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Disability Discrimination (SA)

In South Australia, it is unlawful to discriminate on the basis of disability in a range of contexts including in employment, education and accommodation. Disability discrimination in South Australia is governed by the Equal Opportunity Act 1984, and complaints are dealt with by the Equal Opportunity Commission and by the South Australian Civil and Administrative Tribunal (SACAT).

State or federal law?

Disability discrimination is also prohibited under federal law. The state and federal anti-discrimination laws overlap and in some cases a complaint may be able to be made under either scheme.  

When discrimination complaints arise in the context of employment, the appropriate scheme to complain under depends on the size and nature of the employer involved. State government agencies, for example, are covered by the state laws, while commonwealth ones are regulated by the federal scheme.  Small business falls under the state laws while large companies fall under the federal scheme.

If you are unsure as to whether to make your complaint under state or federal law, seek specialist legal advice to ascertain the most appropriate forum.

What is disability?

Disability is defined in the Act as including the following:

  • physical limitations and disfigurements;
  • sensory impairments such as sight or hearing impairment;
  • psychological and psychiatric illnesses;
  • neurological conditions;
  • learning and intellectual impairments;
  • injury; and
  • illness.

What is disability discrimination?

Under section 66 of the Equal Opportunity Act, disability discrimination is defined as follows:

  • Treating a person unfavourably because of their disability;
  • Treating a person unfavourably because they do not comply with a requirement that is harder to comply with because of their disability, where the requirement is not reasonable in the circumstances;
  • Treating a person unfavourably because of a characteristic of people with their disability;
  • Failing to provide safe and proper access for person with a disability;
  • Treating a person unfavourably because they require special access or special assistance or equipment or because they use an assistance animal,
  • Treating a person less favourably because they have a relative or associate who is disabled.

When is disability discrimination unlawful?

Under South Australian law, discrimination is prohibited in work, education, accommodation, the provision of goods and services and in associations. However, the Act sets out a number of exceptions, where discrimination in not unlawful because it occurs for a valid reason.

Exceptions

The exceptions that the Act provides in relation to disability discrimination are as follows.

Remuneration

A person may be paid a different rate of wages or salary because of their disability.

Infectious diseases

Discriminatory treatment is permissible where it is one to ensure an infectious disease is not spread.

Charities

Charities may provide benefits to people with particular disabilities.

Sporting activities

A person may be excluded from a sporting activity if it requires abilities they do not have, or if the activity is specifically for persons with a particular disability.

Projects

Schemes and undertakings may be carried out for the benefit of persons with a particular disability.

Unjustifiable hardship

It is not unlawful discrimination when a person fails to provide disabled access to a place or facilities if doing so would cause unjustifiable hardship to the person (taking into account the nature of the benefit or detriment to the disabled person/s, the effect of the disability and the amount it would costs to provide access).  

Complaints

A person may complain about disability discrimination to the Equal Opportunity Commissioner. The Commissioner may investigate the complaint and refer it to conciliation where this is appropriate. If a complaint is not able to be resolved through conciliation, the commissioner may refer it to SACAT for determination.

SACAT will hear evidence from both parties and assess whether the alleged discrimination has been proven. If it is satisfied that prohibited conduct occurred, it can make a number of orders to rectify the situation. This may include an order that the respondent pay compensation to the complainant, an order that the respondent cease the discriminatory conduct, or an order that a person do certain acts to redress the loss or damage that resulted from the prohibited conduct.

Appeals

A party may appeal against a decision of the Tribunal to the Supreme Court of South Australia.  The Supreme Court may affirm, vary, quash the Tribunal’s orders. It may also add or substitute other orders that ought to have been made by the Tribunal.

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

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Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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