjustments for a person with a disability, and without those reasonable adjustments being made, the person with a disability is treated less favourably than someone without the disability in circumstances that are not materially different.

Indirect discrimination occurs when a person requires or proposes to require a person with a disability to comply with a requirement or condition, and the person with a disability cannot comply because of their disability, and this disadvantages them. Indirect discrimination also occurs when a person with a disability could comply if reasonable adjustments were made, but the other person does not make them or proposes not to make them.

Under the Act it is also unlawful to discriminate against a person because an  “associate” in their lives, such as their spouse, relative or carer has a disability; or because the person has a carer, assistant, assistance animal or disability aid.

Unjustifiable hardship

If avoiding a discrimination would impose an “unjustifiable hardship” on a person, discrimination is not unlawful. The burden is on the person claiming unjustifiable hardship to prove the claim. When determining whether hardship would be an unjustifiable hardship, all circumstances must be taken into account, including

  • the nature of the benefit or detriment likely;
  • the effect of the disability;
  • the financial circumstances and the cost of the adjustment;
  • the availability of financial and other assistance to the person with a disability.

Employment

It is unlawful for an employer to discriminate on the basis of a person’s disability in recruiting or in the terms or conditions of employment. An employer also must not deny or limit access to promotion, transfer or training, or sack an employee, because of their disability. Discrimination may not be unlawful if it relates to particular work, and because of the disability, the person cannot perform the inherent requirements of the work, even if reasonable adjustments were made. Factors to consider in deciding whether a person with a disability could perform the work include the person’s training, qualifications and experience, and the person’s work performance if they already work for the employer.

Education

An educational institution must not discriminate against a person on the basis of their disability by refusing or failing to accept a person’s application for admission as a student, or in the terms of admission. It also must not discriminate against a student on the basis of their disability by:

  • denying or limiting their access to any benefit provided by the institution;
  • expelling them;
  • subjecting them to any other detriment.

It is also unlawful for an education provider to develop or accredit training with content that will either exclude the person from participation or subject them to any other detriment.

Access to premises

It is unlawful to discriminate against a person on the basis of their disability:

  • by refusing them access to, or the use of, premises available to the public;
  • in the terms or conditions, or means, of access to premises available to the public;
  • by refusing to allow them to use facilities in a premises available to the public;
  • in the terms or conditions of access to premises available to the public;
  • requiring them to leave those premises or stop using its facilities.

Sport

A person must not be excluded from participation in sport on the basis of their disability. It is not discrimination, however, to exclude someone from sport because they cannot reasonably perform the actions needed, or the selection process is reasonable based on skills and abilities relevant to the sport, or the activity is conducted only for people who have a particular disability.

Exemptions

The Act provides for certain circumstances where it is not unlawful to discriminate on the basis of a person’s disability.

A person is permitted under the Act to take “special measures” to ensure people with a disability have equal opportunities with other people. This can include providing goods, access to facilities, services or opportunities; and grants, benefits or programs; to meet special needs in areas such as employment, education, sport, and living independently.

Discrimination may also not be unlawful where:

  • it relates to terms or conditions for superannuation or policies for insurance;
  • the disability is an infection disease and discrimination is needed to protect the public from it;
  • the rules of registered charity confer benefits to people who have a disability or a particular disability;
  • it relates to government pensions and allowances;
  • it relates to migration;
  • it relates to combat duties or peacekeeping services;
  • the person with a disability has an assistance animal;
  • the Australian Human Rights Commission has granted an exemption.

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