Last Updated 17 August 2021
The object of the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act) is to ensure that, as far as practicable, persons with disabilities have the same rights to equality before the law as the rest of the community. It seeks to 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 by authorising the formulation of disability standards in relation to employment, education, accommodation and public transportation for persons with disabilities (s 31 Disability Discrimination Act).
Section 113 of the Disability Discrimination Act establishes a Disability Discrimination Commissioner who is a part of the Australian Human Rights Commission (AHRC).
What is disability discrimination?
Disability discrimination occurs when, because of the disability, the discriminator treats or proposes to treat a person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different. It also occurs where a person (the discriminator) discriminates against another person on the ground of a disability of the person and:
- the discriminator does not make, or proposes not to make, reasonable adjustments for the person
- the failure to make the reasonable adjustments means the person is treated less favourably (because of the disability) than a person without the disability would be treated in circumstances that are not materially different (s 5 Disability Discrimination Act).
Section 6 of the Disability Discrimination Act also makes indirect discrimination on the basis of disability unlawful. Indirect discrimination occurs when a person discriminates against another person on the ground of a disability if:
- the discriminator requires, or proposes to require, a person to comply with a requirement or condition
- because of the disability, a person does not or cannot comply with the requirement or condition with or without reasonable adjustments
- the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
Discrimination can also occur when a person is treated less favourably because the person is associated with a person with disability, or because the person with the disability has a carer, assistant, assistance animal and disability aid (ss 7–8 Disability Discrimination Act).
Reasons for disability discrimination
Section 10 of the Disability Discrimination Act provides that, when an act is done for two or more reasons, and one of the reasons is a person’s disability, then it is not necessary to show that discriminatory reason is the dominant or substantial reason for the act of discrimination.
Areas of disability discrimination
The Disability Discrimination Act makes it unlawful to discriminate on the basis of disability in the following areas:
- employment (s 15)
- commission agents (s 16)
- contract workers (s 17)
- partnerships (s 18)
- qualifying bodies (s 19)
- registered organisations under s 20 of the Fair Work Act (Registered Organisations) 2009 (Cth)
- employment agencies (s 21)
- education (s 22)
- access to premises (s 23)
- goods, services and facilities (s 24)
- accommodation (s 25)
- land (s 26)
- clubs and incorporated associations (s 27)
- sport (s 28)
- administration of Commonwealth laws and programs (s 29)
- requests for information (s 30).
It is unlawful to harass a person on the basis of their disability in the areas of employment, education and the provision of goods and services (ss 35–39 Disability Discrimination Act).
Disability harassment is not as well recognised within the community as sexual harassment and ‘harassment’ is not defined by the Disability Discrimination Act. It is possible that, in many occasions, harassment will be capable of complaint as discrimination, but harassment and discrimination are intended to operate independently under the Disability Discrimination Act. It is likely that a court would find that disability harassment was unwelcome or offensive conduct based on disability, whether actual or assumed.
The Disability Discrimination Act allows numerous exemptions, including special measures designed to ensure that persons with a disability have access to equal opportunities, have special needs met in relation to employment, education, accommodation, clubs or sport, provision of goods, services, facilities or land, the availability of facilities, the administration of Commonwealth laws and programs or the capacity to live independently (s 45 Disability Discrimination Act). Exemptions are also available for discrimination in the areas of superannuation and insurance.
The exemptions for superannuation and insurance mean that discrimination on the basis of disability is allowed in certain areas, but only if the discrimination is based on reasonable, actuarial or statistical data. When there is no such data, the discrimination must be reasonable in regard to other relevant factors (s 46 Disability Discrimination Act).
There are further exemptions for acts done under statutory authority. These exemptions include acts done to control infectious diseases, migration, combat duties and peacekeeping duties by the Defence Force and the Australian Federal Police, and acts done in the provision of telecommunications, in the payment of certain pensions and allowances, as well as acts done by charities (ss 48–54 Disability Discrimination Act).
In addition, pursuant to s 55 of the Disability Discrimination Act, the AHRC can grant applications for an exemption subject to terms and conditions specified by the AHRC for a specified period not in excess of five years.
It is an offence to victimise someone who has made or is making a complaint, or who has in some way been involved in proceedings or given information, or otherwise been involved in discrimination matters referred to in the legislation (s 42 Disability Discrimination Act). It is also an offence to incite another person to commit acts or offences that are unlawful under the legislation (s 43 Disability Discrimination Act). Both offences are punishable by a term of imprisonment of six months.
Pursuant to s 44 of the Disability Discrimination Act, it is an offence to publish or display advertisements indicating an intention by a person to do an act that is unlawful under the Act, and it is punishable by a fine.