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Disability Discrimination

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

Disability discrimination occurs when a person who has a disability or is perceived to have a disability is treated less favourably than a person without a disability in the same circumstances. Disability discrimination can be direct or indirect. At a federal level, Disability discrimination is governed by the Disability Discrimination Act 1992.

What is the scope of the Disability Discrimination Act?

The Disability Discrimination Act seeks to ensure that persons with disabilities have the same rights as everyone else. It prohibits disability discrimination in the areas of work, education, accommodation, access to premises, clubs and sport, the provision of goods and services, facilities and land and in existing Commonwealth laws and programs.

Direct discrimination

Section 5 of the act provides that a person discriminates on the ground of disability if the person treats another person with a disability less favourably than they would treat a person without a disability in circumstances that are not materially different.

A person also discriminates if the person does not make reasonable adjustments for the person and the failure to make reasonable adjustment means that the person is treated less favourably than a person without a disability in circumstances that are not materially different.

Indirect discrimination

Section 6 of the act provides that a person discriminates against a person on the ground of disability if they require the person to comply with a requirement or condition which the person does not or cannot comply with because of their disability and this is likely to have the effect of disadvantaging the person with the disability.

Section 6 also states that a person discriminates against a person on the ground of disability if they require the person to comply with a requirement or condition which the person cannot comply with unless reasonable adjustments are made to accommodate their disability and these adjustments are not made and this has the effect of disadvantaging the person with the disability.

Carers, assistants, assistance animals and disability aids

Section 8 of the act provides that the provisions of the act concerning disability discrimination also apply to discrimination on the basis of having a carer, assistant, assistance animal, or disability aid. This includes carers, interpreters, readers, dogs and other animals trained to assist persons with disabilities. Disability aid includes any equipment used by the person to alleviate the effects of the disability.

Disability discrimination at work

Section 15 of the act provides that it is unlawful for an employer to discriminate against a person on the basis of their disability in deciding who should be offered work or in the terms or conditions on which work is offered. It is also unlawful for an employer to discriminate against an employee on the basis of their disability:

  • in the terms or conditions that the employer affords the employee; or
  • by denying the employee access, or limiting their access, to opportunities for promotion, transfer or training, or to other benefits associated with employment; or
  • by dismissing the employee; or
  • by subjecting the employee to any other detriment.

However, it is important to note that these provisions do not apply when one is employing other persons to perform domestic duties in one’s own home.

Inherent requirements

It is not unlawful to discriminate against a person on the basis of their disability if the discrimination relates to particular work and the person, because of the disability, will be unable to carry out the inherent requirement of the particular work even if reasonable adjustments were made to accommodate their needs.

When assessing whether a person would be able to carry out the inherent requirements of particular work, the following is to be taken into account:

  • the person’s training, qualifications and experience relevant to the particular work;
  • if the person already works for the employer, their performance in working for the employer;
  • any other factor that it is reasonable to take into account.

Unjustifiable hardship

Section 21B permits a person to discriminate against another person on the basis of their disability if avoiding the discrimination would result in unjustifiable hardship to the first person.

Other areas where disability discrimination is prohibited

The act also prohibits disability discrimination in the areas of education, access to premises, accommodation, goods, services, facilities, and land, sport and commonwealth.

Offences

The act establishes several criminal offences with maximum penalties of imprisonment. These include victimising a person because they have been involved in making a complaint to the Human Rights Commission under the act (section 42), which carries a maximum penalty of imprisonment for six months.

It is also a criminal offence to incite unlawful behaviour under the act (Section 43), with a maximum penalty of imprisonment for six months. It is an offence to publish or display advertising that suggests an intention to behave in a way that is unlawful under the act (section 44), with a maximum penalty of a fine of 10 penalty units.

Complaints

If you experience disability discrimination, you may want to try to resolve the situation directly with the person concerned.

Australian Human Rights Commission

If you are not able to resolve the situation, you can make a complaint to the Australian Human Rights Commission. You can do this yourself or get a solicitor of trade union to make it on your behalf. The complaint must be in writing and must provide details of what happened, where and when it happened and who was involved.

The Commission will generally approach the respondent, give them a copy of your complaint and ask for a response. It will try to resolve a situation in a way that is acceptable to the parties. If it is appropriate, it may invite parties to take part in conciliation.

If the situation cannot be resolved or if the complaint is discontinued, you can take the complaint to the Federal Court or the Federal Circuit Court.

State or territory complaints

If you have suffered discrimination, you may also be entitled to make a complaint under the state or territory laws of the jurisdiction you live in. It’s important to get legal advice to ensure you lodge your complaint in the most appropriate jurisdiction. If you make a complaint under state or territory law, you will not be able to then make a complaint to the federal Commissioner.

If you require legal advice or representation in a discrimination matter or in any other legal matter, please contact Go To Court Lawyers.

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