Last updated 15 February 2019
Discrimination can be either direct or indirect. Direct discrimination occurs when a person with a disability is treated less favourably than a person without a disability would be treated under the same circumstances. Under s 11 of the Anti-Discrimination Act 1991 (Qld) (Anti-Discrimination Act) and s 6 of the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act), indirect discrimination occurs when a person is required to comply with an unreasonable condition that they do not or are not able to comply with because of their disability, and which is likely to have a greater effect on persons with a disability.
These anti-discrimination laws contain some exemptions that make what would otherwise be a discriminatory practice acceptable under certain conditions. For example, it is not unlawful to discriminate if a person with a disability requires special services or facilities (e.g. a person’s transport from one point to another), and it would impose unjustifiable hardship to provide these. In considering unjustifiable hardship, all the relevant circumstances of the case are taken into account, including:
- the nature of the special services or facilities
- the cost of supplying the special services or facilities
- the number of people who would benefit or be disadvantaged
- the financial circumstances of the person or organisation who is being requested to provide the special services or facilities
- the nature of any benefit or detriment to all people concerned.
Making a complaint
People who believe they have been discriminated against can make a complaint to the Anti-Discrimination Commission Queensland (ADCQ) or the Australian Human Rights Commission (AHRC). These organisations can help people to decide whether it is better to make a complaint under the federal or the state anti-discrimination laws.
Process of making a complaint
The Disability Discrimination Act confers on the AHRC the function to review complaints through a process of conciliation.
The ADCQ administers the Anti-Discrimination Act.
Complaints must be in writing. If anti-discrimination laws apply, the complaint will be investigated, and attempts will be made to conciliate the complaint.
Complaints made pursuant to the Anti-Discrimination Act through ADCQ
If the parties secure an agreement, this is put into writing and filed with the Queensland Civil and Administrative Tribunal (QCAT).
If a resolution is not reached through conciliation, the person has the option of pursuing the matter in QCAT.
Complaints made pursuant to the Anti-Discrimination Act through AHRC
If the parties do not secure an agreement, the person may proceed to the Federal Court of Australia.
For a full discussion on both the law and procedure for making a complaint about discrimination see the chapter on Discrimination and Human Rights.