Disability Discrimination (Tas)

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In Tasmania, it is unlawful to discriminate against a person on the basis of various attributes, including race, gender, disability and political opinion. The Anti-Discrimination Act 1998 sets out how discrimination is defined and what steps can be taken when a person alleged they have been discriminated against. This article deals with disability discrimination in Tasmania.

What is disability?

The Act defines disability as including the following.

• Physical limitations and disfigurements;
• Sensory impairments such as sight and hearing loss;
• Psychological and psychiatric illnesses;
• learning and intellectual impairments;
• neurological conditions;
• injury; and
• illness.

What is disability discrimination?

Disability discrimination may be direct or indirect.

Direct discrimination is when a person treats another person less favourably because of attribute – for example, declining to hire a person because they are a wheelchair user. Direct discrimination may occur even where the disability is not the main or the only reason for the conduct. It is irrelevant whether the person discriminating has a particular motive or view the treatment as less favourable.

Indirect discrimination is when a person imposes a condition, requirement or practice that is unreasonable and disadvantages members of a group – for example, providing a workplace that can only be accessed by stairs. Indirect discrimination can occur regardless of whether the discriminator realises that the condition, practice or requirement disadvantages the group.

Exceptions to disability discrimination

The Act sets out a number of exceptions to the prohibition on disability discrimination. These are situations where it is not unlawful to treat a person with a disability differently to another person.

These exceptions are as follows.

Sporting activities for people with disabilities

In sporting activities for disabled people, a person may be denied the opportunity to participate if they cannot reasonably do so.

Insurance or superannuation

In the provision of insurance or superannuation, a person may be

Employment

In employment, where a person could not perform the inherent requirements of the job because of their disability, or where it would cause unjustifiable hardship to provide the facilities or services that would make it possible for the person to perform the job.

It is also permissible to discriminate where the employment involves a performance or model for a work of art where a disabled person is required for reasons of authenticity; and where services are being provided to persons with a particular disability and this can best be done by a person with the same disability.

Education

A person may discriminate on the basis of disability in relation to the provision of special education facilities for persons with disability.

Infectious diseases

A person may discriminate against a person who has an infectious disease where this is necessary in the interests of public health.

Access to places and good and services

It is permissible to discriminate in access to public places if providing disabled access would cause unjustifiable hardship. It is also permissible to discriminate in the provision of goods and services, if non-discrimination would cause unjustifiable hardship.

Complaints

A complaint about disability discrimination can be made to Equal Opportunity Tasmania.  A complaint will be investigated by the Anti-Discrimination Commissioner, who may reject the complaint, or refer it for conciliation or for an inquiry by the Civil and Administrative Tribunal (TASCAT).

Matters that are referred to the Tribunal will proceed to a hearing, or referred to conciliation, depending on the wishes of the parties.

At the hearing, the Tribunal will hear evidence from the parties and their witnesses and consider any documents that the parties rely on. If the complaint of discrimination is proved, the Tribunal can make one or more of a number of orders to remedy the situation. These include orders that the respondent stop the discriminatory conduct, pay compensation to the complainant, pay a fine, reinstate the complainant to their employment, or apologise.

Appeals

A party may appeal against a decision of the Tribunal to the Tasmanian Supreme Court. The Supreme Court can affirm, vary, or revoke an order made by the Tribunal. It can also remit the matter back to the Tribunal for reconsideration where appropriate.

Federal vs state law

Disability discrimination is also prohibited under the federal Disability Discrimination Act, which Tasmanians can rely on in some circumstances. Complaints under the federal legislation are made to the Commonwealth Human Rights Commission.

The state and federal anti-discrimination schemes overlap and which Commission a complaint should be made to depends on where the alleged discrimination occurred. It is always advisable to seek specialist legal advice before initiating a disability discrimination claim in order to establish the best forum for the complaint as well as the likely outcome.

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